    [Senate Hearing 115-545, Part 1]
    [From the U.S. Government Publishing Office]

                                              S. Hrg. 115-545, Part 1 of 2

                          CONFIRMATION HEARING ON THE
                     NOMINATION OF HON. BRETT M. KAVANAUGH
                       TO BE AN ASSOCIATE JUSTICE OF THE
                       SUPREME COURT OF THE UNITED STATES

    =======================================================================

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                       SEPTEMBER 4, 5, 6, 7, and 27, 2018

                                   __________

                               Serial No. J-115-61

                                   __________

                                  PART 1 OF 2

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                          U.S. GOVERNMENT PUBLISHING OFFICE
    32-765 PDF                      WASHINGTON : 2020

    --------------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                      CHARLES E. GRASSLEY, Iowa, Chairman
    ORRIN G. HATCH, Utah                 DIANNE FEINSTEIN, California,
    LINDSEY O. GRAHAM, South Carolina        Ranking Member
    JOHN CORNYN, Texas                   PATRICK J. LEAHY, Vermont
    MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
    TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
    BEN SASSE, Nebraska                  AMY KLOBUCHAR, Minnesota
    JEFF FLAKE, Arizona                  CHRISTOPHER A. COONS, Delaware
    MIKE CRAPO, Idaho                    RICHARD BLUMENTHAL, Connecticut
    THOM TILLIS, North Carolina          MAZIE K. HIRONO, Hawaii
    JOHN KENNEDY, Louisiana              CORY A. BOOKER, New Jersey
                                         KAMALA D. HARRIS, California
                Kolan L. Davis, Chief Counsel and Staff Director
           Jennifer Duck, Democratic Chief Counsel and Staff Director

                               C O N T E N T S

                                  ----------

    September 4, 9:35 a.m.; September 5, 9:35 a.m.; September 6, 9:33 a.m.;
           September 7, 9:30 a.m.; and September 27, 2018, 10:05 a.m.

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Blumenthal, Hon. Richard, a U.S. Senator from the State of
      Connecticut....................................................    72
        prepared statement...........................................   939
    Booker, Hon. Cory A., a U.S. Senator from the State of New Jersey    86
    Coons, Hon. Christopher A., a U.S. Senator from the State of
      Delaware.......................................................    66
        prepared statement...........................................   943
    Cornyn, Hon. John, a U.S. Senator from the State of Texas........    36
    Crapo, Hon. Mike, a U.S. Senator from the State of Idaho.........    83
    Cruz, Hon. Ted, a U.S. Senator from the State of Texas...........    51
    Durbin, Hon. Richard J., a U.S. Senator from the State of
      Illinois.......................................................    39
        prepared statement...........................................   948
    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California:
        September 4, 2018, opening statement.........................    10
        September 4, 2018, prepared statement........................   952
        September 7, 2018, opening statement.........................   516
        September 27, 2018, opening statement........................   630
    Flake, Hon. Jeff, a U.S. Senator from the State of Arizona.......    70
    Graham, Hon. Lindsey O., a U.S. Senator from the State of South
      Carolina.......................................................    99
    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
        September 4, 2018, opening statement.........................     1
        September 4, 2018, prepared statement........................   955
        September 5, 2018, opening statement.........................   115
        September 6, 2018, opening statement.........................   321
        September 7, 2018, opening statement.........................   515
        September 27, 2018, opening statement........................   627
    Harris, Hon. Kamala D., a U.S. Senator from the State of
      California.....................................................    95
        prepared statement...........................................   960
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    28
    Hirono, Hon. Mazie K., a U.S. Senator from the State of Hawaii...    79
        prepared statement...........................................   965
    Kennedy, Hon. John, a U.S. Senator from the State of Louisiana...    77
    Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota..    57
        prepared statement...........................................   970
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    32
        prepared statement...........................................   974
    Lee, Hon. Michael S., a U.S. Senator from the State of Utah......    43
    Tillis, Hon. Thom, a U.S. Senator from the State of North
      Carolina.......................................................    93
        prepared statement...........................................   977
    Sasse, Hon. Ben, a U.S. Senator from the State of Nebraska.......    60
    Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
      Island.........................................................    47
        prepared statement...........................................   994

                                  INTRODUCERS

    Blatt, Lisa S., Partner, Arnold & Porter, Washington, DC,
      introducing
      Hon. Brett M. Kavanaugh, Nominee to be an Associate Justice of
      the Supreme Court of the United States.........................   107
    Portman, Hon. Rob, a U.S. Senator from the State of Ohio,
      introducing Hon. Brett M. Kavanaugh, Nominee to be an Associate
      Justice of the Supreme Court of the United States..............   104
    Rice, Hon. Condoleezza, Ph.D., former U.S. Secretary of State,
      Senior Fellow at Hoover Institution, and Professor at Stanford
      University, Stanford, California, introducing Hon. Brett M.
      Kavanaugh, Nominee to be an Associate Justice of the Supreme
      Court of the United States.....................................   103

                           STATEMENTS OF THE NOMINEE

    Witness List.....................................................   734
    Kavanaugh, Hon. Brett M., Nominee to serve as an Associate
      Justice of the Supreme Court of the United States:
        September 4, 2018, statement.................................   109
        September 27, 2018, statement................................   681
        September 27, 2018, prepared statement.......................   740
        questionnaire and biographical information...................   742
        attachment: supplemental statement of net worth..............   852
        attachment: appendix 11(c)...................................   855
        attachment: appendix 12(d)...................................   881
        attachment: appendix 12(e)...................................   883
        attachment: appendix 13(b)...................................   887
        attachment: supplemental appendix 13(b)......................   905
        attachment: appendix 13(c)...................................   907
        attachment: appendix 13(f)...................................   908
        attachment: appendix 14......................................   934

                          STATEMENTS OF THE WITNESSES

    Amar, Akhil Reed, Sterling Professor of Law and Political
      Science, Yale Law School, New Haven, Connecticut...............   542
        prepared statement...........................................  1000
    Baker, Alicia Wilson, Indianapolis, Indiana......................   536
        prepared statement...........................................  1024
    Christmas, Kenneth C., Jr., Executive Vice President, Business
      and Legal Affairs, Marvista Entertainment, Los Angeles,
      California.....................................................   584
        prepared statement...........................................  1029
    Clement, Hon. Paul D., Partner, Kirkland & Ellis LLP, and former
      Solicitor General of the United States, U.S. Department of
      Justice, Washington, DC........................................   602
        prepared statement...........................................  1032
    Corbin, Jackson, Hanover, Pennsylvania...........................   577
        prepared statement...........................................  1038
    Dean, John W., former Counsel to the President, President Richard
      M. Nixon, Beverly Hills, California............................   600
        prepared statement...........................................  1041
    Eastmond, Aalayah, Parkland, Florida.............................   572
        prepared statement...........................................  1047
    Ford, Christine Blasey, Ph.D., Professor of Psychology, Palo Alto
      University, Palo Alto, California, and Research Psychologist,
      Stanford University School of Medicine, Stanford, California...   634
        prepared statement...........................................  1052
    Garry, Louisa, Teacher, Friends Academy, Locust Valley, New York.   529
        prepared statement...........................................  1061
    Garza, Rochelle M., Managing Attorney, Garza & Garza Law,
      Brownsville, Texas.............................................   527
        prepared statement...........................................  1063
    Heinzerling, Lisa, Justice William J. Brennan, Jr., Professor of
      Law, Georgetown University Law Center, Washington, DC..........   607
        prepared statement...........................................  1070
    Ingber, Rebecca, Associate Professor of Law, Boston University
      School of Law, Boston, Massachusetts...........................   604
        prepared statement...........................................  1079
    Kramer, A.J., Federal Public Defender, Office of the Federal
      Public Defender for the District of Columbia, Washington, DC...   570
        prepared statement...........................................  1088
    Lachance, Hunter, Kennebunkport, Maine...........................   579
        prepared statement...........................................  1094
    Mahoney, Maureen E., former Deputy Solicitor General of the
      United States, U.S. Department of Justice, Washington, DC......   580
        prepared statement...........................................  1097
    Mascott, Jennifer L., former Law Clerk, and Assistant Professor
      of Law, George Mason University Antonin Scalia Law School,
      Arlington, Virginia............................................   609
        prepared statement...........................................  1102
    Mastal, Monica, Real Estate Agent, Washington, DC................   599
        prepared statement...........................................  1106
    McCloud, Luke, former Law Clerk, and Associate, Williams &
      Connolly LLP, Washington, DC...................................   526
        prepared statement...........................................  1108
    Moxley, Paul T., Chair, American Bar Association, Standing
      Committee on the Federal Judiciary, Salt Lake City, Utah.......   517
        prepared statement...........................................  1110
    Murray, Melissa, Professor of Law, New York University School of
      Law, New York, New York........................................   540
        prepared statement...........................................  1134
    Olson, Hon. Theodore B., Partner, Gibson, Dunn & Crutcher, and
      former Solicitor General of the United States, U.S. Department
      of Justice, Washington, DC.....................................   535
        prepared statement...........................................  1143
    Richmond, Hon. Cedric L., a Representative in Congress from the
      State of Louisiana, and Chairman of the Congressional Black
      Caucus, Washington, DC.........................................   532
        prepared statement...........................................  1149
    Shane, Peter M., Jacob E. Davis and Jacob E. Davis II Chair in
      Law, Ohio State University Moritz College of Law, Columbus,
      Ohio...........................................................   611
        prepared statement...........................................  1157
    Sinzdak, Colleen E. Roh, former Harvard Law School Student, and
      Senior Associate, Hogan Lovells LLP, Washington, DC............   538
        prepared statement...........................................  1167
    Smith, Melissa, Social Studies Teacher, U.S. Grant Public High
      School, Oklahoma City, Oklahoma................................   582
        prepared statement...........................................  1170
    Taibleson, Rebecca, former Law Clerk, Eastern District of
      Wisconsin, Foxpoint, Wisconsin.................................   574
        prepared statement...........................................  1178
    Tarpley, John R., Principal Evaluator, American Bar Association,
      Standing Committee on the Federal Judiciary, Nashville,
      Tennessee......................................................   518
    Weintraub, Elizabeth ``Liz,'' Advocacy Specialist, Association of
      University Centers on Disabilities, Silver Spring, Maryland....   531
        prepared statement...........................................  1181
    White, Adam J., Professor and Executive Director, The C. Boyden
      Gray Center for the Study of the Administrative State, George
      Mason University Antonin Scalia Law School, Arlington, Virginia   606
        prepared statement...........................................  1187

                                   QUESTIONS

    Questions submitted to John W. Dean by Senator Grassley..........  1318
    Questions submitted to Professor Lisa Heinzerling by Senator
      Grassley.......................................................  1319
    Questions submitted to Hon. Brett M. Kavanaugh by:
        Senator Blumenthal...........................................  1205
          attachment.................................................  1213
        Follow-up questions submitted by Senator Blumenthal..........  1237
        Senator Booker...............................................  1239
        Senator Coons................................................  1257
        Senator Durbin...............................................  1270
        Senator Feinstein............................................  1290
        Senator Flake................................................  1315
        Senator Grassley.............................................  1316
        Senator Harris...............................................  1320
        Senator Hirono...............................................  1334
        Senator Klobuchar............................................  1350
        Follow-up questions submitted by Senator Klobuchar...........  1352
        Senator Leahy................................................  1357
        Senator Whitehouse...........................................  1379
    Questions submitted to A.J. Kramer by Senator Durbin.............  1288
    Questions submitted to Professor Peter M. Shane by Senator
      Whitehouse.....................................................  1393

                                    ANSWERS

    Responses of John W. Dean to questions submitted by Senator
      Grassley.......................................................  1655
    Responses of Professor Lisa Heinzerling to questions submitted by
      Senator Grassley...............................................  1656
    Responses of Hon. Brett M. Kavanaugh to questions submitted by:
        Senator Blumenthal...........................................  1565
        Senator Booker...............................................  1609
        Senator Coons................................................  1537
        Senator Durbin...............................................  1474
        Senator Feinstein............................................  1398
        Senator Flake................................................  1396
        Senator Grassley.............................................  1394
        Senator Harris...............................................  1632
        Senator Hirono...............................................  1582
        Senator Klobuchar............................................  1532
        Senator Leahy................................................  1442
        Senator Whitehouse...........................................  1503
    Responses of A.J. Kramer to questions submitted by Senator Durbin  1657
    Responses of Professor Peter M. Shane to questions submitted by
      Senator Whitehouse.............................................  1668

        LETTERS RECEIVED WITH REGARD TO THE NOMINATION OF HON. BRETT M.
    KAVANAUGH TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED
                                     STATES

    Aaronson, Russell, et al., high school friends of Judge Brett M.
      Kavanaugh, September 26, 2018..................................  2011
    Aberly, Naomi, Boston, Massachusetts, et al., business owners,
      entrepreneurs, philanthropists, and leaders....................  2239
    Abramowicz, Michael B., et al., legal scholars, August 28, 2018..  2083
    Abrams, Jamie, University of Louisville Brandeis School of Law,
      et al., law professors, letter to Hon. Susan M. Collins, a U.S.
      Senator from the State of Maine, and Hon. Lisa Murkowski, a
      U.S. Senator from the State of Alaska, August 29, 2018.........  1729
    A Critical Mass: Women Celebrating Eucharist (ACM), Oakland,
      California, et al., religious and faith-centered organizations
      and communities, August 31, 2018...............................  2270
    Action NC, Charlotte, North Carolina, et al., July 20, 2018......  1747
    ADAPT, Philadelphia, Pennsylvania, et al., national healthcare
      organizations, August 20, 2018.................................  1750
    Advocates for Youth, Washington, DC, et al., organizations in
      support of women's health, August 21, 2018.....................  2338
    Advocates for Youth, Washington, DC, et al., reproductive justice
      organizations, August 31, 2018.................................  2273
    Advocates for Youth, Washington, DC, et al., reproductive rights
      organizations, September 4, 2018...............................  1725
    Advocates for Youth, Washington, DC, et al., youth-led and youth-
      serving organizations, September 18, 2018......................  1756
    African American Ministers in Action, Washington, DC, et al.,
      faith-based, nontheist, and religious liberty organizations,
      August 27, 2018................................................  1742
    Agarwal, Amit, et al., former law clerks of Judge Kavanaugh, July
      9, 2018........................................................  1966
    Agarwal, Amit, et al., State Solicitors General, September 6,
      2018...........................................................  2290
    Ahearn, Beth, et al., attorneys practicing in the State of Maine,
      letter to Hon. Susan M. Collins, a U.S. Senator from the State
      of Maine, and Hon. Angus S. King, a U.S. Senator from the State
      of Maine, August 28, 2018......................................  2100
    Alaska Wilderness League, Washington, DC, et al., environmental
      groups, August 10, 2018........................................  1716
    Alicea, J. Joel, et al., former Harvard Law School students of
      Judge Kavanaugh, July 19, 2018.................................  1964
    Allen, Bertrand-Marc, et al., former law clerks of U.S. Supreme
      Court Justice Anthony M. Kennedy, August 2, 2018...............  1968
    Alliance for Justice, Washington, DC, September 1, 2018..........  1760
    American Association for Justice (AAJ), Washington, DC, September
      4, 2018........................................................  1762
    American Association of People with Disabilities (AAPD),
      Washington, DC, September 4, 2018, letter and attachment.......  1765
    American Association of University Women (AAUW), Washington, DC,
      August 30, 2018................................................  1776
    American Association of University Women (AAUW), Washington, DC,
      September 17, 2018.............................................  1780
    American Bar Association (ABA), Chicago, Illinois, September 27,
      2018...........................................................  1784
    American Bar Association (ABA), Standing Committee on the Federal
      Judiciary, Paul T. Moxley, Chair, Salt Lake City, Utah,
      September 28, 2018.............................................  1786
    American Center for Law & Justice (ACLJ), Washington, DC, August
      31, 2018.......................................................  1787
    American Civil Liberties Union (ACLU), Washington, DC, October 1,
      2018...........................................................  1788
    American Federation of Government Employees, AFL-CIO (AFGE),
      Washington, DC, Federal and District of Columbia workers,
      September 13, 2018.............................................  1745
    American Federation of Labor and Congress of Industrial
      Organizations (AFL-CIO), Washington, DC, September 10, 2018....  1792
    American Federation of State, County and Municipal Employees,
      AFL-CIO (AFSCME), Washington, DC, August 28, 2018..............  1794
    American Legislative Exchange Council (ALEC), Arlington, Virginia  1796
    American Network of Community Options and Resources (ANCOR),
      Alexandria, Virginia, August 3, 2018...........................  1802
    American Public Health Association (APHA), Washington, DC, July
      26, 2018.......................................................  1804
    American Public Health Association (APHA), Washington, DC,
      September 28, 2018.............................................  1805
    Americans for Financial Reform, Washington, DC, September 3, 2018  1806
    Americans United (AU), Washington, DC, September 10, 2018........  1808
    Aniskovich, Jennifer Slye, et al., women friends of Judge
      Kavanaugh since high school, September 14, 2018................  2009
    Anti-Defamation League (ADL), New York, New York, August 30, 2018  1810
    Arends, Jackie, et al., women who are former White House staff
      members, President George W. Bush administration, August 29,
      2018...........................................................  1833
    Asbestos Disease Awareness Organization (ADAO), Redondo Beach,
      California, September 3, 2018..................................  1823
    Assaf, Eugene F., et al., former Kirkland & Ellis LLP coworkers
      of Judge Kavanaugh, August 27, 2018............................  2023
    Bartolomucci, H. Christopher, et al., former lawyers of the White
      House Counsel's Office, August 28, 2018........................  1971
    Bash, Zina, et al., former women law clerks of Judge Kavanaugh,
      July 12, 2018..................................................  1973
    Batlan, Felice, Professor of Law, Chicago-Kent College of Law, et
      al., women law faculty members, October 4, 2018................  2343
    Beason, Hilary H., M.D., Alabama, et al., women physicians,
      September 20, 2018.............................................  2376
    Bennett, Robert S., Washington, DC, August 28, 2018..............  1826
    Bergdolt, Rob, et al., Yale Law School classmates of Judge
      Kavanaugh, August 27, 2018.....................................  2394
    Bergman, Allyson Abrams, et al., Holton Arms Class of 1984
      classmates of Christine Blasey Ford, Ph.D., September 17, 2018.  2001
    Bidwill, Michael J., Esq., President, Arizona Cardinals, Paradise
      Valley, Arizona, et al., classmates of Judge Kavanaugh and
      alumni from Georgetown Preparatory School, July 9, 2018........  1986
    Black Farmers and Agriculturalists Association, Inc. (BFAA),
      Memphis, Tennessee, August 15, 2018............................  1828
    Blatt, Lisa S., Partner, Arnold & Porter, Washington, DC, et al.,
      members of the Supreme Court Bar, August 27, 2018..............  2301
    B'nai B'rith International, Washington, DC, September 4, 2018....  1830
    Bond, Heidi Sacha, September 22, 2018............................  1831
    Center for Biological Diversity, Tucson, Arizona, September 1,
      2018...........................................................  1836
    Center for Law and Social Policy (CLASP), Washington, DC, August
      31, 2018.......................................................  1838
    Center for Popular Democracy, The, Brooklyn, New York, September
      4, 2018........................................................  1840
    Center for Reproductive Rights, New York, New York, August 31,
      2018, letter and report........................................  1842
    Chicago Council of Lawyers, Chicago, Illinois....................  1865
    Chin, Kari, L.C.S.W., St. Petersburg, Florida, September 10, 2018  1866
    Chu, Hon. Judy, Ph.D., a Representative in Congress from the
      State of California, and Member, Congressional Pro-Choice
      Caucus, et al., additional Members of Congress, October 2, 2018  2254
    Cicilline, Hon. David N., a Representative in Congress from the
      State of Rhode Island, et al., additional Members of Congress,
      September 13, 2018.............................................  2128
    City of West Hollywood, Hon. John J. Duran, Mayor, West
      Hollywood, California, August 14, 2018, letter and City of West
      Hollywood City Council Resolution No. 18-5095..................  1878
    Coghill, Hon. John, State Senator of Alaska, Juneau, Alaska, July
      30, 2018.......................................................  1888
    Committee for Justice, The (CFJ), Washington, DC, September 4,
      2018...........................................................  1890
    Common Cause, Washington, DC, August 31, 2018....................  1894
    Conaghan, Stephanie and Tom, et al., parents of 4th- and 5th/6th-
      grade girls' basketball team players, Parish of the Shrine of
      the Most Blessed Sacrament, Washington, DC, August 10, 2018....  1824
    Concerned Women for America Legislative Action Committee
      (CWALAC), Washington, DC, August 29, 2018......................  1898
    Congressional Black Caucus (CBC), Washington, DC, September 4,
      2018...........................................................  1900
    Congressional Hispanic Caucus, Washington, DC, September 6, 2018.  1904
    Constitutional Accountability Center (CAC), Washington, DC,
      September 13, 2018.............................................  1906
    Dargan, Gayle Connors, et al., women who attended Yale Law School
      with Judge Kavanaugh, August 30, 2018..........................  2404
    Davis, Angela J., American University, Washington College of Law,
      et al., coalition of law professors............................  2042
    Dellinger, Walter, Douglas B. Maggs Professor Emeritus, Duke
      University School of Law, et al., former attorneys in the U.S.
      Department of Justice's Office of Legal Counsel................  1959
    Doctors for America (DFA), Washington, DC, August 30, 2018.......  1916
    Dreher, Will, Bridget Fahey, and Rakim Brooks, former law clerks
      to Judge Kavanaugh, October 1, 2018............................  2413
    Earthjustice, Washington, DC, August 30, 2018....................  1918
    Electronic Privacy Information Center (EPIC), Washington, DC,
      September 4, 2018..............................................  1923
    Enzler, Monsignor John J., President and Chief Executive Officer,
      Catholic Charities of the Archdiocese of Washington, DC, August
      23, 2018.......................................................  2136
    Equality California, Los Angeles, California, September 13, 2018.  1928
    Everytown for Gun Safety Action Fund, New York, New York,
      September 5, 2018..............................................  1931
    Families USA, Washington, DC, et al., national and State
      healthcare organizations, August 14, 2018......................  1933
    Family Equality Council, New York, New York, August 31, 2018.....  1938
    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California, and Ranking Member, U.S. Senate Committee on the
      Judiciary, et al., the Democratic Members of the U.S. Senate
      Committee on the Judiciary, letter to Hon. Charles E. Grassley,
      a U.S. Senator from the State of Iowa, and Chairman of the U.S.
      Senate Committee on the Judiciary, September 18, 2018..........  2967
    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California, and Ranking Member, U.S. Senate Committee on the
      Judiciary, et al., the Democratic Members of the U.S. Senate
      Committee on the Judiciary, letter to Hon. Christopher Wray,
      Director, Federal Bureau of Investigation, and Donald F.
      McGahn, II, Counsel to the President, President Donald J.
      Trump, September 18, 2018......................................  2970
    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California, and Ranking Member, U.S. Senate Committee on the
      Judiciary, et al., the Democratic Members of the U.S. Senate
      Committee on the Judiciary, letter to U.S. President Donald J.
      Trump, September 26, 2018......................................  2975
    Feminist Majority Foundation, Arlington, Virginia, August 31,
      2018...........................................................  1946
    Feminist Majority Foundation, Arlington, Virginia, September 20,
      2018...........................................................  1957
    Ford, Russell, et al., family members of Christine Blasey Ford...  1829
    Frankel, Hon. Lois, a Representative in Congress from the State
      of Florida, and Chair, Democratic Women's Working Group, et
      al., additional Members of Congress, September 17, 2018........  2108
    Garner, Bryan A., Editor in Chief, ``Black's Law Dictionary,''
      and Distinguished Research Professor of Law, Southern Methodist
      University, Dallas, Texas, September 2, 2018...................  1975
    Goldscheid, Julie, et al., gender violence law professors and
      lawyers representing gender violence survivors, September 26,
      2018...........................................................  1977
    Graves, Lisa, September 10, 2018.................................  1996
    Haslam, Hon. Bill, Governor of Tennessee, Nashville, Tennessee,
      et al., coalition of State Governors, July 25, 2018............  1885
    Huffman, Hon. Jared, a Representative in Congress from the State
      of California, et al., additional Members of Congress,
      September 6, 2018..............................................  2122
    International Association of Chiefs of Police (IACP), Alexandria,
      Virginia, August 31, 2018......................................  2002
    International Union of Bricklayers and Allied Craftworkers (BAC),
      Washington, DC, September 21, 2018.............................  2003
    International Union, United Automobile, Aerospace and
      Agricultural Implement Workers of America (UAW), Detroit,
      Michigan, July 26, 2018........................................  2305
    Kapczynski, Amy, et al., faculty members of Yale Law School,
      September 21, 2018.............................................  2414
    Kemp, Hon. Brian P., Secretary of State of Georgia, Atlanta,
      Georgia, August 2, 2018........................................  2013
    Kemp, Paul F., Rockville, Maryland, August 24, 2018, letter and
      attachment.....................................................  2015
    Kinkopf, Neil J., Professor of Law, Georgia State University
      College of Law, and Peter M. Shane, Jacob E. Davis and Jacob E.
      Davis II Chair in Law, Ohio State University Moritz College of
      Law, August 10, 2018...........................................  2019
    Kuster, Hon. Ann McLane, a Representative in Congress from the
      State of New Hampshire, et al., additional Members of Congress,
      September 26, 2018.............................................  2118
    Lalla, Deepa, et al., friends of Christine Blasey Ford, September
      18, 2018.......................................................  1673
    Lambda Legal, Washington, DC, et al., national, State, and local
      advocacy organizations, July 31, 2018..........................  2028
    Lambda Legal, Washington, DC, et al., national, State, and local
      advocacy organizations, September 18, 2018.....................  2025
    LatinoJustice PRLDEF, New York, New York, August 6, 2018.........  2037
    Lawyers' Committee for Civil Rights Under Law, Washington, DC, et
      al., civil rights organizations, September 5, 2018.............  1881
    Leadership Conference on Civil and Human Rights, The, Washington,
      DC, and National Women's Law Center (NWLC), Washington, DC,
      Septem-ber 18, 2018............................................  2303
    Leadership Conference on Civil and Human Rights, The, Washington,
      DC, et al., September 3, 2018..................................  2056
    League of Conservation Voters (LCV), Washington, DC..............  2075
    Lefkowitz, Jay P., P.C., Kirkland & Ellis LLP, August 29, 2018,
      letter and article.............................................  2077
    Legal Momentum, New York, New York, September 26, 2018...........  2081
    Levi, David F., former U.S. District Judge, U.S. District Court
      for the Eastern District of California, August 7, 2018.........  2098
    Livas, Athanasia, Yale Law School student, et al., students,
      alumni, and faculty members of Yale University in support of
      Judge Brett M. Kavanaugh, July 12, 2018........................  2396
    Mac Avoy, Janice, Partner, Fried, Frank, Harris, Shriver &
      Jacobson LLP, et al., women lawyers who jointly submitted an
      amicus brief in support of petitioners in Whole Woman's Health
      v. Hellerstedt, September 1, 2018..............................  2331
    Martin, Ed, President, Phyllis Schlafly Eagles, St. Louis,
      Missouri, August 31, 2018......................................  2105
    Masagatani, Jobie M.K., Chairman, Hawaiian Homes Commission,
      Department of Hawaiian Home Lands, State of Hawaii, Honolulu,
      Hawaii, September 18, 2018.....................................  2106
    Mead, Hon. Matthew H., Governor of Wyoming, Cheyenne, Wyoming,
      July 26, 2018..................................................  1995
    Mexican American Legal Defense and Educational Fund (MALDEF), Los
      Angeles, California, September 5, 2018.........................  2134
    Monck, Nicholas, President, Student Bar Association, University
      of Colorado School of Law, et al., student bar association
      presidents, October 2, 2018....................................  2295
    Morrisey, Hon. Patrick, Attorney General of West Virginia,
      Charleston, West Virginia, et al., State Attorneys General,
      July 12, 2018..................................................  2292
    Moschella, Hon. William E., Assistant Attorney General, Office of
      Legislative Affairs, U.S. Department of Justice, letter to Hon.
      Joseph R. Biden, Jr., a U.S. Senator from the State of
      Delaware, and Member, U.S. Senate Committee on the Judiciary,
      August 5, 2005.................................................  2946
    Muslim Advocates, Oakland, California, August 31, 2018...........  2137
    National Abortion Federation (NAF), Washington, DC, August 31,
      2018...........................................................  2145
    National Association for the Advancement of Colored People
      (NAACP), Washington Bureau, Washington, DC, August 13, 2018....  2141
    National Association for the Advancement of Colored People
      (NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
      York, New York, August 31, 2018................................  2143
    National Association of Federal Defenders (NAFD), September 12,
      2018...........................................................  2147
    National Cattlemen's Beef Association (NCBA), Washington, DC, and
      Public Lands Council (PLC), Washington, DC, August 30, 2018....  2148
    National Center for Lesbian Rights (NCLR), Washington, DC,
      September 4, 2018..............................................  2149
    National Center for Special Education in Charter Schools
      (NCSECS), New York, New York, September 3, 2018................  2151
    National Center for Transgender Equality (NCTE), Washington, DC,
      September 4, 2018..............................................  2153
    National Coalition on Black Civic Participation, Washington, DC,
      et al., civil rights organizations, August 16, 2018............  1883
    National Congress of American Indians (NCAI), Washington, DC, and
      Native American Rights Fund (NARF), Boulder, Colorado,
      September 12, 2018.............................................  2157
    National Congress of American Indians (NCAI), Washington, DC, and
      Native American Rights Fund (NARF), Boulder, Colorado,
      September 28, 2018.............................................  2159
    National Council of Jewish Women (NCJW), New York, New York,
      August 22, 2018................................................  2160
    National Education Association (NEA), Washington, DC, August 30,
      2018...........................................................  2161
    National Education Association (NEA), Washington, DC, September
      27, 2018.......................................................  2164
    National Employment Lawyers Association (NELA), Oakland,
      California, September 28, 2018.................................  2168
    National Immigration Law Center (NILC), Los Angeles, California,
      Septem-ber 3, 2018.............................................  2170
    National Latino Farmers and Ranchers Trade Association (NLFRTA),
      Washington, DC, August 31, 2018, letter and attachment.........  2172
    National LGBTQ Task Force Action Fund, Washington, DC, September
      12, 2018.......................................................  2191
    National Organization for Women (NOW), Washington, DC, September
      25, 2018.......................................................  2194
    National Partnership for Women & Families, Washington, DC,
      September 13, 2018.............................................  2196
    National Partnership for Women & Families, Washington, DC,
      September 28, 2018, letter and attachment......................  2202
    National Shooting Sports Foundation, Inc. (NSSF), Newtown,
      Connecticut, August 30, 2018...................................  2216
    National Task Force to End Sexual and Domestic Violence (NTF),
      Seattle, Washington, September 4, 2018.........................  2218
    National Task Force to End Sexual and Domestic Violence (NTF),
      Seattle, Washington, September 18, 2018........................  2222
    National Women's Law Center, Washington, DC, September 4, 2018...  2224
    Natural Resources Defense Council (NRDC), New York, New York,
      Septem-ber 4, 2018.............................................  2210
    Network Lobby for Catholic Social Justice, Washington, DC, and
      Suzanne Strisik, Ph.D., Anchorage, Alaska, et al., Catholic
      faith leaders, Septem-ber 4, 2018..............................  1678
    OCA--Asian Pacific American Advocates, Washington, DC, September
      4, 2018........................................................  2229
    Office of Hawaiian Affairs (OHA), State of Hawaii, Honolulu,
      Hawaii, September 24, 2018.....................................  2230
    Pacific Palisades Democratic Club (PPDC), Pacific Palisades, Los
      Angeles, California, September 6, 2018.........................  2238
    Pearson, Myra, Chairwoman, Spirit Lake Nation, et al., Native
      women leaders of North Dakota, September 4, 2018...............  2226
    People For the American Way, Washington, DC, August 30, 2018.....  2244
    Physician Women for Democratic Principles (PWDP), September 21,
      2018...........................................................  2246
    Physicians for Reproductive Health, New York, New York, September
      26, 2018.......................................................  2247
    Planned Parenthood Action Fund, New York, New York, et al.,
      reproductive rights, civil rights, health, justice, and
      advocacy organizations, September 7, 2018......................  1671
    Planned Parenthood Federation of America and Planned Parenthood
      Action Fund, New York, New York, September 28, 2018............  2250
    Pough, Bradley, et al., members of Harvard Black Law Students
      Association (HBLSA), August 29, 2018...........................  1999
    Prairie Band Potawatomi Nation, Mayetta, Kansas, September 10,
      2018...........................................................  2252
    Proctor, Michael J., and Mark Osler, Yale Law School classmates
      of Judge Kavanaugh, October 2, 2018............................  2411
    Reeves, Mona, resident of California, September 18, 2018.........  2265
    Religious Coalition for Reproductive Choice (RCRC), Washington,
      DC.............................................................  2266
    Religious Coalition for Reproductive Choice (RCRC), Washington,
      DC, September 20, 2018.........................................  2268
    Safer, Debra, M.D., et al., supporters of Christine Blasey Ford,
      Ph.D...........................................................  1710
    Schumer, Hon. Charles E., a U.S. Senator from the State of New
      York, and Minority Leader, U.S. Senate, and Hon. Dianne
      Feinstein, a U.S. Senator from the State of California, and
      Ranking Member, U.S. Senate Committee on the Judiciary, letter
      to U.S. President Donald J. Trump, September 21, 2018..........  2973
    Secular Coalition for America, Washington, DC, et al., secular
      and religiously unaffiliated organizations, July 26, 2018......  2277
    Service Employees International Union (SEIU), Washington, DC,
      August 29, 2018................................................  2284
    Sexuality Information and Education Council of the United States
      (SIECUS), Washington, DC, September 4, 2018....................  2286
    Shoemate, Scott, San Diego, California, et al., fathers and
      friends supporting victims of sexual assault, October 1, 2018..  1941
    Sierra Club, Washington, DC, July 24, 2018.......................  2288
    Sullivan, William M., Jr., Partner, Pillsbury Winthrop Shaw
      Pittman LLP, Washington, DC, Counsel for Christopher C.
      Garrett, September 26, 2018....................................  2298
    Turkos, Alison, resident of New York, et al., survivors and
      victims of sexual assault and rape.............................  1721
    UltraViolet, survivors of sexual assault, survivors of domestic
      violence, and their loved ones, September 21, 2018.............  2307
    Upmeyer, Hon. Linda, Speaker of the House, Iowa House of
      Representatives, Des Moines, Iowa, et al., Iowa House
      Republican Caucus, August 20, 2018.............................  2005
    Voto Latino, Washington, DC, August 31, 2018, letter and
      attachment.....................................................  2308
    Wagner, William, President, Great Lakes Justice Center, and
      Distinguished Professor Emeritus, constitutional law, Lansing,
      Michigan.......................................................  2327
    Whitaker, William B., Founding President, Washington Jesuit
      Academy, Washington, DC, August 29, 2018.......................  2329
    Williams, Carolyn H., Williams & Connolly LLP, Washington, DC,
      August 28, 2018................................................  2336
    Women Lawyers On Guard Action Network, Inc., Arlington, Virginia,
      September 4, 2018..............................................  2368
    YWCA USA, Washington, DC, August 6, 2018.........................  2406
    Zaun, Hon. Brad, State Senator of Iowa, and Chairman, Iowa Senate
      Judiciary Committee, Des Moines, Iowa, et al., August 17, 2018.  2007

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    #1600men, a list of 1,600 names of men who support the statements
      of Christine Blasey Ford, Ph.D., and Professor Anita Hill, The
      New York Times, full-page newspaper advertisment...............  2428
    Aaron, Marjorie Corman, Cincinnati, Ohio, et al., professors of
      law and scholars of judicial institutions, statement...........  2415
    Alaska Federation of Natives (AFN), Anchorage, Alaska, statement
      and attachment.................................................  2434
    Amar, Akhil Reed, ``A Liberal's Case for Brett Kavanaugh,'' The
      New York Times, July 9, 2018, op-ed article....................  2448
    America Magazine, ``The Editors: It is time for the Kavanaugh
      nomination to be withdrawn,'' September 27, 2018, editorial....  2451
    American Association of People with Disabilities (AAPD),
      Washington, DC, statement......................................  2455
    Arc, The, Washington, DC, statement..............................  2921
    Arnold, Carrie, ``Life After Rape: The Sexual Assault Issue No
      One's Talking About; The sickening truth about PTSD among
      survivors,'' Women's Health, September 13, 2016, article.......  2457
    Association of University Centers on Disabilities (AUCD), Silver
      Spring, Maryland, statement....................................  2463
    Batlan, Felice, Professor of Law, Chicago-Kent College of Law, et
      al., U.S. women law professors, October 3, 2018, press release.  2432
    Bazelon, Emily, and Eric Posner, ``Who Is Brett Kavanaugh?
      Contrary to what supporters say, he's no originalist,'' The New
      York Times, September 3, 2018, op-ed article...................  2465
    Blatt, Lisa, ``I'm a Liberal Feminist Lawyer. Here's Why
      Democrats Should Support Judge Kavanaugh,'' Politico, August 2,
      2018, article..................................................  2469
    Boston Herald, ``Editorial: Nix the toxic, give Brett Kavanaugh a
      shot,''
      July 10, 2018, editorial.......................................  2471
    ``Brett Kavanaugh: Delivering for Right-Wing and Corporate
      Interests,'' report............................................  2708
    ``Brett Kavanaugh in Partisan 2-1 cases: Advancing Right-Wing and
      Corporate Interests 91% of the Time,'' factsheet...............  2429
    ``Brett Kavanaugh: Siding with Conservative Amici Curiae 91% of
      the Time,'' Paul M. Collins, Jr., Ph.D., Judicial Analytics
      LLC, report....................................................  2707
    Brettschneider, Corey, ``Brett Kavanaugh's Radical View of
      Executive Power,'' Politico, September 4, 2018, op-ed article..  2726
    Bryant, Hon. Phil, Governor of Mississippi, Jackson, Mississippi,
      and Guest Columnist, ``Gov. Phil Bryant: Brett Kavanaugh best
      choice for Supreme Court,'' The Clarion-Ledger, July 26, 2018,
      op-ed article..................................................  2472
    Campaign Legal Center (CLC), Washington, DC, and Demos, New York,
      New York, July 13, 2018, statement and factsheet...............  2950
    Center for Public Representation (CPR), Northampton,
      Massachusetts, statement.......................................  2474
    Center for Reproductive Rights, New York, New York, ``An Analysis
      of the Testimony of Judge Brett Kavanaugh on Issues Relating to
      Reproductive Rights Before the Senate Judiciary Committee,''
      analysis.......................................................  2477
    Chicago Tribune, ``Judging Judge Kavanaugh,'' July 9, 2018,
      editorial......................................................  2507
    Chua, Amy, ``Kavanaugh Is a Mentor To Women: I can't think of a
      better judge for my own daughter's clerkship,'' Wall Street
      Journal, July 12, 2018, op-ed article..........................  2509
    Cope, Kevin, and Joshua Fischman, ``It's hard to find a federal
      judge more conservative than Brett Kavanaugh,'' The Washington
      Post, September 5, 2018, op-ed article.........................  2511
    Council for Native Hawaiian Advancement (CNHA), Kapolei, Hawaii,
      statement......................................................  2514
    Detroit News, The, ``Our editorial: Kavanaugh's record defies
      challenge,''
      July 10, 2018, editorial.......................................  2519
    Disability Rights Education and Defense Fund (DREDF), Berkeley,
      California, statement..........................................  2521
    Earthjustice, San Francisco, California, statement...............  2553
    Email correspondence in order of ``REV'' identification number:
        Brett M. Kavanaugh, subject: ``4A issue,'' message to John C.
          Yoo and Timothy Flanigan, September 17, 2001, email,
          REV_00023540...............................................  2804
        Don Willett, subject: ``Re: Owen/Money,'' message to Brett M.
          Kavanaugh et al., July 21, 2002, email, REV_00097139 to
          REV_00097140...............................................  2805
        David G. Leitch, subject: ``FW: Signing Statements,'' message
          to Alberto R. Gonzales et al., March 6, 2003, email,
          REV_00111240...............................................  2807
        Benjamin A. Powell, subject: ``4pm conference number,''
          message to William Smith et al., June 5, 2003, email,
          REV_00120822...............................................  2808
        Benjamin A. Powell, subject: ``Pryor Working Group Contact
          List,'' message to William Smith et al., June 5, 2003,
          email, REV_00120849........................................  2809
        David G. Leitch, subject: ``RE: revised draft Rehnquist
          statement,'' message to Brett M. Kavanaugh, June 26, 2003,
          email, REV_00124536........................................  2810
        Bradford A. Berenson, subject: ``Re: Adarand -- other
          considerations,'' message to Courtney S. Elwood et al.,
          March 27, 2001, email, REV_00125571 to REV_00125573........  2811
        Brett M. Kavanaugh, subject: ``RE: Owen,'' message to Viet
          Dinh, April 3, 2002, email, REV_00214620 to REV_00214621...  2814
        Helgard C. Walker, subject: ``Re: Removal,'' message to Brett
          M. Kavanaugh, May 6, 2002, email, REV_00215784.............  2816
        Brett M. Kavanaugh, subject: ``Re: Justice Owen,'' message to
          H. Christopher Bartolomucci, May 15, 2002, email,
          REV_00216043...............................................  2817
        Manuel Miranda, subject: ``Highly confidentail'' [sic],
          message to Viet Dinh, Don Willett, and Brett M. Kavanaugh,
          July 18, 2002, email, REV_00217778.........................  2818
        Adam Charnes, subject: ``Re: CA11,'' message to Brett M.
          Kavanaugh, Benjamin A. Powell, and Alberto R. Gonzales,
          December 11, 2002, email, REV_00223834 to REV_00223835.....  2819
        Brett M. Kavanaugh, subject: ``Re: CA11,'' message to Kyle
          Sampson, December 16, 2002, email, REV_00223960............  2821
        Manuel Miranda, subject: ``RE: Judiciary Dems obstruct on
          reorganization,'' message to Brett M. Kavanaugh, January
          13, 2003, email, REV_00224790 to REV_00224792..............  2822
        Brett M. Kavanaugh, subject: ``Re: Kuhl/For your prep,''
          message to Brett M. Kavanaugh and Manuel Miranda, March 8,
          2003, email, REV_00230675 to REV_00230676..................  2825
        Brett M. Kavanaugh, subject: ``From Manny on Frist's staff,''
          message to Wendy J. Grubbs, April 9, 2003, email,
          REV_00233594...............................................  2827
        Joel Pardue, subject: ``Emergency Umbrella Meeting
          Tomorrow,'' message to Joel Pardue and Brett M. Kavanaugh,
          June 5, 2003, email, REV_00237179..........................  2828
        Manuel Miranda, subject: ``Help requested,'' message to Brett
          M. Kavanaugh et al., July 28, 2002, email, REV_00348846....  2829
        Brett M. Kavanaugh, subject: ``Re: Help requested,'' message
          to Manuel Miranda et al., July 28, 2002, email,
          REV_00348848 to REV_00348849...............................  2830
        Manuel Miranda, subject: ``Biden and Feinstein, etc.,''
          message to Don Willett and Brett M. Kavanaugh, July 28,
          2002, email, REV_00348850..................................  2832
        Manuel Miranda, subject: ``Re[2]: NEWS,'' message to Brett M.
          Kavanaugh et al., July 30, 2002, email, REV_00349085 to
          REV_00349086...............................................  2833
        Manuel Miranda, subject: ``Re[2]: Biden and Feinstein,
          etc.,'' message to Don Willett and Brett M. Kavanaugh, July
          30, 2002, email, REV_00349088 to REV_00349089..............  2835
        Manuel Miranda, subject: ``Sept 5th,'' message to Brett M.
          Kavanaugh and Don Willett, August 13, 2002, email,
          REV_00350167...............................................  2837
        Nathan Sales, subject: ``Re: Estrada event on Tuesday,''
          message to Manuel Miranda, Brian A. Benczkowski, and Brett
          M. Kavanaugh, February 14, 2003, email, REV_00368977 to
          REV_00368981...............................................  2838
        Manuel Miranda, subject: ``For use and not distribution,''
          message to Brett M. Kavanaugh, March 18, 2003, email,
          REV_00379743 to REV_00379750...............................  2843
        Manuel Miranda, subject: ``For use and not distribution,''
          attachment to message to Brett M. Kavanaugh, March 18,
          2003, email, REV_00379751 to REV_00379757..................  2851
        James Ho, subject: ``RE: Pro-choice op-eds in support of
          Justice Owen?'', message to Brett M. Kavanaugh and Barbara
          Ledeen, March 24, 2003, email, REV_00381149 to REV_00381155  2858
        Brett M. Kavanaugh, subject: ``SCt -- interest groups
          intel,'' message to Ashley Snee et al., June 5, 2003,
          email, REV_00402347 to REV_00402348........................  2865
    End Violence Against Women International (EVAWI), Colville,
      Washington, statement..........................................  2555
    Epps, Garrett, ``Brett Kavanaugh Is Devoted to the Presidency,''
      theatlantic.com, July 10, 2018, article........................  2556
    Ford, Christine Blasey, Ph.D., Palo Alto, California, materials
      submitted for the record.......................................  2524
    Ford, Christine Blasey, Ph.D., Palo Alto, California,
      supplemental materials submitted for the record [secured file].  2548
    Friedman, Richard A., M.D., ``Why Sexual Assault Memories Stick:
      Christine Blasey Ford says she has a vivid memory of an attack
      that took place when she was 15. That makes sense,'' The New
      York Times, September 19, 2018, article........................  2960
    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
      and Chairman, U.S. Senate Committee on the Judiciary,
      correspondence regarding allegations against Judge Kavanaugh
      sent to Hon. Jeff Sessions, Attorney General, U.S. Department
      of Justice, and Hon. Christopher A. Wray, Director, Federal
      Bureau of Investigation, Washington, DC, November 2, 2018......  2558
    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
      and Chairman, U.S. Senate Committee on the Judiciary,
      correspondence regarding allegations against Judge Kavanaugh
      sent to Hon. Jeff Sessions, Attorney General, U.S. Department
      of Justice, and Hon. Christopher A. Wray, Director, Federal
      Bureau of Investigation, Washington, DC, October 26, 2018......  2567
    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
      and Chairman, U.S. Senate Committee on the Judiciary,
      correspondence regarding allegations against Judge Kavanaugh
      sent to Hon. Jeff Sessions, Attorney General, U.S. Department
      of Justice, and Hon. Christopher A. Wray, Director, Federal
      Bureau of Investigation, Washington, DC, October 25, 2018......  2583
    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
      and Chairman, U.S. Senate Committee on the Judiciary,
      correspondence regarding investigation of potential violations
      for false allegations against Judge Kavanaugh sent to Hon. Jeff
      Sessions, Attorney General, U.S. Department of Justice, and
      Hon. Christopher A. Wray, Director, Federal Bureau of
      Investigation, Washington, DC, September 29, 2018..............  2612
    Graves, Lisa, ``I Wrote Some of the Stolen Memos That Brett
      Kavanaugh Lied to the Senate About: He should be impeached, not
      elevated,'' slate.com, September 7, 2018, op-ed article........  2701
    Heiman, Matthew, ``Kavanaugh Deserves a Quick Hearing and a
      Favorable Vote,'' insidesources.com, August 6, 2018, op-ed
      article........................................................  2705
    Kavanaugh, Hon. Brett M., Nominee to be Associate Justice of the
      Supreme Court of the United States, Summer 1982 calendar pages.  2712
    Klein, Roger D., M.D., J.D., ``Judge Brett Kavanaugh is the right
      Supreme Court appointment at the right time,'' The Hill, August
      15, 2018, op-ed article........................................  2717
    Las Vegas Review-Journal, ``Editorial: Donald Trump nominates
      Brett Kavanaugh to the Supreme Court,'' July 11, 2018,
      editorial......................................................  2722
    Lopez, German, ``Why didn't Kavanaugh's accuser come forward
      earlier?
      Police often ignore sexual assault allegations: When even those
      in charge of public safety don't take sexual assault seriously,
      victims are going to be very cautious,'' Vox.com, September 19,
      2018, article..................................................  2962
    Los Angeles Times, ``Can the Supreme Court confirmation process
      ever be repaired?'', July 9, 2018, editorial...................  2719
    Lowell Sun, The, ``Editorial: Senate approval of Kavanaugh makes
      sense--even for Democrats,'' July 12, 2018, editorial..........  2724
    Maleck, Marisa, ``Marisa Maleck column: Kavanaugh has a proven
      track record, Democrats should take an honest look,'' Richmond
      Times-Dispatch, August 21, 2018, article.......................  2729
    Mayer, Jane, and Ronan Farrow, ``The F.B.I. Probe Ignored
      Testimonies from Former Classmates of Kavanaugh,'' The New
      Yorker, October 3, 2018, article...............................  2731
    Mormon Women for Ethical Government (MWEG), Riverton, Utah,
      statement......................................................  2736
    NARAL Pro-Choice America, Washington, DC, statement..............  2764
    National Alliance to End Sexual Violence (NAESV), Washington, DC,
      ``Costs, Consequences and Solutions,'' endsexualviolence.org,
      briefing paper.................................................  2768
    National Archives News Staff, ``National Archives Works to
      Release Records Related to Judge Kavanaugh,'' archives.gov,
      Washington, DC, August 15, 2018, article.......................  2771
    National Association for the Advancement of Colored People
      (NAACP), Washington Bureau, Washington, DC, statement..........  2737
    National Association for the Advancement of Colored People
      (NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
      York, New York, September 14, 2018, supplement to August 30,
      2018, 94-page report on civil rights record of Judge Brett
      Kavanaugh......................................................  2747
    National Association for the Advancement of Colored People
      (NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
      York, New York, second supplement to August 30, 2018, 94-page
      report on civil rights record of Judge Brett Kavanaugh.........  2754
    National Network to End Domestic Violence (NNEDV), Washington,
      DC, statement..................................................  2774
    National Review, ``A Worthy Pick,'' July 10, 2018, editorial.....  2777
    National Sexual Violence Resource Center (NSVRC), Enola,
      Pennsylvania, ``The Impact of Sexual Violence,'' factsheet.....  2778
    New Hampshire Union Leader, ``Qualified Kavanaugh: A prudent pick
      for the court,'' July 10, 2018, editorial......................  2780
    New York Post, ``Democrats' demented assault on Brett
      Kavanaugh,'' July 10, 2018, editorial..........................  2785
    Niemi, Laura, and Liane Young, Department of Psychology, Boston
      College, Chestnut Hill, Massachusetts, ``Blaming the Victim in
      the Case of Rape,'' Psychological Inquiry: An International
      Journal for the Advancement of Psychological Theory, Taylor &
      Francis Group, LLC, Volume 25, pages 230-233, May 20, 2014,
      article........................................................  2781
    O'Brien, Julie, ``I don't know Kavanaugh the judge. But Kavanaugh
      the carpool dad is one great guy,'' The Washington Post, July
      10, 2018, op-ed article........................................  2787
    Orange County Register and San Bernardino Sun, ``Brett Kavanaugh
      nomination might be the calm before the storm,'' July 10, 2018,
      editorial......................................................  2788
    Orfield, Gary, Distinguished Research Professor of Education,
      Law, Political Science and Urban Planning, University of
      California, Los Angeles, California, statement.................  2790
    Planned Parenthood Federation of America and Planned Parenthood
      Action Fund, New York, New York, and Washington, DC, statement.  2794
    Podesta, John, and Todd Stern, ``Staff secretaries aren't traffic
      cops. Stop treating Kavanaugh like he was one,'' The Washington
      Post, July 30, 2018, op-ed article.............................  2798
    Post and Courier, The, ``Kavanaugh the right choice,'' July 10,
      2018, editorial................................................  2505
    Public Citizen, chamberofcommercewatch.org, Washington, DC,
      ``Judge Brett Kavanaugh's Decisions in Cases With Leading
      Business Association
      Involvement,'' August 30, 2018, report.........................  2800
    Richmond Times-Dispatch, ``Editorial: A good and decent choice
      for Supreme Court justice,'' July 11, 2018, editorial..........  2867
    Rivkin, David B., Jr., and Andrew M. Grossman, ``Kavanaugh and
      the Ginsburg Standard,'' Wall Street Journal, September 3,
      2018, op-ed article............................................  2868
    Rizzo, Salvador, ``Does Brett Kavanaugh think the president is
      immune from criminal charges?'', The Washington Post, July 11,
      2018, analysis.................................................  2870
    ``The Roberts Five: Advancing Right-Wing and Corporate Interests
      92% of the Time,'' report......................................  2876
    ``The Roberts Five: Siding with Conservative Amici Curiae 92% of
      the Time,'' Paul M. Collins, Jr., Ph.D., Judicial Analytics
      LLC, report....................................................  2883
    Rosenzweig, Paul, ``Kavanaugh's Exercise of Discretion,'' The
      Atlantic, July 11, 2018, op-ed article.........................  2884
    San Diego Union-Tribune, The, ``Why Supreme Court nominee Brett
      Kavanaugh may be more independent than you expect,'' July 9,
      2018, editorial................................................  2886
    Schwartz, Brian, ``Trump lawyer Marc Kasowitz denies Kavanaugh
      ever spoke to anyone at the firm about Mueller probe,
      contradicting
      Sen. Kamala Harris claim,'' CNBC.com, September 6, 2018,
      article........................................................  2944
    Shugerman, Jed, ``Brett Kavanaugh's Legal Opinions Show He'd Give
      Donald Trump Unprecedented New Powers,'' slate.com, July 19,
      2018, article..................................................  2888
    Smith, Daniel W., et al., ``Delay in disclosure of childhood
      rape: results from a national survey,'' sciencedirect.com,
      Child Abuse & Neglect, Volume 24, Issue 2, pages 273-287,
      February 2000, research article................................  2894
    Strand, Russell W., Special Agent, retired, and Lori D. Heitman,
      former Supervisory Special Agent, Independent Consultants,
      ``The Forensic Experiential Trauma Interview (FETI),'' report..  2897
    TIME'S UP, Washington, DC, September 17, 2018, Twitter posting...  2923
    Tribe, Laurence H., Timothy K. Lewis, and Norman Eisen, ``The
      Kavanaugh Nomination Must Be Paused. And He Must Recuse
      Himself,'' Politico, September 4, 2018, op-ed article..........  2924
    Turley, Jonathan, ``No one can use Mueller probe to hold up
      Supreme Court nominee,'' The Hill, July 3, 2018, op-ed article.  2927
    United States Senate Committee on the Judiciary, ``Actions by
      Chairman Grassley and the Senate Judiciary Committee Related to
      Allegations Made and Disputed Regarding Judge Brett
      Kavanaugh,'' a summary of Senate Judiciary Committee
      investigation of allegations, report...........................  2907
    United States Senate Committee on the Judiciary, ``Allegations
      Against Judge Kavanaugh,'' documented response and status log..  2444
    United States Senate Committee on the Judiciary, interview with
      Hon. Brett M. Kavanaugh for background investigation,
      Washington, DC, Septem-ber 17, 2018, transcript................  2662
    United States Senate Committee on the Judiciary, interview with
      Hon. Brett M. Kavanaugh for background investigation,
      Washington, DC, Septem-ber 26, 2018, transcript................  2682
    United States Senate Committee on the Judiciary, ``Summary of
      Senate Judiciary Committee Investigation,'' October 4, 2018,
      report.........................................................  2918
    Walker, Justin, ``Brett Kavanaugh is a great judge, a good man
      and great nominee,'' The Courier-Journal, August 3, 2018, op-ed
      article........................................................  2930
    Wall Street Journal, ``Kavanaugh for the Court: Trump's second
      nominee will be an intellectual leader on the bench,'' July 9,
      2018, editorial................................................  2932
    Wall Street Journal, ``The Kavanaugh Hazing,'' September 3, 2018,
      editorial......................................................  2935
    Weekly Standard, The, ``Editorial: Justice Kavanaugh?'' July 10,
      2018, editorial................................................  2937
    Wheeler, Lydia, ``Sex assault survivors urge Senate to reject
      Kavanaugh,'' The Hill, September 18, 2018, article.............  2939
    Whelan, Ed, ``Dems' Latest Documents Hullabaloo,'' National
      Review, September 3, 2018, article.............................  2940
    Wisconsin Coalition Against Sexual Assault (WCASA), Madison,
      Wisconsin, statement...........................................  2943

                     ADDITIONAL SUBMISSIONS FOR THE RECORD

    Submissions for the record not printed due to voluminous nature,
      previously printed by an agency of the Federal Government, or
      other criteria
      determined by the Committee, list..............................  2977

    Ash, Elliott, and Daniel L. Chen, ``Kavanaugh is radically
      conservative. Here's the data to prove it: He's to the right
      of, and much more political than, his peers on the federal
      bench,'' The Washington Post: PostEverything Perspective, July
      10, 2018, op-ed article........................................  2977

    Briere, John, and Diana M. Elliott, Department of Psychiatry and
      the Behavioral Sciences, Keck School of Medicine, University of
      Southern California, Los Angeles, California, ``Prevalence and
      psychological sequelae of self-reported childhood physical and
      sexual abuse in a general population sample of men and women,''
      Child Abuse & Neglect, Volume 27, 2003, pages 1205-1222, March
      2, 2002, research article......................................  2977

    Burgess, Sarah, Holton-Arms School Class of 2005, et al.,
      ``Holton-Arms Alumnae in support of Dr. Christine Blasey
      Ford,'' letter to Hon. Charles E. Grassley, a U.S. Senator from
      the State of Iowa and Chairman of the U.S. Senate Committee on
      the Judiciary, and Hon. Dianne Feinstein, a U.S. Senator from
      the State of California and Ranking Member of the U.S. Senate
      Committee on the Judiciary, September 25, 2018, letter.........  2977

    Giles, Nancy R., Arizona, et al., ``From Mothers in the Legal
      Profession: An Open Letter to Dr. Blasey Ford,'' September 20,
      2018, letter...................................................  2977

    Goodman-Brown, Tina B., Private Practice, Newbury Park,
      California, et al., ``Why children tell: a model of children's
      disclosure of sexual abuse,'' Child Abuse & Neglect, Volume 27,
      2003, pages 525-540, September 9, 2002, research article.......  2977

    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
      and Chairman of the U.S. Senate Committee on the Judiciary,
      memorandum to Senate Republicans, ``Re: Senate Judiciary
      Committee Investigation of
      Numerous Allegations Against Justice Brett Kavanaugh During the
      Senate Confirmation Proceedings,'' various exhibits include
      statements from
      witnesses Mark Judge, Leland Keyser, and Patrick Smyth,
      November 2, 2018, memorandum...................................  2977

    Heller v. District of Columbia, United States Court of Appeals,
      The District of Columbia Circuit, Decided October 4, 2011,
      Opinion of the Majority, Conclusion and Appendix...............  2977

    Lawyers' Committee for Civil Rights Under Law, Washington, DC,
      ``Report on the Nomination of Judge Brett Kavanaugh as an
      Associate Justice of the United States Supreme Court,'' 2018,
      report.........................................................  2977

    NARAL Pro-Choice America, Ilyse G. Hogue, President, Washington,
      DC, ``In Opposition to the Confirmation of Brett Kavanaugh to
      the U.S. Supreme Court,'' statement............................  2978

    National Association for the Advancement of Colored People
      (NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
      York, New York, ``The Civil Rights Record of Judge Brett
      Kavanaugh,'' 94-page report....................................  2978

    People For the American Way (PFAW), Washington, DC, ``The
      Dissents of Judge Brett Kavanaugh: A Narrow-Minded Elitist Who
      Is Out of the Mainstream,'' report.............................  2978

    Public Citizen, Robert Weissman, President, Washington, DC, ``An
      Analysis of Judge Kavanaugh's Opinions in Split-Decision
      Cases,'' August 29, 2018, report...............................  2978

    Sobel, Richard, Charles Hamilton Houston Institute for Race &
      Justice, Harvard Law School, Cambridge, Massachusetts, ``The
      High Cost of `Free' Photo Voter Identification Cards,'' June
      2014, research article.........................................  2978

    Wenisch, Amanda Riddle, California, et al., ``Open Letter to the
      Senate Judiciary Committee: Women Attorneys for an Honorable
      Judiciary,'' letter to Hon. Charles E. Grassley, a U.S. Senator
      from the State of Iowa and Chairman of the U.S. Senate
      Committee on the Judiciary, Hon. Dianne Feinstein, a U.S.
      Senator from the State of California and Ranking Member of the
      U.S. Senate Committee on the Judiciary, and Members of the U.S.
      Senate Committee on the Judiciary, September 25, 2018, letter..  2978

                          CONFIRMATION HEARING ON THE
                     NOMINATION OF HON. BRETT M. KAVANAUGH
                       TO BE AN ASSOCIATE JUSTICE OF THE
                       SUPREME COURT OF THE UNITED STATES

                                  ----------

                           TUESDAY, SEPTEMBER 4, 2018

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:35 a.m., in
    Room SH-216, Hart Senate Office Building, Hon. Charles E.
    Grassley, Chairman of the Committee, presiding.
        Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
    Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
    Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
    Booker, and Harris.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Chairman Grassley. I welcome everyone to this confirmation
    hearing on the nomination of Judge----
        Senator Harris. Mr. Chairman?
        Chairman Grassley [continuing]. Brett Kavanaugh----
        Senator Harris. Mr. Chairman?
        Chairman Grassley [continuing]. To serve as Associate
    Justice on the Supreme Court of the United States.
        Senator Harris. Mr. Chairman, I would like to be recognized
    for a question before we proceed.
        Senator Hatch. Regular order, Mr. Chairman.
        Senator Harris. Mr. Chairman, I'd like to be recognized to
    ask a question before we proceed. The Committee received just
    last night, less than 15 hours ago, 42,000----
        Senator Cornyn. Mr. Chairman, regular order.
        Senator Harris [continuing]. Pages of documents that we
    have not had an opportunity to review, or read, or analyze.
        Chairman Grassley. You are out of order. I will proceed.
        Senator Harris. We cannot possibly move forward, Mr.
    Chairman, with this hearing----
        Chairman Grassley. I extend a very warm welcome----
        Senator Harris. We have not been given an opportunity----
        Chairman Grassley [continuing]. To Judge Kavanaugh----
        Senator Harris [continuing]. To have a meaningful hearing--
    --
        Chairman Grassley [continuing]. To his wife, Ashley----
        Senator Harris [continuing]. On this nominee.
        Chairman Grassley [continuing]. Their two daughters----
        Senator Klobuchar. Mr. Chairman, I agree with my colleague,
    Senator Harris.
        Chairman Grassley [continuing]. And their family and
    friends----
        Senator Klobuchar. Mr. Chairman, we received 42,000
    documents----
        Chairman Grassley [continuing]. Judge Kavanaugh's many law
    clerks----
        Senator Klobuchar [continuing]. That we have not been able
    to review last night.
        Chairman Grassley [continuing]. And everyone else joining
    us today.
        Senator Klobuchar. And we believe this hearing should be
    postponed.
        Chairman Grassley. I know this is an exciting day for all
    of you here----
        Senator Blumenthal. Mr. Chairman.
        Chairman Grassley [continuing]. And you are rightly proud
    of Judge----
        Senator Blumenthal. Mr. Chairman, if we cannot be
    recognized, I move to adjourn.
        Chairman Grassley. The American people----
        Senator Blumenthal. Mr. Chairman, I move to adjourn.
        [Disturbance in the hearing room.]
        Chairman Grassley [continuing]. Will hear directly from
    Judge Kavanaugh later this afternoon.
        Senator Blumenthal. Mr. Chairman, I move to adjourn.
        [Disturbance in the hearing room.]
        Senator Blumenthal. Mr. Chairman, we have been denied--we
    have been denied real access to the documents we need to advise
    and consent----
        Senator Cornyn. Mr. Chairman, regular order is called for.
        Senator Blumenthal [continuing]. Which turns this hearing
    into a charade and a mockery of our norms.
        Chairman Grassley. Well----
        Senator Blumenthal. And, Mr. Chairman, I, therefore, move
    to adjourn this hearing.
        Chairman Grassley. Okay.
        [Disturbance in the hearing room.]
        Senator Blumenthal. Mr. Chairman, I ask for a roll call
    vote on my motion to adjourn.
        Chairman Grassley. Okay.
        Senator Blumenthal. Mr. Chairman, I move to adjourn. I ask
    for a roll call vote.
        Chairman Grassley. We are not in executive session. We will
    continue as planned.
        Senator Booker. Mr. Chairman, may I be recognized, sir? Mr.
    Chairman, I appeal to the Chair to recognize myself or one of
    my colleagues.
        Chairman Grassley. You are out of order.
        Senator Booker. Mr. Chairman, I appeal to be recognized on
    your sense of decency and integrity. Even the documents you
    have requested, Mr. Chairman, even the ones that you said, the
    limited documents you have requested, this Committee has not
    received. And the documents we have, you, sir, have----
        Senator Cornyn. Mr. Chairman, I would ask for regular
    order.
        Senator Booker [continuing]. Should be transparent. This
    Committee, sir, is a violation of even the values I have heard
    you talk about time and time again, the ideals that we should
    have. What is the rush? What are we trying to hide by not
    having the documents out front? What is with the rush? What are
    we hiding by not letting those documents come out?
        Sir, this Committee is a violation of the values that we,
    as the Committee, have striven for, transparency. We are
    rushing through this process in a way that is unnecessary. And
    I appeal for the motion to at least be voted on.
        Senator Cornyn. Mr. Chairman----
        Senator Booker. At least let us have a vote because when we
    wrote you a letter on August 24th----
        Chairman Grassley. Senator----
        Senator Booker [continuing]. Asking to have a meeting on
    this issue, you denied us even the right to meet, so here we
    are having a meeting. Let us at least debate this issue. Let us
    at least call this for a vote.
        Chairman Grassley. Senator----
        Senator Booker. I appeal to your sense of fairness and
    decency, your commitments that you have made to transparency.
    This violates what you have even said and called for, sir. You
    have called for documents, you yourself, limited documents. We
    thought there should be more. We have not received the
    documents that you have even called for. So, sir, based upon
    your own principles, your own values, I call for, at least, to
    have a debate or a vote on these issues and not for us to rush
    through this process.
        [Disturbance in the hearing room.]
        Senator Whitehouse. Mr. Chairman.
        Senator Hirono. Mr. Chairman. Mr. Chairman.
        Chairman Grassley. Senator----
        Senator Hirono. I have heard calls for regular order.
        Chairman Grassley. I would like to respond. I would like to
    respond to Senator Booker. Senator Booker, I think that--I
    respect very much a lot of things you do, but you spoke about
    my decency and----
        [Disturbance in the hearing room.]
        Chairman Grassley. You spoke about my decency and
    integrity, and I think you are taking advantage of my decency
    and integrity, so.
        [Disturbance in the hearing room.]
        Chairman Grassley. Okay.
        Senator Hirono. Mr. Chairman, I heard calls for regular
    order. It is regular order for us to receive all the
    documents--to receive all the documents that this Committee is
    entitled to.
        [Disturbance in the hearing room.]
        Chairman Grassley. Okay.
        Senator Hirono. Mr. Chairman, it is also----
        Chairman Grassley. I think I----
        Senator Hirono. Mr. Chairman, it is also not regular order
    for the Majority to require----
        Chairman Grassley. Senator Hirono----
        Senator Hirono [continuing]. The Minority to pre-clear our
    questions, our documents, and the videos we would like to use
    at this hearing. That is unprecedented. That is not regular
    order. Since when we do have to submit the questions and the
    process that we wish to follow to question this nominee----
        Chairman Grassley. Senator----
        Senator Hirono. I would like to have clarification. I would
    like your response on why you are requesting----
        Chairman Grassley. Senator Hirono, I would ask that you----
        Senator Hirono [continuing]. The Minority to submit our
    questions----
        Chairman Grassley. I ask that you stop so we can conduct
    this hearing the way we have planned it. Maybe it is not going
    exactly the way that the Minority would like to have it go, but
    we have said for a long period of time that we were going to
    proceed on this very day.
        [Disturbance in the hearing room.]
        Chairman Grassley. And I think we ought to give the
    American people the opportunity to hear whether Judge Kavanaugh
    should be on the Supreme Court or not. And you have heard my
    side of the aisle call for regular order, and I think we ought
    to proceed in regular order. There will be plenty of
    opportunities to respond to the questions that the Minority is
    legitimately raising.
        Senator Hatch. Have her thrown out of here.
        Chairman Grassley [continuing]. And we will--we will
    proceed accordingly.
        Senator Whitehouse. Mr. Chairman, under regular order, may
    I ask a point of order, which is that we are now presented with
    a situation in which somebody has decided that there a hundred
    thousand documents protected by executive privilege, yet there
    has not been assertion of executive privilege before the
    Committee. How are we to determine whether executive privilege
    has been properly asserted if this hearing goes by without the
    Committee ever considering that question? Why is it not in
    regular order for us to determine--before the hearing at which
    the documents would be necessary--whether or not the assertion
    of privilege that prevents us from getting those documents is
    legitimate, or, indeed, is even an actual assertion of
    executive privilege? I do not understand why that is not a
    legitimate point of order at this point, because at the end of
    this hearing it is too late to consider it.
        Senator Leahy. Mr. Chairman, if I might add to this, on the
    integrity of the documents we have received, there really is no
    integrity. They have alterations. They have oddities.
    Attachments are missing. Emails are cut off halfway through a
    chain. Recipients' names are missing. They are of interest to
    this Committee, but it is cut off. The National Archives has
    not had a chance to get us all that we want even though you
    said on your website, the National Archives would act as a
    check against any political interference.
        [Disturbance in the hearing room.]
        Senator Leahy. But a check after the hearing is over is no
    check. I think we ought to at least have the National Archives
    finish it. And to have for the first time certainly in my 44
    years here, to have somebody say there is a claim of executive
    privilege when the President has not made such a claim just
    puts everything under doubt. What are we trying to hide? Why
    are we rushing?
        Chairman Grassley. I can answer all the questions that have
    been raised, but I think if I answer those questions, it is
    going to fit into the effort of the Minority to continue to
    obstruct, and I do not think that that is fair to our Judge. It
    is not fair to our constitutional process. But let me--let me
    respond to those now, and then maybe we can proceed.
        My colleagues on the other side are accusing the
    administration of using executive privilege to hide documents
    from the Committee. I want to say why they are wrong. Unlike
    President Obama's assertion of executive privilege during Fast
    and Furious, as one example, this assertion is not legitimate.
    Judge Kavanaugh was a senior lawyer in the White House. He
    advised the President on judicial nominations, provided legal
    advice on separation of powers issues, and handled litigation
    matters.
        [Disturbance in the hearing room.]
        Chairman Grassley. As a--as the Supreme Court has put it,
    ``Unless the President can give his advisors some assurance of
    confidentiality, a President could not expect to receive the
    full and frank submissions of facts and opinions upon which the
    effective discharge of his duties depends.'' The issues Judge
    Kavanaugh worked on are exactly the sort of issues that
    require, according to the Supreme Court, some assurance of
    confidentiality.
        We in the Senate and everyone else in America expects
    exactly the same sort of confidentiality. Most Senators would
    not agree to turn over their staffs' communication to anyone.
    For example, we did not ask for Judge Kagan's records for her
    service with then-Senator Biden to be turned over during her
    nomination. And because of attorney-client privilege, everybody
    has a right to keep communications from their lawyers out of
    Government's hands. We, therefore, did not ask for Justice
    Ginsburg's documents from her time with the ACLU. We did not
    ask for Judge Sotomayor's confidential documents from her time
    in private practice. It cannot be that the Senate and the ACLU
    are entitled to more protection than the President of the
    United States.
        And then I will speak to the fact about the 42,000 pages.
    Last night, we received additional documents for the
    Committee's review. These were documents we requested before
    the hearing, and we received them before the hearing just as we
    requested. The Majority staff began reviewing the documents as
    soon as they arrived and has already completed its review.
    There is, thus, absolutely no reason--that is no reason to
    delay the hearing.
        We have received and read every page of Judge Kavanaugh's
    extensive public record. This includes 12 years of his judicial
    service on the most important Federal circuit court in the
    country where he authored 307 opinions and joined hundreds
    more, amounting to more than 10,000 pages of judicial writing.
    We all--also received and read more than 17,000 pages of his
    speeches, articles, teaching materials, other documents that
    Judge Kavanaugh submitted with his questionnaire, the most
    robust questionnaire this Committee has ever issued. And, of
    course, we received and read more than 483,000 pages of
    documents from Judge Kavanaugh's extensive executive branch
    service. This is more pages than the last five Supreme Court
    nominees combined.
        In short, this Committee has more materials for Judge
    Kavanaugh's nomination than we have had on any Supreme Court
    nominee in history. Senators have had more than enough time and
    materials to adequately assess Judge Kavanaugh's
    qualifications, and so, that is why I proceed.
        I know that this is an exciting day for all of you in the
    family and all the people that are close to Judge Kavanaugh,
    and you are rightly proud of the Judge. The American people get
    to hear directly from Judge Kavanaugh later this afternoon.
    After this confirmation hearing and process is finished, I
    expect Judge Kavanaugh will become the next Associate Justice
    of the Supreme Court. Welcome again, Judge. Before I begin, I
    would want to give you, Judge, an opportunity to introduce your
    family.
        Judge Kavanaugh. Thank you, Mr. Chairman and Senator
    Feinstein and----
        Chairman Grassley. Push the red button if it is not on.
    Yes, we are going to--yes.
        Judge Kavanaugh. Thank you, Mr. Chairman, and Senator
    Feinstein, and Members of the Committee. I am honored to be
    here today with my family: my wife, Ashley, proud West Texan,
    graduate of Abilene Cooper High School, now the town manager of
    our local community where we live, our daughters, Margaret and
    Liza. I thank the Committee for arranging a day off from school
    today.
        [Laughter.]
        Judge Kavanaugh. My mom and dad, Martha and Ed Kavanaugh;
    my aunt and uncle, Nancy and Mark Murphy; and my first cousins,
    Rosie and Elizabeth Murphy. I am very honored to be here,
    honored to have my family here. I am here because of them.
    Thank you, Mr. Chairman.
        Chairman Grassley. We are delighted to have your family
    here. Before I make my opening remarks, I want to set out the
    ground rules for the hearing. I want everyone to be able to
    watch the hearing without obstruction. If people stand up and
    block the view of those behind them or speak out of turn, it is
    not fair or considerate to others. So, officers will
    immediately remove those individuals, and I thank the officers
    for doing the work that they have to do.
        We will have 10-minute rounds of opening statements with
    each Member. The Ranking Member and I may go a little over 10
    minutes, but I am going to ask everyone else to limit your
    remarks to those 10 minutes. I hope everyone will respect that.
    We plan on taking a 15-minute break after Senator Cruz's
    opening statement. After all the opening statements by Senators
    are complete, we will take another 15-minute round break to
    turn to our introducers, who will formally present the Judge.
    After that, I will administer the oath to the Judge, and we
    will close that portion of today's hearing with his testimony.
        Tomorrow morning----
        Senator Harris. Mr. Chairman? Mr. Chairman, when will we
    review Senator Blumenthal's motion to adjourn?
        Chairman Grassley. What is your motion?
        Senator Blumenthal. I renew my motion to adjourn, Mr.
    Chairman. I think we are entitled to a vote on it. The
    responses that, Mr. Chairman, you have given, with all due
    respect, really fly in the face of the norms of this Committee,
    our traditions, and our rules.
        Senator Coons. Mr. Chairman, if I might add an additional
    point, I agree with my colleague. It is striking, given your
    long history of encouraging the executive branch to treat
    Minority requests equal with Majority requests, that you
    discouraged the National Archives from responding to Ranking
    Member Feinstein's request, which she tried to craft with you
    to be identical to the request for records for Justice Kagan.
    We should not proceed until we have the full documents that
    allow us to review the Judge's records.
        Senator Klobuchar. And, Mr. Chairman, last Friday we
    learned that nearly 102,000 pages of documents from Judge
    Kavanaugh's work in the White House Counsel's Office are being
    withheld from the Committee and the public based on a claim of
    constitutional privilege. Executive privilege has never been
    invoked to block the release of Presidential records to the
    Senate during a Supreme Court nomination. This includes when
    Justice Kagan was nominated to the Supreme Court as well as
    Justice Roberts.
        Yesterday my colleagues and I sent a letter to the White
    House Counsel asking that the President withdraw his claim of
    privilege over these documents so that they can be made
    available to this Committee and to the American people. We have
    not yet received a response to that letter, so we should not be
    proceeding until we have a response and these documents have
    been available. It is 102,000 documents.
        Senator Booker. And, Mr. Chairman----
        Senator Blumenthal. My motion to adjourn, Mr. Chairman,
    would raise this issue of executive privilege and whether it
    has been properly asserted for reasons that have been outlined
    well by my colleague, Senator Whitehouse. There is no valid
    claim here of executive privilege. Even if there were one, it
    has not been properly asserted. The question is, what is the
    administration afraid of showing the American people? What is
    it trying to hide?
        Senator Booker. And, Mr. Chairman, using your own words in
    the statement you just read, you said, I quote, ``We have had
    more than enough time to review the documents.'' Sir, we just
    got a document dump last night of over 40,000 pages. I would
    venture to say not one Senator here has had time to read
    through those 40,000 pages, and so, we are continuing to rush
    through this process, a process that deserves to be
    scrutinized. I support Senator Blumenthal's motion to adjourn,
    and I hope that we can at least have a vote on that motion.
        Senator Whitehouse. Mr. Chairman, I think you would be hard
    pressed to find a court in the country that would not give a
    party litigant a continuance when the party on the other side
    did a 42,000-page document dump after close of business the
    night before trial.
        Senator Durbin. Mr. Chairman, we waited for more than a
    year with a vacancy on the Supreme Court under the direction of
    your Leader in the United States Senate, and the republic
    survived. I think the treatment was shabby of Merrick Garland,
    President Obama's nominee. The fact that we cannot take a few
    days or weeks to have a complete review of Judge Kavanaugh's
    record is unfair to the American people. It is inconsistent
    with our responsibility under Article II, Section 2, of the
    Constitution to advise and consent on Supreme Court nominees.
        Chairman Grassley. Senator Cornyn, do you want to speak?
        Senator Cornyn. Mr. Chairman, thank you. I will be very
    brief. I would just say that Senator Whitehouse has suggested
    that we handle this hearing like a court of law. But I would
    suggest that if this were a court of law, that virtually side--
    every Member on the dais on that side would held in contempt of
    court because this whole process is supposed to be a civil one
    where people get to ask questions and we get to get answers.
    And that is the basis upon which we are to exercise our
    constitutional responsibilities of advice and consent. So, I
    would just suggest we get on with the hearing.
        Chairman Grassley. If my colleagues----
        Senator Booker. Mr. Chairman, if I could just respond. Mr.
    Chairman, if I could just respond.
        Senator Blumenthal. Mr. Chairman.
        Senator Booker. If we could just respond to that----
        Chairman Grassley. Sir, you can respond, but just a minute.
    If people wonder why the Chair is so patient during this whole
    process, I have found that it takes longer to argue why you
    should not do anything than let people argue why they want it.
    These things are going to be said throughout this hearing. We
    are going to be in session Tuesday, Wednesday, Thursday,
    Friday, Saturday, until we get done this week, so however long
    people want to take. We are going to not necessarily
    accommodate all obstruction, but if people have got something
    to say, this Chairman is going to let them say it, but it gets
    pretty boring to hear the same thing all the time. Senator
    Booker, make it quick, please.
        Senator Booker. I really appreciate the deference, Mr.
    Chairman. The question was why would we want to delay this, and
    this is not an attempt to delay. This is an attempt to be fully
    equipped to do our constitutional duty, which everybody,
    Republicans and Democrats, on this Committee take seriously. It
    is very hard to perform our role of advice and consent when we
    do not have a thorough vetting of the background of the
    candidate in areas which he--the candidate himself has referred
    to as the most formative part of his legal career, where he
    himself has talked about how important this period of his life
    is.
        We are denied the full vetting. And, sir, this is not
    something that Democrats are asking for. I remind you that you
    yourself asked for a limited set of documents for when he was
    in the White House Counsel's Office. You yourself set that
    standard, and even on that limited standard, sir, we have not
    received the documents. And then even the documents--we've
    received 7 percent of them--almost half of those have been
    labeled ``committee confidential.'' They cannot be put before
    the American people, which further undermine and inhibit our
    ability to ask questions to thoroughly vet this candidate and
    advise and consent the President of the United States.
        So, sir, just on the basic ideals of fairness, the
    traditions of this body, we should have a thorough
    understanding of the nominee that is put before us so that we
    can vet them. To go into this hearing without those documents
    is an undermining of the constitutional role to which we have
    all sworn an oath to uphold.
        Senator Blumenthal. Mr. Chairman, I have great respect for
    my colleague from Texas----
        Chairman Grassley. I would like to respond to Senator
    Booker, and then Senator Feinstein has asked for the floor. I
    would like to----
        Senator Blumenthal. Mr. Chairman, I ask to respond to my
    colleague from Texas.
        Chairman Grassley. I would like to respond to Senator
    Booker.
        Senator Blumenthal. Mr. Chairman.
        Chairman Grassley. Senator Booker, using a standard set by
    two Members of your political party in the caucus, and I am
    going to paraphrase because I do not have the exact quotes in
    front of me, but recently Senator Schumer said from the floor,
    the best judge of whether or not somebody should be on the
    Supreme Court is decisions that they have made at lower courts.
    Senator Leahy said something similar to that when Judge
    Sotomayor was before us, that we know--we know how many--we
    know what you have done in a lower court. That is the best
    basis for knowing whether or not you ought to be on the Supreme
    Court.
        So, we have 307 cases that this nominee has written
    decisions on, as a basis for that, and we have got 488,000
    other pages, and maybe the Senators have not read them, but
    their staff is fully informed because last night before 11 on
    the 42,000 pages that have come to our attention, the staff on
    the Republican side has gone through that.
        Senator Booker. But, sir, then why did you ask for the
    White House Counsel documents?
        Chairman Grassley. Senator----
        Senator Booker. If they were not germane to this hearing,
    why would you even ask for them?
        Chairman Grassley. Senator Feinstein.
        Senator Whitehouse. For the record, that is a rate of 7,000
    pages per hour. That is superhuman.
        Senator Klobuchar. Yes.
        Senator Leahy. They are amazing. They are amazing.
        Senator Feinstein. Mr. Chairman.
        Chairman Grassley. Yes, go ahead.
        Senator Feinstein. If I may, I have been through nine
    Supreme Court hearings, and----
        Chairman Grassley. Is this your opening statement?
        Senator Feinstein. It is part of it.
        Chairman Grassley. Well, why do you not make your opening
    statement?
        Senator Feinstein. Shall I?
        Chairman Grassley. Yes, would you please?
        [Laughter.]
        Senator Klobuchar. There is a motion pending.
        Senator Blumenthal. Mr. Chairman, I asked for an
    opportunity to respond to my colleague from Texas because he
    has directly challenged us with----
        Chairman Grassley. I said you are out of order.
        Senator Blumenthal. Well, Mr. Chairman----
        Chairman Grassley. Senator Feinstein.
        Senator Blumenthal. I ask in the process of regular order
    an opportunity to respond to what I believe was a personal
    attack----
        Senator Feinstein. Well, let me----
        Chairman Grassley. I would like to have you give Senator
    Feinstein the courtesy of listening to her opening statement.

              OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
              A U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Senator Feinstein. Well, I was just going to say some
    things, and you heard that this is my ninth hearing, and I
    think we have got to look at this. These are very unique
    circumstances. Not only is the country deeply divided
    politically, we also find ourselves with a President who faces
    his own serious problems. Over a dozen Cabinet members and
    senior aides to President Trump have resigned, been fired, or
    failed their confirmations under clouds of corruption, scandal,
    and suspicion. The President's personal lawyer, campaign
    manager, deputy campaign manager, and several campaign advisors
    have been entangled by indictments, guilty pleas, and criminal
    convictions. So, it is this backdrop that this nominee comes
    into when what we are looking is, is he within the mainstream
    of American legal opinion and will he do the right thing by the
    Constitution.
        We are also experiencing the vetting process that has cast
    aside tradition in favor of speed. When Justice Scalia died,
    Republicans refused to even meet--even a meeting in their
    office--with President Obama's nominee, and held the seat open
    for 1 year. Now with a Republican in the White House, they have
    changed their position. The Majority rushed into this hearing
    and is refusing to even look at the nominee's full record. In
    fact, 93 percent of the records from Kavanaugh's tenure in the
    White House as counsel and staff secretary have not been
    provided to the Senate, and 96 percent have not been given to
    the public.
        We do know what the White House thinks of this nominee. Don
    McGahn, the White House Counsel, spoke to the Federalist
    Society and made clear Brett Kavanaugh is exactly the kind of
    nominee the President wanted. In his speech, Mr. McGahn
    discussed President Trump's two lists of potential Supreme
    Court nominees. One he said was filled with mainstream
    candidates. The other list included ``candidates that are kind
    of too hot for primetime, the kind that really--would be really
    hot in the Senate, probably people who have written a lot, we
    really get a sense of their views, the kind of people that make
    people nervous.'' That is a quote.
        Now, what I am saying, this is the backdrop into which we
    come into this situation, so, yes, there is frustration on this
    side. We know what happened with the prior nominee, the last
    one President Obama presented to us. He never even got a
    meeting. He never got a hearing. He never got a vote. And now
    the rush to judgment and the inability to really have a civil
    and positive process ends up being the result. I really regret
    this, but I think you have to understand the frustration on
    this side of the aisle.
        Everyone on this side of the aisle wants to do a good job.
    They want time to be able to consider what the findings are,
    and there are tens of thousands of pages of emails and other
    items which could constitute findings on a whole host of major
    subjects that this nominee may be faced with, and they are
    serious. The torture issues, all of the Enron issues that he
    has been through, all of the kinds of things that we want to
    ask questions about.
        So, I mean, understand where we are coming from. It is not
    to create a disruption. It is not to make this a very bad
    process. It is to say, Majority, give us the time to do our
    work so that we can have a positive and comprehensive hearing
    on the man who may well be the deciding vote for many of
    America's futures.
        Senator Blumenthal. Mr. Chairman, I renew my motion to
    adjourn and Senator Harris' motion to postpone. I ask for a
    second.
        Senator Whitehouse. Second the motion.
        Senator Blumenthal. Mr. Chairman, I ask for a vote. I ask
    that we----
        Chairman Grassley. I do not----
        Senator Blumenthal [continuing]. Reconvene in executive
    session.
        Chairman Grassley. I should not have to explain to you we
    are having a hearing. It is out of order. We are not in
    executive session. That would be the proper forum for
    entertaining motions, so----
        Senator Blumenthal. I ask that we reconvene in executive
    session.
        Chairman Grassley. So, we will not--we will not vote on
    Senator Blumenthal's suggestion. We will not follow your
    suggestion to----
        [Disturbance in the hearing room.]
        Senator Blumenthal. Well, it is a motion, Mr. Chairman.
        Chairman Grassley [continuing]. To go into executive
    session. Motions will not be proper at this time.
        [Disturbance in the hearing room.]
        Senator Klobuchar. Mr. Chairman, it is a pending motion
    before the Committee.
        [Disturbance in the hearing room.]
        Senator Blumenthal. Mr. Chairman, if there is no vote on
    this motion which has been properly seconded and which could be
    given a vote in executive session, this process will be tainted
    and stained forever. I am asking as a Member of this
    Committee--it is my right to do so--that we vote on my motion
    to adjourn and Senator Harris' motion to postpone, and that we
    do it in executive session which can be easily and quickly
    convened right now.
        Chairman Grassley. Yes, the motion is out of order.
        Senator Booker. Sir, then I make a very clear and simple
    motion to move into executive session so that Senator
    Blumenthal's motion may be considered.
        Chairman Grassley. The motion is out of order.
        Senator Blumenthal. Well, they are not out of order, Mr.
    Chairman. They are properly before this Committee. Simply
    saying so, with all due respect, and I have great respect for
    the Chairman, does not make them so. It does not make them out
    of order just because the Chairman rules that they are out of
    order. We have a number of excellent lawyers in this room, and
    I ask that this body now do what its responsibility is to have
    an executive session so we can vote on a motion to adjourn, and
    then we can deliberately and thoughtfully consider the
    documents that have been presented, and also review the
    Committee documents that have been marked confidential without
    any reason or rationale.
        Chairman Grassley. The motion is denied.
        Senator Booker. Sir, how long would that take, 10 minutes
    for us to have a motion and a vote on this process? I do not
    understand what the rush is that we cannot even let Senators
    vote on what is a very important motion germane to our
    constitutional duties before this--before this body before we
    proceed. I do not understand. It will not take that much time.
    What is the rush? What are we afraid of to hold a vote on the
    motions before us?
        Senator Kennedy. Mr. Chairman. Mr. Chairman.
        Chairman Grassley. Senator Kennedy.
        Senator Kennedy. Thank you, Mr. Chairman. I have a question
    about the process. I understand my colleagues' point, and I
    understand they feel strongly about this, but what are going to
    be the ground rules today? Are we going to be allowed to
    interrupt each other, interrupt the witness? Are we going to--
    should we seek recognition from the Chair? I just want to
    understand the ground rules.
        Chairman Grassley. Proper respect and decorum, plus how we
    normally have done business in a hearing like this. We would
    not be having all these motions. You are new to the Senate, so
    this is something I have never gone through before in 15
    Supreme Court nominations that I have been since I have been on
    here. And every Member--I was interrupted before I got a chance
    to say what--the agenda for today, but every Member is going to
    get 10 minutes to make their remarks, and then we will go to
    the introducers of Judge Kavanaugh. There will be three of
    those. Then we will take the usual time of introducer, and then
    we will have the swearing in of Judge Kavanaugh, and then we
    will have his opening remarks, and then we will adjourn for
    today.
        We will reconvene at 9:30 on Wednesday and Thursday. Each
    Member will have 30 minutes to ask questions or make all these
    points they are making right now for the first round, then
    there will be a second round of 20 minutes each. So, every
    Member is going to get 50 minutes to ask all the questions or
    make all the statements that they want to make in regard to
    anything about this candidate or anything about how this
    meeting is being conducted.
        And then we will--we will go late into Wednesday night or
    Thursday night until we get done with the questioning of Judge
    Kavanaugh. And then on Thursday we are going to have three
    panels of six each, evenly divided for people that think Judge
    Kavanaugh should be on the Supreme Court and people that think
    he should not be on the Supreme Court. And we hopefully get
    that done Friday, but if we have to go Saturday and Sunday, we
    will go Saturday and Sunday until we get it all done.
        Senator Harris. Mr. Chairman, how can we possibly talk
    about----
        Chairman Grassley. Does that answer your question, Senator
    Kennedy?
        Senator Kennedy. Well, if I want to--yes, Mr. Chairman. I
    appreciate it. If I want to say something, do I need to be
    recognized by the Chair?
        Chairman Grassley. That would be the way that it is
    handled. I have tried to explain to you I want to be patient
    because sometimes if you are not patient and you argue why
    something should not be done, it takes longer than it does just
    to listen to people. But I do not think we should have to
    listen to the same thing three or four times.
        Senator Kennedy. Well, patience is good, Mr. Chairman, but
    I just want to understand the rules. If I want to be
    recognized----
        Chairman Grassley. Yes, you should be recognized----
        Senator Kennedy [continuing]. I have----
        Chairman Grassley. You can understand that I have been
    patient and listened to people not be recognized and speak
    anyway, because I would like to have this be a peaceful
    session.
        Senator Kennedy. Well, before I try your patience, I am
    done.
        Senator Hirono. Mr. Chairman, I have a question about
    ground rules.
        Chairman Grassley. Go ahead.
        Senator Hirono. The question is, before we can proceed, I
    would like to know whether the Majority is still requiring of
    all of the Democratic Members of this Committee to pre-clear
    the questions, documents, and videos that we would like to use
    at this hearing?
        Chairman Grassley. If the--I was hoping that on the subject
    that you just brought up that we would have some clarification
    of what you want, to approach that. And I am not prepared to
    answer that question because I do no know what the answer has
    been, and I do not want you to give me what you think the
    answer has been of discussion between our staff on that
    subject.
        Senator Hirono. Mr. Chairman, I do not think it has ever
    been the case in a hearing like this that the Members of this
    Committee have to pre-clear what we propose to query the
    nominee about. I think that is totally unprecedented.
        Senator Klobuchar. And, Mr. Chairman, if we do not even
    know what the rules are, how can we proceed with this hearing?
        Chairman Grassley. I would like to respond--I would like to
    respond to Senator Hirono. The reason why we are having that
    discussion is, at least in my time on this Committee and for 15
    nominations, we have never had a request for a video. So, it
    seems to me to be courteous to all the Members of the
    Committee, it would be nice to know the purpose and what it
    might contain. You do not--any questions you want to ask, you
    can ask questions. It is not about what questions you were
    going to ask. It is about the presentation of something that
    has never been part of a Supreme Court hearing in the past.
        Senator Harris. Mr. Chairman----
        Chairman Grassley. Who wanted----
        Senator Durbin. Mr. Chairman.
        Chairman Grassley. I think I will go back and forth.
        Senator Tillis.
        Senator Tillis. Mr. Chairman, I am confused because I heard
    earlier that this was a reaction to the document releases last
    night. But I am reviewing a tweet from NBC that said
    ``Democrats plotted coordinated protest strategy over the
    holiday weekend. All agreed to disrupt and protest the hearing,
    sources tell me, and subsequent Dem Leader, Chuck Schumer, led
    a phone call and Committee Members are executing now.'' So, I
    just want to be clear, none of the Members on this Committee
    participated in that phone call or that strategy before the
    documents were released yesterday? Is this a--are you
    suggesting that this allegation is false?
        Senator Harris. This is outrageous.
        Senator Durbin. Mr. Chairman, may I respond?
        Chairman Grassley. Senator Durbin.
        Senator Durbin. Mr. Chairman, there was a phone conference
    yesterday, and I can tell you at the time of the phone
    conference, many issues were raised. One of the issues was the
    fact that over a hundred thousand documents related to Judge
    Kavanaugh had been characterized by the Chairman of the
    Committee as ``committee confidential.'' I have been a Member
    of this Committee for a number of years. Committee confidential
    documents have been really limited to extraordinarily
    circumstances, as an example, if someone is accused of taking
    drugs during the course of an investigation.
        I'm not making any suggestion that that is even the case or
    close to it here. It was done in a confidential setting in
    fairness to the nominee, and the same thing on DUIs and the
    like. We used it in extremely rare circumstances where we would
    meet after this Committee hearing and sit down, and it usually
    related to a handful of pages or a handful of document
    references. Instead what we have found now is that we are
    seeing hundreds of thousands of documents characterized as
    ``committee confidential'' unilaterally. It is not done on a
    bipartisan basis. It is being done by the Chairman.
        So, one of the discussions yesterday was this whole
    question of whether this Committee is going to hear a nominee
    for a lifetime appointment to the highest court in the land
    without access to basic information about his public record--
    his public record as secretary to the President of the United
    States, staff secretary. Thirty-five months of public service,
    we have been told, cannot even be considered. The documents of
    that service cannot even be considered.
        So, I would say to the gentleman--the Senator from North
    Carolina, there was a conversation yesterday about these
    documents. I had no idea that at 11 o'clock last night 42,000
    more documents would be put on top of us and we would be asked
    to take them up today. So, it added insult to injury.
        Senator Harris. Mr. Chairman----
        Senator Blumenthal. Mr. Chairman----
        Senator Harris [continuing]. We are in a hearing----
        Senator Blumenthal. Mr. Chairman, I ask to be recognized
    under Rule IV. Rule IV states, ``The Chairman shall entertain a
    non-debatable motion to bring a matter before the Committee to
    a vote. If there is objection to bring the matter to a vote
    without further debate, a roll call vote of the Committee shall
    be taken, and debate shall be terminated if the motion to bring
    the matter to a vote without further debate passes with eleven
    votes in the affirmative, one of which must be cast by the
    minority.''
        I ask for a vote on my motion to adjourn under Rule IV, Mr.
    Chairman. These are rules that we are obligated to follow. The
    Chairman has no right, with all due respect, to simply override
    them by fiat.
        Chairman Grassley. We are----
        Senator Blumenthal. I ask for a second.
        Senator Whitehouse. I second the motion.
        Chairman Grassley. We are obligated by that rule in
    executive session. We are not in executive session.
        [Disturbance in the hearing room.]
        Chairman Grassley. I would respond to the issues brought up
    by Senator Durbin about confidential documents. I was
    criticized for my decision to receive some documents on
    ``committee confidential,'' but I am doing exactly what I did
    during Judge Gorsuch's confirmation and what Chairman Leahy did
    during Justice Kagan's. This is another example of treating
    regular Committee practices as somehow out of the ordinary.
        Presidential records that we receive often contain highly
    sensitive advice to the President as well as personal privacy
    information, like full names, date of birth, Social Security
    numbers and bank account numbers. Like my predecessor, I agreed
    to receive some Presidential records as ``committee
    confidential'' so that both Democrats and Republicans could
    begin reviewing Judge Kavanaugh's materials much earlier. I do
    not know why my Democratic colleagues object to receiving
    documents faster, but not all of these Presidential documents
    remain confidential. In fact, nearly two-thirds already became
    public.
        These records are posted on the Committee's public website
    and are available to the American people. As a result, we have
    provided unprecedented public access to a record number of
    Presidential records, and do it--did it in record time. The
    most sensitive Presidential records remain committee
    confidential under Federal law, just as they were during the
    nominations of Kagan or Gorsuch.
        But we have expanded access to these documents also.
    Instead of just providing access to Committee Members, we have
    provided access to all 100 Senators. Instead of just providing
    access to a very few Committee aides, we have provided access
    to all Committee aides. And instead of just providing access to
    physical binders of paper, we have provided 24/7 digital and
    searchable access. This is unprecedented access to committee
    confidential material.
        I would also like to add that my staff set up workstations
    and have been available 24/7 to help Senators who are not on--
    --
        [Disturbance in the hearing room.]
        Chairman Grassley [continuing]. Confidential materials, but
    not one--but not one Senator showed up. I guess Senators
    complaining about lack of access to confidential documents were
    not really interested in seeing them in the first place, but I
    want to emphasize more documents are widely available than in
    any prior Supreme Court nomination.
        And then to the issue about hiding committee confidential
    documents, some colleagues, and you have heard it this morning,
    accused of hiding documents. They are suggesting that some of
    the committee confidential documents contain information that
    would be of great interest to the public. Well, just as I did
    last year during Justice Gorsuch's confirmation, I put a
    process in place that would allow my colleagues to obtain the
    public release of confidential documents for use during the
    hearing. All I asked was my colleagues to identify the
    documents they intended to use, and I would work to get the
    Department of Justice and former President Bush to agree to
    waive restrictions on the documents. Senator Feinstein secured
    the public release of 19 documents last year under this
    process, and Senator Klobuchar secured the release of four
    documents this year.
        If my colleagues truly believed that other committee
    confidential documents should have been made public, they never
    told me about them and requested the ones that they wanted.
    Instead of scaring the American people by suggesting that we
    are hiding some incriminating documents, they should have made
    a request that I work to get the ``committee confidential''
    designation removed. This year I received no such request
    except from Senator Klobuchar, which was honored and resulted
    in the disclosure of documents that she wanted to use during
    this hearing.
        [Disturbance in the hearing room.]
        Senator Leahy. Mr. Chairman, you stated what I did and you
    stated it inaccurately. I think I have the right----
        Chairman Grassley. I said I was paraphrasing. You can
    correct me any way you want to.
        Senator Leahy. It was one heck of a paraphrase when you----
        Chairman Grassley. Give me the exact quote.
        Senator Leahy [continuing]. When you speak about doing the
    same thing as with Elena Kagan. I was Chairman when Elena Kagan
    was here. We had 99 percent of her records from the White House
    that were made public 12 days--12 days--before the hearing.
    With Judge Kavanaugh, we have 7 percent, and only 4 percent are
    public. You can talk about the numbers of pages. The fact is 99
    percent for Elena Kagan 12 days before the hearing. It was all
    available. For Judge Kavanaugh, it is 7 percent, and only 4
    percent made public.
        So, you know, if we are going to argue what was precedent,
    I would--I would point out that I have been in the Senate for
    19 Supreme Court nominations. What is being done here is
    unprecedented, and I keep coming back to the same question I
    asked. What are we trying to hide? What are we hiding? What is
    being hidden? Why not have it open like all others? The only
    other time we heard a President invoke executive privilege was
    President Reagan during the Justice William Rehnquist hearing,
    and Republicans and Democrats together went to him and said do
    not do that. He said, okay, you are right, and he withdrew his
    request of executive privilege and released the documents.
        Senator Hirono. Mr. Chairman----
        Senator Leahy. I am just sorry to see the Senate Judiciary
    Committee descend this way. I have felt privileged to serve
    here under Republican and Democratic leadership for over 40
    years. This is not the Senate Judiciary Committee I saw when I
    came to the U.S. Senate.
        Senator Klobuchar. Mr. Chairman, since my name was invoked
    by you, could I please respond?
        Chairman Grassley. After I get done. I want to give the
    exact quote that I was paraphrasing. Chairman Leahy said, ``We
    have Judge Sotomayor's record from the Federal bench. That is a
    public record that we had even before she was designated by the
    President. Judge Sotomayor's mainstream record of judicial
    restraint and modesty is the best indication of her judicial
    philosophy. We do not have to imagine what kind of a judge she
    will be because we see what kind of a judge she has been.'' And
    so, that is why my answer to ``gold standard,'' of whether
    Judge Kavanaugh ought to be on the Supreme Court, based upon
    what Democrats themselves have said, is the best judge of
    whether you should be on the Supreme Court.
        Senator Klobuchar.
        Senator Klobuchar. Thank you. Mr. Chairman----
        Senator Leahy. Wait a minute. You mentioned what I said.
    Let me just finish on that on Justice Sotomayor. I did say that
    we should look at her cases just as we should on Judge
    Kavanaugh's. But you neglect to mention--carefully neglect to
    mention, and I think erroneously neglect to mention--that the
    Republicans asked for board minutes from her work at a civil
    rights group in the 1980s, long before she was ever even
    considered as a judge. You asked for that, and we got it for
    you. That's the difference.
        Senator Klobuchar. Mr. Chairman.
        [Voice off microphone.] Mr. Chairman.
        Senator Klobuchar. Mr. Chairman, you called on me.
        Chairman Grassley. Before Senator Klobuchar speaks, so we
    have 488,000 pages of documents.
        Go ahead, Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman. A few
    points here. Number one, Justice Sotomayor never worked in the
    White House, so none of these issues of executive privilege or
    other things that we have been discussing are relevant. Number
    two, while I appreciate you granting my request, Mr. Chairman,
    on these campaign finance documents, this is all they were.
    This is it. This is how many pages.
        Yet we have 148,000 documents that we cannot talk about
    publicly, and I will say they are illuminating. It shows that
    the nominee has a limited view of campaign finance reform. In
    his own words, he says that his views on the First Amendment
    are pure when it comes to this very important issue, and we can
    talk about that more in the future. But I do have a question,
    and that is, yes, I asked for these documents, but I have also
    joined several letters led by Senator Feinstein asking that all
    the documents that we have in the Committee be made public so
    that we can ask questions.
        And then finally, my initial point that I am so focused on,
    the 102,000 pages of documents from Judge Kavanaugh's work in
    the White House Counsel, I would like to know, Mr. Chairman, if
    you have another example of a time when executive privilege was
    invoked to block the release of Presidential records to the
    Senate during a Supreme Court nomination. As far as my research
    shows, this was not done for Justice Kagan or Justice Roberts,
    and I would like to know if you have another example of that
    during a Supreme Court nomination hearing.
        Chairman Grassley. Yes, it was done for Justice Roberts and
    it was the Solicitor General position he had.
        Senator Klobuchar. When he was a Solicitor General, that is
    correct, but during the time that they worked in the White
    House, that is my question.
        Senator Blumenthal. Mr. Chairman, I would like to bring to
    the attention of the Chair----
        Senator Cornyn. I believe I have the floor.
        Chairman Grassley. Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman, for recognizing
    me. I have not been in as many confirmation hearings as some of
    my colleagues, but this is the first confirmation hearing for a
    Supreme Court Justice I have seen basically according to mob
    rule. We have rules in the Senate. We have norms for decorum.
    Everybody, as you pointed out, Mr. Chairman, is going to get a
    chance to their say.
        Chairman Grassley. Yes.
        Senator Cornyn. You have given everybody a chance to ask
    questions for up to 50 minutes. You have given them a chance to
    make an opening statement. Any one of our colleagues can step
    out here and talk to the press and make whatever comments they
    want to the press and tell the world how they feel about this.
    But the fact is it is hard to take it seriously when every
    single one of our colleagues in the Senate Judiciary Committee
    on the Democratic side have announced their opposition to this
    nominee even before today's hearing. So, it is hard to take
    seriously their claim that somehow they cannot do their job
    because they have been denied access to attorney-client or
    executive privilege documents when they have already made up
    their mind before the hearing. There is nothing fair about
    that.
        And we were just asked for an opportunity for the American
    people to be able to listen to this nominee answer the
    questions that we have. And I think that is how we ought to
    proceed, and I hope we will.
        Senator Durbin. Mr. Chairman.
        Senator Blumenthal. Mr. Chairman, can I be recognized to
    respond specifically to that comment? There is precedent here.
    There are rules that can guide us. We are asking for those
    rules to be followed. In the past, our colleagues on the
    Republican side have asked for a postponement of these
    Committee proceedings on nominations when documents have been
    denied on two occasions from Senator Sessions--then-Senator
    Sessions, and Senator Kyl. Those requests were granted. We are
    asking simply that that precedent be followed, Mr. Chairman.
    Far from mob rule, far from contempt of the process, we are
    simply asking for respect here to the normal, regular order.
        Senator Durbin. Mr. Chairman.
        Chairman Grassley. Yes, go ahead.
        Senator Durbin. Mr. Chairman, I would like to address this
    ``committee confidential'' issue one more time because you have
    explained your point of view. Here is what we know. The
    Chairman, Chairman Grassley, who is my friend and I respect,
    said his reason for unilaterally designating 147,000 pages of
    Burck documents as ``committee confidential'' is because that
    was the condition that Bill Burck imposed on the provision of
    the documents. When Judge Kavanaugh was in my office meeting
    with us, I asked him, ``Who is Bill Burck? By what authority
    can he restrict the information given to the Senate Judiciary
    Committee and to the American people? Is he a Government
    employee?'' No one knew this mysterious Bill Burck who is
    filtering these documents.
        So, I figured since the nominee carries the Constitution in
    his pocket, there must be some reference to Bill Burck in
    Article II, Section 2, but it just says ``advice and consent of
    the Senate.'' It does not include Mr. Burck. By what authority
    is this man holding back hundreds of thousands of documents
    from the American people? Who is he? Who is paying him? So,
    ``committee confidential'' is being determined by a man, a
    private attorney, and we do not know who he works for, or to
    whom he is accountable.
        Mr. Chairman, in the past when we went into committee
    confidential, it was in a discrete, specific area of concern
    involving a handful of words or accusations that have made in a
    document, and we were very careful to do it on a bipartisan
    basis. That has not been the case here where 147,000 pages have
    been designated by Bill Burck as outside the reach of the
    American people in the Senate Judiciary Committee. That is a
    further example of why this whole process has gone astray, and
    I think your explanation ignores that.
        [Voice off microphone.] Mr. Chairman.
        Senator Kennedy. Mr. Chairman. Mr. Chairman.
        Chairman Grassley. Who wants the floor?
        Senator Kennedy. The new Senator.
        [Laughter.]
        Chairman Grassley. Go ahead.
        Senator Kennedy. Thank you, Mr. Chairman. Mr. Chairman, can
    you tell me again how many documents have been produced?
        Chairman Grassley. Four hundred and eighty-eight thousand,
    minus--or, I mean, other than 28,000 pages that Justice
    Kavanaugh has submitted including his own judicial opinions.
        Senator Kennedy. Number two, are we in executive session or
    not?
        Chairman Grassley. We are having a hearing on the
    nomination of the--of a nominee for the Supreme Court.
        Senator Kennedy. Yes, sir, I got----
        Chairman Grassley. We are not in executive session.
        Senator Kennedy. All right. Number three, at some point are
    we going to get to hear from the nominee?
        Chairman Grassley. Hopefully it was going to be before
    2:30. It will probably be later this afternoon now.
        Senator Kennedy. All right. Thank you, Mr. Chairman.
        Chairman Grassley. Yes.
        Senator Coons. Mr. Chairman?
        Chairman Grassley. Can I ask my colleagues on the other
    side of the aisle how long you want to go on with this because
    I am not going to entertain any of the motions you are making.
    We are not in executive session, and I think we ought to level
    with the American people. Do you want this to go on all day
    because I have been patient. I have been accused of having a
    mob rule session. Now, if we have a mob rule session, it is
    because the Chairman is not running the Committee properly, but
    since every one of you on that side of the aisle, except
    Senator Booker and Senator Harris, new to the Committee, said
    during Justice Gorsuch's hearing, every one of you prefaced
    your comments on how fair I was in running that hearing. Now,
    this is the same Chuck Grassley that ran the Gorsuch hearing. I
    would like to run this hearing the same way if you will give me
    the courtesy of doing it.
        Senator Coons. Thank you, Mr. Chairman.
        Chairman Grassley. How long do you want to go on?
        Senator Coons. Mr. Chairman, I would like to make one more
    point before we proceed, if I might.
        Chairman Grassley. Senator Coons.
        Senator Coons. The accusation that this is a mob rule
    hearing was made by your colleague from the State of Texas. I
    think you have been conducting this in a respectful,
    appropriate, and deliberate way. My concerns that I want to
    renew given the exchange you just had with Senator Leahy, who
    has participated in or presided over more Supreme Court
    confirmations than any currently serving Member, I believe, was
    over how the document request was handled for now-Justice
    Kagan.
        A request was sent to the National Archives. Ranking Member
    Feinstein tried to work with you to send an identical request
    to the National Archives. And before we proceed with the
    questioning, Mr. Chairman, I simply would like to have a
    settled heart about why you chose to communicate directly to
    the Archives, and not to respond to the Ranking Member's
    request.
        Members of this Committee have raised issues about an
    unprecedented Committee process by which documents were
    blocked, by which they were considered classified, and by which
    we have been blocked from being able to share them with the
    American people or ask questions based on them. This is
    unprecedented. That is why, as you put it, this side seeks to
    raise issues to establish ground rules before we proceed.
        Chairman Grassley. You asked an appropriate question. I
    have an answer. I do not know whether it will satisfy you or
    not. Those documents are the least useful in understanding his
    legal views and the most sensitive to the executive branch, and
    let me emphasize--the most sensitive to the executive branch.
        The staff secretary serves as an inbox and outbox to the
    Oval Office. And you are going to have opportunities to ask the
    nominee himself what he did then, but I am giving you my
    judgment about being a person that primarily was responsible
    for managing the paper that crosses the President's desk. His
    job--and if I am wrong, he can satisfy you otherwise in your
    questions you want to ask him. But his job was to make sure the
    President sees the advice of other advisers, not, as staff
    secretary, providing his own advice.
        One of President Clinton's staff secretaries, Todd Stern,
    described the job this way. I quote, ``The staff secretary's
    job is not to influence the President, but to ensure he gets a
    balanced diet of viewpoints from all relevant people on the
    staff. You are certainly not trying to put your thumb on the
    scale between options.''
        Reviewing Judge Kavanaugh's staff secretary documents would
    teach us nothing about his legal views. For that, we have the
    307 opinions that he wrote and the hundreds more joined,
    totaling more than 10,000 pages of judicial writings. We also
    have more than 17,000 pages of speeches, articles, teaching
    materials, and other materials that Judge Kavanaugh attached to
    his 120-page written response, which I think was--Judiciary's
    questionnaire was probably the most robust questionnaire ever
    submitted to a Supreme Court nominee.
        We also have more than 480,000 pages of emails and other
    documents from Judge Kavanaugh's service as an executive branch
    lawyer. This is a half million pages of paper, more than the
    last five confirmed Supreme Court nominees combined. In
    addition to not shedding light on Kavanaugh's legal views, the
    staff secretary documents are very sensitive to the executive
    branch.
        Let us emphasize that word ``sensitive.'' These documents
    contain highly confidential advice, including national security
    advice, that went directly to the President from his advisers.
    It would threaten the candor of future advice to Presidents if
    advisers knew their advice would be broadly disclosed.
        Senators have more documents for Judge Kavanaugh than any
    nominee in Senate history. Democratic leaders insistent on
    getting staff documents I think was a way of not having this
    hearing take place at this particular time.
        So can I proceed, Members of the Democratic Caucus?
        Senator Harris. Mr. Chairman, if I may be recognized for
    one final point?
        Chairman Grassley. After you are done, can I proceed to my
    opening statement?
        Senator Harris. I will defer to my colleagues. But I would
    just, as a point of information, we sent a letter to you, Mr.
    Chairman, 7 days ago regarding the ``committee confidential''
    nature of the documents and asked if they would not be
    designated ``committee confidential.'' As another point of
    information, it is my understanding there are 6 million to 7
    million pages of documents regarding this nominee, and it is my
    understanding, with all due respect, Mr. Chairman, that you
    have only requested 10 to 15 percent of the total.
        I appreciate that there are a lot of pages of documents,
    but we have to have this conversation in the context of the
    total and the fact that we have only been given by your request
    10 to 15 percent of those documents.
        And my final point is this. This is a hearing about who
    will sit on the highest court of our land. This is a hearing
    that is about who will sit in a house that symbolizes our
    system of justice in this country.
        And some of the most important principles behind the
    integrity of our system of justice is that we have due process
    and we have transparency. That is why we have public
    courtrooms. That is why we have requirements in courts of law
    in our country that there will be transparency, that both
    parties will be given all relevant information. We can argue
    then as to the weight of the documents and the significance,
    but not as to whether or not they are admissible.
        So I object. I ask that we renew and revisit Senator
    Blumenthal's motion to suspend or my motion to postpone this
    hearing. Thank you.
        Chairman Grassley. Okay. Thank you.
        Senator Blumenthal. Mr. Chairman?
        Chairman Grassley. I appreciate the courtesy of the
    Democrats for me to proceed.
        Senator Blumenthal. May I just have one last opportunity
    regarding my motion?
        Chairman Grassley. Please go ahead. Please, please go
    ahead.
        Senator Blumenthal. Thank you, Mr. Chairman. I appreciate
    your giving me the floor.
        I have made a motion that is properly before this
    Committee. The Chairman said earlier that he has never been
    through a confirmation process like this one. The reason is
    that no administration in the past has engaged in this kind of
    concealment. That is the reason, very simply.
        It is not the Chairman's doing necessarily. It is this
    administration that has concealed and hidden documents from us
    and from the American people. And so I renew my motion that we
    adjourn so that we can access the documents we need, review
    them in a deliberate and thoughtful way. Much has been done for
    colleagues in the past when they have requested it, and as is
    required under Rule IV of our rules, there is no requirement
    that we be in executive session to follow this rule, Mr.
    Chairman.
        And I respectfully ask that we follow our rules, that we
    proceed in accordance with those norms, and I know the Chairman
    has great respect for open government, for whistleblowers, for
    sunlight as the best disinfectant. We need some sunlight in
    this process.
        Thank you, Mr. Chairman. And I again renew my motion to
    adjourn, which has been seconded by Senator Whitehouse.
        Chairman Grassley. Denied because we are not in executive
    session.
        I will proceed with my----
        Senator Hirono. Mr. Chairman, before you proceed, I would
    just like to make one correction. There is a misconception as
    to what White House staff secretaries do. And, in fact, two
    past staff secretaries, Todd Stern and John Podesta, wrote an
    op-ed in the July 30, 2018, Washington Post titled, ``Staff
    Secretaries Aren't Traffic Cops. Stop Treating Kavanaugh Like
    He Was One.''
        And, in fact, Judge Kavanaugh himself has acknowledged the
    importance of the time that he was White House staff secretary.
    So why, Mr. Chairman, you and the others on your side, keep
    saying that this is kind of a nothing kind of a job? Nothing
    could be further from the truth. And this is why we are so
    adamant about requesting these documents that the Judge
    himself, the nominee himself, has said were among the most
    formative times of his adult life.
        Thank you, Mr. Chairman.
        Chairman Grassley. Of course, that is why we have this
    hearing. Judge Kavanaugh----
        Senator Hirono. We do not have the documents.
        Chairman Grassley. Judge Kavanaugh will have an opportunity
    to answer every question about his role in almost anything he
    has done in his lifetime, I assume.
        Senator Booker. Mr. Chairman? One--Mr. Chairman, may I be
    recognized, sir?
        Chairman Grassley. Yes. Will you be the last one, or do you
    want to go on all afternoon?
        Senator Booker. I cannot speak for my colleagues. But a lot
    of people I have a lot of respect for on this Committee,
    especially some of the new folks--I just want to answer in the
    most plain-spoken way I can possibly do--who are expected to
    evaluate a nominee who has a vast record, and if you look--and
    a lot of numbers have been cited--10,000 here, 40,000 here,
    100,000 here. But an entire body of his record, sir, we only
    have 10 percent of his record that we have been able to
    evaluate.
        Ninety percent of it has been withheld from Senators, 90
    percent of his records. So we are asking to evaluate a
    candidate, to have intelligent questions and insights into his
    record, but we only have 10 percent of that record.
        We can go on and on about the numbers of documents--
    100,000, 10,000--but the fact is we are about to proceed with a
    historic hearing. We are about to proceed toward having a
    hearing on someone having a lifetime appointment on the most
    important court in the land that will effectuate so many of the
    areas of American life, from civil rights to women's rights, to
    access to healthcare. All of this stuff is being decided, and
    we are going into this only having 10 percent, access to 10
    percent of the body of work of this man's career.
        That seems to me just common sense--90 percent is missing
    right now. Just common sense says we should have access to
    thoroughly evaluate this person. We are not asking for anything
    out of the ordinary.
        Other candidates have come before. People can talk about
    tens of thousands here, hundreds of thousands here. But we have
    gotten far more for every Supreme Court Justice that has been
    mentioned here, far more than just 10 percent just to scan a
    bit.
        My colleagues talk about what our duty to the American
    public is. Our duty to the American public is to evaluate a
    candidate on their body of work, but we are not even getting
    released that, and why? Because some political person, not a
    person who holds public office, not because--I mean, it is
    unprecedented to think that this Committee has ceded its role
    to a partisan outside lawyer.
        And so here we are about to go forward with just 10 percent
    of this person's record to evaluate, to base our questions on,
    to investigate. Ninety percent is being withheld. Just common
    sense would say that that is not fair, that is not right. It
    undermines our ability to do our job. It is just plain wrong.
        [Disturbance in the hearing room.]
        Chairman Grassley. One of the Senate's most solemn
    constitutional duties is to provide advice and consent to the
    President on the nomination of Supreme Court Justices. We are
    here this week to hear from Brett Kavanaugh, to hear about his
    exceptional qualifications, his record of dedication to the
    rule of law, and his demonstrated independence and his
    appreciation of the importance of the separation of powers.
        Indeed, to protect individual liberty, the Framers designed
    a Government of three co-equal branches, strictly separating
    legislative, executive, and judicial powers. The Framers
    intended for the judiciary to be immune from the political
    pressures the other two face. That is so that judges would
    decide cases according to the law and not according to popular
    opinion.
        Now, 230 years after ratification, our legal system is the
    envy of the world. It provides our people stability,
    predictability, protection of our rights, and equal access to
    justice. But this is only possible when judges are committed to
    the rule of law.
        Our legal system's success is built on judges accepting
    that their role is limited to deciding cases and controversies.
    A good judge exercises humility and makes decisions according
    to the specific facts of the case and, of course, according to
    the law.
        A good judge never----
        [Disturbance in the hearing room.]
        Chairman Grassley. A good judge never bases decisions on
    his preferred policy preferences. A good judge also has
    courage, recognizing that we have an independent judiciary to
    restrain judges when that Government exceeds lawful authority.
        President Andrew Jackson said, ``All the rights secured to
    the citizens under the Constitution are worth nothing, and a
    mere bubble, except guaranteed to them by an independent and
    virtuous judiciary.''
        Confirmation hearings for Supreme Court nominees are an
    independent--are a very important opportunity to discuss the
    appropriate role of judges. As I see it, and I expect many of
    my colleagues will agree, the role of the judge is to apply the
    law as written, even if the legal result is not one the judge
    personally likes.
        Justice Scalia has often been quoted because he was fond of
    saying if a judge always likes the outcome of the cases he
    decides, he is probably doing something wrong. I do not want
    judges who always reach a liberal result or a conservative
    result. I want a judge who rules the way the law requires.
        Judges must leave the lawmaking to Congress, the elected
    representatives of the people. Judges and Justices have
    lifetime appointments. They cannot be voted out of office if
    they legislate. Whereas if Congress legislates something that
    people do not like, then you can vote them out of office. That
    is why they are to interpret law and not make law.
        Now some have a very different view of what a judge's role
    should be. According to this view, judges should decide cases
    based upon particular outcomes in order to advance their
    politics. But the American people do not want their judges to
    pick sides before they hear a case. They want a judge who rules
    based upon what the law commands.
        This is the reason why all Supreme Court nominees since
    Ginsburg have declined to offer their personal opinions on the
    correctness of precedent. Seeking assurances from a nominee on
    how he will vote in certain cases or how he views certain
    precedent undermines judicial independence and essentially asks
    for a promise in exchange for a confirmation vote.
        It is unfair and unethical. Indeed, what litigant could
    expect a fair shake if the judge has already pre-judged the
    case before the litigant even enters the courtroom?
        I expect Judge Kavanaugh--in fact, it is my advice to him
    to follow the example set by Justice Ginsburg, and all the
    nominees that followed her, that a nominee should offer ``no
    hints, no forecasts, no previews'' on how they will vote.
        Justice Kagan, when asked about Roe v. Wade, said the
    following, ``I do not believe it would be appropriate for me to
    comment on the merits of Roe v. Wade other than to say that it
    is settled law entitled to precedential weight. The application
    of Roe to future cases, and even its continued validity, are
    issues likely to come before the Court in the future.''
        Senators were satisfied with these answers on precedent. So
    Senators should be satisfied if Judge Kavanaugh answers
    similarly.
        This is my fifteenth Supreme Court confirmation hearing
    since I joined the Committee in 1981. Thirty-one years ago,
    during my fourth Supreme Court confirmation hearing, liberal
    outside groups and their Senate allies engaged in an
    unprecedented smear campaign against Judge Robert Bork.
        As Mark Pulliam said, in an op-ed over the weekend, ``The
    borking of Robert Bork taught special interest groups that they
    could demonize judicial nominees based solely on their
    worldview. Worse, character assassination proved an effective
    tactic, nearly sinking Justice Clarence Thomas' appointment 4
    years later.''
        But he also said, continuing to quote, ``By confirming
    Judge Kavanaugh, the Senate can go some way toward atoning for
    its shameful treatment of Justice Robert Bork 31 years ago.''
        Judge Kavanaugh is one of the most qualified nominees, if
    not the most qualified nominee that I have seen. A graduate of
    Yale Law School, clerking three Federal judges, including the
    man he is nominated to replace. He spent all but 3 years of his
    career in public service and has served as a judge for 12 years
    on the D.C. Circuit, the most influential Federal circuit
    court.
        He has one of the most impressive records for a lower court
    judge in the Supreme Court. In at least a dozen separate cases,
    the Supreme Court adopted positions advanced by Judge
    Kavanaugh.
        The American Bar Association, whose assessment Democratic
    leaders have called the ``gold standard'' of judicial
    evaluations, rated Judge Kavanaugh unanimously ``well
    qualified.''
        A review of Judge Kavanaugh's extensive record demonstrates
    a deep commitment to the rule of law. He has written eloquently
    that both judges and Federal agencies are bound by the law
    Congress enacts. And he has criticized those who substitute
    their own judgment about what a statute should say for what the
    statute actually says.
        After the President nominated Judge Kavanaugh, I said this
    would be the most thorough and transparent confirmation process
    in history. I say that statement even regarding all the
    discussion we have had this morning. It has proven to be, from
    Judge Kavanaugh's authoring 307 opinions, joined hundreds more,
    amounting to more than 10,000 pages. He submitted 17,000 pages
    of speeches, articles, and other materials to the Committee,
    along with his 120-page written response to the questionnaire
    that the Committee set out.
        These add up to 27,000 pages of Judge Kavanaugh's record
    already available to the American people. And we received just
    shy of half a million pages of emails and other documents from
    Judge Kavanaugh's service as an executive branch lawyer, which
    is more than we received for the last five Supreme Court
    nominees. Every one of these more than 483,000 pages of
    executive branch records are available to any Senator, 24/7.
        I pushed for Federal officials to significantly expedite
    the public disclosure process under Federal law, so that all
    Americans have online access to more than 290,000 pages of
    these records right now on our Committee website. In short, the
    American people have unprecedented access and more materials to
    review Judge Kavanaugh than ever have had for a Supreme Court
    nominee. And to support the review of Judge Kavanaugh's
    historic volume of material, I have worked to ensure that more
    Senators have access to more material than ever.
        Since so much of the rest of my statement has been
    discussed this morning by what the Democrats have said, and I
    have answered a lot of it, I am going to put the last seven
    pages of my statement in the record.
        [The prepared statement of Chairman Grassley appears as a
    submission for the record.]
        Chairman Grassley. And I am going to ask Senator Feinstein
    if she has more to say on her opening statement. And if she
    does not, I will go to Senator Hatch.
        Senator Feinstein. Thank you. I do, Mr. Chairman. I will
    probably truncate it even so.
        But I think it is really important that people, as well as
    the Judge, the nominee, understand how strongly we feel and why
    we feel that way. I want to talk a little bit about one of the
    big decisions that we have the belief that although you told
    Senator Collins that you believed it was settled law, the
    question is, really, do you believe that it is correct law? And
    that is Roe v. Wade.
        I was, in the '50s and '60s, active, but first, as a
    student at Stanford. I saw what happened to young women who
    became pregnant. And then subsequently, I sat, as an appointee
    of Governor Brown's, on the term-setting and paroling authority
    for women in California who had committed felonies. And so I
    sentenced women who had committed abortions to State prison and
    granted them paroles.
        And so, came to see both sides: the terrible side, and the
    human and vulnerable side. And when you look at the statistics
    during those days, those statistics that the Guttmacher
    Institute has put out, are really horrendous. For you, the
    President that nominated you, has said, ``I will nominate
    someone who is anti-choice and pro-gun.'' And we believe what
    he said. We cannot find the documents that absolve from that
    conclusion.
        So what women have won through Roe and a host of privacy
    cases--to be able to control their own reproductive system, to
    have basic privacy rights--really extraordinarily important to
    this side of the aisle and I hope the other side of the aisle
    as well.
        Last year, you drafted a dissent in Garza v. Hargan, and
    that is a case where a young women in Texas, I believe, was
    seeking an abortion. In that dissent, you argued that even
    though the young woman had complied with the Texas parental
    notification law and secured an approval from a judge, she
    should nonetheless be barred.
        In making your argument, you ignored and I believe
    mischaracterized a Supreme Court precedent. You reasoned that
    Jane Doe should not be unable to exercise her right to choose
    because she did not have family and friends to make her
    decision. The argument rewrites Supreme Court precedent and, if
    adopted, we believe would require courts to determine whether a
    young woman had a sufficient support network when making her
    decision, even in cases where she has gone to court.
        This reason, we believe--I believe--demonstrates that you
    are willing to disregard precedent. And if that is the case
    because just saying something is settled law, it really is, is
    it correct law?
        The impact of overturning Roe is much broader than a
    woman's right to choose. It is about protecting the most
    personal decisions we all make from Government intrusion. Roe
    is one in a series of cases that upheld an individual's right
    to decide who to marry. It is not the Government's right. Where
    to send your children to school. The Government cannot get
    involved. What kind of medical care you can receive at the end
    of life, as well as whether and when to have a family.
        And I deeply believe that all these cases serve as a
    bulwark of privacy rights that protect all Americans from over-
    involvement of the Government in their lives. And to me, that
    is extraordinarily important.
        Next, I would like to address the President's promise to
    appoint a nominee blessed by the NRA. In reviewing your
    judicial opinions and documents, it is pretty clear that your
    views go well beyond simply being pro-gun, and I would like to
    straighten that out.
        It is my understanding that during a lecture at Notre Dame
    Law School, you said you would be the ``first to acknowledge''
    that most other lower court judges have disagreed with your
    views on the Second Amendment. For example, in District of
    Columbia v. Heller, you wrote that unless guns were regulated
    either at the time of the Constitution was written or
    traditionally throughout history, they cannot be regulated now.
    In your own words, gun laws are unconstitutional unless they
    are ``traditional or common in the United States.''
        You concluded that banning assault weapons is
    unconstitutional because they have not historically been
    banned. And this logic means that even as weapons become more
    advanced and more dangerous, they cannot be regulated. Judge
    Easterbrook, as you know, a conservative judge from the Seventh
    Circuit, concluded that that reasoning was absurd, and he
    pointed out that a law's existence cannot be the source of its
    own constitutional validity.
        In fact, I am left with the fact that your reasoning is far
    outside the mainstream of legal thought and that it surpasses
    the views of Justice Scalia, who was clearly a pro-gun Justice.
    Even Scalia understood that weapons that are like M-16 rifles
    or weapons that are most useful in military service can, in
    fact, be regulated. And there is no question that assault
    weapons like the AR-15 were specifically designed to be like
    the M-16.
        The United States makes up 4 percent of the worldwide
    population, but we own 42 percent of the world's guns. Since
    2012, when 20 first graders and 6 school employees were killed
    at Sandy Hook Elementary, there have been 273 school shootings.
    This is an average of 5 shootings every month and a total of
    462 children, teenagers, teachers, and staff shot, and 152
    killed.
        I care a lot about this. I authored assault weapons
    legislation that became law for 10 years, and I have seen the
    destruction. If the Supreme Court were to adopt your reasoning,
    I fear the number of victims would continue to grow, and
    citizens would be rendered powerless in enacting sensible gun
    laws. So this is a big part of my very honest concern.
        You are being nominated for a pivotal seat. It would likely
    be the deciding vote on fundamental issues. So during your time
    in the White House when you were staff secretary, some people
    regard it as kind of a monitor, monitoring things going in and
    going out. But I think it is much more. And you yourself have
    said that that is the period of ``my greatest growth.''
        And so we try to look at it, and the only way we can look
    at it is to understand the documents. And it is very, very
    difficult.
        I do not want to take too much time, but we have heard a
    lot of noise. Behind the noise is really a very sincere belief
    that it is so important to keep in this country, which is
    multi-ethnic, multi-religious, multi-economic, a Court that
    really serves the people and serves this great democracy. And
    that is my worry. That is my worry.
        So I look forward to your statement and answering the
    questions.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Feinstein appears as a
    submission for the record.]
        Chairman Grassley. Senator Hatch for 10 minutes.

               OPENING STATEMENT OF HON. ORRIN G. HATCH,
                 A U.S. SENATOR FROM THE STATE OF UTAH

        Senator Hatch. Well, thank you, Mr. Chairman.
        I would first like to thank you for your tremendous work in
    organizing this hearing. This has been the most thorough
    Supreme Court confirmation process that I have ever
    participated in. We have received more than twice as many
    documents for Judge Kavanaugh as for any Supreme Court nominee
    in history.
        This is a big deal. We have tens of thousands of pages of
    Judge Kavanaugh's opinions, speeches, and other writings. This
    has been an exhaustive process, and I want to thank you for
    your leadership on it.
        Now to our witness, Judge Kavanaugh, it is good to see you.
    I have known you for a long time. This is my fifteenth and
    final Supreme Court confirmation hearing. I participated in the
    confirmation of every current Justice on the Court. I have
    participated in the confirmation of over half of all Federal
    judges now serving in the Federal system or who have ever
    served in the Federal system.
        I know a good nominee when I see one, and you are a great
    nominee. I do not think there is any question about it. I have
    known you for a long time.
        I remember when you first came before this Committee back
    in 2004 for your first confirmation hearing. I was the Chairman
    of this Committee at the time. I got to know you well. I was
    impressed by your intellect, your legal ability, and your
    integrity, all of which were very much notable. At only 39
    years of age, you knew more about the law than most lawyers who
    have practiced for a lifetime.
        And you have been an outstanding judge. You have earned the
    respect of your colleagues, and you have earned the respect of
    the Supreme Court as well. As you know, the Supreme Court has
    adopted the positions in your opinions no less than 13 times.
    That is something nobody can really argue against. You have
    authored landmark opinions on the separation of powers,
    administrative law, and national security.
        You served as a mentor to dozens of clerks and hundreds of
    law students, male and female. And some of whom did not share
    your philosophy. Your student reviews are off the charts
    favorable, even by those who may not have completely agreed
    with your philosophical approaches on some matters.
        You volunteer in your community.
        [Disturbance in the hearing room.]
        Senator Hatch. Mr. Chairman, I ask for order.
        Chairman Grassley. Just go ahead.
        Senator Hatch. You volunteer in the community. You coach
    youth basketball. You are the sort of person many of us would
    like to have as a friend and a colleague. You also apparently
    like to eat pasta with ketchup, but nobody is perfect.
        Now this being politics and this being--this being a
    Supreme Court confirmation hearing, my Democratic colleagues
    actually----
        [Disturbance in the hearing room.]
        Senator Hatch. I have got to admit this is----
        My Democratic colleagues can admit that you are actually a
    good judge and a good person as well. They have to turn the
    volume up to 11 and try to paint you as one of the four
    horsemen of the apocalypse. Anyone who actually knows you knows
    that is ridiculous, and the American people will see soon
    enough that you are a smart, decent, normal person that just so
    happens to have been nominated to the highest court in our
    land.
        So here are the facts. Judge Kavanaugh is one of the most
    distinguished judges----
        [Disturbance in the hearing room.]
        Senator Hatch. Mr. Chairman, I think we ought to have this
    loudmouth removed. I mean, we should not have to put up with
    this kind of stuff. I hope she is not a law student.
        Chairman Grassley. I--now that we have quiet, I would like
    to explain that I advised 2 years ago that at my hearings I
    expected the police to do their job, and I expected the
    Committee to go on. But if you do not want to continue, we
    will----
        Senator Hatch. I am going to continue.
        Chairman Grassley. Okay. Go ahead.
        Senator Hatch. Okay. So here are the facts. Judge Kavanaugh
    is one of the distinguished judges in the entire country. He
    has served for over 12 years now on the U.S. Court of Appeals
    for the D.C. Circuit. The D.C. Circuit is often referred to as
    the second----
        [Disturbance in the hearing room.]
        Senator Hatch [continuing]. Second-highest court in the
    land because it hears many critically important cases involving
    agency action and the separation of powers. During his time on
    the bench, Judge Kavanaugh has heard over 1,000 cases. He has
    written more than 300 opinions. His opinions span nearly 5,000
    pages in length.
        What is remarkable about Judge Kavanaugh's judicial record
    is not just its length, but its depth and its quality. Judge
    Kavanaugh has been a true thought leader. He has written
    powerful opinions on the separation of powers and
    administrative law. He has shown that he brings a fair-minded
    approach to questions of criminal law and employment law.
        On almost every issue of consequence, Judge Kavanaugh has
    made a significant contribution to our Nation's jurisprudence,
    and he has won respect from both sides of the political
    spectrum. The Committee has received letters from former
    clerks, former colleagues, former students, and former
    classmates, all attesting to Judge Kavanaugh's sterling
    character and qualifications, some of whom are Democrats.
        Eminent members of the Supreme Court bar and legal academia
    have all written in strong support of Judge Kavanaugh's
    nomination. The authors of these letters emphasize that they
    have different political views and that they do not agree on
    every subject. But to a person, they speak of Judge Kavanaugh's
    integrity and judgment, and they enthusiastically endorse his
    nomination.
        I would like to highlight one letter in particular from 18
    of Judge Kavanaugh's former women law clerks. That is all of
    his former women clerks, all of them, who were not precluded by
    their current or pending employment from signing the letter.
    They write that ``Judge Kavanaugh has been one of the strongest
    advocates in the Federal judiciary for women lawyers.'' They
    detail the mentoring and encouragement Judge Kavanaugh has
    given them in their careers, and they say that is it ``not an
    exaggeration to say that we would not be the professors,
    prosecutors, public officials, and appellate advocates we are
    today without his enthusiastic encouragement and unwavering
    support.''
        It bears emphasis that these former clerks span the
    political divide. A number went on to clerk for liberal
    Justices. That itself shows you the high regard Judge Kavanaugh
    has across the ideological spectrum. Republican- and
    Democratic-appointed judges alike have hired his former clerks.
        Judge Kavanaugh is no ideologue. He is no extremist. He is
    a highly respected, thoughtful, fair-minded judge who is well
    within the judicial mainstream. Look no further than the letter
    the Committee received from over 40 members of the Supreme
    Court bar supporting Judge Kavanaugh's nomination. Among the
    signers are people like Lisa Blatt, Deanne Maynard, and
    Kathleen Sullivan. These are nationally renowned attorneys who
    practice frequently before the Supreme Court and the Federal
    courts of appeals, and they are not conservatives.
        To the contrary, they are among the most prominent liberal
    attorneys at the bar today and in the country. But they know
    Judge Kavanaugh. They know his work. They know his character.
    And they know that he is an outstanding judge, and they know
    that he will make an outstanding Justice.
        If we could just get the politics out of this, I think we
    could all agree that Judge Kavanaugh is an indisputably
    qualified nominee with strong backing in the legal community
    who is well within the judicial mainstream. Go ask anyone who
    practices regularly before the Supreme Court who does not have
    a partisan agenda, and they will tell you Judge Kavanaugh is
    exactly the kind of person we should have on the Court or we
    should want on the Court.
        Indeed, no less than Bob Bennett, Bill Clinton's personal
    lawyer during Clinton's Presidency, wrote to the Committee
    urging support for Judge Kavanaugh's nomination. Here is what
    he intended to say: ``As a Washington attorney, I can attest to
    the high esteem in which the bar holds Judge Kavanaugh. Lawyers
    love arguing before him for good reason because they know he
    will approach every case with an open mind.'' Bennett
    continues, ``Brett is the most qualified person any Republican
    President could possibly have nominated.''
        [Disturbance in the hearing room.]
        Senator Hatch. ``Were the Senate to fail to confirm Brett,
    it would not only mean passing up the opportunity to confirm a
    great jurist but would also undermine civility in politics
    twice over, just in playing politics with such an obviously
    qualified candidate and then again in losing the opportunity to
    put such a strong advocate for decency and civility on our
    Nation's highest court.''
        Again, this is President Clinton's personal lawyer during
    Clinton's Presidency who litigated against Judge Kavanaugh.
    Those who know Judge Kavanaugh hold him in highest regard. This
    is true of both Republicans and Democrats.
        Unfortunately, we have all these interest groups streaming
    from the sidelines and putting pressure on my Democratic
    colleagues to make this hearing about politics, to make it
    about pretty much anything except Judge Kavanaugh and his
    qualifications. We have folks who want to run for President,
    who want their moment in the spotlight, who want that coveted
    TV clip. Frankly, I wish we could drop all of the nonsense.
        Judge Kavanaugh is unquestionably qualified. He is one of
    the most widely respected judges in the country. He is well
    within the judicial mainstream. Anyone who wants to argue
    otherwise wants to banish half the country from the mainstream.
        So, Judge, I am glad you are here today. I am sorry you are
    going to have to go through some of this nonsense that is about
    to come your way, but I hope you do it well. You are smart. You
    are smart, and you are a fundamentally decent, good person.
        [Disturbance in the hearing room.]
        Senator Hatch. Anyone who actually knows you knows that to
    be true. Now, Mr. Chairman, I do not know that the Committee
    should have to put up with this type of insolence that is going
    on in this room today. And frankly, these people are so out of
    line they should not even be allowed in the doggone room.
        Now, Judge Kavanaugh, I am proud of you. I know how good
    you are. I know you deserve this position. I am proud of the
    President for nominating you, and frankly, I wish you the best
    because we are going to confirm you.
        Chairman Grassley. Out of courtesy to Ranking Member
    Feinstein, she wants to introduce people who are in the
    audience, and so she can take what time she wants right now.
        Senator Feinstein. Thank you. I will be very fast.
        I would like to recognize Marc Morial, the president of the
    National Urban League; Melanie Campbell, the president and CEO
    of the National Coalition on Black Civic Participation;
    Reverend Al Sharpton, the president of National Action Network;
    Vanita Gupta, president and CEO, Leadership Conference of Civil
    and Human Rights; Derrick Johnson, president and CEO, NAACP;
    Sherrilyn Ifill, president, NAACP Legal Defense Fund; Kristen
    Clarke, president and executive director, Lawyers' Committee
    for Civil Rights; and Fatima Goss Graves, president and CEO,
    National Women's Law Center.
        I would also like to recognize Fred Guttenberg, the father
    of Jaime, one of 17 killed in the Parkland shooting; Kelly
    Gregory, former Airman First Class, single mother, business
    owner, living with stage IV metastatic breast cancer; Sarah
    McBride, an advocate for LGBT rights and protections for
    patients; Tia Nelis, who works on behalf of people with
    disabilities; Angel Young, an enrolled member of the Standing
    Rock Lakota and a veteran; Kim Jorgensen Gane, who advocates
    for a woman's right to choose; Bobby Jenkins, a longtime
    resident of Randolph County, Georgia, and a voting rights
    advocate; Kerry Chen, who has been fighting for marriage
    benefits for same-sex couples; and Carlotta LaNier, a member of
    Little Rock Nine.
        Thank you for this courtesy. I really appreciate it.
        Chairman Grassley. Thank you.
        Senator Leahy.

              OPENING STATEMENT OF HON. PATRICK J. LEAHY,
                A U.S. SENATOR FROM THE STATE OF VERMONT

        Senator Leahy. Thank you, Mr. Chairman. And I was perfectly
    happy to yield to Senator Feinstein for that.
        Mr. Chairman, the last few minutes we have heard a lot of
    rhetoric. I think it might serve the Committee well to have
    some reality. I have served in the Senate for 44 years. During
    that span, I have been able to vote on 19 nominations to the
    Supreme Court.
        I mention this because I have a sense of history. Now I
    have never seen in that 44 years so much at stake with a single
    seat, but I have also never seen such a dangerous rush to fill
    it. President Trump promised he would only nominate judges to
    the Supreme Court who would overturn Roe v. Wade, judges who
    would dismantle the Affordable Care Act, judges who would
    reshape our judiciary.
        Now if that is not judicial activism, I do not know what
    is. And Judge Kavanaugh, with your nomination, the President
    has made it very clear that he is following through on his
    promises, and many of us feel he is.
        It seems that you may have intrigued him for another
    reason, your expansive view of Executive power and Executive
    immunity. You have taken the unorthodox position that
    Presidents should not be burdened with a criminal or civil
    investigation while in office. This is for now we have a
    President who has declared in the last 24 hours that the
    Department of Justice should not prosecute Republicans.
        It is ``Alice in Wonderland,'' and I find it difficult to
    imagine that your views on this subject escaped the attention
    of President Trump, who seems increasingly fixated on his own
    ballooning legal jeopardy. When questioning you about these
    concerns, we will certainly look to your record on the bench.
    All of us, Republicans and Democrats, agree that we should.
        Indeed, your 12 years on the D.C. Circuit Court of Appeals
    will loom large during these hearings. But the unknown looms
    even larger. Before sitting on the bench, you were a political
    operative involved in the most political and partisan
    controversies of our time.
        During this time, you shared your personal view on
    contentious issues without regard to restrictions imposed by
    precedent or stare decisis. And it is precisely those views
    that are being hidden from us today. The Judiciary Committee's
    Supreme Court hearings are meant to be an unsparing examination
    of a nominee to a lifetime appointment to our highest court.
        They are intended to give the American people--all, all,
    all the American people a genuine opportunity to scrutinize the
    nominee's judicial philosophy, beliefs, and character because
    if confirmed with a stroke of a pen, a nominee may impact their
    lives for a generation or more. And how far we have fallen.
    Judge Kavanaugh, there are so many things wrong with this
    Committee's vetting of your record that it is hard to know
    where to begin.
        I have been on this Committee under both Republican and
    Democratic leadership. I never thought the Committee would sink
    to this. In fact, you should not be sitting in front of us
    today. You should be sitting in front of us only after we have
    completed a review of your record. Your vetting is less than 10
    percent complete.
        In critical ways, our Committee is abandoning its tradition
    of exhaustively vetting Supreme Court nominees. First,
    inexplicably, my Republican friends refused to request records
    from your 3 years as White House staff secretary, even though
    you describe those as the most formative for you as a judge,
    when you provided advice on any issue that may cross the
    President's desk.
        Now we know those issues include abortion, same-sex
    marriage, and torture. And torture. But 6 weeks ago, Senate
    Republicans huddled in a private meeting with the White House
    Counsel who is here today, and hours later, the American people
    were told those records would be off limits.
        And second, in a stark departure from Committee precedent,
    certainly the Committee precedent I have seen for 44 years,
    Chairman Grassley sent a partisan records request to the
    National Archives. Not only did it omit all 1 million records
    from your 3 years as staff secretary, it did not even request a
    privileged log.
        That means this Committee is in the dark as to what
    specific documents are being withheld and why. We do not even
    know what is being hidden. Such a move is simply incompatible
    with transparency.
        And third, the Archives told us it could not even produce
    this partial records request until the end of October. That is
    the nonpartisan Archives. Surely, I would----
        [Disturbance in the hearing room.]
        Senator Leahy. Mr. Chairman, I do not intend at any point
    to continue what I have to say with such interruptions. I do
    not care whose side they are on.
        Now the Archives have said they could not produce this
    partial records request until the end of October. Surely I
    would think that the United States Senate could wait until
    then, even if it means a Supreme Court with eight Justices for
    a short time.
        After all, Senate Republicans established a tradition of
    having just eight Justices. They did that with their treatment
    of Chief Judge Merrick Garland that showed they were willing to
    have patience with filling Supreme Court vacancies when the
    first time ever they refused to have a vote on a Supreme Court
    nominee either up or down during a Presidential election year.
    And I have been here when they have had in the past such votes.
        But Republicans instead cast aside the Archives. They
    swapped the nonpartisan review process used for every nominee
    since Watergate for a partisan one. And I think you only have
    to look at Watergate to see why we have that nonpartisan
    process. It is followed by every nomination since Watergate
    until today, and my question still recurs. What is being hidden
    and why?
        Every White House record that we have received was
    handpicked by your deputy in the Bush White House, a hyper-
    conflicted lawyer who also represents a half dozen Trump
    administration officials who are under investigation by
    prosecutors in the Russia investigation. And this partisan
    lawyer decided which of your records the Senate, but more
    importantly, the American people, the American people get to
    see.
        Fourth, countless documents that have been provided to the
    Committee contain apparent alterations and omissions with zero
    explanation. No court in this country, certainly no court that
    I ever argued cases before would accept this as a legitimate
    document production, and the United States Senate should not
    either.
        And fifth, more than 40 percent of the documents we have
    received, almost 190,000 pages, are considered ``committee
    confidential'' by Chairman Grassley. For the vast majority of
    them, there is not even a conceivable argument to restrict
    them.
        Compare this to the mere 860 documents that were designated
    ``committee confidential'' for Justice Kagan. In that, the
    request was made by the nonpartisan Archives, not by this
    Committee, and we still had 99 percent of her records.
        And six, on Friday, we learned that President Trump is
    claiming executive privilege over an additional 102,000 pages
    of your records. Such a blanket assertion of executive
    privilege is simply unheard of in the history of this country,
    and the reason it is unheard of is because it is so outrageous.
        The last time a President attempted to hide a Supreme Court
    nominee's record by invoking executive privilege was when
    President Reagan did this for Justice William Rehnquist. But
    then Republicans and Democrats came together. We demanded the
    documents be released, and President Reagan said okay, and they
    were released. Boy, how times have changed.
        And seven, to date, we have received less than half of
    Chairman Grassley's partial records request, meaning we are
    moving forward even though we have received a fraction of the
    records even Republicans claim they needed to vet your
    nomination just a few weeks ago. And then we received an
    additional 42,000 pages from your record a few hours ago. The
    notion that anyone here has properly reviewed them or even seen
    them at all is laughable. It is laughable. It does not pass the
    giggle test.
        That alone would be reason to postpone during normal times,
    but nothing about this is normal. All told, only 4 percent, 4
    percent of your White House record has been shared with the
    public. Only 7 percent has been made available to this
    Committee. The rest remains hidden from scrutiny.
        Compare this to the 99 percent of Justice Kagan's White
    House record that was available to all Americans as a result of
    the bipartisan process I ran with then-Ranking Member Jeff
    Sessions. When Senator Sessions and I requested it, we got 99
    percent. What is being hidden and why?
        And if I have not been clear, I will be so now. Today, the
    Senate is not simply phoning in our vetting obligation, we are
    discarding it. It is not only shameful. It is a sham.
        I felt, on the day when I took my oath of office the first
    time 44 years ago, I was told by both the Republican and
    Democratic leadership of the Senate, people I highly respected,
    that the Senate should be and can be the conscience of the
    Nation. I represented Vermont here for 44 years. I served with
    pride here, believing that the Senate can be and should be the
    conscience of the Nation.
        Today, with this hearing, it is not being the conscience of
    the Nation. And from the bits and pieces of your record that we
    have received, it appears you have provided misleading
    testimony about your involvement in controversial issues at the
    Bush White House during your previous confirmation hearing,
    misleading testimony. I asked you about these concerns last
    month, and I want to alert you that I will return to those
    concerns when you are under oath and I am asking you questions.
        What I fear is the American people will not know the full
    truth until your full record is public. And unfortunately,
    Republicans have done their best to ensure that will not
    happen. So we begin these hearings with gaping holes spanning
    multiple years of your career that deeply influenced, by your
    own words, your thinking as a judge.
        And any claim that this has been a thorough and transparent
    process is downright Orwellian. This is the most incomplete,
    most partisan, least transparent vetting for any Supreme Court
    nominee I have ever seen, and I have seen more of those than
    any person serving in the Senate today.
        So, Judge Kavanaugh, this hearing is premature. I hope you
    will use it, though, to answer our questions directly, clearly,
    and honestly because the American people have real concerns
    about how your confirmation would affect their lives.
        Now I will conclude with this. The Supreme Court is a
    guarantor of our liberties and our republic. Few, I would
    argue, are worthy of taking a seat. Only those with
    unimpeachable integrity. Only those who believe that truth is
    more important than party. Only those who are committed to
    upholding the rights of all Americans, not just those in power.
        As you know, inscribed in Vermont marble above the Court's
    entrance are the words, ``Equal justice under law.'' For the
    millions of Americans fearful that they are on the verge of
    losing hard-fought rights, that aspiration has never been more
    important than it is today. Frankly, as a member of the Supreme
    Court bar and as a United States Senator, I feel it has never
    been more at risk.
        Thank you.
        [The prepared statement of Senator Leahy appears as a
    submission for the record.]
        Chairman Grassley. Chairman Grassley. Before I call on
    Senator Cornyn, how ridiculous it is to say that we do not have
    the records that it takes to determine this person qualified to
    be on the Supreme Court when all the documents we have add up
    to more than we have had for the last five Supreme Court
    nominees. How did we make those decisions for those other five?
        Senator Booker. Mr. Chairman?
        Chairman Grassley. Senator Cornyn.
        Senator Booker. Mr. Chairman, if I could just respond to
    that point, because you are not giving the whole picture, sir.
    Ninety percent of the documents we have not seen. It is not the
    number of documents.
        Chairman Grassley. And I will be glad to respond to that,
    but I----
        Senator Booker. We would not hire an intern, sir, without
    90 percent of their resume.
        Chairman Grassley. Senator----
        Senator Booker. We are putting somebody on the Supreme
    Court.
        Chairman Grassley. Senator Cornyn. Senator Cornyn.

                 OPENING STATEMENT OF HON. JOHN CORNYN,
                 A U.S. SENATOR FROM THE STATE OF TEXAS

        Senator Cornyn. Thank you, Mr. Chairman.
        Judge Kavanaugh, welcome to you and your family and
    friends. I am amazed at the poker faces I have seen on the
    front row during all of this pandemonium, unlike anything I
    have seen before in a confirmation hearing.
        In my view, it is not because your opponents do not know
    enough about you. It is because they do know all they need to
    know, apparently, to oppose your nomination. And even before
    you have had a chance to answer our questions, including their
    questions, many of them have made up their minds. But the
    American people have not been introduced to you before. This is
    an opportunity for all of us to engage in a question-and-answer
    format that will hopefully illuminate why it is so important to
    have judges who actually are tethered to the text of the laws
    passed by Congress, signed by the President, as well as the
    Constitution of the United States.
        The Senate Judiciary Committee undertakes few more
    important tasks than the one before us today. Last year, the
    Committee considered and advanced the nomination of Justice
    Neil Gorsuch, who was just one of many outstanding judicial
    nominees by President Trump. This Congress has proudly
    confirmed not just Judge Gorsuch but 26 judges to the appellate
    courts across the Nation. This includes three outstanding
    Texans to the Fifth Circuit Court of Appeals.
        Historically, the confirmation of judges to our highest
    courts was somewhat routine. Routine. Justice Gorsuch was
    unanimously confirmed by a simple voice vote to the Court of
    Appeals. Not one Senator voted against Justice Kennedy who both
    you and Justice Gorsuch clerked for and who you will succeed on
    the Court. Not one Senator voted against Justice Scalia's
    confirmation, who you have called a ``role model'' and a
    ``hero.''
        But that was before judges were viewed as policymakers
    rather than fair and neutral interpreters of the Constitution
    and the laws drafted by Congress. Today, as I suggested, is a
    wonderful opportunity to re-examine the proper role for judges
    under our Constitution and the difference between legislators
    and judges.
        As Justice Gorsuch wrote before he joined the Supreme
    Court: ``Upholding and enforcing this distinction between
    legislators and judges was the great project of the late
    Justice Scalia's career. Justice Scalia would always remind us
    that legislators may appeal to their own moral convictions and
    to claims about social utility. But judges instead should
    strive to apply the law as it is, looking to the text,
    structure, and history, not to decide cases based on their own
    moral convictions or the policy consequences.''
        [Disturbance in the hearing room.]
        Senator Cornyn. So this hearing is an outstanding way to
    remind the American people the proper role of judges under our
    Constitution. Our Constitution provides for a Federal
    Government of limited and delegated powers with a Bill of
    Rights to further protect our individual liberties.
        To that end, the Framers----
        [Disturbance in the hearing room.]
        Senator Cornyn [continuing]. Created three coequal
    branches, as you know: the legislature to enact laws, the
    executive to enforce them, and the judicial branch to settle
    disputes about the meaning of those laws and the Constitution.
        [Disturbance in the hearing room.]
        Senator Cornyn. Of course, the legislature could change the
    laws, but only an amendment can change the Constitution. For
    this reason, Alexander Hamilton wrote in the Federalist
    Papers----
        [Disturbance in the hearing room.]
        Senator Cornyn. Mr. Chairman, could I pause there until the
    room is cleared?
        Chairman Grassley. Yes.
        Senator Cornyn. Thank you.
        For this reason, Alexander Hamilton wrote in the Federalist
    Papers that the judiciary will always be the least dangerous
    branch because, as he famously wrote, ``judges would have
    neither force nor will but merely judgment.''
        Today the Judiciary Committee is gathered to consider
    whether Judge Kavanaugh will honor that limited role for judges
    under our Constitution and whether he will properly exercise
    the modest and humble power of judgment entrusted to him under
    our Constitution.
        I am confident that the Senate will find that Judge
    Kavanaugh will faithfully and fairly interpret the Constitution
    and the laws of this great Nation, and I look forward to him
    succeeding Justice Kennedy. One reason for that is because I
    have been acquainted with Judge Kavanaugh for about 18 years
    and I can personally attest to his skills as a lawyer.
        [Disturbance in the hearing room.]
        Senator Cornyn. When I was Attorney General of Texas, as
    the Judge will recall, he helped me get ready for a Supreme
    Court argument.
        [Disturbance in the hearing room.]
        Senator Cornyn. May I proceed, Mr. Chairman?
        Chairman Grassley. Yes.
        Senator Cornyn. As I was saying----
        [Disturbance in the hearing room.]
        Senator Cornyn [continuing]. When I was Attorney General of
    Texas, I had a chance to argue a couple of cases in front of
    the United States Supreme Court. One case Judge Kavanaugh
    helped me prepare for was one involving the question of school
    prayer at a high school football game at the Santa Fe
    Independent School District High School.
        After that, I was pleased to introduce Judge Kavanaugh to
    the Judiciary Committee when President Bush first nominated him
    to be a judge on the D.C. Circuit. What I said back then still
    stands the test of time today. Judge Kavanaugh has an
    unparalleled academic and professional record of service. Many
    will cite his education, his clerkships, his time arguing cases
    before the court, his experience working for the executive
    branch. But I think one of the most important factors to me is
    he has already exercised excellent judgment in marrying a
    Texan, Ashley, from Abilene. So I know he is a good judge. In
    fact, Judge Kavanaugh is one of the most respected and
    thoughtful judges in the country.
        I am disappointed that, despite his exemplary
    qualifications and outstanding record, so many of our
    colleagues across the aisle have announced their opposition
    even before he was nominated.
        [Disturbance in the hearing room.]
        Senator Cornyn. The level of disingenuousness and hyperbole
    even by today's standards is extraordinary. Members from the
    other side of the aisle, including some who serve on this
    Committee, have claimed that confirming Judge Kavanaugh would
    somehow be complicit in evil and result in the destruction of
    the Constitution. Some have even claimed that you testified
    falsely--we have already heard that alluded to--before the
    Committee when you were serving our country in the Bush White
    House.
        [Disturbance in the hearing room.]
        Senator Cornyn. I hope you will have a chance to explain
    the apparent misunderstanding on the part of some Senators. And
    I sincerely hope this week we can all take a deep breath--we
    are not doing very well so far----
        [Laughter.]
        Senator Cornyn [continuing]. And get a grip and treat this
    process with the respect and gravity it demands.
        As others have alluded, the American Bar Association, which
    some have called the ``gold standard'' for judicial
    evaluations, have unanimously rated you as ``well qualified''
    for service on the Supreme Court. And as we have heard, a
    number of lawyers and judges across the spectrum have talked
    about your qualifications and sung your praises. And I am
    confident at the end of this hearing your stellar credentials
    and your body of work as a judge will demonstrate that you
    properly understand the role of a judge under the Constitution,
    and I am confident you will demonstrate that you will
    faithfully and fairly interpret the text of the law and the
    Constitution and dutifully apply them to the disputes that come
    before you.
        Finally, Judge, I expect we will have a conversation or two
    about this book which you contributed to and the law of
    judicial precedent because I know that there is a number of
    questions by Members of the Senate about how you will regard
    previously decided cases in the Supreme Court. And I trust you
    will give us a scholarly and detailed explanation of that and
    demonstrate that many of the concerns that have been expressed
    about a new Justice coming on the Court somehow wiping away
    previous decisions singlehandedly, not even with the help of
    other members of the Court, is just plain ridiculous. And we
    look forward to asking those questions and getting your
    answers.
        Thank you very much.
        Chairman Grassley. Senator Durbin.

              OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Senator Durbin. Thank you, Mr. Chairman.
        Judge Kavanaugh, it is good to see you again. I thank the
    members of your family who are weathering this hearing. Thank
    you very much for being here today.
        This is a different hearing for the Supreme Court than I
    have ever been through. It is different in what has happened in
    this room just this morning. What we have heard is the noise of
    democracy. This is what happens in a free country when people
    can stand up and speak and not be jailed, imprisoned, tortured,
    or killed because of it. It is not mob rule.
        There have been times when it is uncomfortable, and I am
    sure it was for your children. I hope you can explain this to
    them at some point. But it does represent what we are about in
    this democracy.
        Why is this happening for the first time in the history of
    this Committee? I think we need to be honest about why it is
    happening. I think it is the same reason why when I go home to
    Illinois, after being in this public service job for over 30
    years, I hear a question that I have never, ever heard before,
    repeatedly, as people pull me off to the side and say,
    ``Senator, are we going to be all right? Is America going to be
    all right? '' They are genuinely concerned about the future of
    this country.
        You come to this moment of history in a rare situation. You
    are aspiring to be the most decisive vote on the Supreme Court
    on critical issues. Justice Kennedy did that for 12 years, and
    you are called to that responsibility, and we realize the
    gravity of that opportunity and that responsibility.
        Second, of course, your record and the statements of others
    suggest there is real genuine concern about changing life-and-
    death values in this country because you see things
    differently. We have heard that over and over again, and I
    think you must understand the depth of feeling about that
    possibility.
        And, third, try as they might, I am afraid the Majority
    just cannot get beyond the fact that there are parts of your
    public life that they want to conceal. They do not want America
    to see them. I think that is a serious mistake, and I am going
    to make a suggestion at the end of my remarks.
        But over and above all of those things is this: You are the
    nominee of President Donald John Trump. This is a President who
    has shown us consistently that he is contemptuous of the rule
    of law. He has said and done things as President which we have
    never seen before in our history. He has dismissed the head of
    the Federal Bureau of Investigation when he would not bend to
    his will. He harasses and threatens his own Attorney General on
    almost a daily basis in the exercise of his office. And I did
    not vote for Jeff Sessions, but I have to tell you, there
    should be some respect at least for the office that he serves
    in. And it is that President who has decided you are his man;
    you are the person he wants on the Supreme Court; you are his
    personal choice.
        So, are people nervous about this? Are they concerned about
    it? Of course, they are. I am sure there will be a shower of
    Tweets sometime later in the day harassing people in the
    Cabinet, people in the White House, maybe even dismissing them.
    And maybe he will go after me again. Be my guest.
        But the point I am getting to is if you wonder why this
    reaction is taking place, it is because what is happening in
    this country. There are many of us who are concerned about the
    future of this country and the future of democracy, and you are
    asking for a lifetime appointment to the highest court in the
    land where you will make decisions, the deciding vote on things
    that will decide the course of history and where we are headed.
        The Senate has a constitutional responsibility to evaluate
    your nomination. We do know that before you became a judge, you
    were faithfully advancing the Republican Party agenda. I
    jokingly said in one of your previous appearances that you are
    like the Forrest Gump of Republican politics. You always show
    up in the picture. Whether it is the Ken Starr investigation,
    Bush v. Gore, the Bush White House, you have been there.
        We also know that before naming you, President Trump made
    it clear that he would appoint Justices--only appoint Justices
    to the Supreme Court who would overturn Roe v. Wade and the
    Affordable Care Act. Those were his litmus tests.
        Now, he did not ask you the question. What he did was to
    delegate this responsibility to two special interest groups:
    the Federalist Society and the Heritage Foundation. And the
    other groups that are spending millions of dollars in support
    of your candidacy, they are confident that you are going to
    favor the interests of corporations over workers and give the
    President wide berth when it comes to Executive authority.
        And your own law clerks, men and women you chose, men and
    women who wrote the words that had your signature at the bottom
    of the page, have told us what they think of you. One wrote in
    an article entitled, ``Brett Kavanaugh said Obamacare was
    unprecedented and unlawful.'' That is from one of your clerks.
        Another wrote, when it comes to ``enforcing restrictions on
    abortion, no court of appeals judge in the Nation has a
    stronger, more consistent record than Judge Brett Kavanaugh.''
        Big corporate interests, solidly behind your nomination.
    Chamber of Commerce, full support. And President Trump, whose
    lawyers say they will fight any effort to subpoena or indict
    him all the way to the Supreme Court, that President seems
    personally eager to have you confirmed as quickly as possible.
        Why are your supporters so confident you will rule on these
    issues as they wish? Why do they think you are such a sure bet
    to take their side when, in the words of one of your former
    clerks, ``This is no time for a gamble.''
        Unfortunately, I do not think you are going to tell us much
    this week. It is interesting to me that people in your position
    write all these law review articles, make all these speeches,
    and come to this room and clam up, do not want to talk about
    any issues. But that is what I expect.
        Instead, we will be asked to trust that, if you are
    confirmed, you will have an open mind, that you will follow the
    law rather than move the law in the direction of your views. I
    would like to trust you, but I agree with President Ronald
    Reagan: Trust, but verify.
        I wanted to trust you the last time you testified before
    this Committee in 2006, but after you were confirmed to the
    D.C. Circuit, reports surfaced that contradicted your sworn
    testimony before this Committee. You said to me unambiguously
    under oath the following: ``I was not involved and am not
    involved in the questions about the rules governing detention
    of combatants.''
        But later, just a week or so ago, you acknowledged in my
    office that you were involved. For 12 years, you could have
    apologized and corrected this record, but you never did.
    Instead, you and your supporters have argued we should ignore
    that simple declarative sentence which you spoke and somehow
    conclude your words mean something far different. You are a
    committed textualist, Judge Kavanaugh. If you are going to hold
    others accountable for their words, you should be held
    accountable for your own words.
        So after my personal experience, I start these hearings
    with a question about your credibility as a witness. I know
    from my history with you that things you said need to be
    carefully verified.
        That brings us to a major problem. I will not retread the
    ground about all the documents that are being withheld, but I
    will show you a little calendar here that is interesting. There
    is a 35-month black hole in your White House career where we
    have been denied access to any and all documents. Thirty-five
    months in the White House. And I asked you in my office, during
    that period of time, President Bush was considering same-sex
    marriage, an amendment to ban it; abortion; Executive power;
    detainees; torture; Supreme Court nominees; warrantless
    wiretapping.
        One of these issues bears special mention as we mourn the
    passing of John McCain. In 2004 and 2005, I joined John McCain
    when he led the effort to pass an amendment affirming that
    torture and cruel and inhuman and degrading treatment would be
    illegal in America. As a survivor of unspeakable torture, John
    McCain spoke with powerful moral authority about American
    values during the time of war. You were in the Bush White House
    when that McCain Amendment passed.
        The Bush administration did everything in its power to stop
    John McCain's Torture Amendment. Then after we passed it 90-9,
    a veto-proof margin, President Bush issued a signing statement
    asserting his right to ignore the law that John McCain had just
    passed in Congress. When we met in my office, you acknowledged
    that you worked on that signing statement. Yet we have been
    denied any documents disclosing your role or your advice to
    President Bush.
        I asked you if you wrote, edited, or approved documents
    about these and other issues while you were staff secretary.
    Time and again you said, ``I cannot rule it out.''
        Judge Kavanaugh, America needs to see those documents. We
    cannot carefully review, advise, and decide whether to consent
    to your nomination without clarity on the record. The period of
    time when you worked in the Republican White House led to a
    change in position on an issue which we have to address
    directly. Your views on Executive power and accountability have
    changed dramatically. When you worked for Special Counsel Ken
    Starr in the late 1990s, you called him ``an American hero''
    for investigating President Bill Clinton, and you personally
    urged Starr to be aggressive, confrontational, and even graphic
    in his questions. We have seen your memo on that one.
        But a few years later, after working in a Republican White
    House, you totally reversed your position and argued the
    President should be above the law and granted a free pass from
    criminal investigation while in office. What did you see in
    that Bush White House that dramatically changed your view? What
    are your views about Presidential accountability today?
        Judge Kavanaugh, at this moment in our Nation's history,
    with authoritarian forces threatening our democracy, with the
    campaign and administration of this President under Federal
    criminal investigation, we need a direct, credible answer from
    you. Is this President or any President above the law? Equally
    important, can this President ignore the Constitution in the
    exercise of his authority?
        You dissented in the Seven-Sky case when the D.C. Circuit
    upheld the Affordable Care Act's constitutionality. You
    criticized a law, a law which this President has said many
    times he wants to ignore and abolish, and you said, ``The
    President may decline to enforce a statute that regulates
    private individuals when the President deems''--``when the
    President deems''--``the statute unconstitutional, even if a
    court has held or would hold the statute constitutional.''
        This statement by you flies in the face of Marbury v.
    Madison, our North Star on the separation of powers. It gives
    license to this President, Donald John Trump, or any President
    who chooses to ignore the Constitution to assert authority far
    beyond that envisioned by our Founding Fathers.
        There are many people who are watching carefully. I am
    going to make a suggestion to you today, and it will not be
    popular on the other side of the aisle. If you believe that
    your public record is one that you can stand behind and defend,
    I hope that at the end of this you will ask this Committee to
    suspend until we are given all the documents, until we have the
    time to review them, and then we resume this hearing. What I am
    saying to you is basically this: If you will trust the American
    people, they will trust you. But if your effort today continues
    to conceal and hide documents, it raises a suspicion.
        I will close Mr. Chairman. I know you are anxious. When I
    was a practicing lawyer a long time ago in trial and the other
    side either destroyed or concealed evidence, I knew that I was
    going to be able to have a convincing argument to close that
    case. What were they hiding? Why will they not let you see the
    speed tape on that train or the documents that they just cannot
    find? You know that presumption now is against you because of
    all the documents that have been held back.
        For the sake of this Nation, for the sanctity of the
    Constitution that we both honor, step up. Ask this meeting,
    this gathering, to suspend until all the documents of your
    public career are there for the American people to see.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Durbin appears as a
    submission for the record.]
        Chairman Grassley. Senator Lee.

               OPENING STATEMENT OF HON. MICHAEL S. LEE,
                 A U.S. SENATOR FROM THE STATE OF UTAH

        Senator Lee. Thank you, Mr. Chairman. Thank you, Judge
    Kavanaugh. And thank you also, Ashley and Margaret and Liza,
    for being here.
        I want to start by saying that the fact that there is so
    much angst over a single nominee, a single judicial nominee,
    tells you everything you need to know about why it is that we
    need judges now more than ever who are willing to read the law
    and interpret it based on what the law says rather than on the
    basis of something else.
        It also tells you more than anything else you could need to
    know about the need to restore a discussion of civics in this
    country, to restore a discussion about federalism and
    separation of powers, about where power is concentrated and
    where it should not be, and what the role of each branch of the
    Federal Government is and is not.
        Many of the comments, many of the outbursts that we have
    had today suggest that we need to return to some of those
    fundamental principles, and I do not care whether you are a
    liberal Democrat or a conservative Republican or something in
    between. These principles apply. They are principles to which
    we have sworn an oath, and they are principles that I think we
    would do well to restore and focus on once again. If ever we
    are to return to an era of civility, we will return to that era
    on the basis of those foundational, structural principles
    within our Constitution.
        Over the next few days, Judge Kavanaugh, a number of
    Members of this Committee are going to ask you questions,
    questions about cases that you have handled as a lawyer, cases
    that you have decided as a judge, about your record, about your
    qualifications.
        Well, on that point about your record and your
    qualifications, the suggestion that you misled this Committee
    at any point in your previous hearings is absurd, and the
    absurdity of that suggestion will be borne out in the coming
    days. I am certain of it.
        Some of the questions that will be asked of you will, in
    fact, be fair, and others will be unfair, and I think it is
    important for us to acknowledge that at the outset.
        When you look back at history, answering these kinds of
    questions, this is sort of how the practice of holding these
    hearings began, so that Senators could ask nominees how they
    might vote, how they might rule in particular cases. But this
    did not always happen. In fact, it was not until 1916 that this
    even started. You see, there have been 113 Justices confirmed
    to the Supreme Court so far. The first 66 were confirmed
    without even holding a hearing. The idea of a hearing is
    relatively new. It is about 102 years old. We went for between
    125 and 130 years under our constitutional republic without
    ever having a hearing. But, regardless, we started having
    hearings just over a century ago.
        The very first Supreme Court confirmation hearing occurred
    in 1916 with Justice Louis Brandeis. After Louis Brandeis was
    nominated to the Court, some called for a hearing. Now, if we
    are honest with ourselves, if we are honest about history, I
    think a lot of this maybe had to do with some anti-Semitic
    fervor and the fact that Justice Brandeis was Jewish. But
    Senators also wanted to determine whether Brandeis would use
    his seat on the Supreme Court to advocate for some of the
    things that he had advocated for as a private citizen, as a
    public interest attorney. They wanted to know how he might vote
    in particular cases. They did not ask Justice Brandeis to
    testify, significantly, but they did, in fact, ask some outside
    witnesses what they thought about his nomination.
        The next important moment, one could argue, occurred in
    1939 when Felix Frankfurter became the first nominee to himself
    testify before the Committee. At the time Frankfurter was
    controversial in part because he was born overseas, but
    Senators also worried that Frankfurter was a radical based on
    his defense of anarchists in court. So, again, Senators wanted
    assurances about how Frankfurter might rule in particular
    cases, in particular what results he might reach in a
    particular type of case. Frankfurter, however, significantly,
    declined to engage with Senators on those topics and insisted
    that his public record spoke for itself.
        Justice Stewart's nomination in 1959 was another turning
    point. Senators seeking to resist Brown v. Board of Education
    wanted to grill Stewart on his views on integration. Others
    still wanted to grill Stewart about his views on national
    security. So Senators turned up the heat a little bit more in
    that hearing. Like Frankfurter before him, Justice Stewart did
    not provide substantive answers to their questions. When they
    wanted to know how he might rule in particular cases, he
    appropriately declined, just as his predecessors had.
        Twenty-eight years later, 28 years after Justice Stewart
    came through this Committee, the Senate considered Robert
    Bork's nomination to the Supreme Court. This was another
    significant turning point and, in my view, remains something of
    a rock-bottom moment for the Senate and for the Senate
    Judiciary Committee. Without getting into any of the gory
    details here, I think it suffices to say that Senator Ted
    Kennedy and Judge Bork did not agree on certain matters of
    constitutional law. And Kennedy's response was to savage--
    unfairly, in my opinion--the results that Judge Bork would
    reach if confirmed to the Supreme Court.
        History shows that over the better part of a century the
    Judiciary Committee has gradually created something of a new
    norm, a norm in which Members demand that nominees speak about
    specific cases in return for favorable treatment from the
    Committee as the jurists are going through this process.
        Now, nominees for the most part have gracefully resisted
    trading confirmation in exchange for promises about how they
    might vote in particular cases brought before them. To give two
    famous examples, Justice Scalia refused to say whether Marbury
    v. Madison was settled law on the ground that it could come
    before him. And, sure enough, last term, in Ortiz v. United
    States, the Supreme Court considered a case implicating the
    scope of Marbury. Likewise, Justice Ruth Bader Ginsburg created
    the so-called, ``Ginsburg standard'': no previews, no
    forecasts, no hints. Every current member of the Supreme Court
    has adhered to a similar principle, what we might call the
    ``Ginsburg standard.'' Even though nominees have not caved to
    the pressure, I still believe that there are some aspects of
    the Senate's approach here that might do a disservice to the
    country and might be frowned upon by future historians.
        If Senators repeatedly ask nominees about outcomes, then
    the public will be more entitled or at least more inclined to
    think that judges are supposed to be outcome-minded, that that
    is supposed to be their whole approach to judging, that that is
    supposed to be what judging is, in fact, about. But this, of
    course, undermines the very legitimacy of the courts
    themselves, the very legitimacy of the tribunal you have been
    nominated by the President to serve on. Over time, no free
    people would accept a judiciary that simply imposes its own
    policy preferences on the country absent fidelity to legal
    principle.
        There is a better way for the Senate to approach its work.
    This process, in my opinion, should be about your
    qualifications, about your character, and perhaps most
    importantly, about your approach to judging, your own view
    about the role of the Federal judiciary. It should not be about
    results in a select number of cases.
        Now, you are obviously exceptionally well qualified. Even
    your staunchest critics would not claim otherwise--your
    academic pedigree, your experience as a practicing lawyer, your
    experience in Government, and your 12 years' experience sitting
    on what many refer to as the ``second highest court in the
    land,'' the U.S. Court of Appeals for the D.C. Circuit.
        You are independent. You have written that, ``Some of the
    greatest moments in American judicial history have been when
    judges stood up to the other branches, were not cowed, and
    enforced the law.'' You have said that judges cannot be
    buffaloed, influenced, or pressured into worrying too much
    about transient popularity when we are trying to decide a case,
    and that one of the most important duties of a judge is to
    stand up for the unpopular party who has the correct position.
        And you have lived up to your words during your time on the
    bench. Everyone knows that you served in the Bush
    administration, and yet when you became a judge, in only 2
    years you ruled against the Bush administration a total of
    eight times. For you, it simply does not matter who the parties
    are. It simply does not matter that you may have worked for an
    administration before you became a judge. The only thing that
    matters is your commitment to correctly applying the law to the
    facts of any particular case.
        As far as your approach to judging, you have appropriate
    respect for precedent. You have co-authored an 800-page book on
    precedent that, among other things, explains that a change in a
    court's membership alone should not throw former decisions open
    to reconsideration or justify their reversal.
        You have explained that for precedent to be overruled, it
    must not be just wrong but a case with serious practical
    consequences. You voted to overturn Circuit precedent only four
    times during your time on the D.C. Circuit, and each of those
    cases involved a unanimous decision reached by your colleagues.
    And you follow binding precedent even if you believe that
    binding precedent was itself wrongly decided.
        You decide cases based on legal merits, not based on the
    identity of the parties, and certainly not based on any
    political beliefs that you may harbor. We have already heard
    that your nomination will somehow be bad for women, for the
    environment, for labor unions, for civil rights, for a whole
    host of other things that Americans hold near and dear. I have
    a laundry list of cases in which you have ruled for people in
    each of those groups.
        But there is a more fundamental point here that I think
    needs to be made. The judiciary's decisions are legitimate only
    to the extent that they are based on sound legal principle and
    reasoning, and ruling for a preferred party is not itself a
    sound legal principle. It is quite to the contrary. Jury-
    rigging decisions and backfilling legal reasoning to reach a
    particular result, a particularly politically acceptable result
    in a particular case, no matter how desirable that result might
    be in any instance, is not a legitimate mode of judicial
    decisionmaking. And no free people purporting to have an
    independent judiciary should ever be willing to settle for
    that.
        So my plea to my colleagues today is that we ask Judge
    Kavanaugh hard questions. I believe we are required to do so.
    The Senate is not and never should be a rubber stamp,
    particularly when it comes to issuing lifetime appointments,
    even lifetime appointments on the highest court in the land.
        But if you disagree with an opinion he has written, make a
    legal argument as to that issue. Explain why you think it is
    wrong. Do not complain about the results as if the result
    itself is proof that he is wrong, when you separate out the
    result from the legal analysis, from the facts and how they
    interact with the law in that particular case. And do not ask
    him to make promises about outcomes in particular cases. If it
    is unacceptable for the President to impose a litmus test, it
    is surely unacceptable for the United States Senate to do so.
        Judge Kavanaugh, I look forward to your testimony, and I am
    grateful to you and your willingness to serve our country and
    to be considered for this important role.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Lee appears as a
    submission for the record.]
        Chairman Grassley. Senator Whitehouse.

             OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
             A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

        Senator Whitehouse. Thank you, Mr. Chairman.
        When is pattern evidence of bias? In court, pattern is
    evidence of bias all the time, evidence on which juries and
    trial judges rely to show discriminatory intent, to show a
    common scheme, to show bias.
        When does a pattern prove bias? I wish this were an idle
    question. It is relevant to the pattern of the Roberts' Court
    when its Republican Majority goes off on partisan excursions
    through the civil law. That is, when all five Republican
    appointees--the ``Roberts Five,'' we can call them--go riding
    off together and no Democratic appointee joins them.
        Does this happen often? The Roberts Five has gone on almost
    80 of these partisan excursions since Roberts became Chief.
    That is a lot of times. And there is a feature to these 80
    cases. They almost all implicate interests important to the big
    funders and influencers of the Republican Party. When the
    Republican Justices go off on these five-Justice partisan
    excursions, there is a big Republican corporate or partisan
    interest involved 92 percent of the time.
        The tiny handful of these cases that do not implicate an
    interest of the big Republican influencers is so flukishly few
    that we can set them aside. Let us look at the 73 cases that
    all implicate a major Republican Party interest. Again, 73 is a
    lot of cases at the Supreme Court.
        Is there a pattern to these 73 cases? Oh, yes, there is.
    Every time a big Republican corporate or partisan interest is
    involved, the big Republican interest wins. Every time.
        Let me repeat. In 73 partisan decisions where there is a
    big Republican interest at stake, the big Republican interest
    wins every damned time. Thus, the mad scramble of big
    Republican interest groups to protect a Roberts Five that will
    reliably give them wins, really big wins sometimes.
        I note that when the Roberts Five saddles up, these so-
    called conservatives are anything but judicially conservative.
    They readily overturn precedent, toss out statutes passed by
    wide bipartisan margins, and decide on broad constitutional
    issues that they need not reach. Modesty, originalism, stare
    decisis--all these supposedly conservative judicial principles
    all have the hoofprints of the Roberts Five all across their
    backs wherever those principles got in the way of those wins
    for the big Republican interests.
        The litany of Roberts Five decisions explains why big
    Republican interests want Judge Kavanaugh on the Court so
    badly--so badly that Republicans trampled so much Senate
    precedent to push him through.
        So let us review the highlights reel. What do big
    Republican interests want?
        Well, first, they want to win elections. What has the
    Roberts Five delivered? Help Republicans gerrymander elections.
    Vieth v. Jubelirer, 5-to-4, license to gerrymander.
        Help Republicans keep minority voters away from the polls.
    Shelby County, 5-to-4, and Bartlett v. Strickland, 5-to-4, and
    Abbott v. Perez, 5-to-4, despite the trial judge finding the
    Texas Legislature actually intended to target and suppress
    minority voters.
        And the big one, help corporate front-group money flood
    elections. Big money interests love unlimited power to buy
    elections, lobby, and threaten and bully Congress. McCutcheon,
    5-to-4, counting the concurrence; Bullock, 5-to-4; and the
    infamous, grotesque 5-to-4 Citizens United decision, which I
    believe stands beside Lochner on the Court's ``roll of shame.''
        What else do big influencers want? To get out of
    courtrooms. Big influencers hate courtrooms because their
    lobbying and electioneering and threatening does not work, or
    at least it is not supposed to. In a courtroom, big
    influencers, used to getting their way, have to suffer the
    indignity of equal treatment. So the Roberts Five protects
    corporations from group class action lawsuits: Wal-Mart v.
    Dukes, 5-to-4; Comcast, 5-to-4; and this past term, Epic
    Systems, 5-to-4.
        The Roberts Five helps corporations steer customers and
    workers away from courtrooms and into mandatory arbitration:
    Concepcion, Italian Colors, and Rent-A-Center, all Roberts
    Five. Epic Systems does double duty here because now workers
    cannot even arbitrate their claims as a group.
        Hindering access to the courthouse for plaintiffs
    generally, Iqbal, 5-to-4. Protecting corporations from being
    taken to court by employees harmed through pay discrimination,
    Ledbetter, 5-to-4. Age discrimination, Gross, 5-to-4.
    Harassment, Vance, 5-to-4. And retaliation, Nassar, 5-to-4.
    Even insulating corporations from liability for international
    human rights violations, Jesner, 5-to-4.
        Corporations are not in the Constitution. Juries are.
    Indeed, courtroom juries are the one element of American
    Government designed to protect people against encroachments by
    private wealth and power. So, of course, the Roberts Five rules
    for wealthy, powerful corporations over jury rights every time,
    with nary a mention of the Seventh Amendment.
        What is another one? Oh, yes, a classic--helping big
    business bust unions: Harris v. Quinn, 5-to-4, and Janus v.
    AFSCME this year, 5-to-4, overturning a 40-year precedent.
        Lots of big Republican influencers are polluters who like
    to pollute for free. So the Roberts Five delivers partisan
    decisions that let corporate polluters pollute. To pick a few,
    Rapanos, weakening wetland protections, 5-to-4; National
    Association of Home Builders, weakening protections for
    endangered species, 5-to-4; Michigan v. EPA, helping air
    polluters, 5-to-4; and in the face of emerging climate havoc,
    there is the procedurally aberrant 5-to-4 partisan decision to
    stop the EPA Clean Power Plan. Pattern.
        Then come Roberts Five bonus decisions advancing a far-
    right social agenda: Gonzales v. Carhart, upholding restrictive
    abortion laws; Hobby Lobby, granting corporations religion
    rights over the healthcare rights of their employees; NIFLA,
    letting States deny women truthful information about their
    reproductive choices. All 5-to-4. All Republican.
        Add Heller and McDonald, which reanimated for the gun
    industry a theory a former Chief Justice once called a
    ``fraud,'' both decisions, 5-to-4.
        This year, Trump v. Hawaii, 5-to-4, rubberstamping the
    Muslim travel ban. And in case Wall Street was feeling left
    out, helping insulate investment bankers from fraud claims,
    Janus Capital, 5-to-4.
        Pattern.
        No wonder the American people feel the game is rigged. Here
    is how the game works. Big business and partisan groups fund
    the Federalist Society, which picked Gorsuch and now, you. As
    the White House Counsel admitted, they insourced the Federalist
    Society for this selection. Exactly how the nominees were
    picked and who was in the room where it happened and who had a
    vote or a veto and what was said or promised, that is all a
    deep, dark secret.
        Then big business and partisan groups fund the Judicial
    Crisis Network, which runs dark money political campaigns to
    influence Senators in confirmation votes, as they have done for
    Gorsuch and now, for you. Who pays millions of dollars for that
    and what their expectations are is a deep, dark secret.
        These groups also fund Republican election campaigns with
    dark money and keep the identity of big donors a deep, dark
    secret. And, of course, 90 percent of your documents are to us
    a deep, dark secret.
        Then once the nominee is on the Court, the same business
    front groups with ties to the Koch brothers and other funders
    of the Republican political machine file friend-of-the-court or
    amicus briefs to signal their wishes to the Roberts Five. Who
    is really behind those friends is another deep, dark secret.
        It has gotten so weird that Republican Justices now even
    send hints back to big business interests about how they would
    like to help them next, and then big business lawyers rush out
    to lose cases--to lose cases--just to rush up before the
    friendly court pronto. That is what happened in the Friedrichs-
    Janus episode.
        The U.S. Chamber of Commerce is the biggest corporate lobby
    of them all, for big coal, big oil, big tobacco, big pharma,
    big guns, you name it. And this year, with Justice Gorsuch
    riding with the Roberts Five, the Chamber won nine out of 10
    cases it weighed in on. The Roberts Five, since 2006, has given
    the Chamber more than three-quarters of their total votes. This
    year, in all civil cases they voted for the Chamber's position
    fully 90 percent of the time, and in these 5-to-4 cases I have
    highlighted, 100 percent.
        People are noticing. Veteran court watchers like Jeffrey
    Toobin, Linda Greenhouse, and Norm Ornstein describe the
    Court's service to Republican interests. Toobin wrote that on
    the Supreme Court, Roberts has ``served the interests of the
    contemporary Republican Party.'' Greenhouse has said the
    ``Republican-appointed majority is committed to harnessing the
    Supreme Court to an ideological agenda.'' Ornstein described
    the new reality of today's Supreme Court: it is ``polarized
    along partisan lines in a way that parallels other political
    institutions and the rest of society in a fashion we have never
    seen.''
        And the American public knows it, too. The American public
    thinks the Supreme Court treats corporations more favorably
    than individuals--compared to vice-versa--by a 7-to-1 margin;
    49 percent of Americans think corporations get special
    treatment there.
        Now let us look at where you fit in. A Republican political
    operative your whole career who has never tried a case. You
    made your political bones helping the salacious prosecution of
    President Clinton and leaking prosecution information to the
    press. As an operative in the Second Bush White House, you
    cultivated relationships with political insiders like
    nomination guru Leonard Leo, the Federalist Society architect
    of your Court nominations.
        On the D.C. Circuit, you gave more than 50 speeches to the
    Federalist Society. That looks like auditioning.
        On the D.C. Circuit, you showed your readiness to join the
    Roberts Five with big political wins for Republican and
    corporate interests, unleashing special interest money into
    elections, protecting corporations from liability, helping
    polluters pollute, striking down commonsense gun regulations,
    keeping injured plaintiffs out of court against corporations,
    and perhaps most important for the current occupant of the Oval
    Office, expounding a nearly limitless vision of Presidential
    immunity from the law.
        Your alignment with right-wing groups who came before you
    as friends of the court, 91 percent. When big business trade
    associations weighed in, 76 percent. This, to me, is what
    corporate capture of the courts looks like.
        There are big expectations for you. The shadowy dark money
    front group, the Judicial Crisis Network, is spending tens of
    millions in dark money to push for your confirmation. They
    clearly have big expectations about how you will rule on dark
    money.
        The NRA has poured millions into your confirmation,
    promising their members that you will break the tie. They
    clearly have big expectations on how you will vote on guns.
        White House Counsel Don McGahn admitted, ``There is a
    coherent plan here where, actually, the judicial selection and
    the deregulatory effort are really the flip side of the same
    coin.'' Big polluters clearly have big expectations for you on
    their deregulatory effort.
        Finally, you come before us nominated by a President named
    in open court as directing criminal activity and a subject of
    ongoing criminal investigation. You displayed expansive views
    on Executive immunity from the law. If you are in that seat,
    sir, because the White House has big expectations that you will
    protect the President from the due process of law, that should
    give every Senator pause.
        Tomorrow we will hear a lot of confirmation etiquette. It
    is mostly a sham. You know the game. In the Bush White House,
    you coached judicial nominees to just tell Senators that they
    have ``a commitment to follow Supreme Court precedent, that
    they will adhere to statutory text, that they have on
    ideological agenda.'' Fairy tales.
        At his hearing, Justice Roberts infamously said he would
    just call balls and strikes, but this pattern, 73-0, of the
    Roberts Five qualifies him to have NASCAR-style corporate
    badges on his robes.
        Alito said in his hearing what a strong principle stare
    decisis was, an important limitation on the Court. Then he told
    the Federalist Society, ``Stare decisis means to leave things
    decided when it suits our purposes.''
        Gorsuch delivered the key fifth vote in the precedent-
    busting and union-busting Janus decision. He, too, had pledged
    in his hearing to follow the law of judicial precedent, assured
    us he was not a philosopher king, and promised to give equal
    concern to every person, poor or rich, mighty or meek. How did
    that turn out? Great for the rich and mighty. Gorsuch is the
    single most corporate-friendly Justice on a Court already full
    of them, ruling for big business interests in over 70 percent
    of cases and in every single case where his vote was
    determinative.
        The President early on assured evangelicals his Supreme
    Court picks would attack Roe v. Wade. Despite confirmation
    etiquette assurances about precedent, your own words make clear
    you do not really believe Roe v. Wade is settled law since the
    Court, as you said, ``can always overrule its precedent.''
        Mr. Chairman, we have seen this movie before. We know how
    it ends. The sad fact is that there is no consequence for
    telling the Committee fairy tales about stare decisis and then
    riding off with the Roberts Five, trampling across whatever
    precedent gets in the way of letting those big Republican
    interests keep winning 5-to-4 partisan decisions, 73-0, Mr.
    Kavanaugh, every damned time.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Whitehouse appears as a
    submission for the record.]
        Chairman Grassley. Senator Cruz.
        Senator Whitehouse. Mr. Chairman, I have some documents to
    support this. May I ask unanimous consent they be entered into
    the record?
        Chairman Grassley. Without objection, so ordered.
        Senator Whitehouse. Thank you.
        [The information appears as submissions for the record.]

                  OPENING STATEMENT OF HON. TED CRUZ,
                 A U.S. SENATOR FROM THE STATE OF TEXAS

        Senator Cruz. Thank you, Mr. Chairman. Judge Kavanaugh,
    welcome. Welcome to your family, to your friends. Demonstrating
    your good judgment, your wife was born and raised in West
    Texas, and you and she have been friends of Heidi and mine for
    20 years. Thank you for your decades of public service, and I
    am sorry that your daughters had to endure the political circus
    of this morning. That is, alas, the world that is Washington in
    2018.
        I want to discuss what this hearing is about and what it is
    not about.
        First, this hearing is not about the qualifications of the
    nominee. Judge Kavanaugh is by any objective measure
    unquestionably qualified for the Supreme Court. Everyone agrees
    he is one of the most respected Federal judges in the country.
    He has impeccable academic credentials, even if you did go to
    Yale. And you served over a decade on the U.S. Court of Appeals
    for the D.C. Circuit, often referred to as the ``second highest
    court in the land.'' So our Democratic colleagues are not
    trying to make the argument that Judge Kavanaugh is not
    qualified. Indeed, I have not heard anyone even attempt to make
    that argument.
        Second, this hearing is not about his judicial record.
    Judge Kavanaugh has over 300 published opinions which
    altogether amount to over 10,000 pages issued in his role as a
    Federal appellate judge. Everyone agrees a judge's record is by
    far the most important indicium of what kind of Justice that
    nominee will be. And, tellingly, we have heard very little
    today from Democratic Senators about the actual substance of
    Judge Kavanaugh's judicial record.
        Third, it is important to understand today is also not
    about documents. We have heard a lot of arguments this morning
    about documents. There is an old saying for trial lawyers: ``If
    you have the facts, pound the facts. If you have the law, pound
    the law. If you have neither, pound the table.'' We are seeing
    a lot of table pounding this morning.
        The Democrats are focused on procedural issues because they
    do not have substantive points strong enough to derail this
    nomination. They do not have substantive criticism with Judge
    Kavanaugh's actual judicial record, so they are trying to
    divert everyone with procedural issues. But let us talk about
    the documents for a moment.
        The claims that the Democrats are putting forward on
    documents do not withstand any serious scrutiny. Judge
    Kavanaugh has produced 511,948 pages of documents. That
    includes more than 17,000 pages in direct response to this
    Committee's written questionnaire, which is the most
    comprehensive response ever submitted to this Committee. The
    more than a half million pages of documents turned into this
    Committee is more than the number of pages we have received for
    the last five Supreme Court nominees combined.
        Listen to that fact again. The over a half million
    documents turned over to this Committee is more than the last
    five nominees submitted to this Committee combined.
        So what is all the fuss over the documents that are not
    turned over? Most of those concern Judge Kavanaugh's 3 years as
    the staff secretary for President George W. Bush. Now, many
    people do not know what a staff secretary does, but that is the
    position in charge of all of the paper that comes into and out
    of the Oval Office. Critically, the staff secretary is not the
    author of the paper coming into and out of the Oval Office.
    That paper is typically written by the Attorney General, by the
    Secretary of State, by other Cabinet members, by other senior
    White House officials. The staff secretary is simply the funnel
    for collecting their views and then for transferring the paper
    back and forth.
        In other words, those documents written by other people say
    nothing, zero, about Judge Kavanaugh's views, and they say
    nothing, zero, about what kind of Justice Judge Kavanaugh would
    make. But they are by necessity the most sensitive and
    confidential documents in a White House. They are the documents
    that are going to the President. This is the advice and
    deliberations of the President at the senior level, and the
    staff secretary is the conduit for those documents. So why is
    it that the Democrats are putting so much energy in saying hand
    over all of those documents? Because they know, they know
    beyond a shadow of doubt, that President George W. Bush's White
    House team is not going to allow every piece of paper that went
    to the President to be made public any more than any other
    White House would. Republican or Democrat, no White House would
    allow every piece of paper that went to and from the President
    to be made public. Indeed, there are rules and laws and
    procedures for when and how Presidential papers become public.
    And the reason the Democrats are fighting so loudly on this
    issue is they are making a demand they know is impossible to
    meet and, by the way, is utterly irrelevant to what actually
    Judge Kavanaugh thinks, believes, or has said.
        It would open up all sorts of fishing expeditions to
    attack, relitigate George W. Bush's record as President and
    what various Cabinet members and senior advisers might or might
    not have said. But it is at the end of the day simply an
    attempt to distract and delay. And, indeed, the multiple
    motions we have seen from Democrats, ``Delay this confirmation,
    delay this confirmation,'' that reveals the whole joke. Their
    objective is delay.
        So what is this fight about? If it is not about documents,
    if it is not about Judge Kavanaugh's credentials, if it is not
    about a judicial record, what is this fight about?
        I believe this fight is nothing more and nothing less than
    an attempt by our Democratic colleagues to relitigate the 2016
    Presidential election. 2016 was a hard-fought election all
    around, and it was the first Presidential election in 60 years
    where Americans went to the polls with a vacant seat on the
    Supreme Court, one that the next President would fill.
    Americans knew who had been in that seat: the late Justice
    Antonin Scalia, one of the greatest jurists ever to sit on the
    U.S. Supreme Court. And it was the first time since President
    Dwight D. Eisenhower's reelection campaign that a Supreme Court
    seat was directly on the ballot.
        Both candidates knew the importance of the vacant Supreme
    Court seat, and it was a major issue of contention in the
    Presidential election. Donald Trump and Hillary Clinton were
    both clear about what kind of Justices and judges they would
    appoint. During all three Presidential debates, both candidates
    were asked what qualities were most important to them when
    selecting a Supreme Court Justice.
        Secretary Clinton's answer was clear. She wanted a Supreme
    Court Justice who would be a liberal progressive willing to
    rewrite the U.S. Constitution, willing to impose liberal policy
    agendas that she could not get through the democratic process,
    that the Congress of the United States would not adopt, but
    that she hoped five unelected lawyers would force on the
    American people. That is what Hillary Clinton promised for her
    judicial nominees.
        Then-Candidate Donald Trump gave a very different answer.
    He said he was looking to appoint judges in the mold of Justice
    Scalia. He said he wanted to appoint judges who would interpret
    the Constitution based on its original public meaning, who
    would interpret the statutes according to the text, and who
    would uphold the rule of law and treat parties fairly
    regardless of who they are or where they come from.
        Then-Candidate Donald Trump also did something that no
    Presidential candidate has done before. He published a list of
    nominees that he would choose from when filling Justice
    Scalia's seat, providing unprecedented transparency to the
    American people. All of this was laid before the American
    people as they went to the polls on November 8, 2016, and the
    American people made a choice that night.
        Now, my Democratic colleagues are not happy with the choice
    the American people made, but as President Obama famously said,
    ``Elections have consequences.'' Because the American people
    had the chance to vote, a national referendum on the direction
    of the Supreme Court, I have said a number of times that
    Justice Gorsuch's nomination and Judge Kavanaugh's nomination
    have almost a super legitimacy in that they were ratified, they
    were decided by the American people in a direct vote in 2016.
        And so the Democratic obstruction today is all about trying
    to reverse that election. They are unhappy with the choice the
    American people want. And there is a reason that the American
    people want strong constitutionalists on the U.S. Supreme
    Court. Most Americans, and I know the overwhelming majority of
    Texans, want judges who will follow the law and will not impose
    their policy preferences on the rest of us and who will be
    faithful to the Constitution and the Bill of Rights; Justices
    who will uphold fundamental liberties like free speech, like
    religious liberty, like the Second Amendment. That is what this
    election was about, and if you look at each of these--let us
    take free speech. It is worth noting that in 2014 every
    Democratic Member of this Committee voted to amend the United
    States Constitution to repeal the free speech provisions of the
    First Amendment. And, sadly, every Democrat in the Senate
    agreed with that position, voting to give Congress
    unprecedented power to regulate political speech. It was a sad
    day for this institution.
        Years earlier, Ted Kennedy, the great liberal lion, had
    opposed a very similar effort, and Ted Kennedy said, ``We have
    not amended the Bill of Rights in over 200 years. Now is no
    time to start.'' Ted Kennedy was right then, and not a single
    Democrat in the U.S. Senate had the courage to agree with Ted
    Kennedy and support free speech. Indeed, they voted party line
    to repeal the free speech provisions of the First Amendment.
    That is radical, that is extreme, and it is part of the reason
    the American people voted for a President who would put
    Justices on the Court who will protect our free speech.
        How about religious liberty? Religious liberty is another
    fundamental protection that the Democrats in the Senate have
    gotten extreme and radical on. Indeed, our Democratic
    colleagues want Justices who will rubber stamp efforts like the
    Obama administration's efforts litigating against the Little
    Sisters of the Poor, litigating against Catholic nuns, trying
    to force them to pay for abortion-inducing drugs, and others.
    That is a radical and extreme proposition. And to show just how
    dramatic Senate Democrats have gotten, every single Senate
    Democrat just a few years ago voted to gut the Religious
    Freedom Restoration Act, legislation that passed Congress with
    overwhelming bipartisan support in 1993, was signed into law by
    Bill Clinton, and yet, two decades later, the Democratic Party
    has determined that religious freedom is inconvenient for their
    policy and political objectives. They want Justices that will
    further that assault on religious liberty.
        And, finally, let us take the Second Amendment. In the
    Presidential debate, Hillary Clinton explicitly promised to
    nominate Justices who would overturn Heller v. District of
    Columbia. Heller is the landmark decision issued by Justice
    Scalia, likely the most significant decision of his entire
    tenure on the Bench, and it upheld the individual right to keep
    and bear arms.
        Now, Hillary Clinton was quite explicit. She wanted judges
    who would vote to overturn Heller, and, indeed, a number of our
    Democratic colleagues, that is what they want as well.
    Overturning Heller, I believe, would be a truly radical
    proposition. To understand why, you have to understand what the
    four dissenters said in Heller. The four dissenters in Heller
    said that the Second Amendment protects no individual right to
    keep and bear arms whatsoever, that it protects merely a
    collective right of the militia. The consequence of that
    radical proposition would mean that Congress could pass a law
    making it a felony, a criminal offense, for any American to own
    any firearm, and neither you nor I nor any American would have
    any individual right whatsoever under the Second Amendment. It
    would effectively erase the Second Amendment from the Bill of
    Rights. That is a breathtakingly extreme proposition. It is
    what Hillary Clinton promised her Justices would do. And at the
    end of the day, it is what this fight is about.
        We know that every Democratic Member of this Committee is
    going to vote ``no.'' We do not have to speculate. Every single
    one of them has publicly announced they are voting ``no.'' It
    does not depend on what they read in documents. It does not
    depend on what Judge Kavanaugh says at this hearing. They have
    announced ahead of time they are voting ``no,'' and most of the
    Democrats in the Senate have announced that in the full Senate.
    But everyone should understand Judge Kavanaugh has handed over
    more documents than any nominee, more than the last five
    combined, Republican and Democratic nominees. This is not about
    documents. It is not about qualification. It is not about
    record. What it is about is politics. It is about Democratic
    Senators trying to relitigate the 2016 election and, just as
    importantly, working to begin litigating the 2020 Presidential
    election.
        But we had an opportunity for the American people to speak.
    They did. They voted in 2016, and they wanted judges and
    Justices who will be faithful to the Constitution. That is why
    I am confident, at the end of what Shakespeare would describe
    as, ``a lot of sound and fury, signifying nothing,'' I am
    confident that Judge Kavanaugh will become Justice Kavanaugh
    and will be confirmed to the United States Supreme Court.
        Thank you, Mr. Chairman.
        Chairman Grassley. We are going to take a break now, and--
    wait a minute. We are going to take a break now, and 30 minutes
    is what the Democrats would like to have, so we will return at
    1:17. And Justice Gorsuch returned about 10 minutes later than
    that, so be on time, please.
        [Laughter.]
        [Whereupon the Committee was recessed and reconvened.]
        Chairman Grassley. First of all, thanks, Judge Kavanaugh,
    for getting back on the exact time.
        Before I call on Senator Klobuchar, I think that some of my
    colleagues have raised some issues that I think demand an
    answer, and I want to speak to those points. But this issue has
    never come up from my colleagues, but I thought, as I sat here
    and listened to some people criticize the Supreme Court for, in
    a sense, being ``bought''--and they always tend to criticize
    the President of the United States for somehow interfering in
    the judiciary, and I hear all about the criticism of Trump--it
    seems odd to me that we do not have criticism of people that
    are saying the same thing about the Supreme Court.
        So, I want to read. Whenever the President criticizes the
    judiciary or judicial decisions, we hear wails of anguish from
    my Democratic colleagues. They attack the President for
    threatening the independence and the integrity of the
    judiciary, and they applaud the judiciary for standing up to
    the President.
        I just listened to some of my colleagues here. One of them
    spent 18 minutes attacking the personal integrity of Justices
    of the Supreme Court. He said that five Justices have been
    bought and sold by private interests. He accused them of
    deciding cases to the benefit of favored parties. So I think it
    is pretty clear: a double standard. And we should not have to
    tolerate such double standard, and particularly from a press
    that is a policeman of our whole democratic process. That
    without a free press, our Government would be less than what it
    is. And it seems to me that that is something that I hope some
    of you will take into consideration, probably will not, but at
    least I said my piece.
        Then also, several Senators have brought up about the 6
    percent and the 99 percent and things like that that I thought
    I ought to clear up because I could say myself that when I
    first started finding out how much paper Judge Kavanaugh had on
    his record--I mean, for his background, I started talking about
    100 million pages. And then when we finally get 488,000, then I
    could say, well, I got about 48 percent of what we ought to
    have. But there is a good explanation of why we do not have it,
    so I want to read.
        Some of my colleagues keep saying that we have only 6
    percent of Judge Kavanaugh's White House records but that 99
    percent of Justice Kagan's White House records were made public
    before the hearing. This is ``fuzzy math.'' My colleagues
    calibrate their phony 6 percent figure on two inaccurate
    numbers. First, their 6 percent figure counts the estimated
    page count by career archivists at the National Archives based
    upon their historical practice, before the unprocessed emails
    and attachments are actually reviewed.
        Judge Kavanaugh's White House emails that we have received,
    the actual number of pages ended up being significantly less
    than the number the National Archives estimated before the
    actual review. One reason is because we were able to use
    technology to cull out the exact duplicate emails. Instead of
    having to read 13 times an email that Judge Kavanaugh sent to
    12 White House colleagues, we only had to read the email once.
        Second, the 6 percent figure counts millions and millions
    of pages of irrelevant staff secretary documents that we never,
    ever requested or needed. More importantly, we received 100
    percent of the documents we requested from Judge Kavanaugh's
    time as an executive branch lawyer. And while we may have
    received 99 percent of Justice Kagan's White House records, we
    received zero records from her most relevant legal service as a
    Solicitor General, the Federal Government's top Supreme Court
    advocate. We received much less than 99 percent of her records
    as a lawyer. And we did not receive 60,000 emails from Justice
    Kagan, so 99 percent is an overestimate.
        And even though we never received them, Justice Kagan's
    Solicitor General records were much more needed at the time
    because Kagan was a blank slate as a judge. Instead, unlike
    Judge Kavanaugh with his 12 years of judicial service and over
    10,000 pages of judicial writings on the Nation's most
    important Federal circuit court, Justice Kagan had zero years
    of judicial service and zero pages of judicial writing before
    her appointment to the highest court.
        Senator Klobuchar.
        Senator Klobuchar. Well, thank you, Mr. Chairman.
        And before I begin my opening statement, I just wanted to
    respond to just a few things. One, none of that takes away from
    the fact that 42,000 documents were dumped on us last night,
    and I do not think anyone would go to trial and allow a trial
    to go forward or allow a case to go forward if one side got
    42,000 documents the night before and the other side--and you
    cannot simply review them. As pointed out by Senator
    Whitehouse, you would have to review 7,000 documents every
    hour. That happened last night.
        Chairman Grassley. Let me respond without taking time away
    from you.
        Senator Klobuchar. Thank you.
        Chairman Grassley. Democrats got exactly the same amount of
    money we did to do the massive amount of work we had to do, and
    we got it done at 11 o'clock last night.
        Proceed.
        Senator Klobuchar. The point is, that no one could prepare
    and review 42,000 documents in one evening. We know that, no
    matter how much coffee you drink.
        And the second point is, that it is true that executive
    privilege has never been invoked before to block the release of
    Presidential records to the Senate during a confirmation
    hearing, so I will begin my opening statement, but those are
    two points I do not believe are refuted so----
        Chairman Grassley. Okay. Well, I will refute it from this
    standpoint. There were 5,000 documents, 42,000 pages.
        Senator Klobuchar. Okay.
        Chairman Grassley. Proceed.

                OPENING STATEMENT OF HON. AMY KLOBUCHAR,
               A U.S. SENATOR FROM THE STATE OF MINNESOTA

        Senator Klobuchar. Thank you. Welcome, Judge Kavanaugh. We
    welcome your family as well. On its face, this may look like a
    normal confirmation hearing. It has all the trappings. All of
    us up here, all of the cameras out there, the statement, the
    questions, all of it looks normal, but this is not a normal
    confirmation hearing.
        First, as we have debated this morning, we are being asked
    to give advice and consent when the administration has not
    consented to give us over 100,000 documents, all of which
    detail a critical part of the Judge's career, the time he spent
    in the White House. And, in addition, the Majority party has
    not consented to make 189,000 of the documents we do have,
    public.
        As a former prosecutor, I know that no lawyer goes to court
    without reviewing the evidence and record. I know--and I know
    you know, Judge Kavanaugh--that a good judge would not decide a
    case with only 7 percent of the key documents. A good judge
    would not allow a case to move forward if one side dropped
    42,000 pages of documents on the other side the night before a
    case started. And yet, that is where we are today. This is not
    normal. It is an abdication of the role of the Senate and a
    disservice to the American people, and it is our duty to speak
    out.
        Second, this nomination comes before us at a time when we
    are witnessing seismic shifts in our democracy. Foundational
    elements of our Government, including the rule of law, have
    been challenged and undermined. Today, our democracy faces
    threats that we never would have believed occurring not that
    long ago.
        Our intelligence agencies agree that a foreign adversary
    attempted to interfere in our most recent election, and it is
    happening again. In the words of the President's Director of
    National Intelligence, ``The lights are blinking red.''
        There is an extensive ongoing investigation by a special
    counsel. The President's private lawyer and campaign chairman
    have been found guilty of multiple Federal crimes.
        The man appointed as special counsel in this investigation,
    a man who has served with distinction under Presidents from
    both parties, has been under siege. The dedicated public
    servants who work in our Justice Department, including the
    Attorney General and the FBI, have been subjected to repeated
    threats and have had their work politicized and their motives
    questioned.
        In fact, just this past weekend, Federal law enforcement
    was called out--was rebuked--by the President of the United
    States for simply doing their jobs: for prosecuting two white-
    collar defendants, one for insider trading, one for campaign
    theft. Why? Because the defendants were personal friends and
    campaign supporters of the President of the United States. As a
    former prosecutor, as someone who has seen Federal law
    enforcement do their jobs, this is abhorrent to me, so no, this
    is not normal.
        And the last branch, the third branch of Government--our
    courts and individual judges--have been under assault, not just
    by a solitary disappointed litigant but by the President of the
    United States. Our democracy is on trial. And for the pillars
    of our democracy and our Constitution to weather this storm,
    our Nation's highest court must serve as a ballast in these
    turbulent times. Our very institutions, and those nominated to
    protect these institutions, must be fair, impartial, and
    unwavering in their commitment to truth and justice.
        So, today, we will begin a hearing in which it is our duty
    to carry on the American constitutional tradition that John
    Adams stood up for many centuries ago, and that is to be, in
    his words, ``a government of laws and not men.'' To me, that
    means figuring out what your views are, Judge, on whether a
    President is above the law. It is a simple concept we learned
    in grade school, that no one is above the law. So I think it is
    a good place to start.
        There were many highly credentialed nominees like yourself
    that could have been sitting before us today, but, to my
    colleagues, what concerns me is, that during this critical
    juncture in history, the President has handpicked a nominee to
    the Court with the most expansive view of Presidential power
    possible, a nominee who has actually written that the
    President, on his own, can declare laws unconstitutional.
        Of course, we are very pleased when a judge submits an
    article to the University of Minnesota Law Review and even more
    so when that article receives so much national attention. But
    the article you wrote that I am referring to, Judge, raises
    many troubling questions. Should a sitting President really
    never be subject to an investigation? Should a sitting
    President never be questioned by a special counsel? Should a
    President really be given total authority to remove a special
    counsel?
        In addition to the article, there are other pieces of this
    puzzle which demonstrate that the nominee before us has an
    incredibly broad view of the President's Executive power. Judge
    Kavanaugh, you wrote, for example, in Seven-Sky v. Holder that
    a President can disregard a law passed by Congress if he deems
    it to be unconstitutional, even if a court has upheld it.
        What would that mean when it comes to laws protecting the
    special counsel? What would that mean when it comes to women's
    healthcare? The days of the divine rights of kings ended with
    the Magna Carta in 1215, and centuries later, in the wake of
    the American Revolution, a check on the Executive was a major
    foundation of the U.S. Constitution. For it was James Madison,
    who may not have had a musical named after him but was a top
    scholar of his time, who wrote in Federalist 47: ``The
    accumulation of all powers, legislative, executive, and
    judiciary, in the same hands may justly be pronounced the very
    definition of tyranny.''
        So what does that warning mean in real-life terms today?
    Here is one example: It means whether people like Kelly
    Gregory, an Air Force veteran, mother, and business owner who
    is here from Tennessee, and who is living with stage IV breast
    cancer, can afford medical treatment. At a time when the
    administration is arguing that protections to ensure people
    with pre-existing conditions cannot be kicked off their health
    insurance are unconstitutional, we cannot and should not
    confirm a Justice who believes the President's views alone
    carry the day.
        One opinion I plan to ask about? When judges appointed by
    Presidents of both parties joined in upholding the Consumer
    Financial Protection Bureau, you, Judge, dissented. Your
    dissent concluded that the Bureau, an agency which has served
    us well in bringing back over $12 billion to consumers for
    fraud from credit cards to loans to mortgages, was
    unconstitutional.
        Or, in another case, you wrote a dissent against the rules
    that protect net neutrality, rules that help all citizens and
    small businesses have an even playing field when it comes to
    accessing the internet.
        Another example that seems mired in legalese but is
    critical for Americans: Antitrust law. In recent years, a
    conservative majority on the Supreme Court has made it harder
    and harder to enforce the Nation's antitrust laws, ruling in
    favor of consolidation and market dominance. Yet two of Judge
    Kavanaugh's major antitrust opinions suggest that he would push
    the Court even further down this pro-merger path. We should
    have more competition and not less.
        Now to go from my specific concerns and end on a higher
    plane. All of the attacks on the rule of law and our justice
    system over the past year have made me--and I would guess some
    of my other colleagues on this Committee--pause and think many
    times about why I decided to come to the Senate and get on this
    Committee and, much further back, why I even decided to go into
    law in the first place.
        Now, I will tell you that not many girls in my high school
    class said they dreamed of being a lawyer. We had no lawyers in
    my family, and my parents were the first in their families to
    go to college. But somehow my dad convinced me to spend a
    morning sitting in a courtroom watching a State court district
    judge handle a routine calendar of criminal cases. The judge
    took pleas, listened to arguments, and handed out misdemeanor
    sentences. It was certainly nothing glamorous like the work for
    the job you have been nominated for, Judge, but it was
    important just the same.
        I realized that morning that behind every single case there
    was a story and there was a person, no matter how small. Each
    and every decision the judge made that day affected that
    person's life. And I noticed how often he had to make gut
    decisions and had to take account of what his decisions would
    mean for that person and his or her family.
        This week, I remembered that day, and I remembered I had
    written an essay about it at the ripe old age of 17. I went
    back and looked at what I had said. It is something that I
    still believe today and that is, that ``to be part of an
    imperfect system, to have a chance to better that system'' was
    and is a cause worth fighting for, a job worth doing.
        Our Government is far from perfect, Judge, nor is our legal
    system, but we are at a crossroads in our Nation's history
    where we must make a choice. Are we going to dedicate ourselves
    to improving our democracy, improving our justice system, or
    not? The question we are being asked to address in this
    hearing, among others, is whether this judge, at this time in
    our history, will administer the law ``with equal justice'' as
    it applies to all citizens, regardless of if they live in a
    poor neighborhood or a rich neighborhood, or if they live in a
    small house or the White House.
        Our country needs a Supreme Court Justice who will better
    our legal system, a Justice who will serve as a check and
    balance on the other branches, who will stand up for the rule
    of law without consideration of politics or partisanship, who
    will uphold our Constitution without fear or favor, and who
    will work for the betterment of the great American experiment
    in democracy. That is what this hearing is about.
        Thank you.
        [The prepared statement of Senator Klobuchar appears as a
    submission for the record.]
        Chairman Grassley. Senator Sasse.

                  OPENING STATEMENT OF HON. BEN SASSE,
               A U.S. SENATOR FROM THE STATE OF NEBRASKA

        Senator Sasse. Thank you, Mr. Chairman.
        We need to get to Judge Kavanaugh, but I really want to
    riff with Amy for a while. Senator Klobuchar, you did Madison,
    Lin-Manuel Miranda, the Magna Carta, and your dad----
        Senator Klobuchar. Thank you. Thank you, I----
        Senator Sasse [continuing]. Taking you to court.
        Senator Klobuchar [continuing]. Appreciate that.
        Senator Sasse. Well done.
        Senator Klobuchar. Thank you.
        Senator Sasse. I had all that on my bingo card.
        [Laughter.]
        Senator Sasse. I have little kids, and I have taken my two
    little girls to court a few times, too, mostly to juvie just to
    scare them straight, not to turn them into attorneys but that
    is not----
        Senator Klobuchar. Who said that that was not what my dad
    was doing, Senator Sasse?
        [Laughter.]
        Senator Sasse. That was wisdom in Minnesota.
        Congratulations, Judge, on your nomination. Actually,
    congratulations and condolences. This process has to stink. I
    am glad your daughters could get out of the room, and I hope
    they still get the free day from school.
        Let us do some good news/bad news, the bad news first.
    Judge, since your nomination in July, you have been accused of
    hating women, hating children, hating clean air, wanting dirty
    water. You have been declared a quote/unquote ``existential
    threat'' to our Nation. Alumni of Yale Law School, incensed
    that faculty members at your alma mater praised your selection,
    wrote a public letter to the school saying, quote, ``People
    will die if Brett Kavanaugh is confirmed.''
        This drivel is patently absurd, and I worry that we are
    going to hear more of it over the next few days. But the good
    news is it is absurd, and the American people do not believe
    any of it. This stuff is not about Brett Kavanaugh when
    screamers say this stuff for cable TV news. The people who know
    you better, not those who are trying to get on TV, they tell a
    completely different story about who Brett Kavanaugh is. You
    have earned high praise from the many lawyers, both right and
    left, who have appeared before you during your 12 years on the
    D.C. Circuit and those who have had you as a professor at Yale
    Law and at Harvard Law. People in legal circles invariably
    applaud your mind, your work, your temperament, your
    collegiality. That is who Brett Kavanaugh is. And to quote Lisa
    Blatt, a Supreme Court attorney from the left who has known you
    for a decade, quote, ``Sometimes a superstar is just a
    superstar, and that is the case with this judge. The Senate
    should confirm him,'' close quote.
        It is pretty obvious to most people going about their work
    today that the deranged comments actually do not have anything
    to do with you, so we should figure out why do we talk like
    this about Supreme Court nominations now? There is a bunch that
    is atypical in the last 19, 20 months in America. Senator
    Klobuchar is right. The comments from the White House yesterday
    about trying to politicize the Department of Justice, they were
    wrong, and they should be condemned. And my guess is Brett
    Kavanaugh would condemn them.
        But really the reason these hearings do not work is not
    because of Donald Trump. It is not because of anything in the
    last 20 months. These confirmation hearings have not worked for
    31 years in America. People are going to pretend that Americans
    have no historical memory and supposedly there have not been
    screaming protestors saying women are going to die at every
    hearing for decades, but this has been happening since Robert
    Bork. This is a 31-year tradition. There is nothing really new
    the last 18 months.
        So the fact that the hysteria has nothing to do with you
    means that we should ask what is the hysteria coming from? The
    hysteria around Supreme Court confirmation hearings is coming
    from the fact that we have a fundamental misunderstanding of
    the role of the Supreme Court in American life now. Our
    political commentary talks about the Supreme Court like they
    are people wearing red and blue jerseys. That is a really
    dangerous thing. And, by the way, if they have red and blue
    jerseys, I would welcome my colleagues to introduce the
    legislation that ends lifetime tenure for the judiciary because
    if they are just politicians, then the people should have
    power, and they should not have lifetime appointments. So until
    you introduce that legislation, I do not believe you really
    want the Supreme Court to be a politicized body, though that is
    the way we constantly talk about it now.
        We can and we should do better than this. It is predictable
    that every confirmation hearing now is going to be an overblown
    politicized circus, and it is because we have accepted a new
    theory about how our three branches of Government should work
    and, in particular, how the judiciary should work.
        What Supreme Court confirmation hearings should be about
    is, an opportunity to go back and do ``Schoolhouse Rock!''
    civics for our kids. We should be talking about how a bill
    becomes a law and what the job of Article II is, and what the
    job of Article III is, so let us try just a little bit. How did
    we get here, and how can we fix it?
        I want to make just four brief points. Number one: In our
    system, the legislative branch is supposed to be the center of
    our politics.
        Number two: It is not. Why not? Because for the last
    century, and increasing by the decade right now, more and more
    legislative authority is delegated to the executive branch
    every year. Both parties do it. The legislature is impotent,
    the legislature is weak, and most people here want their jobs
    more than they really want to do legislative work, and so they
    punt most of the work to the next branch.
        Third consequence is that this transfer of power means the
    people yearn for a place where politics can actually be done,
    and when we do not do a lot of big actual political debating
    here, we transfer it to the Supreme Court, and that is why the
    Supreme Court is increasingly a substitute political
    battleground in America. It is not healthy, but it is what
    happens, and it something that our Founders would not be able
    to make any sense of.
        And fourth and finally, we badly need to restore the proper
    duties and the balance of power from our constitutional system.
        So, point one: The legislative branch is supposed to be the
    locus of our politics properly understood. Since we are here in
    this room today because this is a Supreme Court confirmation
    hearing, we are tempted to start with Article III, but really,
    we need Article III as part of the Constitution that sets up
    the judiciary. We really should be starting with Article I,
    which is us. What is the legislature's job? The Constitution's
    drafters began with the legislature. These are equal branches,
    but Article I comes first for a reason, and that is because
    policymaking is supposed to be done in the body that makes
    laws.
        That means that this is supposed to be the institution
    dedicated to political fights. If we see lots and lots of
    protests in front of the Supreme Court, that is a pretty good
    litmus-test barometer of the fact that our republic is not
    healthy because people should not be thinking they are
    protesting in front of the Supreme Court. They should be
    protesting in front of this body.
        The legislature is designed to be controversial, noisy,
    sometimes even rowdy because making laws means we have to hash
    out the reality that we do not all agree. Government is about
    power. Government is not just another word for things we do
    together. The reason we have limited government in America is
    because we believe in freedom. We believe in souls. We believe
    in persuasion. We believe in love. And those things are not
    done by power. But the Government acts by power. And since the
    Government acts by power, we should be reticent to use power.
    And so it means when you differ about power, you have to have a
    debate. And this institution is supposed to be dedicated to
    debate and should be based on the premise that we know since we
    do not all agree, we should try to constrain that power just a
    little bit, but then we should fight about it and have a vote
    in front of the American people.
        And then what happens? The people get to decide whether
    they want to hire us or fire us. They do not have to hire us
    again. This body is the political branch where policymaking
    fights should happen. And if we are the easiest people to fire,
    it means the only way the people can maintain power in our
    system is if almost all the politicized decisions happen here,
    not in Article II or Article III.
        So that brings us to a second point. How do we get to a
    place where the legislature decided to give away its power? We
    have been doing it for a long time. Over the course of the last
    century but especially since the 1930s and then ramping up
    since the 1960s, a whole lot of the responsibility in this body
    has been kicked to a bunch of alphabet-soup bureaucracies. All
    the acronyms that people know about their Government or do not
    know about their Government are the places where most actual
    policymaking--kind of, in a way, lawmaking--is happening right
    now. This is not what ``Schoolhouse Rock!'' says. There is no
    verse of ``Schoolhouse Rock!'' that says give a whole bunch of
    power to the alphabet-soup agencies and let them decide what
    the governance decisions should be for the people because the
    people do not have any way to fire the bureaucrats.
        And so what we mostly do around this body is not pass laws.
    What we mostly do is decide to give permission to the Secretary
    or the Administrator of bureaucracy X, Y, or Z to make lawlike
    regulations. That is mostly what we do here. We go home and we
    pretend we make laws. No, we do not. We write giant pieces of
    legislation, 1,200 pages, 1,500 pages long that people have not
    read filled with all these terms that are undefined and we say
    the Secretary of such-and-such shall promulgate rules that do
    the rest of our dang jobs. That is why there are so many fights
    about the executive branch and about the judiciary because this
    body rarely finishes its work.
        And the House is even worse. I do not really believe that.
    It just seemed like you needed to try to unite us in some way.
        So I admit that there are rational arguments that one could
    make for this new system. The Congress cannot manage all the
    nitty-gritty details of everything about modern government, and
    this system tries to give power and control to experts in their
    fields where most of us in Congress do not know much of
    anything about technical matters for sure, but you could also
    impugn our wisdom if you want. But when you are talking about
    technical complicated matters, it is true that the Congress
    would have a hard time sorting out every final dot and tittle
    about every detail.
        But the real reason at the end of the day that this
    institution punts most of its power to executive branch
    agencies is because it is a convenient way for legislators to
    be able to avoid taking responsibility for controversial and
    often unpopular decisions. If people want to get reelected over
    and over again and that is your highest goal, if your biggest
    long-term thought around here is about your own incumbency,
    then actually giving away your power is a pretty good strategy.
    It is not a very good life, but it is a pretty good strategy
    for incumbency.
        And so at the end of the day, a lot of the power delegation
    that happens from this branch is because the Congress has
    decided to self-neuter. Well, guess what? The important thing
    is not whether the Congress has lame jobs. The important thing
    is that when the Congress neuters itself and gives power to an
    unaccountable fourth branch of government, it means the people
    are cut out of the process. There is nobody in Nebraska, there
    is nobody in Minnesota or Delaware who elected the deputy
    assistant administrator of plant quarantine at the USDA.
        And yet if the deputy assistant administrator of plant
    quarantine does something to make Nebraskans' lives really
    difficult, which happens to farmers and ranchers in Nebraska.
    Who do they protest to? Where do they go? How do they navigate
    the complexity and the thicket of all the lobbyists in this
    town to do executive-agency lobbying. They cannot. And so what
    happens is they do not have any ability to speak out and to
    fire people through an election.
        And so, ultimately, when the Congress is neutered, when the
    administrative state grows, when there is this fourth branch of
    Government, it makes it harder and harder for the concerns of
    citizens to be represented and articulated by people that the
    people know that they have power over. All the power right now
    or almost all the power right now happens off-stage, and that
    leaves a lot of people wondering who is looking out for me?
        And that brings us to the third point. The Supreme Court
    becomes our substitute political battleground. It is only nine
    people. You can know them. You can demonize them. You can try
    to make them messiahs, but ultimately, because people cannot
    navigate their way through the bureaucracy, they turn to the
    Supreme Court looking for politics. And knowing that our
    elected officials no longer care enough to do the hard work of
    reasoning through the places where we differ and deciding to
    shroud our power at times, it means that we look for nine
    Justices to be super-legislators. We look for nine Justices to
    try to right the wrongs from other places in the process. When
    people talk about wanting to have empathy from their Justices,
    this is what they are talking about. They are talking about
    trying to make the Justices do something that the Congress
    refuses to do, as it constantly abdicates its responsibility.
        The hyperventilating that we see in this process and the
    way that today's hearing started with 90 minutes of theatrics
    that are preplanned with certain Members of the other side
    here, it shows us a system that is wildly out of whack.
        And thus, a fourth and final point. The solution here is
    not to try to find judges who will be policymakers. The
    solution is not to try to turn the Supreme Court into an
    election battle for TV. The solution is to restore a proper
    constitutional order with a balance of powers. We need
    ``Schoolhouse Rock!'' back. We need a Congress that writes laws
    and then stands before the people and suffers the consequences
    and gets to go back to our own Mount Vernon if that is what the
    electors decide. We need an executive branch that has a humble
    view of its job as enforcing the law, not trying to write laws
    in the Congress' absence. And we need a judiciary that tries to
    apply written laws to facts and cases that are actually before
    it.
        This is the elegant and the fair process that the Founders
    created. It is the process where the people who are elected,
    two and 6 years in this institution, 4 years in the executive
    branch, can be fired because the Justices and the judges, the
    men and women who serve America's people by wearing black
    robes. They are insulated from politics. This is why we talk
    about an independent judiciary. This is why they wear robes.
    This is why we should not talk about Republican and Democratic
    judges and Justices. This is why we say justice is blind. This
    is why we give judges lifetime tenure. And this is why this is
    the last job interview Brett Kavanaugh will ever have because
    he is going to a job where he is not supposed to be a super-
    legislator.
        So the question before us today is not what does Brett
    Kavanaugh think 11 years ago on some policy matter. The
    question before us whether or not he has the temperament and
    the character to take his policy views and his political
    preferences and put them in a box marked irrelevant and set it
    aside every morning when he puts on the black robe. The
    question is does he have the character and temperament to do
    that. If you do not think he does, vote no, but if you think he
    does, stop the charades because, at the end of the day, I think
    all of us know that Brett Kavanaugh understands his job is not
    to rewrite laws as he wishes they were. He understands that he
    is not being interviewed to be a super-legislator. He
    understands that his job is not to seek popularity. His job is
    to be fair and dispassionate. It is not to exercise empathy. It
    is to follow written laws.
        Contrary to The Onion-like smears that we hear outside,
    Judge Kavanaugh does not hate women and children. Judge
    Kavanaugh does not lust after dirty water and stinky air. No.
    Looking at his record, it seems to me that what he actually
    dislikes are legislators that are too lazy and too risk-averse
    to do our actual jobs. It seems to me that if you read his 300-
    plus opinions, what his opinions reveal to me is a
    dissatisfaction--I think he would argue a constitutionally
    compelled dissatisfaction--with power-hungry executive branch
    bureaucrats doing our job when we fail to do it.
        And in this view, I think he is aligned with the Founders.
    For our Constitution places power not in the hands of this
    city's bureaucracy, which cannot be fired, but our Constitution
    places the policymaking power in the 535 of our hands because
    the voters can hire and fire us. And if the voters are going to
    retain their power, they need a legislature that is responsive
    to politics, not a judiciary that is responsive to politics.
        It seems to me that Judge Kavanaugh is ready to do his job.
    The question for us is whether we are ready to do our job.
        Thank you, Mr. Chairman.
        Chairman Grassley. Yes. The example I always use to back up
    what Senator Sasse says about the Congress not doing its job
    and delegating too much is the Obamacare legislation that was
    2,700 pages and there was 1,693 delegations of authority to
    bureaucrats to write regulations because Congress did not know
    how to reorganize health care.
        Senator Coons.

            OPENING STATEMENT OF HON. CHRISTOPHER A. COONS,
               A U.S. SENATOR FROM THE STATE OF DELAWARE

        Senator Coons. Thank you, Mr. Chairman.
        Welcome, Judge Kavanaugh. Welcome to you and to your family
    and to your friends who are here. As you know well, we went to
    the same law school. We clerked in the same courthouse in
    Wilmington, Delaware, so I have known you and your reputation
    for nearly 30 years, and I know well that you have a reputation
    as a good friend, a good classmate, a good roommate, as a good
    husband and family man, that you have contributed to your
    community. I think we will hear later today that you have even
    been a great youth basketball coach.
        But frankly, we are not here to consider you as the
    president of our neighborhood civic association or even to
    review whether you have been a great youth basketball coach. We
    are here to consider you for a lifetime appointment to the
    United States Supreme Court where you will help shape the
    future of this country and have an impact on the lives of
    millions of Americans for literally decades to come.
        And to make that decision to exercise our constitutional
    role, we have to look closely at your decisions, your
    statements, your writings to understand how you might interpret
    our Constitution. The next Justice will play a pivotal role in
    defining a wide range of critical issues, including the scope
    of the President's power in determining whether the President
    might be above the law. The next Justice will impact essential
    rights enshrined in our modern understanding of the
    Constitution, including the right to privacy, rights to
    contraception, intimacy, abortion, marriage, the freedom to
    worship as we choose, the ability to participate in our
    democracy as full citizens, and the promise of equal
    protection.
        That is because the cases that come before the Court are
    not just academic or esoteric or theoretical. They involve real
    people and have real and lasting consequences.
        With stakes this high, I deeply regret the process that has
    gotten us to this point, the excesses and partisan gamesmanship
    of the last few years, and that history bears briefly
    repeating.
        When Justice Scalia passed in February 2016, I called the
    White House and urged then-President Obama to nominate a jurist
    who could gain support from both sides of the aisle and help
    build a strong center on the Court, and he did just that when
    he nominated Merrick Garland, chief judge of the D.C. Circuit,
    whom I know you also admire. But my Republicans refused to even
    meet with him, must less hold a hearing or vote on his
    confirmation.
        During the 400 days that the Majority refused to fill the
    Supreme Court vacancy, then-Candidate Trump also released a
    list of potential nominees to the Court, a list compiled by two
    highly partisan organizations: the Federalist Society and the
    Heritage Foundation. And after our President was elected, he
    picked from that list and nominated Neil Gorsuch to the Supreme
    Court.
        When Judge Gorsuch testified before this very Committee, he
    told us repeatedly how deeply he understood and respected
    precedent. He even cited a book on precedent he co-authored
    with you. But in his first 15 months of service, Justice
    Gorsuch has already voted to overrule at least five important
    Supreme Court precedents and to question many others. To name
    just one, given it was just Labor Day, Justice Gorsuch voted to
    gut public-sector unions, overturning a 41-year-old precedent
    on which there were great reliance interests in impacting
    millions of workers across the country.
        My point is, that Justice Gorsuch was confirmed to the
    Court in one of the most concerningly partisan processes in
    Senate history, and only after the Majority deployed the
    nuclear option to end the filibuster for Supreme Court
    nominations. This brings us, Judge, to today and your
    nomination.
        When Justice Kennedy announced his retirement, I once again
    called the White House and urged, through White House Counsel,
    that President Trump consider selecting someone for this seat
    who could win broad support from both sides of the aisle. And,
    Judge Kavanaugh, I am concerned you may not be that nominee.
    Your record prior to joining the bench places you in the midst
    of some of the most pitched and partisan battles in our
    lifetimes, from Ken Starr's investigation of President Clinton,
    to the 2000 election recount, to the controversies of the Bush
    administration, including surveillance, torture, access to
    justice, and the culture wars.
        So, Judge, it is critical that this Committee and the
    American people fully examine your record to understand what
    kind of Justice you would be. And, unfortunately, as we have
    all discussed at length here today, that has been rendered
    impossible. The Majority has blocked access to millions of
    pages of documents from your service in a critical role in the
    White House. For the first time since Watergate, the
    nonpartisan National Archives has been cut out of the process
    for reviewing and producing your records.
        Senate Republicans have worked to keep ``committee
    confidential'' nearly 200,000 pages of documents so that the
    public cannot view them, and we cannot question based on them,
    and your former deputy is in charge of designating which
    documents this Committee and the American people get to see.
    Not only that, but for the first time in our history, the
    President has invoked executive privilege to withhold more than
    100,000 pages of documents on a Supreme Court nominee from the
    Judiciary Committee. This leads to a difficult but important
    question, which is, ``What might President Trump or the
    Majority be trying to hide?''
        Mr. Chairman, I want to make an appeal to work together to
    restore the integrity of this Committee. We are better than
    this process. We are better than proceeding with a nominee
    without engaging in a full and transparent process. This
    Committee is failing the American people by proceeding in this
    way, and I fully support the motions made by my colleagues
    earlier in this hearing and regret that we proceeded without
    observing the rules of this Committee.
        That said, Judge Kavanaugh, I have reviewed the parts of
    your record that I have been able to access and what I have
    been able to see from available speeches, writings, and
    decisions, and I have to say it troubles me. While serving on
    the bench, you have dissented at a higher rate than any circuit
    judge elevated to the Supreme Court since 1980, and that
    includes Judge Bork. Your dissents reveal some views and
    positions that fall well outside the mainstream of legal
    thought. You have suggested, as has been referenced, that the
    President has the authority to refuse to enforce a law such as
    the Affordable Care Act were he to decide it was
    unconstitutional.
        You have voted to strike down net neutrality rules, gun
    safety laws, the organization of the Consumer Financial
    Protection Bureau, and many of your dissents would undercut
    environmental protections or workers' rights or any
    antidiscrimination laws, and you have recently praised Justice
    Rehnquist's dissent in Roe. You have embraced an approach to
    substantive due process that would undermine the rights and
    protections of millions of Americans, from basic protections
    for LGBT Americans to access to contraception, to health care
    and the ability for Americans to love and marry whom they wish.
    I am concerned your writings demonstrate a hostility to
    affirmative action and civil rights. And, most importantly, I
    believe you have repeatedly and enthusiastically embraced an
    interpretation of Presidential power so expansive that it could
    result in a dangerously unaccountable President at the very
    time when we are most in need of checks and balances.
        I want to pause for a moment on this last point, because
    the context of your nomination troubles me the most. In
    reviewing your records, Judge, you have questioned the
    lawfulness of United States v. Nixon, a historic decision in
    which a unanimous Court said the President had to comply with a
    grand jury subpoena. You have questioned the correctness of
    Morrison v. Olson, a 30-year-old precedent, holding that
    Congress can create an independent counsel with the authority
    to investigate the President, who the President cannot just
    fire on a whim. You have questioned whether a President and his
    aides should be subject to any civil or criminal investigations
    while in office.
        And, given these positions about Presidential power, which
    I view as being at one extreme of the record of circuit judges,
    we have to confront an uncomfortable but important question
    about whether President Trump may have selected you, Judge
    Kavanaugh, with an eye toward protecting himself.
        So, Judge Kavanaugh, I am going to ask you about these
    issues, as we did when we met in my office, and I expect you to
    address them. When we spoke, you agreed that we have a shared
    concern about the legitimacy of the Supreme Court, that it is
    critical to our system of rule of law. In my view, it is today
    in jeopardy. You are participating in a process that has
    featured unprecedented concealment and partisanship around your
    record. And a few moments ago, Senator Durbin proposed a bold
    step, which would be for you to support suspending this hearing
    until all your records are produced and available to this
    Committee and the American people, and I encourage you to do
    this.
        There are also Members of both parties who have not stated
    how they will vote on your nomination, and I urge you to answer
    our questions about your prior work, about your writings, about
    precedent and the Constitution itself, to trust the American
    people, and to help build our trust in the Court on which you
    may well soon serve.
        I have been to too many hearings in which judicial nominees
    have told us that they will evenhandedly apply the text of laws
    or the Constitution only to watch them ascend to the Bench and
    whittle away the individual rights of Americans or narrow and
    overturn long-settled precedent.
        This Supreme Court vacancy comes at a critical time for our
    country, when our institutions of law and the very foundations
    of our democracy are being gravely tested. If we are going to
    safeguard the rule of law in this country, our courts--and in
    particular, our Supreme Court--must be a bulwark against
    unprecedented violations of law, deprivations of freedom, and
    abuses of power by anyone--including our President.
        No one said it better than our former colleague, Senator
    McCain, who once asked about America, what makes us
    exceptional? Is it our wealth, our natural resources, our
    military power, our big and bountiful country? No, it is our
    founding ideals and our fidelity to them and our conduct in the
    world, they are the source of our wealth and power, that we
    live under the rule of law. That enables us to face threats
    with confidence that our values make us stronger than our
    enemies.
        Judge Kavanaugh, we are here to determine whether you would
    uphold or undermine those founding ideals and the rule of law.
    We are here to determine whether you would continue in the
    traditions of the Court or transform it into a body more
    conservative than a majority of Americans. We are here to
    determine whether your confirmation would compromise or
    undermine the legitimacy of the Court itself. I urge you to
    answer our questions and to confront these significant
    challenges. These are weighty questions, and the American
    people deserve real answers.
        Thank you, and I look forward to your testimony.
        [The prepared statement of Senator Coons appears as a
    submission for the record.]
        Chairman Grassley. Yes. You can easily get the impression,
    not just from Senator Coons but other Senators, that somehow
    you, Judge Kavanaugh, are out of the mainstream in some way. So
    I looked at your record in the D.C. Circuit and have found that
    judges have agreed with you and your rulings in an overwhelming
    majority of matters across the board. Ninety-four percent of
    the matters Judge Kavanaugh heard were decided unanimously. In
    97 percent of the matters Judge Kavanaugh heard, he voted with
    the majority. Judge Kavanaugh issued dissenting opinions in
    only 2.7 percent of the matters that you heard.
        I would also like to clarify what the Presidential Records
    Act requires. Our documents process has fully complied with the
    Presidential Records Act. Under the Federal statute, President
    Bush has the right to request his own administration records.
    He also has the authority to review his records before the
    Senate receives them. Indeed, the Archives may not produce them
    to the Committee without giving President Bush and his
    statutory representatives an opportunity to review first. This
    is what President Bush has done, and the National Archives does
    not have the authority to second-guess President Bush's
    decision to release records to us.
        The National Archives was not cut out of the process. As
    President Bush's representative informed the Committee, quote,
    ``Because we have sought, received, and followed NARA's''--that
    means the Archivist's--``views on any documents withheld as
    personal documents, the resulting productions of documents to
    the Committee is essentially the same as if the `Archivist' had
    conducted its review first, and then sought our views and the
    current administration's views, as required by law,'' end of
    quote.
        Senator Flake.

                 OPENING STATEMENT OF HON. JEFF FLAKE,
                A U.S. SENATOR FROM THE STATE OF ARIZONA

        Senator Flake. Thank you, Mr. Chairman.
        Congratulations, Judge Kavanaugh, and congratulations to
    your family as well.
        Let me just say a few things about the issue that has been
    discussed here a lot today, the issue of documents and document
    production. The standard historically that we use to look at
    nominees is what is relevant and probative. I would suggest
    that we certainly get that from the 12 years you have served on
    the circuit court, on the D.C. Circuit Court, that considers,
    when you look at the docket, items that, you know, more than
    any other circuit court, that the Supreme Court would be
    perhaps called to rule on.
        In the past, Senators on this panel have argued on both
    sides of the aisle that confirming a judge, the best we can
    look at is his or her judicial record. You have that record,
    and it is a long one, over 300 opinions, and I would suggest
    that that is where we need to start. A lot of the other records
    that have been discussed are mainly duplicative, administrative
    documents. Many do not meet the standard of relevant or
    probative. They may not demonstrate the type of Justice that
    you will be.
        Senator Sasse talked about what we are called to do here is
    to look at your temperament and your judgment and your
    character, and I think you can see a lot of that by the type of
    life you have lived outside of the courtroom. When we met in my
    office, I was impressed obviously with your respect for the law
    and quick intellect but also struck by kindness and decency. I
    found out that we share a deep love of sports. We both played
    football back in the day. I am sure you are looking forward to
    this weekend not just when these hearings are concluded but
    when the Redskins and Cardinals play on Sunday.
        I have learned that you have run the Boston Marathon twice.
    I wonder if the ABA took that into account when they gave you a
    favorable rating. I am not sure what that says about your
    soundness of mind myself. But, in all seriousness, training for
    a marathon, completing two marathons like this, is a huge
    accomplishment. It demonstrates not just your competitive
    spirit but a strong sense of purpose and commitment and says
    something about your temperament and character.
        Of course, you have no greater commitment than to your
    family, your wife Ashley and your two daughters. I know that
    you beamed with pride when talking about them and talking
    about, as has been mentioned earlier, coaching your daughter's
    elementary-school basketball teams.
        I have a letter for the record written by a group of
    parents whose girls play for basketball teams that Judge
    Kavanaugh coaches, and, Mr. Chairman, without objection, I
    would like to enter that letter into the record.
        Chairman Grassley. So ordered.
        [The information appears as a submission for the record.]
        Senator Flake. The team's parents' note that Judge
    Kavanaugh has been a devoted coach and a mentor to their
    daughters. As these parents note, Coach K--and that is new,
    you, not the Duke, a famous one--stresses the importance of
    playing as a team and has provided the girls the opportunity to
    learn about teamwork, honesty, integrity, humility, respect,
    discipline, hard work, and competitiveness. Again, we are going
    back to temperament and character. Judge Kavanaugh's dedication
    and commitment as a volunteer basketball coach I think
    demonstrates and says a good deal about that character.
        And congratulations to you and the Blessed Sacrament
    Bulldogs for winning the city championship this past year. I
    know you must be proud of your team.
        Now, aside from running marathons, winning basketball
    championships, you have spent, as I mentioned, the last 12
    years as a Federal Appeals Court Judge on the D.C. Circuit. You
    have earned a reputation among legal commentators and
    colleagues on both sides of the aisle of a solid, careful
    judge; a thorough and clear writer; and someone who promotes
    collegiality on the court, working with people across
    ideological lines.
        I have also a New York Times article for the record written
    by Professor Akhil Amar, a self-professed liberal who describes
    Judge Kavanaugh as one who appreciates the craft of judging
    with seriousness and commands wide and deep respect among
    scholars, lawyers, and jurists across the political spectrum.
    Mr. Chairman, I would like to submit that for the record as
    well.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as a submission for the record.]
        Senator Flake. As I mentioned, Judge Kavanaugh has amassed
    an astonishingly distinguished and extensive record, writing
    more than 300 opinions, joining his colleagues in issuing
    thousands of additional cases, and that is where we need to
    look first when we are looking at how you will judge on the
    Supreme Court.
        Now, I know--and it has been brought up today--that a lot
    of the concern on the other side of the aisle stems from the
    concern of an administration that does not seem to understand
    and appreciate separation of powers and the rule of law. I have
    that concern as well. If you just look at what was said just
    yesterday by the President, I think it is very concerning. He
    said in a tweet, ``Two long-running Obama-era investigations of
    two very popular Republican Congressmen were brought to a well-
    publicized charge just ahead of the midterms by the Jeff
    Sessions Justice Department,'' he calls it. ``Two easy wins now
    in doubt because there is not enough time. Good job, Jeff.''
        That is why a lot of people are concerned about this
    administration and why they want to ensure that our
    institutions hold. Thus far they have, gratefully. Jeff
    Sessions has resisted pressure from the President to punish his
    enemies and relieve pressure on his friends, and many of the
    questions that you will get on the other side of the aisle and
    from me will be how you view that relationship, where you
    believe the Article I powers end and Article II powers of the
    administration begin.
        So I expect to have a number of questions on that subject.
    I again appreciate your willingness to put yourself through
    this process, and I look forward to the hearing moving ahead in
    the next week.
        Thank you, Mr. Chairman.
        Chairman Grassley. Okay.
        Senator Blumenthal.

             OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
              A U.S. SENATOR FROM THE STATE OF CONNECTICUT

        Senator Blumenthal. Thank you, Mr. Chairman. Thank you, Mr.
    Chairman, for your conducting these hearings as fairly and
    patiently as you have, and I am going to be remarking further
    on what procedurally I think is appropriate here.
        But I want to begin by thanking Judge Kavanaugh and your
    family for your commitment to public service. I want to thank
    the many, many Americans who are paying attention to this
    hearing, not only in this room but also across the country. I
    want to thank them for their interest and indeed their passion.
    That is what sustains democracy, that commitment to ordinary,
    everyday Americans participating and engaging in this process.
        There is a T-shirt worn by a number of folks walking around
    this building that says, ``I am what's at stake.'' This vote
    and this proceeding could not be more consequential in light of
    what is at stake: whether women can decide when they want to
    have children and become pregnant; whether the people of
    America can decide whom they would like to marry; whether we
    drink clean water and breathe clean air; whether consumers are
    protected against defective products and financial abuses; and
    whether we have a real system of checks and balances or,
    alternatively, an imperial Presidency.
        I will not cast a vote more important than this one, and I
    suspect few of my colleagues will, as well. And what is at
    stake is, indeed, also the rule of law. My colleague, Senator
    Flake, quoted the President's tweet yesterday. I am going to
    repeat it: ``Two long-running Obama-era investigations of two
    very popular Republican Congressmen were brought to a well-
    publicized charge just ahead of the midterms by the Jeff
    Sessions Justice Department. Two easy wins now in doubt because
    there is not enough time. Good job, Jeff.''
        I have had my disagreements with this Department of
    Justice. I want to note for the record that at least one high-
    ranking member of the Department of Justice was in this room. I
    want to urge the Department of Justice to stand strong and hold
    fast against this onslaught which threatens the basic
    principles of our democracy.
        And I want to join my colleague, Senator Sasse, in his hope
    that you, Judge Kavanaugh, would condemn this attack on the
    rule of law and our judiciary. Because, at the end of this dark
    era, when the history of this time is written, I believe that
    the heroes will be our independent judiciary and our free
    press.
        You are nominated by that very President who has launched
    this attack on our Department of Justice, on the rule of law,
    on law enforcement like the FBI, law enforcement at every level
    whose integrity he has questioned, and your responses to our
    questions will be highly enlightening about whether you join us
    in defending the judiciary and the rule of law.
        That very President has nominated you in this unprecedented
    time, unprecedented because he is an unindicted co-conspirator
    who has nominated a potential Justice who will cast the swing
    vote on issues relating to his possible criminal culpability;
    in fact, whether he is required to obey a subpoena to appear
    before a grand jury, whether he is required to testify in a
    prosecution of his friends or associates or other officials in
    his administration, and whether, in fact, he is required to
    stand trial if he is indicted while he is President of the
    United States.
        There is a basic principle of our Constitution, and it was
    articulated by the Founders: No one can select a judge in his
    own case. That is what the President is potentially doing here,
    selecting a Justice on the Supreme Court who potentially will
    cast a decisive vote in his own case. That is a reason why this
    proceeding is so consequential.
        Senator Sasse urged us to do our job. I agree. Part of our
    job is to review the record of the nominee as thoroughly and
    deliberately as possible, looking to all the relevant and
    probative evidence. We cannot do that on this record.
        Mr. Chairman, you have said multiple times that your staff
    has already reviewed the 42,000 pages of documents produced to
    this Committee at 5:41 p.m. yesterday. Both sides are using the
    same computer platform to review the documents from Mr. Burck.
    The documents had to be loaded into this platform overnight and
    could not be concluded until 6:45 a.m. this morning. How is it
    possible that your staff concluded its review last night before
    the documents were even uploaded? That is this platform that
    both sides are using here. It is simply not possible, Mr.
    Chairman, that any Senator has seen these new materials, much
    less all of the other relevant documents that have been
    screened by Bill Burck, who is not the National Archivist.
        And this situation, when we say it is unprecedented, is
    truly without parallel in our history, and I am going to quote
    from the National Archivist: It is ``something that has never
    happened before.'' And the Archivist continued, ``This effort
    by former President Bush does not represent the National
    Archives or the George W. Bush Presidential Library,'' end
    quote.
        So, Mr. Chairman, I renew my motion to adjourn so that we
    have time to conclude our review of these documents and so that
    also, my request under the Freedom of Information Act, which is
    now pending to the National Archivist, to the Department of
    Justice, to other relevant agencies, can be considered and
    judged. That Freedom of Information Act will require some time,
    I assume, to conclude.
        I renew my motion, Mr. Chairman, and ask for a vote on the
    motion to adjourn. As I said earlier, Rule IV provides, quote,
    ``The Committee Chairman shall''--shall, not may--``shall
    entertain a non-debatable motion to bring a matter before the
    Committee to a vote.'' That seems pretty clear to me, Mr.
    Chairman. I have made a motion to bring before the Committee a
    motion to adjourn under the rules. With all due respect, you
    are required to entertain my motion.
        And I would just add this final point. All of these
    documents will come out. They will come out eventually, as soon
    as 2019 and 2020. By law, these documents belong to the
    American people. They do not belong to President Bush or
    President Trump. They belong to the American people. It is only
    a matter of time, my Republican colleagues, before you will
    have to answer for what is in these documents. We do not know
    what is in them. But the question is, what are they concealing
    that you will have to answer to history for?
        Mr. Chairman, I renew my motion to adjourn.
        Chairman Grassley. You quote the rules very accurately, but
    those rules apply to executive business sessions. We are not in
    an executive business session, so I deny your motion.
        Senator Blumenthal. Mr. Chairman, with all due respect, I
    ask you to point out to me the language in Rule IV or anywhere
    else in our rules that limits its scope to executive business
    meetings. There is no such language, Mr. Chairman.
        Chairman Grassley. I would have you quote language to the
    contrary.
        Senator Blumenthal. Could you quote me that language?
        Chairman Grassley. No. I am asking you, you quote me
    language to the contrary of what I ruled.
        Senator Blumenthal. There is no language to the contrary. I
    am asking for a vote in this session now. There is nothing that
    precludes a vote in our hearing at this exact time.
        Chairman Grassley. I have ruled. Do you want to proceed? Do
    you?
        Senator Blumenthal. Well, if the Chair, with all due
    respect, is ruling against me, I move to appeal the ruling of
    the Chair. With all due respect, the Chairman is not above the
    Rules of the Committee. I ask for a roll call vote to overturn
    the ruling of the Chair and to allow for a vote on my motion to
    adjourn these proceedings.
        Chairman Grassley. That would be an appropriate motion if
    we were in executive business session, but we are not in
    executive business session, so it is denied.
        Senator Blumenthal. Mr. Chairman, I will proceed under
    protest. We have had a lot of rhetoric so far about rules and
    norms. I am very regretful that the Chair has adopted this
    stance, which in my view, contradicts our basic norms and
    rules. But I will proceed.
        [Disturbance in the hearing room.]
        Senator Blumenthal. Mr. Chairman, I have fears about what
    this nominee will do with respect to our rule of law, but also
    about basic rights that have been established by past Supreme
    Court precedent. And the only way to test what his fidelity to
    the rule of law is, in fact, is to ask, as I have asked every
    single judicial nominee coming before me when I have served on
    this Committee in hearings, whether he believes past decisions
    of the Supreme Court were correctly decided.
        So I am going to be asking you, Judge Kavanaugh, whether
    you believe Roe v. Wade was correctly decided.
        Senator Cornyn. Mr. Chairman?
        Senator Blumenthal. I am going to be asking you----
        Senator Cornyn. Mr. Chairman, may I ask a question? I was
    under the impression each of us had 10 minutes for an opening
    statement. We will have 15 minutes for questions, but----
        Chairman Grassley. Let me clarify.
        Senator Cornyn. And then--plus, Mr. Chairman----
        Senator Blumenthal. Well, I do not----
        Senator Cornyn [continuing]. Various Members have been
    making speeches all day long and have not been confined to
    their 10-minute opening statement.
        Chairman Grassley. Yes. Okay. Well, like I told you----
        Senator Blumenthal. I think I have time left.
        Chairman Grassley [continuing]. You will have time. I am
    going to let you finish. Just a minute.
        I was hoping that the 10-minute rule would stand, but we
    got off to a very bad start.
        [Disturbance in the hearing room.]
        Chairman Grassley. And we got off to a bad start, and
    everybody started exceeding their time limit. So I guess as
    long as we have to stay here and get this all done today, if we
    have to stay into the night, we are going to stay, but I am not
    going to cut anybody off now that I did not do it right away.
    And like you said, mob rule. I have always said to myself when
    I am advising other people, either you run the Committee or the
    Committee runs you, and I let the----
        [Disturbance in the hearing room.]
        Chairman Grassley [continuing]. And I let the Committee run
    me this time. So let's just proceed as we have and let Senator
    Blumenthal take what time he wants. I hope you will not go too
    long.
        Senator Blumenthal. I will be very judicious, Mr. Chairman.
    Thank you.
        Chairman Grassley. I do not know what that means.
        [Laughter.]
        Chairman Grassley. I am sorry, Senator Cornyn, I cannot
    agree with you. We will just proceed.
        Senator Blumenthal.
        Senator Blumenthal. Thank you, Mr. Chairman.
        Senator Cornyn. Next time, Mr. Chairman.
        Senator Blumenthal. So I will be asking, Judge Kavanaugh,
    whether you believe Roe v. Wade was correctly decided, whether
    you believe Brown v. Board of Education was correctly decided.
    Judicial nominees have figured out all kinds of ways to avoid
    answering the question. At first they said they thought it
    would violate the canons of ethics. There are no canons of
    ethics that preclude a response. Then they said that they felt
    a decision might come before them, an issue in a case that
    might arise, and more recently they have adopted the mantra
    that they think all Supreme Court decisions are correctly
    decided.
        But you are in a different position. You have been
    nominated to the highest court in the land, and your decisions
    as a potential swing vote could overturn even well-settled
    precedent. There are indications in your writings, your
    opinions, as well as the articles you have written and some of
    the memos that have come to light, that you believe, for
    example, Roe v. Wade could be overturned. And that is why I
    want to know from you whether you think it was correctly
    decided in the first place, and other decisions that are
    regarded as well-settled or long-established.
        In fact, I have these fears because, Judge Kavanaugh, the
    system and process has changed so radically. In fact, you have
    spent decades showing us in many ways what you believe. Or to
    put it more precisely, you have spent decades showing those
    groups like the Federalist Society and the Heritage Foundation
    and others what you believe. They are the ones who have really
    nominated you because the President outsourced this decision to
    them.
        In those opinions and writings and statements and
    interviews, you have done everything in your power to show
    those far-right groups that you will be a loyal soldier on the
    Court. I am going to use some of those writings and some of the
    timing and other indications to show that you are more than a
    nominee, in fact a candidate in a campaign that you have
    conducted. That seems to be, unfortunately, the way the system
    has worked in your case.
        The norms have been dumbed down, and the system has been
    degraded, but I think that we have an obligation to do our job
    and elicit from you where you will go as a Justice on the
    United States Supreme Court based on what you have written and
    said, and also what you will tell the American people in these
    hearings.
        I join in the request that has been made of you that you
    show the initiative and ask for a postponement of these
    hearings. I think that this process has been a grave disservice
    to you, as well as this Committee and the American people. If
    you are confirmed after this truncated and concealed process,
    there will always be an asterisk after your name, ``appointed
    by a President named as an unindicted co-conspirator after the
    vast majority of documents relating to the most instructive
    period of his life were concealed.'' The question will always
    be why was all that material concealed?
        You have coached and you have mentored judges going through
    this process. You are as sophisticated and knowledgeable as
    anyone who will ever come before us as a judicial nominee. So
    you know that we have an obligation to inquire as to everything
    that can be relevant.
        And it is not the numbers of documents. It is the
    percentage. There were no emails when Justice Ginsburg was the
    nominee. The documents that we have been provided contain
    duplicates. They are full of junk. We need everything that is
    relevant, including the 3-years that you served in the Bush
    White House as staff secretary, the most instructive period of
    your professional career.
        So let me just conclude by saying what we share, I think,
    is a deep respect and reverence for the United States Supreme
    Court. I was a law clerk, as you were. I have argued cases
    before the Court. Most of my life has been spent in the
    courtroom as U.S. Attorney or as Attorney General. The power of
    the Supreme Court relies not on armies or police forces. It has
    none. But on its credibility, the trust and confidence of the
    American people. I ask you to help us uphold that trust by
    asking this Committee to suspend this hearing and come back
    when we have a full picture with the full sunlight that our
    Chairman is so fond of espousing, so that we can fully and
    fairly evaluate your nomination.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Blumenthal appears as a
    submission for the record.]
        Chairman Grassley. Once again, I would remind everybody we
    have----
        [Disturbance in the hearing room.]
        Chairman Grassley [continuing]. We have a half-a-million
    documents on this gentleman's record. And also----
        [Disturbance in the hearing room.]
        Chairman Grassley [continuing]. I would like to respond to
    the fact that you cannot go 42,000 pages, which I guess is way
    over the number of documents that we actually received. The
    Majority and Minority received documents in two ways. One is a
    format that can be uploaded to reviewing platforms, and the
    second is in a standard document file format called PDFs.
        Given the importance of reviewing documents in a timely
    manner, my staff reviewed the PDF versions. The production was
    relatively small, and therefore there was no need to upload
    them to a reviewing----
        [Disturbance in the hearing room.]
        Chairman Grassley. Senator Kennedy, you are next.
        Senator Kennedy. Say again?
        Chairman Grassley. You are next, Senator Kennedy.
        [Disturbance in the hearing room.]

                OPENING STATEMENT OF HON. JOHN KENNEDY,
               A U.S. SENATOR FROM THE STATE OF LOUISIANA

        Senator Kennedy. Thank you, Mr. Chairman.
        I have listened with interest today. I agree so much with
    what Senator Sasse said. I listened today, and it is no wonder
    to me that so many Americans think that the United States
    Supreme Court is nothing more than a little Congress, a
    political body like the United States Senate.
        Let me try to explain what I am looking for in a Supreme
    Court Justice. I want a judge. I do not want a politician. Now,
    I am not naive. It is true, Senator Booker and I are new to the
    Senate. We did not come here when Moses walked the earth. But
    we are not new to politics. And I understand that human
    relations are about politics. I get that. But I do not think
    our Founders ever intended for the United States Supreme Court
    to become a political body. I do not.
        I am not looking for an ideologue. I am not looking for a
    hater. What I am looking for is somebody who is smart, who is
    intellectually curious, who writes cleanly and crisply, who
    knows what a semicolon is for, and who is willing to protect
    the United States Constitution and the Bill of Rights, and
    understands that the Bill of Rights is not an a la carte menu.
    Every one of them counts.
        Let me try to explain further why I agree with so much of
    what Senator Sasse said. This is not a news flash. Our country
    is divided. We have been divided before. We will be divided
    again. We will survive this. But I confess, the division in our
    country today seems to me to be especially sharp. And what
    concerns me so much about that division is the basis for it. It
    is not honest disagreement. So much of it is anger.
        There have been thousands, millions of pages written about
    the genesis of that anger. We all have opinions. You know what
    they say about opinions. Here is mine. I think a big part of
    the anger in America today is because we have too many
    Americans who are not sharing in the great wealth of this
    country, not economically, not socially, not culturally, and
    not spiritually. And those Americans believe that the American
    dream has become the American game, and that that game is
    fixed.
        Let me give you one example why I say that. I do not hear
    it so much today. I am biased, but I happen to think the Tax
    Cuts and Jobs Act bill worked. But when I ran 2 years ago, I
    would hear it every single day. People would stop me and they
    would say, ``Kennedy, do you know what is wrong with us
    economically?'' They would tell me, ``I look around, Kennedy,
    and I see too many undeserving people''--I emphasize
    undeserving. I do not want to paint with too broad a brush.
    They would tell me, ``Kennedy, I look around and I see too many
    undeserving people at the top getting bailouts, and I see too
    many undeserving people at the bottom getting handouts. And I
    am here, just a working schmuck in the middle, stuck in the
    middle, and I cannot pay the freight anymore because my health
    insurance has gone up and my kid's tuition has gone up and my
    taxes have gone up, but I will tell you what has not gone up--
    my income.''
        Now, I happen to think we are doing better in that regard,
    but we still have a long way to go. But here is the point: Who
    is supposed to fix that for the American people? It is us. It
    is the United States Congress. It is not the United States
    Supreme Court that is supposed to fix this country culturally,
    economically, socially, spiritually.
        And that is why I say I agree with so much of what Senator
    Sasse said. It has almost become a cliche, but the role of the
    judge is, or at least should be, to say what the law is, not
    what the law ought to be. Now, that has become cliche, but
    cliches become cliches because they are true. Judges are not
    put there to try to bypass the ballot. Courts should not try to
    fix problems that are within the province of the United States
    Congress, even if the United States Congress does not have the
    courage to address those problems. Our courts were not meant to
    decide these kinds of issues.
        Again, I am not naive. I know that judges are not robots.
    We cannot replace you and should not try to replace you with a
    software program based on artificial intelligence. You have
    discretion. We are going to talk about that if we ever get to
    the questioning part of this exercise.
        But I want to say it again. I understand why, listening
    today, so many Americans believe that the law, which I think
    all of us revere, has become politics just pursued in another
    way. It is not the way it is supposed to be, judge. That is not
    what I am looking for.
        Now, I am going to end. I still have plenty of time left. I
    think I have 2 hours allotted, Mr. Chairman?
        [Laughter.]
        Senator Kennedy. Somebody talked about--said they had seen
    this movie before. I commented to my friend, Senator Tillis,
    this thing is as long as a movie.
        These are the words of Justice Curtis in 1857, when he
    dissented in the Dred Scott case: ``When a strict
    interpretation of the Constitution according to the fixed rules
    which govern the interpretation of laws is abandoned, and the
    theoretical opinions of individuals are allowed to control its
    meaning, we have no longer a Constitution. We are under the
    government of individual men who, for the time being, have
    power to declare what the Constitution is according to their
    own views of what it ought to mean.'' That is not the rule of
    law.
        Justice Scalia put it another way, and I truly will end
    with that. He said, ``The American people love democracy, and
    the American people are not fools. The people know their value
    judgments are quite as good as those taught in any law school,
    maybe better. Value judgments, after all, should be voted on,
    not dictated.''
        And that is what I am looking for, Judge.
        Thank you, Mr. Chairman.
        Chairman Grassley. Senator Hirono.

               OPENING STATEMENT OF HON. MAZIE K. HIRONO,
                A U.S. SENATOR FROM THE STATE OF HAWAII

        Senator Hirono. Thank you, Mr. Chairman.
        Judge Kavanaugh and your family, welcome.
        Mr. Chairman, earlier on today, I pointed to an op-ed that
    had been written by two former White House staff secretaries,
    John Podesta and Todd Stern, entitled ``Staff Secretaries
    Aren't Traffic Cops: Stop Treating Kavanaugh Like He Was One.''
    And I note in their op-ed what they said. I will quote part of
    it.
        They say that, ``When we handled the job for Bill Clinton
    in much the same way that staff secretaries did for President
    George H.W. Bush, we wrote concise cover memos for every
    decision memo that went to the President. We summarized the
    underlying memo, identified the core decision points and
    options, and conveyed the views of key senior staff members
    from whom we had sought comments. We wrote hundreds of these
    memos.'' It is no wonder that Judge Kavanaugh has deemed his
    time as White House staff secretary so important to his
    performance as a judge. But unfortunately, as we have said many
    times already, we do not have any of these documents during
    Judge Kavanaugh's time as staff secretary.
        Dana Sabraw. Michael Baylson. Ketanji Brown Jackson.
    Colleen Kollar Kotelly. Naomi Reice Buchwald. John Bates. Derek
    Kahala Watson.
        These are the names of some of the Federal judges across
    this country who have vindicated my faith in the rule of law
    over the last year and a half. These are the women and men,
    appointed by Republican and Democratic Presidents, who ordered
    the Government to reunite parents with the children ripped from
    their arms at the border; who rejected attempts to deny Federal
    funds to cities refusing to be drawn into the war against
    immigrants; who stopped Executive orders aimed at kneecapping
    public-sector unions; who stopped the implementation of an ugly
    ban on transgender Americans serving in our military; who ruled
    that public officials cannot block citizens from their Twitter
    feeds; and who stopped the Government from banning Muslims from
    entering the United States.
        These judges stood firm in defense of the Constitution, the
    American values it expresses, and the system of checks and
    balances it enshrines. At this moment of peril for our
    democracy, it is these judges, and others like them, who have
    pushed back against the efforts of a President eager to wield
    unlimited and unchecked power.
        In normal times, we would be here today to determine the
    fitness of a nominee to the Supreme Court of the United States
    chosen for his or her legal talent and reputation for fairness.
        But these are not normal times.
        Instead, we are here to decide whether or not to rubber
    stamp Donald Trump's choice of a pre-selected political
    ideologue, nominated precisely because he believes a sitting
    President should be shielded from civil lawsuits, criminal
    investigation, and prosecution, no matter the facts.
        Let's not forget. During his campaign, Donald Trump needed
    to shore up support from the Republican base who questioned
    whether he was sufficiently conservative. To help, he turned to
    the Federalist Society and the Heritage Foundation to build a
    pre-approved list of names, and promised to pick from among
    them when selecting nominees for the Supreme Court.
        These groups are longstanding right-wing organizations that
    advocate for conservative causes and legal positions. The
    Heritage Foundation focuses on developing policy to, among
    other things, oppose climate change, repeal the Affordable Care
    Act, and reduce regulations for big business. The Federalist
    Society focuses on changing the American legal system to align
    with an ultraconservative interpretation of the Constitution,
    including the overturning of Roe v. Wade.
        When given the opportunity to nominate a new Supreme Court
    Justice, Donald Trump did exactly as he promised. He did not
    select someone who demonstrates independence and fidelity to
    the rule of law. Instead, Donald Trump selected a pre-approved
    name in order to guarantee a fifth vote for his dangerous anti-
    worker, anti-consumer, anti-women, pro-corporate, and anti-
    environment agenda.
        And Donald Trump selected Brett Kavanaugh from this list
    for an even more specific reason. The President is trying as
    hard as he can to protect himself from the independent,
    impartial, and dogged investigation of his abuse of power,
    before the walls close in on him entirely.
        Because if there is one thing we know about Donald Trump,
    it is that he is committed to self-preservation every minute,
    every hour, every day.
        Judge Kavanaugh's appointment should be considered in a
    broader context. The President has been packing our courts with
    ideologically driven judges who come to the bench with firm
    positions and clear agendas, who then go on to rule in ways
    consistent with those agendas.
        For example, Trump nominee James Ho, now a judge on the
    Fifth Circuit, has written in favor of unlimited campaign
    contributions and, in another case, publically aired his
    personal views in opposition to abortion.
        Trump nominee Don Willet, now a judge on the Fifth Circuit,
    has already voted to curtail the independence of a Federal
    agency that helped rescue the economy after the mortgage crisis
    of 2008.
        Trump nominee Stephanos Bibas, now a judge on the Third
    Circuit, wrote a dissent to explain that he does not believe
    Title IX requires school districts to provide transgender
    students appropriate changing facilities and bathrooms.
        Trump nominee Amy Coney Barret, now a judge on the Seventh
    Circuit, ruled to keep out of court employees trying to
    challenge an arbitration proceeding, and cast the deciding vote
    to allow a business to continue to segregate its work force.
        And Trump nominee John K. Bush, now a judge on the Sixth
    Circuit, ruled to keep out of court a woman accusing her
    employer of age discrimination, despite a dissenting judge's
    view that there was sufficient evidence to go forward.
        When these Trump-nominated judges came before the Judiciary
    Committee as nominees, my Democratic colleagues and I tried to
    find out how they would go about deciding tough cases, what
    they would base their decisions on when the law did not give a
    clear enough direction, as is often the case.
        Time and again, we were told: Do not worry about my
    personal background or my history as a partisan, political
    advocate. Do not worry about what I have done, written, or said
    until now. When I get on the bench, I will just follow the law.
    But clearly, they have not. Why should we expect this Supreme
    Court nominee, you, to be any different?
        President Trump selected Brett Kavanaugh because of his
    fealty to the partisan political movement he has been a part of
    his entire professional life.
        From his clerkship with Judge Alex Kozinski, to his
    apprenticeship with Ken Starr, to his work on George W. Bush's
    legal team during the Florida recount and in the White House,
    Judge Kavanaugh has been knee-deep in partisan politics.
        The first reward for that service was his nomination to the
    D.C. Circuit. It was a tough fight, but Republican-aligned
    special interests fought for more than 3 years to get him
    confirmed.
        And for the last 12 years as a judge, he has ruled, whether
    in dissent or majority, in ways in line with their political
    and ideological agenda.
        Now, President Trump has selected Judge Kavanaugh to
    provide the decisive fifth vote in cases that will change some
    of the most basic assumptions Americans have about their lives
    and their Government.
        There are more than 730 Federal judges working on thousands
    of cases across the country every day. Most of these cases end
    in trial courts. Some of them are appealed and heard in
    appellate courts. The closely divided Supreme Court hears very
    few cases, many times fewer than 100, every year.
        Before Justice Kennedy retired, so many important
    Constitutional rights were hanging in the balance, decided on
    narrow grounds by 5-to-4 votes.
        And now that Justice Kennedy has left the Court, the forces
    opposed to workers' rights, women's rights, LGBTQ rights,
    voting rights, civil rights of all kinds, and environmental
    protections are eager to secure a solid majority on the Court
    to support their right-wing views.
        These ultra-right-wing forces have been working for decades
    to prepare for this moment because they know that a single vote
    from one Justice is all it would take to radically change the
    direction of this country.
        It could take just one vote on the Supreme Court to
    overturn Roe v. Wade and deny women control over their
    reproductive rights.
        It could take just one vote to declare the ACA's pre-
    existing condition protections unconstitutional.
        It could take just one vote to dismantle environmental
    protections that keep our air safe to breathe and our water
    clean to drink.
        It could take just one vote to dismantle commonsense gun
    safety laws that keep our communities safe.
        And it could take just one vote to further erode
    protections for working people and unions.
        Since this nomination was announced, I have been asked many
    times why the Democrats would even bother to go through the
    motions when we know that our Republican colleagues will do
    anything to support this administration's judicial nominees.
        There are battles worth fighting regardless of the outcome.
    A lifetime appointment to the Supreme Court, of someone who
    will provide the fifth vote on issues impacting the lives of
    every working American, is a battle worth fighting.
        So, I intend to use this hearing to demonstrate to the
    American people precisely why who sits on the Supreme Court
    matters, why a fifth ideologically driven conservative and
    political vote on the Court is dangerous for our country, why
    the Senate should reject this President's latest attempt to rig
    the system in his favor.
        As Senators begin to ask their questions in the coming
    days, I ask the American people to listen carefully to what the
    nominee says and compare it with what we heard only a short
    time ago from Neil Gorsuch at his confirmation hearing.
        Just 18 months ago, Judge Gorsuch told us that, ``All
    precedent of the United States Supreme Court deserves the
    respect of precedent, which is quite a lot. It's the anchor of
    the law.''
        Judge Gorsuch said, ``It's not whether I agree or disagree
    with any particular precedent. That would be an act of hubris.
    Because a precedent, once it's decided, it carries far more
    weight than what I personally think.''
        Judge Gorsuch made these promises when he was asking for
    our votes. But earlier this year, he joined a majority of the
    Court to overturn precedent in a 41-year-old case that
    protected Government workers and their ability to form a union
    in a 5-to-4 decision.
        I expect Judge Kavanaugh to make similar promises over the
    next few days, only to do, sadly, the exact opposite if
    confirmed.
        Our job here is important, because every American should be
    concerned about what our Government and country would look like
    if Judge Kavanaugh is confirmed.
        We owe it to the American people, and to all of the
    independent-minded judges I mentioned at the beginning of my
    remarks, to preserve the integrity of our Constitution and the
    fairness and order of a system that has served us well for so
    long.
        Judge Kavanaugh, what may be going through your mind right
    now is to simply and stoically endure this hearing. But do you
    not think you owe it to the American people to disclose all of
    the documents being requested? Because you have nothing to
    hide. Because you have nothing to hide.
        I agree with my colleague, Senator Durbin, Judge Kavanaugh.
    If you stand behind your full record in public life,
    fundamental fairness will dictate that you join us in our call
    for this Committee to suspend until we receive all relevant
    documents and have a chance to review them. Your failure to do
    so would reflect a fundamental mistrust of the American people.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Hirono appears as a
    submission for the record.]
        Senator Hirono. And I would like to have entered into the
    record the op-ed piece that I referred to by John Podesta and
    Todd Stern.
        Chairman Grassley. Without objection, it will be entered.
        [The information appears as a submission for the record.]
        Chairman Grassley. Let's go to Senator Crapo next.

                 OPENING STATEMENT OF HON. MIKE CRAPO,
                 A U.S. SENATOR FROM THE STATE OF IDAHO

        Senator Crapo. Thank you, Mr. Chairman.
        Judge Kavanaugh, welcome. Thank you for your service to
    this country, and thank you for the willingness you have
    expressed to take this additional assignment. And thank you to
    your family. We welcome them as well.
        The process upon which we are about to embark is one of, if
    maybe not the most, important duties entrusted to the Senate,
    advise and consent on judicial nominations. Ultimately, a fair
    and proper judge, Supreme Court or otherwise, must follow the
    law and not make laws from the bench.
        Upon receiving his nomination to serve as an Associate
    Justice of the Supreme Court, Judge Kavanaugh stated, ``My
    judicial philosophy is straightforward. A judge must interpret
    statutes as written, and a judge must interpret the
    Constitution as written, informed by history and tradition and
    precedent.''
        Isn't that the ideal of a judge steadfastly committed to
    the law?
        No one seriously questions Judge Kavanaugh's qualifications
    to serve as an Associate Justice on our Nation's highest court.
    He is vastly experienced and widely respected for his
    intellect, his honesty, and his legal acumen. With over 300
    offered opinions and 12 years of service on the bench, he is a
    judge with a clear record demonstrating that he applies the law
    as written and enforces the Constitution. He values precedent
    and has written, along with Justice Gorsuch and others, the law
    of judicial precedent, a scholarly piece on the importance of
    stare decisis.
        Sadly, much of the discourse surrounding Judge Kavanaugh's
    nomination deals not with the content of his legal opinions,
    his judicial philosophy, or temperament, but rather, as today's
    discussion has shown, the spurious notion that our
    distinguished Chairman has not been rigorous or fair or
    transparent in navigating the requisite document production
    efforts required by this Committee.
        Those claims are wholly without foundation. There have been
    57 days since the announcement of Judge Kavanaugh's nomination
    on July 9 and today's confirmation hearing. This is a longer
    period of time than Senators had for Justices Sotomayor, Kagan,
    and Gorsuch. Justice Kavanaugh also submitted over 17,000 pages
    with his bipartisan Judiciary Committee questionnaire, the most
    extensive questionnaire ever returned by a nominee to the
    Supreme Court.
        The Committee also received more than 440,000 pages of
    documents related to his service in the executive branch. This,
    too, is more than any Supreme Court nominee to date. As has
    been said earlier, in fact, it is more than the last five
    nominees combined.
        I applaud Chairman Grassley and his dedicated staff for
    their tireless work in reviewing these documents and making the
    vast majority publicly available as quickly as possible. And
    frankly, Mr. Chairman, I believe the American people appreciate
    your efforts, your transparency, and your commitment to a fair
    process.
        Now, I want to make one side note. It was said here today
    that the number of documents provided by now-Justice Kagan, who
    was also a nominee who had served in the White House and had
    many, many documents related to her service, that 99 percent of
    the documents requested for her were provided. One problem with
    that fact, and that is that when Justice Kagan was before us,
    she had been the solicitor General. There were probably more
    pages relevant to her service there than to your service. We do
    not know the number because the Republicans agreed after a
    strong disagreement with the Democrats that we would not
    request those documents because the White House claimed they
    were sensitive.
        The Democrats have not made that agreement with the
    Republicans this time. But I think it is incredibly important
    to note that this argument that is going on today about the
    balance of document production is simply a trumped-up argument.
        These facts aside, many of my colleagues continue to
    criticize this process. Their motives are clear: use any means
    available to attempt to delay the confirmation process of a
    well-qualified jurist fit for the job, indefinitely.
        I strongly agree with the comments of many of my colleagues
    here today. Senator Cruz pointed out what was really at stake.
    Senator Sasse pointed out why it is that Congress needs to be
    the part of our Federal Government that makes the law, not the
    judiciary. Senator Kennedy has followed up on that thought, as
    have many of my colleagues here today.
        I think that one point that Senator Cruz mentioned deserves
    repeating. Much of what we are hearing today and will hear for
    the remainder of this process is ultimately an effort to re-
    litigate the last Presidential election. In fact, we have just
    heard Judge Kavanaugh attacked and stated to be unqualified
    because he is a Trump nominee. Other Trump nominees have also
    been attacked here today.
        The attack is on President Trump, not on their nominees,
    because of an unwillingness to accept the outcome of the last
    Presidential election. Judge Kavanaugh as the nominee has been
    widely recognized for his judicial temperament and his detailed
    legal writings in defense of the Constitution. His opinions are
    widely cited by his fellow appellate judges, and even the
    Supreme Court. And although his integrity was just challenged,
    stating that no matter what he says to this Committee he will
    vote the other way once put into office, put into the Supreme
    Court, the fact is that his record, as the Chairman has already
    outlined, disproves that.
        He serves on the D.C. Circuit Court of Appeals, a court on
    which more of the judges who serve have been appointed by
    Democratic Presidents than Republican Presidents. Yet he has
    voted 97 percent of the time with his colleagues in the
    majority on that court, showing that he will follow the law and
    that he does so with the majority support of broad and--I was
    going to say bipartisan, but nonpartisan judges who are
    appointed by Republican and Democratic Presidents and who
    consider some of the most important cases in America today.
        That is the judge we have before us. He is a judge's judge.
        Many critics argue that Justice Kavanaugh would play an
    instrumental role in reversing a number of Supreme Court
    precedents. However, I wonder how one can draw that conclusion
    given his record of exhaustive and weighty consideration of
    important legal questions on a court such as the D.C. Circuit.
        I recognize that it is politics driving these attacks, and
    so do the American people. They know what is at stake.
        Moreover, in his legal opinions, Judge Kavanaugh has
    consistently demonstrated a willingness to rein in both
    Congress and the executive branch when they overstep their
    respective constitutional grounds. Judge Kavanaugh understands
    and is focused on the principle that a judge is a servant of
    the law, not a maker of it. We should take him at his own
    words. The judge's job is to interpret the law, not to make the
    law or policy.
        So, read the words of the statute as written. Read the text
    of the Constitution as written, mindful of history and
    tradition. Do not make up new constitutional rights that are
    not in the text of the Constitution. Do not shy away from
    enforcing constitutional rights that are in the text of the
    Constitution. Those are Judge Kavanaugh's words. That is the
    man who sits before us nominated to be a Justice on the highest
    court of our land.
        Judge Kavanaugh has the backing of his former law clerks
    and law students, his colleagues on the bench appointed by both
    Republican and Democratic Presidents, and many members of his
    local community in which he remains so closely involved. He is
    a man of honor, integrity, and well-respected in the legal
    community. There is no dispute he is qualified to serve on our
    Nation's highest court.
        Mr. Chairman, I look forward to the hearing to hear from
    the nominee himself when we all get done with our statements.
        [Disturbance in the hearing room.]
        Senator Crapo. The next few days will prove insightful as
    we discuss with Judge Kavanaugh for the public to hear in his
    own words the proper role of the judge in our constitutional
    system. I look forward to this hearing, and again, Judge
    Kavanaugh, thank you for being willing to be here.
        Thank you, Mr. Chairman.
        Chairman Grassley. Thank you.
        Senator Booker.

               OPENING STATEMENT OF HON. CORY A. BOOKER,
              A U.S. SENATOR FROM THE STATE OF NEW JERSEY

        Senator Booker. Thank you, Mr. Chairman.
        Welcome, Judge Kavanaugh. And I want to say welcome to your
    family sincerely as well. We are all Americans taking part in
    what is truly an historic moment.
        Mr. Chairman, Chairman Grassley, I hope you do not think
    earlier this morning that in any way I was questioning your
    integrity or your decency. I was appealing to it earlier
    before, and you have been conducting this hearing giving myself
    and others the opportunity to at least speak and make our case,
    and even though you have not ruled in our favor, of which I am
    disappointed, I do hope you understand that I value your
    friendship, and frankly some of the most valuable moments I
    have had in the Senate. I still remember shaking your hand and
    coming to agreement with you on criminal justice reform. I have
    come to have a deep respect for you, sir. So I hope you do not
    think I was doing that earlier.
        Chairman Grassley. If you worry about our friendship being
    affected, it will not be. And that gives me an opportunity to
    say something to the public at large, and that is about this
    Committee.
        You would think that Republicans and Democrats do not talk
    to each other, but I would like to remind the public that when
    they think that happens, they ought to think of the record of
    this Committee, not just this Chairman but this Committee in
    the 3\1/2\ years and maybe even before I got to be Chairman.
    But in the 3\1/2\ years I have been Chairman, every bill that
    got out of this Committee has been a bipartisan bill.
        Proceed, Senator Booker.
        Senator Booker. Thank you very much, sir. I appreciate
    that. It does not detract from the fact that I just
    fundamentally disagree with the way you have been concluding
    today.
        When I first got to the Senate I was very fortunate that a
    lot of senior statesmen, yourself and Senator Hatch included,
    pulled me aside and gave me hard wisdom at times. You will
    remember, I came to the Senate in a special election at a time
    when we were changing some of the Senate rules. Senator Levin
    brought me aside and gave me a hard talking to. Senator McCain
    gave me a hard talking to. And all of them made similar points
    about this idea that sometimes you need to be as objective as
    possible and see how you would react if the pendulum had swung
    the other way. In other words, they warned me that what goes
    around in this place comes around, and to really think as if
    the shoe was on the other foot.
        And I have been struggling with that, sir, in all honesty,
    of what the Republicans would be saying and what we would be
    saying if we had a Democratic President right now, a Democratic
    nominee right now, and this process was in the reverse. And I
    would like to believe how I would behave, and I am pretty
    confident, would be willing to bet that if the Republicans were
    being denied effectively about 90 percent of the documents
    about a person's public record, I actually do believe that some
    of the analogies that are made to Justice Kagan and her
    Solicitor General time is not a fair analogy.
        This is a part of the nominee's history that he himself has
    said was one of his most formative times. I would not hire an
    intern in my office knowing only 10 percent of their resume.
    There is not a person here who would buy a home only seeing 10
    percent of the rooms.
        I just believe what we are doing here, just on the
    objective view of fairness, is sincerely unfair and is
    insulting to the ideals that we try to achieve with some sense
    of comity and some sense of rules.
        But I want to go deeper than that. I am trying to figure
    out what the jeopardy would be if we just waited for the
    documents. Last night we had a document dump of tens of
    thousands of pages, tens of thousands of pages. As has been
    said already, there is no judge that would allow a court
    proceeding to go on, no judge that would move forward if one of
    the parties had just gotten documents as of 5 o'clock last
    night, or potentially as of 11 o'clock.
        What I do not understand is, what is the jeopardy of just
    waiting, not just to digest these documents but other
    documents? The reality is that, Senator Grassley, you have
    yourself asked for a specific, more finite set, a more limited
    set of documents that you have not even gotten.
        So whether it is not seeing 90 percent of the resume of the
    gentleman before us, or 50 percent, or 40 percent, that should
    come within time, and there is no jeopardy when we have a
    lifetime appointment. He will be there, should he be confirmed,
    for decades and decades and decades. Waiting another week or 5
    days or 2 weeks for those documents that you yourself have
    requested, which is a more limited subset, for even those
    documents to come through, I do not understand what the rush
    is, especially given all that is at stake.
        So those are the reasons why I say to you with sincere
    respect that this is an absurd process. It just seems unfair to
    me, and it could easily be solved by us putting a pause here in
    this process, waiting for the documents, evaluating the
    documents, and it will be a much more robust set of hearings on
    this nominee.
        As I said, I would not hire an intern if I had not seen--if
    I had only seen 10 percent of their resume. And here, to have a
    fuller body of the work of this gentleman before us, who one of
    my colleagues called popping up in some of the most interesting
    times in the last decade or two on some of the most important
    issues, already the limited amount, 7 percent of the documents
    that I have seen, unfortunately those are things that are being
    held Committee confidential, which I do not even know if I can
    use in my question here. I think the penalty is being ousted
    from the Senate.
        But even the limited documents has made potentially my
    questioning far more rich, far more substantive, to get to the
    heart of the issues of the individual nominee. And again, sir,
    I try to summon the spirit of some of the elder statespeople I
    had the privilege of serving with, from Rockefeller to Levin to
    McCain, to summon that spirit to be as objective as possible. I
    do not think it is unreasonable for us to wait for a week or
    two to get the full body of those documents. It will cause no
    harm or damage except to have more of a full telling of what is
    at stake here.
        The stakes are too high in what this nominee represents for
    us to rush through this process without a full sharing of the
    documents. And with that, I will continue, sir, with my opening
    statement.
        I have said before already that----
        Chairman Grassley. Since you have not begun your opening
    statement----
        [Laughter.]
        Chairman Grassley. I will take this opportunity to probably
    say that you said, I did not get all the documents I requested.
    You probably heard the first sentence of something I said after
    our break, and that was, that I first started talking about
    expecting a million documents, and we end up, I think, with
    488,000. But then I went on to explain that the process with
    all the software and everything else that can speed things up,
    duplicates were eliminated, and, et cetera, et cetera. And so,
    we have gotten all the documents I requested, just to correct
    you.
        Senator Booker. Sir, and to my understanding----
        Chairman Grassley. Go ahead with your opening statement.
        Senator Booker. No, sir, but I just want to make a point to
    that, if you do not mind. You requested a limited set of
    documents of his time as a--in the White House Counsel's
    Office. We have not received all the documents from his time
    there. They are still being vetted slowly through our system of
    a--not a representative from the Committee, but the Bill Burck
    individual still--is still reading through those documents as
    we speak. I imagine some of them will be dumped on us as this
    process is going on, and I predict, with quite confidence, that
    some of those documents might still be trickling out in the
    days before the actual full Senate vote. Please, sir.
        Chairman Grassley. You are talking about ``committee
    confidential,'' and you have access to them right now. They
    just--there has not been a determination that, like, 80 percent
    of all the documents are on the website so the public can see
    them, but in regard to some, they were forwarded to us without
    a second review. That second review gives an opportunity to
    then get them out to the public if there is no reason that they
    are excluded under the law, and you can read those committee
    confidential documents right now.
        Senator Booker. Well, sir, we sent a letter days ago asking
    for that. I will--I will re-send it with you in these next 24
    hours before our hearing tomorrow.
        Chairman Grassley. We responded to your letter.
        Senator Booker. Again, sir, you did not respond to our
    letter by allowing committee confidential documents to be----
        Chairman Grassley. Please go to your opening statement.
        Senator Booker. Thank you very much, sir. And, look, I
    was--you know, former Senator--now former Vice President Biden
    talked about not questioning your colleagues' motives, and some
    of the colleagues across the aisle have called the efforts by
    some of us sincerely to get access to these documents a sham, a
    charade. I can go through a lot of the words that were used
    calling into question the motivations that I have or doing what
    I believe, sir, is perhaps the most grave and important duty
    that I have as a Senator, to advise and consent. And, yes, as
    Senator Cornyn pointed out, I have announced my decision
    already, but my duty to the people of the State of New Jersey,
    and others, is to fully vet an individual. That is why I think
    these documents are important, that his full record is made
    clear, and that we have a chance to ask questions about it.
        I also have said that I oppose this nomination happening
    right now because of the moment we are in American history,
    which is very unprecedented. I remind you that we have had
    bipartisan statements by Senators working in tangent about the
    attack on the United States of America, which was an attack
    going to the core of what our democracy is about: the voting
    processes. A special counsel was put into place, and that has
    led to dozens of people being indicted, people all around the
    President of the United States. It has led to dozens and dozens
    of charges, and that investigation is ongoing. We have seen the
    President of the United States credibly accused by his own
    personal lawyer to--as being an unindicted co-conspirator.
        In all of this, we have one judge being chosen who was not
    on the original list. He was not on the outsourced Federal
    Society's original list. He was not on the second version of
    that list. He got onto that list after this special
    investigation got going; in other words, after the President
    was in jeopardy. He was added to the list, and then the
    President pulled the one person from all of that list late--
    that was added late that would give him, in a sense, the
    ability to pick a judge that has already spoken vastly about a
    President's ability to be prosecuted, about a President's
    ability to dismiss or end an investigation. And so, that is the
    second reason why I have asked for us to put a pause on this
    process.
        Fundamental to this Nation's very beliefs--Judge Learned
    Hand said this--as powerful and profound as the documents of
    this country, our founding documents, they are not worth much
    if the people themselves lose faith in them. And I believe the
    nomination of a judge through all of this, who so powerfully
    speaks to a President's de facto immunity from ongoing
    investigation prosecution, will shake the faith that millions
    and millions of Americans have in the fairness of the process
    and the system. And I have asked Judge Kavanaugh time and time
    again to recuse himself, to restore that faith, to alleviate
    the concerns of Americans, and he has thus far refused to do
    so.
        Now, I am upset about the process, and this is not
    manufactured outrage. This is sincere concern for a process
    that seems wrong and just not objective and fair. I am
    concerned about, as many colleagues are on both sides of the
    aisle, a Russian attack on our Nation. But there is a lot more
    going on here that makes this nomination of great concern, and
    it is, frankly, some of the things I have heard from both sides
    of the aisle tonight, is when we travel this country and what
    we are hearing from individuals, and how that is related to a
    position on the Supreme Court.
        Right now, millions of American families are watching this
    in sincere concern and fear. I have heard them. I have gotten
    the calls. I have traveled this country. I have talked to
    Republicans and Democrats. They are fearful about where the
    Supreme Court is going and what it will do when it has the
    power to shape law, shape the lives and liberties for
    individuals, for decades to come. I have talked to workers all
    over my State, all over this Nation, workers that now work in a
    country where wages are at a 60-year low as a portion of our
    GDP, whose labor protections--workers whose labor protections
    are being diluted and whose unions are under attack.
        So many of those individuals are asking whether the Supreme
    Court of their lifetimes will be an institution that elevates
    the dignity of American workers, or one that allows powerful
    corporate interests to continue to weaken labor protections
    that did not just happen, labor protections that were fought
    for, that people struggled for, that some, you know, in the
    labor movement actually died for. Are these labor rights going
    to become aggravated, are they going to become limited, further
    increasing the vast disparities of wealth and power in our
    country?
        We know this. We have talked to them on both sides of the
    aisle. We have talked to cancer survivors, Americans with
    disabilities, survivors of domestic abuse, parents with
    beautiful children that happen to have disabilities, who,
    because of the Affordable Care Act, can no longer be denied
    coverage because of, quote, ``a pre-existing condition.'' There
    is a Texas case where that is being challenged right now. That
    is moving up. It could likely go before the Supreme Court.
        Well, knowing your record, it is right that these
    Americans, so many of them with pre-existing conditions, are
    asking whether the Supreme Court will be an institution that
    affirms and protects the rights of people with access to
    healthcare, some--many people who rightfully believe when they
    read our founding documents that talk about life, liberty, and
    the pursuit of happiness, that healthcare they believe is
    fundamental. We all know too many people who have set aside
    prescription drugs because they are too high because of what
    corporations are doing there, people who have put off going to
    see the doctor because a visit is too expensive. That is in the
    balance with this nomination.
        I have gone across the State, and, Senator Durbin, I do not
    know if I have told you this. I was in your State talking to a
    Republican farmer about how the farm country is changing so
    dramatically the livelihoods of so many independent family
    farmers, are being threatened by the consolidation of large
    multinational corporations. These corporations have acquired so
    much power. This consolidation now--from the seeds that they
    buy, the prices going up, to who they have the ability to side
    to. This abuse of corporation consolidation is driving so many
    farmers out of business. You see, one farmer was telling me
    about the suicide rates.
        Now, people are saying that this is histrionics, this is
    not life or death. Well, I know these things actually are often
    a matter of life or death. When insurance rates go up--when
    insurance rates go down rather, more people without healthcare
    often lose their lives. There are--there is not one Senator on
    the Republican side or the Democratic side who has not seen--I
    have only been here 5 years, and I have seen the culture of
    Washington change because of the obscene amount of dark money
    pouring into our political process, corrupting our political
    process, rigging the system. This nomination will have an
    effect on that.
        I have seen Americans all over this country with the
    bipartisan work that I have done with Senators on either side
    who feel entrapped by a broken criminal justice system, one
    that is--we know and unassailably disproportionately targets
    Black and Brown Americans, where many Americans believe, and
    one famous American said, we have a system that now treats you
    better if you are rich and guilty, than poor and innocent.
    These issues are in the balance now.
        And everyone who is concerned about these issues and more
    are wondering what the story of America is. We have this great
    leader, a man named King, who said, ``The arc of the moral
    universe is long, but it bends toward justice.'' There are so
    many Americans who fought for these fundamental rights, family
    members who they remember, union organizers, civil rights
    activists, women's rights activists who fought for, struggled
    for, and died for many of these rights, the right for women to
    make their own medical decisions, including the right to an
    abortion and not a back alley butcher, the right of all
    Americans to marry who they love, the right to vote, and to
    work free of discrimination regardless of race and the rights
    of all Americans. These are our rights. These are American
    rights.
        And so, we know the answer to these questions. I have
    looked through the record I have had access to to see the
    pattern of your decisions, and that is the pattern that really
    troubles me, Judge. And I know we are going to get a chance to
    go through this, and I know my colleagues will as well. But it
    seems so clear that in your courts, the same--the same folks
    seem to win over and over again--the powerful, the privileged,
    big corporations, special interests--over and over again. Folks
    that lose are the folks that why I came to Washington to fight,
    working folks, consumers, women, immigrants, minorities, the
    disadvantaged, the poor.
        This is the challenge before us. This is why so much is at
    stake. I love that my colleagues keep going back to the
    Constitution, but understand this. I laud our Founders. I think
    they were geniuses, but you got to understand that there are
    millions of Americans who understand that they were also flawed
    people. We are the oldest constitutional democracy. We are the
    oldest one. We were founded in a break with human events. You
    know this, Judge. I have read your writings. We were not
    founded on some kind of tribalism as much as we think it is
    breaking out in our country. We were not founded because we all
    look alike, we all pray alike, because we are all of the same
    race. We are not a monarchy or theocracy. We broke with the
    course of human events and formed this Nation. God bless
    America. God bless our Founders.
        But we know our Founders and their values and their ideals,
    we know that they--that they were flawed, and you can see that
    in the documents. Native Americans were referred to as
    ``savages.'' Women were not referred to at all. African
    Americans, Black slaves, were referred to as fractions of human
    beings. As one civil rights activist, I think it was Stokely
    Carmichael, used to always say, ``constitute, constitute, I can
    only say three-fifths of the word.''
        Chairman Grassley. Senator Booker----
        Senator Booker. I am almost done, sir.
        Chairman Grassley. Okay, go ahead.
        [Laughter.]
        Senator Booker. I have got about three more minutes.
        Chairman Grassley. The only reason--the only reason I
    stopped you at this point is I thought that I would let people
    go at least as far as Senator Blumenthal went, and you have
    reached that point.
        Senator Booker. I appreciate that. I am a bit of a
    trailblazer, sir. I am going to push just two or three more
    minutes.
        Chairman Grassley. Okay.
        Senator Booker. My point--my point, sir, is that I am proud
    of this history.
        Chairman Grassley. Your clock, when it reaches 10, is your
    2\1/2\ minutes----
        Senator Booker. And I just want to point out right here
    from the activism in Stonewall, Selma, Seneca Falls. There is
    an activism that I worry, rights that were gained were rolled
    back. And the example I have here is, there is an amazing
    activist here right now, Ms. Carlotta Walls LaNier. And Ms.
    LaNier, I thank her for coming today. It was 61 years ago on
    this very day on September 4th, 1957, that Ms. LaNier at the
    age of 14, faced crowds that were shouting racial slurs. She
    was jeered. And on that day, Ms. LaNier joined eight other
    students, a group that would become known as the Little Rock
    Nine, to try to desegregate an all-White high school in Little
    Rock, Arkansas. We know what they did that day was much more--
    much bigger than a first day of school. It was the first major
    test of the Supreme Court's landmark decision, the 1954 Brown
    v. Board of Education decision.
        I have been shocked sitting here that there are now some
    judges that Trump has appointed that refuse to even say--and I
    am not saying this is you, sir--that that is settled law. There
    are people, like Ms. LaNier, who were part of gaining rights in
    this country, advancing the ideals of this Nation toward the
    purity of the ideals put forth by the Founders despite the
    imperfections. And now, the fear and the worry is, what the
    trend of the Court is doing, is rolling back those gains. It is
    undermining that progress. It is restricting individual rights
    as the rise of corporations, the rise of dark money, the rise
    of the interests of the powerful and the privileged and the
    elite.
        And so, I just say in conclusion, sir, and I said this to
    you in a heart-to-heart moment in the last seconds that you
    were--you came to my office to meet with me one-on-one, which I
    appreciated. I pointed to the map behind my desk, which is the
    central ward of Newark, New Jersey, a place with mighty people.
    It is a low-income community, people still struggling for the
    fullness and the richness of the promises of America. That is
    the concern that I have right now. That is what is at stake.
    And so, I say in conclusion, sir, this to me is a profound and
    historical moment. I cannot support your nomination not just
    because of the body of your work, but also the perverse process
    by which this comes forward. We should not vote now. We should
    wait, and if we are not waiting, we should object to your
    nomination.
        Thank you.
        Chairman Grassley. Senator Tillis.

                 OPENING STATEMENT OF HON. THOM TILLIS,
            A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

        Senator Tillis. Thank you, Mr. Chairman.
        I have a 12-minute preamble and 18 minutes of comments.
        [Laughter.]
        Senator Tillis. In all seriousness, I hope to beat Senator
    Flake in being brief.
        First of all, to Ashley, I know that Margaret and Liza are
    gone, but you have gone through a very difficult day, and you
    have held up well. To your parents, Judge Kavanaugh, I have got
    to compliment you on your mother's composure. I am pretty sure
    my mother would have been out of the chair by now.
        [Laughter.]
        Senator Tillis. So, I appreciate all that you have--all you
    have done. You have obviously raised your son right.
        You know, I think we need to go back and recognize we were
    going to be here. This was not going to be a ``Kumbaya''
    moment. We had every Member on this Committee either publicly
    state or participate in a press conference before the sun had
    set on the first 24 hours of your nomination that they were
    going to vote against you. Now, we are asking for all kinds of
    documents, and you are getting them. As a matter of fact, I
    think the Chair has done an extraordinary job. He started on
    this process by offering--acquiring as many as a million
    documents. We determined because of duplication and relevance
    it was only a half a million, and they have all been provided.
    And I am not an attorney, but I am a technologist, and I am
    also a process person, and I know damn well that if you get
    documentation electronically, you can get through in a matter
    of hours. And for the documents that got sent yesterday, you
    could get through it in a matter of hours. They have plenty of
    time to get documents. They only need to run up the score
    because they already know they are going to vote against you.
        I also want to compliment you on your composure. You have
    taken a lot of notes, and I for one tomorrow am going to spend
    more of my time listening to your responses rather than talking
    over you and trying to simplify things into ``yes''/``no''
    answers that you know you cannot respond to. So, I look forward
    to your testimony tomorrow.
        You know, as the hearing was going on, there were two
    things that just caught me. I am not going to do my prepared
    statements. I will submit them for the record, Mr. Chair. But
    we're talking about all this dark money and efforts going on on
    the other side. Well, I just got an email from Organizing for
    Action--you all would know that as the legacy campaign of
    President Obama--telling me to oppose you because you are going
    to deny reproductive rights, deny healthcare coverage, advance
    climate change in a bad way, and gun violence prevention. I do
    not know near as much about the institutions of Government as,
    let us say, Senator Sasse, but I am pretty sure once you get
    confirmed on the Bench, you are not going to be able to file a
    bill to do any of that. What you may end up doing is finding
    out that we got lazy, we did not work hard enough, we did not
    understand the Constitution, we did not reach across the aisle
    to create enduring value, which is largely the reasons why
    people get frustrated with you. They want you to do our job.
        Justice Gorsuch said numerous times in his confirmation
    hearing that I had the privilege of participating in, ``It is
    not my job to do your job, Mr. Senator.'' If you are frustrated
    and worried about the prospects of somebody being denied
    coverage for pre-existing conditions, then let us fix it. That
    is why I filed a bill a couple of weeks ago. Let us fix it. Do
    not play politics and blame the Supreme Court for your
    inadequate architecture of a bill. Let us fix it. If you are
    worried about the balls and strikes that Judge Kavanaugh has
    called on the bench around regulatory issues, it seems to me
    you have called balls and strikes on both sides of the
    Administrative Procedures Act, and there seem to be flaws in
    there that need to be fixed.
        For the attorneys in the room who are studied on the law,
    rather than trying to get Judge Kavanaugh to commit one way or
    another on these policy initiatives that President Obama and
    others around this table are interested in, get them to explain
    to you the legal theory behind his position that may have, in
    fact, produced an outcome that he did not particularly like,
    but because he did it based on his interpretation of the
    Constitution and the laws. Do not expect him to be a
    politician.
        And as for motivations, you know, I have to say that it has
    been said by at least one person on this Committee that on the
    one hand we should not question other people's motivations. On
    the other hand, I find it personally insulting to think that
    because I think we have before us an imminently qualified
    judge, someone who is going to call balls and strikes, to
    suggest that because I am inclined to support him, that I am
    complicit in evil really makes me wonder the sincerity about
    questioning other people's motives.
        So, Judge Kavanaugh, I am glad that you are before us. I
    believe that you have 300 opinions that people should look at
    and read and try and spar with you on the basis of your legal
    knowledge, your constitutional understanding and the statutory
    constructs. It would be great, and I hope that people are
    actually taking time to look at the single most important
    factor in your resume. It is not maybe where you went to
    school. I guess that is good. It is not maybe where you
    practiced law, but it is the 307 different opinions you can
    read and the dissents you can read. Spar on the basis of your
    legal knowledge those of you who want to prove to be the
    smartest lawyer in the room, and see if you can actually prove
    a better theory that may actually give Judge Kavanaugh pause.
        But that is not what this hearing has been about, and I am
    so glad that I am one of the last people to do an opening
    statement because what I hope I hear tomorrow--and by the way,
    just from a process standpoint, the--we are going to have 30-
    minute rounds, which in Senate time is about an hour and a half
    per Member----
        [Laughter.]
        Senator Tillis [continuing]. Tomorrow, and then we are
    going to have 20-minute rounds the following day. Everybody
    take time to actually talk about legal theory. Stop the
    theater, and start talking about what is really meaningful
    here. And I think if we do that, I have every confidence, Judge
    Kavanaugh, you are going to be Justice Kavanaugh, and I am
    proud to actually see you compose yourself the way you have
    today.
        I will be asking you several questions on some judgments
    that, frankly, I did not like, but I know you probably made the
    right decision. And I believe that when you get confirmed to
    the Bench, you are actually going to take some other opinions
    that I do not like because it is what it is, what I wished you
    could do for me because we failed to get it done here, but it
    will be done for the right reasons.
        And I think if people objectively look at your record, they
    are going to be hard-pressed to take all this theater we have
    heard today and boil it down into something that makes you look
    like you are an activist judge just waiting to be one of the
    members of that nine-member legislative branch down the street.
    I think you are one of the single greatest opportunity--great
    opportunities that we have to make the Supreme Court make us do
    our job and to reign in the dangerously high amount of
    authority that our administration branch has, and that is all I
    want you to do. And I look forward to asking you questions
    tomorrow.
        I yield back the rest of my time.
        [The prepared statement of Senator Tillis appears as a
    submission for the record.]
        Chairman Grassley. Senator Harris.
        Senator Harris. I see Senator Graham has rejoined us. I
    think he was here before me. He is more senior.
        Chairman Grassley. We go back and forth.
        Senator Harris. Okay, great.

              OPENING STATEMENT OF HON. KAMALA D. HARRIS,
              A U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Senator Harris. So, I thank you, Mr. Chairman.
        I would like to restate my objection from earlier for the
    record, which is my motion to postpone this hearing.
        A number of comments have been made by my honored and
    respected colleagues. I would like to address a few of them.
    One, there was some mention of a concern about Elena Kagan's
    hearing and that the White House at the time, there was an
    agreement that those--certain records and should, therefore,
    not be disclosed. It is my understanding that as a point of
    distinction between that time and today that those were active
    cases in the White House, and for that reason, there was an
    understanding and agreement that they were of a sensitive
    nature and should not be disclosed.
        In terms of the point that has been made about playing
    politics and blaming the Supreme Court, I think that we have to
    give pause when those kinds of concerns are expressed to also
    think about the fact that there have been many a political
    campaign that has been run indicating an intention to use the
    United States Supreme Court as a political tool to end things
    like the Affordable Care Act, the Voting Rights Act, and
    campaign finance reform, which makes this conversation a
    legitimate one in terms of a reasoned concern about whether
    this nominee has been nominated to fulfill a political agenda
    as it relates to using that Court and the use of that Court.
        As it relates to the 42,000 documents or 42,000 pages of
    documents, I find it interesting that we get those documents
    less than 24 hours before this hearing is scheduled to begin,
    but it took 57 days for those documents to be vetted before we
    would even be given those documents. So, there is some
    suggestion that we should be speed readers and read 42 pages--
    42,000 pages of documents in about 15 hours when it took the
    other side 57 days to review those same documents. So, the
    logic, at least on the math, is not applying.
        Now, the Chairman has requested 10 percent of the nominee's
    documents. That is 10 percent of 100 percent of his full
    record. The nominee's personal lawyer has only given us 7
    percent of his documents, 7 out of 100 percent of the full
    record. Republicans have only given 4 percent of these records
    or made them public. That is 4 percent of 100 percent of a full
    record. Ninety-six percent of his record is missing. Ninety-six
    percent of his record is missing. It is reasonable--it is
    reasonable--that we should want to review his entire record,
    and then we can debate among us the relevance of what is in his
    record to his nomination. But it should not be the ability of
    this--the leadership of this Committee to unilaterally make
    decisions about what we will and will not see in terms of its
    admissibility instead of arguing about the weight of whatever
    is made admissible.
        The late Senator Kennedy of Massachusetts called these
    hearings of Supreme Court nominees, ``a job interview with the
    American people,'' and by that standard, the nominee before us
    is coming into his job interview with more than 90 percent of
    his background hidden. I would think that anyone who wanted to
    sit on the Nation's highest court would be proud of their
    record and would want the American people to see it. I would
    think that anyone privileged to be nominated to the Supreme
    Court of the United States would want to be confirmed in a
    process that is not under a cloud, that respects due process. I
    would think that anyone nominated to the Supreme Court of the
    United States would want to have a hearing that is
    characterized by transparency, and fairness, and integrity, and
    not shrouded by uncertainty, and suspicion, and concealment,
    and doubt. We should not be moving forward with this hearing.
    The American people deserve better than this.
        So, Judge Kavanaugh, as most of us know, and I will mention
    to you, and you have young children, and I know they are very
    proud of you, and I know you are a great parent, and I applaud
    all that you have done in the community. And so, as you know,
    as we all know, this is a week when most students in our
    country go back to school, and it occurs to me that many years
    ago, right around this time, I was starting kindergarten. And I
    was in a bus, a school bus, on my way to Thousand Oaks
    Elementary School as part of the second class of students as
    busing desegregated Berkley, California, public schools. This
    was decades after the Supreme Court ruled Brown v. Board of
    Education that separate was inherently unequal.
        And as I have said many times, had Chief Justice Earl
    Warren not been on the Supreme Court of the United States, he
    could not have led a unanimous decision, and the outcome then
    of that case may have been very different. Had that decision
    not come down the way it did, I may not have had the
    opportunities that allowed me to become a lawyer or a
    prosecutor. I likely would not have been elected District
    Attorney of San Francisco or the Attorney General of
    California. And I most certainly would not be sitting here as a
    Member of the United States Senate.
        So, for me, a Supreme Court seat is not only about academic
    issues of legal precedent or judicial philosophy. It is
    personal. When we talk about our Nation's highest court and the
    men and women who sit on it, we are talking about the impact
    that one individual on that Court can have, impact on people
    you will never meet and whose names you will never know:
    whether a person can exercise their constitutional right to
    cast a ballot, that may be decided if Judge Kavanaugh sits on
    that Court; whether a woman with breast cancer can afford
    healthcare or is forced off lifesaving treatment; whether a gay
    or transgender worker is treated with dignity or maybe treated
    as a second class citizen; whether a young woman who got
    pregnant at 15 is forced to give birth or, in desperation, go
    to a back alley for an abortion; whether a President of the
    United States can be held accountable, or whether he will be
    above the law.
        All of this may come down to Judge Kavanaugh's vote, and
    that is what is at stake in this nomination. And the stakes are
    even higher because of the moment we are in, and many of us
    have discussed this. These are unprecedented times. As others
    have already observed, less than 2 weeks ago, the President's
    personal lawyer and campaign chairman were each found guilty or
    pleaded guilty to eight felonies. The President's personal
    lawyer under oath declared that the President directed him to
    commit a Federal crime. Yet, that same President is racing to
    appoint to a lifetime position on the highest court in our
    land, a court that very well may decide his legal fate.
        And, yes, that is essentially what confirming Judge
    Kavanaugh could mean, so it is important, more important, I
    would say, than ever that the American people have transparency
    and accountability with this nomination. And that is why it is
    extremely disturbing that Senate Republicans have prevented
    this body and, most importantly, the American people, from
    fully reviewing Judge Kavanaugh's record, and have disregarded
    just about every tradition and practice that I heard so much
    about before I arrived in this place.
        Judge Kavanaugh, when you and I met in my office, you said
    with respect to judicial decisions that rushed decisions are
    often bad decisions. I agree with you. I agree with you. And
    when we are talking about who will sit on the Supreme Court of
    the United States, I believe your plank could not be more
    important.
        Mr. Chairman, when Judge Kavanaugh was nominated in July,
    he expressed his belief that a judge must be independent, must
    interpret the law, and not make law. But in reviewing this
    nominee's background, I am deeply concerned that what guides
    him is not independence or impartiality. It is not even
    ideology. I would suggest it is not even ideology. What I
    believe guides him and what his record that we have been able
    to see shows is what guides this nominee is partisanship. This
    nominee has devoted his entire career to a conservative
    Republican agenda, helping to spearhead a partisan
    investigation into President Clinton, helping George W. Bush's
    legal team ensure that every vote was not counted in Bush v.
    Gore, helping to confirm partisan judges and enact partisan
    laws as part of the Bush White House. And in all of these
    efforts, he has shown that he seeks to win at all components,
    even if that means pushing the envelope.
        And if we look at his record on the D.C. Circuit and in his
    recent writings and statements, it is clear that the nominee
    has brought his political bias to the bench. He has carried out
    deeply conservative partisan agenda as part--as a judge
    favoring big business over ordinary Americans, polluters over
    clean air and water, and the powerful over the vulnerable.
        Just last year, Judge Kavanaugh praised the dissent in Roe
    v. Wade and ruled against a scared 17-year-old girl seeking to
    end her pregnancy. He has disregarded the Supreme Court
    precedent to argue that undocumented workers were not really
    employees under our labor laws. We have witnessed horrific mass
    shootings from Parkland to Las Vegas to Jacksonville, Florida,
    yet Judge Kavanaugh has gone further than the Supreme Court and
    has written that because assault weapons are ``in common use,''
    assault weapons and high-capacity magazines cannot be banned
    under the Second Amendment. When he was part of an independent
    counsel investigation into the Democratic President, the
    nominee was dogged in demanding answers, and yet he has since
    changed his tune, arguing that Presidents should not be
    investigated or held accountable, a position that I am sure
    that is not lost on this President.
        These positions are not impartial. They are partisan. Judge
    Neil Gorsuch, Judge Kavanaugh's classmate, insisted before this
    Committee that judges are not merely ``politicians in robes.''
    I fear that Judge Kavanaugh's record indicates that is exactly
    what he may very well be.
        Now, I know Members of this Committee and the nominee's
    friends and colleagues have assured us that he is devoted to
    his family, and supportive of his law clerks, and volunteers in
    his community, and I do not doubt that at all, but that is not
    why we are here. I would rather that we think about this
    hearing in the context of the Supreme Court of the United
    States and the impact that it will have on generations of
    Americans to come. And do we want that Court to continue a
    legacy of being above politics and unbiased, or are we prepared
    to participate in a process that is tainted and that leaves the
    American public questioning the integrity of this process?
        And I will close by saying this. We have a system of
    justice that is symbolized by a statue of a woman holding
    scales, and she wears a blindfold. Justice wears a blindfold
    because we have said in the United States of America, under our
    judicial system, justice should be blind to a person's status.
    We have said that in our system of justice, justice should be
    blind to how much money someone has, to what you look like or
    who you love, to who your parents are, and the language they
    speak, and every Supreme Court Justice must understand and
    uphold that ideal.
        And, sir, should those cases come before you, Judge
    Kavanaugh, I am concerned whether you would treat every
    American equally, or instead show allegiance to the political
    party and the conservative agenda that has shaped and built
    your career. I am concerned your loyalty would be to the
    President who appointed you and not to the Constitution of the
    United States. These concerns I hope you will answer during the
    course of this hearing.
        I believe the American people have a right to have these
    concerns. I also believe the American public has a right to
    full and candid answers to the questions that are presented to
    you during the course of this hearing. I will paying, of
    course, very close attention to your testimony, and I think you
    know the American public will be paying very close attention to
    your testimony.
        Thank you.
        [The prepared statement of Senator Harris appears as a
    submission for the record.]
        Chairman Grassley. Senator Graham.

              OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
            A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

        Senator Graham. Am I the last person?
        Chairman Grassley. Yes.
        Senator Graham. All right.
        Chairman Grassley. But do not forget, we are going to hear
    from the nominee and his introducers before you can go home and
    go to bed.
        [Laughter.]
        Senator Graham. Okay, thank you.
        I was going to ask you to take me to dinner, but that is
    not going to happen.
        Chairman Grassley. You know the answer to that.
        [Laughter.]
        Senator Graham. You know that. That is right.
        So, to my colleagues on the other side, I look forward to
    working with you, but we have a different view here. I think
    you got to be blind as to what is going on here. Have you heard
    of Justice Breyer? Do you know him? He cannot say anything, I
    guess. Where did he come from? He was Ted Kennedy's Senate
    Judiciary person. Where do you think Republicans are going to
    go find a judge?
        The whole argument is, you can be a conservative Republican
    President, but you got to nominate a liberal to be fair to the
    country. That is absurd. Where do you think Ruth Bader Ginsburg
    came from? She was the general counsel of the ACLU. Wonderful
    person. What groups do you all use to pick from? This is
    shaping up to be the hypocrisy hearing, and that is hard to do
    in the Senate in today's time to be hypocritical, but let me
    just point to a few of these things.
        Clinton. It did not bother anybody for Clinton to nominate
    Breyer while he was under investigation. We actually did it. It
    did not bother any of you all that a Ted Kennedy staff person
    was his pick. It did not bother me either because that is who I
    expected you to pick. This is ridiculous.
        You are one of the best choices any Republican could make.
    As I said with Justice Gorsuch, I am glad you are here because
    there were days I was wondering who he would have picked.
        [Laughter.]
        Senator Graham. And this is a homerun from my point of
    view.
        Let us talk about Roe v. Wade. Who would ever play politics
    on the campaign trail with Roe v. Wade ? What a bastard Donald
    Trump is, until you hear about Hillary Clinton. February the
    3rd, 2016, this is what Hillary Clinton said. When asked, does
    she have a litmus test for SCOTUS nominations--Supreme Court
    nominees, ``I do have a litmus test. I have a bunch of litmus
    tests, because the next President could get as many as three
    appointments,'' and I hope she is right. ``We have got to make
    sure to preserve Roe v. Wade, not let it be nibbled away or
    repealed.'' She sounds very open-minded. October 2016, ``We
    need a Supreme Court that will stand up on behalf of women's
    rights. It is important that we not reverse Roe v. Wade. I want
    a Supreme Court that will stick with Roe v. Wade and a woman's
    right to choose.'' I understand where she is coming from.
    Anybody running for President over there, I dare you to
    disagree with her. You will wind up like I did, getting 1
    percent.
        [Laughter.]
        Senator Graham. If you even suggest that you will pick a
    nominee that is not going to uphold Roe v. Wade, that is the
    end of you. But you have figured that out. You do not need me
    to tell you. So, this is the way we do politics. This is a big
    decision called Roe v. Wade. There are two sides and a bunch of
    nuances.
        Here is what I know about you. You are going to take it as
    precedent. You wrote a big book, which I will never read, and
    you are going to tell us what it takes to overturn longstanding
    precedent. Nobody on this side will care if you overturn
    Citizens United. As a matter of fact, they will cheer you on.
    Somebody will challenge Citizens United, and you will probably
    say, let me hear both sides of the story, then I will tell you
    whether or not I should uphold it. So, Hillary Clinton, we know
    where she is at, on Roe v. Wade, and that is just the way it
    is.
        Now, what other things? Executive power, this idea that
    Trump picked you to save him. Amazing concept, since you said
    what you said back in 1998 and 2008. The bottom line is, when
    Clinton was being impeached, my good friend, and this is true,
    he is my good friend, on February the 12th, 1999, introduced
    into the record during the deliberations of the Clinton
    impeachment trial, an article by Brett Kavanaugh suggesting
    that you should wait, if there is an indictment, until after
    the President is out of office.
        The same concept we are talking about here today, when the
    shoe was on the other foot, here is what Joe said about your
    thinking. ``The President is not simply another individual. He
    is unique. He is the embodiment of the Federal Government and
    the head of a political party. If he is to be removed, the
    entire Government likely would suffer, and the military or
    economic consequences to the Nation could be severe. . . .
    Those repercussions, if they are to occur, should not result
    from the judgment of a single prosecutor--whether it be the
    Attorney General or special counsel--and a single jury.
    Prosecution or nonprosecution of a President is, in short,
    inevitably and unavoidably a political act. Thus, as the
    Constitution suggests, the decision about the President while
    he is in office should be made where all great national
    political judgments in our country should be made--in the
    Congress of the United States,'' according to Joe Biden--the
    gift that keeps on giving for us. I think that is pretty
    hypocritical. During the Clinton days, you were right, but all
    of a sudden you are a danger to the republic.
        Let us talk about--oh, there are so many--how many minutes
    do I have here? The bottom line is----
        Chairman Grassley. Do not exceed what Whitehouse had.
        Senator Graham. I will not.
        Senator Cornyn. That would be impossible.
        Senator Graham. Guns. Somehow you are going to make sure
    that Congress--the bottom line on guns--Dianne Feinstein is a
    wonderful lady and has passion on this issue about assault
    weapons. She was able to succeed politically. After 10 years,
    the gun assault weapons ban expired and it has been hard to get
    it re-established. She introduced legislation in 2013 that got
    60 ``no'' votes, 16 Democrats. So, I do not believe they see
    you as a threat to the Nation if you come out on the idea that
    the Second Amendment has some meaning. In other words, the
    political process, when it comes to guns, is a work in
    progress, and I would rather us decide that than you.
        When it comes to the pillar of virtue, Comey.
        Harry Reid: That he has been a supporter of Comey and led
    the fight to get him confirmed as he believed Comey was a
    principled public servant. ``With the deepest regret, I now see
    that I was wrong.''
        Mr. Nadler from New York: ``The President can fire him for
    cause and ought to. He violated all the guidelines and put his
    thumb on the scale of an election.''
        Mr. Cohen from Tennessee, a Democrat, called on Comey to
    resign his position effective immediately. ``I am sure upon
    reflection of this action, he will submit his letter of
    resignation for the Nation's good.'' To my Democratic friends,
    you were all for getting rid of this guy. Now all of a sudden,
    the country is turning upside down because Trump did.
        There is a process to find out what happened in the 2016
    election. It is called Mr. Mueller. And I will do everything I
    can to make sure he finishes his job without political
    interference. And I am here to tell anybody in the country who
    listens that this is so hypocritical of my friends on the other
    side. When it was their President, Kavanaugh was right. When
    you are talking about Roe v. Wade, it is okay to promise the
    Nation it will never be overturned. It is okay to pick a
    Democratic staff member of this Committee, but it is not okay
    to pick somebody who has been a lifelong Republican.
        People see through this. You had a chance and you lost. If
    you want to pick judges from your way of thinking, then you
    better win an election. I voted for two of your choices,
    Sotomayor and Kagan. Got a lot of crap. I would suggest you
    think long and hard if you got a political ambition of voting
    for this guy because it will not play well on your side. And
    why did I do it? I thought they were qualified by any
    reasonable measure given the history of the Senate.
        But we have turned the history of the Senate upside down. I
    found that they were different than I would have picked,
    Sotomayor and Kagan, but by any reasonable measure they are
    qualified. You have been on the court for 12 years. You have
    had 307 decisions. You have been approved before, so I hope
    people in the country understand this game. It is a game that I
    am sad to be part of. It has gotten really bad.
        The antidote to our problems in this country when it comes
    to judges and politics is not to deny you a place on the
    Supreme Court. This is exactly where you need to be. This is
    exactly the time you need to be there, and I am telling
    President Trump you do some things that drive me crazy, you do
    some great things. You have never done anything better in my
    view than to pick Gorsuch and Kavanaugh because you had an
    opportunity to put well-qualified conservatives on the Court,
    men steeped in the rule of law, who will apply analysis, not
    politics, to their decisionmaking, and you knocked it out of
    the park. And to my friends on the other side, you cannot lose
    the election and pick judges. If you want to pick judges, you
    better win.
        Chairman Grassley. Let me tell you what--let me tell
    everybody what the rest of the day holds for us. Judge
    Kavanaugh, you can take a break now that we had originally
    scheduled for 15 minutes, and it may take 15 minutes, but we
    got to put a different table in here for the people that are
    going to introduce you. So, if your staff will watch, and if we
    get done in less than 15 minutes, I would like to start just as
    soon as the table is set.
        So, we will take a 15-minute break now, and then we have
    the introducers, and then we will give the oath to the nominee,
    and then we will hear the statement from the nominee, and then
    we will adjourn until 9:30 tomorrow morning. And tomorrow
    morning, my approach is going to be the same for the 30 minutes
    as it would be for the 5 minutes that we normally have in just
    an otherwise normal hearing, and that is that if you got 1
    second left, you can ask a question, but do not take all day to
    ask a question. And I hope you can give a short answer if their
    time is up. Then we will--then we will--we will move on to the
    next person.
        So, I want tomorrow not to happen--maybe I better speak to
    myself. I am not going to let happen tomorrow what I should not
    have let happen today because I have been instructing people
    that run Committees either you run the Committee or it runs
    you, and you guys have been very successful today in running
    the Committee. I do not want it to happen tomorrow.
        Take your--take your time, sir, I mean, until we get the
    table set.
        Recess.
        [Whereupon the Committee was recessed and reconvened.]
        Chairman Grassley. We are fortunate to have Condoleezza
    Rice, Senator Rob Portman, and Lisa Blatt to introduce the
    nominee.
        We will now start with Condoleezza Rice.

       INTRODUCTION OF HON. BRETT M. KAVANAUGH, NOMINEE TO BE AN
    ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY
     HON. CONDOLEEZZA RICE, Ph.D., FORMER U.S. SECRETARY OF STATE;
      SENIOR FELLOW, HOOVER INSTITUTION; AND PROFESSOR, STANFORD
                    UNIVERSITY, STANFORD, CALIFORNIA

        Dr. Rice. Thank you very much.
        Chairman Grassley, Senator Feinstein, Members of the
    Committee, I am really honored to join Lisa Blatt and Rob
    Portman in introducing Brett Kavanaugh at these hearings to
    consider his confirmation as a Justice of the Supreme Court of
    the United States of America.
        My personal relationship with Judge Kavanaugh goes back 17
    years to our time as White House colleagues in the
    administration of George W. Bush. Those were remarkable times,
    and I loved serving. They were, however, not easy times, and
    the guidance and counsel of those with whom I worked was both a
    joy and a blessing.
        I am so grateful to have had Brett Kavanaugh as a
    colleague. He was always supportive and strong and caring and
    someone whose integrity and good judgment I valued enormously.
        I knew Brett early in his years as a family member. As a
    matter of fact, I was there when he married Ashley. I remember
    well the birth of his children. He is a great father and
    husband and son. In short, he is just a very good human being.
        Since the nomination of Brett Kavanaugh, I have been able
    to reflect back on those times and what my experience tells me
    about Brett in this crucial role. Many have given testimony to
    his extraordinary legal mind, the depth of his experience, his
    intellect, and his good common sense. You have heard and you
    will hear from his clerks and other jurists and great legal
    figures, as well as colleagues from throughout his career. I do
    not need to repeat their praise, only to say that I know
    firsthand that Brett is really, really smart.
        Here is the Brett Kavanaugh that I know. He is hard-
    working. He has a sense of humor. He seeks truth in facts.
    There is no detail too small to gain his attention. He makes
    those around him better. Brett is wise. He is an old soul who
    is made to help steady us in these complicated times.
        Brett listens, especially to those with whom he disagrees.
    And in our charged environment, when we have become almost
    tribal, living in echo chambers and often finding comfort in
    the company of only those with whom we agree, this is an
    indispensable quality for the responsibilities of the Supreme
    Court.
        The only thing that would be better is if Brett had gone to
    the same college that his mentor and friend Anthony Kennedy
    went to. That would be Stanford University. But for that, I
    will forgive him, and I have to say Yale University seems to
    have done a pretty good job.
        In recent weeks, we have also had the chance to reflect on
    our Constitution, the Supreme Court itself, and the trust that
    we place in the Justices of it. As a scholar and as a diplomat,
    I have watched the struggle of people across the world to
    achieve democracy and to keep it. Every day, I am more amazed
    by the brilliance of the institutional design that the Framers
    left to us.
        They carefully balanced powers and responsibilities between
    the three branches of Government. Knowing that human beings are
    fallible, they constructed institutions that both enable and
    constrain those who would govern us.
        Scholars often speak of the American spirit of
    constitutionalism. We Americans believe that the Constitution
    is our personal protection. We take our rights very seriously,
    and we will go all the way to the Supreme Court if we think
    those rights have been violated.
        A democracy is only stable when there is that kind of trust
    in the institutions, a belief that those institutions will be
    fair and just and secure the rights of citizens. The strength
    of America's institutions is a cause for optimism, but they
    cannot be taken for granted.
        The Supreme Court's special role in protecting the careful
    balances that the Constitution seeks to achieve is crucial to
    our democratic stability. This is true even as times and
    customs change, and it is more important with every passing
    year in our increasingly complicated Nation.
        As a little girl born in segregated Birmingham, Alabama,
    who grew up to be Secretary of State, I know personally our
    country's long journey to guarantee equal rights. I know the
    power of the Constitution, and I know the gift of our
    democracy. The Supreme Court is a crucial guardian--both of our
    Constitution and of our democracy. That is why I am so honored
    to introduce Brett Kavanaugh for these hearings.
        He will be an outstanding Supreme Court Justice. His
    intellect is unquestioned. His judgment is highly regarded, and
    I can personally attest to his character and integrity as a
    colleague. Brett Kavanaugh will thoroughly and faithfully
    uphold the trust that is our heritage, the Constitution of the
    United States of America, the most remarkable governing
    document in human history.
        Thank you.
        Chairman Grassley. Thank you, Secretary Rice.
        Now, our colleague, Senator Portman.

       INTRODUCTION OF HON. BRETT M. KAVANAUGH, NOMINEE TO BE AN
    ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY
        HON. ROB PORTMAN, A U.S. SENATOR FROM THE STATE OF OHIO

        Senator Portman. Chairman Grassley, Ranking Member
    Feinstein, and colleagues on this Committee on the Republican
    and the Democratic side, it is a privilege to join Condi Rice
    and Lisa Blatt here this afternoon in introducing a friend,
    Judge Brett Kavanaugh.
        I have known Brett and his wife, Ashley, since before they
    were married, and I had the opportunity to work with Brett
    during his service in the George W. Bush White House. As
    Secretary Rice has just said very well, those of us who worked
    with him universally praise his work ethic, his intelligence,
    and his integrity.
        I visited with George W. Bush a few days ago, and we talked
    about Brett. He put it simply: Brett Kavanaugh is a class act.
        In endorsing Brett, former lawyer to President Bill
    Clinton, Bob Bennett, called him ``a strong advocate of decency
    and civility.''
        By the way, of all the attributes you look for in a judge,
    what could be more important than good judgment? Brett
    definitely showed good judgment in marrying Ashley. So did she,
    and they are a great family. It is wonderful to have their
    daughters, Margaret and Liza, with us here today.
        Brett's parents, Edward and Martha, are also here. That is
    especially appropriate since Brett's first introduction to the
    law came from listening to his mom practice closing arguments
    at the dinner table. She was a trailblazer. She went to law
    school at age 34 and eventually became a trial judge. Brett has
    said, to him, Martha Kavanaugh will always have been the true
    Judge Kavanaugh.
        During the process of this hearing, there will be more
    spirited discussions about Brett's legal philosophy and his
    experience and background as a lawyer and a judge. I heard
    quite a bit of it already today, and there should be this
    discussion. This is about a lifetime appointment to the highest
    court in the land. In my view, there is not a better qualified
    person to be on that Court.
        Just last Friday, the American Bar Association gave Judge
    Kavanaugh a unanimous ``well qualified'' rating, which is the
    highest rating they offer, unanimous.
        I saw how he conducted himself as Associate Counsel to the
    President in the White House Counsel's office, the job I once
    had in the first Bush White House. And I have watched him for
    the past 12 years on the D.C. Circuit, where he has been
    praised as fair, smart, and independent.
        He has authored more than 300 published opinions, an
    impressive number. And the Supreme Court has adopted his
    reasoning a remarkable 13 times, a testament to his thoughtful
    and well-reasoned decisions and a record that few, if any,
    other appellate judges can match. Again, no one more qualified.
        For more than a decade, he has also taught classes at
    Harvard, Yale, and Georgetown Law Schools. He is a well-
    respected judge and a well-respected professor and a thought
    leader among his peers. That is why so many of his former
    students, his law clerks, his judicial colleagues, and legal
    scholars--by the way, from across the political spectrum--have
    come out in support of his nomination.
        Judge Kavanaugh is guided by the Constitution and by the
    rule of law. He has said the judge's job is to interpret the
    law, not to make the law or make policy. I agree, and by the
    way, as do most of the people we represent. Judges should not
    be legislating from the bench. Clearly, Brett Kavanaugh has the
    right qualifications, and he has a judicial philosophy that is
    very much in the mainstream.
        Just as important to me is the kind of person you want on
    the Supreme Court. I have known Brett not so much as a legal
    scholar or a judge or a professor, but as a friend, a father,
    and a husband. He is thoughtful and compassionate and someone
    who has a big heart and the humility to listen. To me, that
    might be the single most important attribute for a member of
    the Supreme Court, the humility to listen.
        Throughout this confirmation hearing, I hope the American
    people will get to know the Brett Kavanaugh I have had the
    privilege of knowing. A couple days after he was announced,
    Brett came to my office one evening to discuss his
    confirmation, just as he has been to your offices. He then went
    straight from our meeting to serve dinner to the homeless
    through his church, a regular occurrence that was long
    scheduled--scheduled long before his nomination.
        I only found out about it because that night someone
    recognized him and took a photo that got tweeted, and it was a
    photo of him in a baseball cap in the soup kitchen. It is
    classic Brett that he did not tell me this was where he was
    going after meeting with me.
        To my colleagues, I know the man. He does things because it
    is the right thing to do.
        Brett is also involved, as some of you know, in his
    daughters' sports teams. Last season, Margaret's sixth grade
    girls basketball team he coached had an undefeated season and
    went on to win a citywide championship.
        Way to go, Margaret.
        [Laughter.]
        Senator Portman. To show you where his priorities are,
    Judge Kavanaugh, or ``Coach K,'' as he is known by his players,
    has the team photograph and trophy prominently displayed in his
    judicial chambers.
        Julie O'Brien, whose daughter goes to school with Margaret,
    has another telling story about Brett. A few years ago, Julie's
    husband passed away. With no one to accompany her daughter to
    the annual father-daughter dance, Brett stepped up. That year
    and every year since, Brett has taken her daughter alongside
    his own to the dance.
        That is the kind of person he is. That is the Brett
    Kavanaugh I know. I am proud to introduce Brett Kavanaugh
    before this Committee, and I am proud to strongly support his
    nomination to be the next Associate Justice of the United
    States Supreme Court.
        I know these are partisan times here in Washington, but
    this is an extraordinary nominee in every respect. Based on his
    record, his qualifications, and his character, I believe he
    deserves broad support. My hope, Mr. Chairman, is that, as was
    the case with Justices Sotomayor and Kagan nominated by
    President Obama, this Committee will report his nomination
    favorably, and the full Senate will confirm him with a strong
    bipartisan vote that he deserves.
        Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, my colleague.
        Ms. Lisa Blatt.

       INTRODUCTION OF HON. BRETT M. KAVANAUGH, NOMINEE TO BE AN
    ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY
        LISA S. BLATT, PARTNER, ARNOLD & PORTER, WASHINGTON, DC

        Ms. Blatt. Thank you, Mr. Chairman and Committee Members.
        It is a privilege to appear before you today. My name is
    Lisa Blatt, and I know Judge Kavanaugh in my capacity as an
    appellate lawyer here in Washington. I have argued 35 cases
    before the Supreme Court of the United States, more than any
    other woman in history. I am also a liberal Democrat and an
    unapologetic defender of a woman's right to choose.
        My hero is Justice Ruth Bader Ginsburg, for whom I had the
    great fortune of serving as a law clerk. I proudly voted for
    Hillary Clinton. I voted for President Obama twice. And with my
    apologies, Mr. Chairman, for this one, I wish Senator Feinstein
    were chairing this Committee.
        And yet, I am here today to introduce Judge Kavanaugh and
    urge the Senate to confirm him as the next Associate Justice of
    the Supreme Court. I have received many angry calls from
    friends and even strangers for supporting Judge Kavanaugh. But
    I was raised to call it like I see it, and I do not see the
    choice before you as difficult.
        By any objective measure, Judge Kavanaugh is clearly
    qualified to serve on the Supreme Court. After law school, he
    clerked for Justice Anthony Kennedy, the Justice he would
    succeed. He spent 12 years on the Nation's most prestigious
    court of appeals, the United States Court of Appeals for the
    District of Columbia Circuit. His opinions are invariably
    thoughtful and fair, and many are known as instant classics not
    just because they are important, but because they are written
    so clearly and well. The Supreme Court has adopted the
    reasoning in his opinions more than a dozen times.
        Judge Kavanaugh's judicial temperament and integrity are
    also flawless. He is meticulously prepared, and he treats
    litigants with respect, asking probing questions of both sides.
    He approaches judging by determining what the law requires, no
    matter his personal preference.
        Judge Kavanaugh has taught at the Nation's top law schools,
    published thoughtful Law Review articles, and co-authored a
    leading treatise on judicial precedent. And as just mentioned,
    the ABA strongly endorsed him because, ``He meets the very
    highest standards of integrity, professional competence, and
    judicial temperament.''
        On a personal level, I just cannot say enough nice things
    about the Judge. I first met him almost 10 years ago when he
    emailed me completely out of the blue to say that he liked an
    article I had written about arguing before the Supreme Court.
    Since then, we have become friends, and he has become a mentor
    to me in my career.
        Judge Kavanaugh has spent countless hours listening to me
    talk about the challenges I have faced as a working mother in a
    profession dominated by men. He has been a great source of
    advice on these and many other issues about work/life balance.
    He understands that life is not always perfect, and he responds
    to life's challenges with a self-deprecating sense of humor.
        More generally, Judge Kavanaugh has been remarkably
    committed to promoting women in the legal profession. More than
    half of his law clerks have been women, something that is sadly
    by no means common. And almost all of his clerks, women and
    men, have gone on to clerk at the Supreme Court, including for
    Justices Kagan and Sotomayor.
        As his former women law clerks told this Committee, the
    legal profession is ``fairer and more equal because of Judge
    Kavanaugh.'' He has mentored countless other women through the
    classes he teaches at Yale and Harvard Law Schools.
        Obviously, I know that Judge Kavanaugh has a conservative
    judicial outlook, and if he is confirmed, he will have one of
    nine votes to definitively decide the meaning of the
    Constitution, including just how far to read it to protect the
    reproductive rights of women.
        Now if it were up to me, Justice Ginsburg would have all
    nine votes. But that is not our system, and the reality is that
    the Presidency and the Senate are in Republican hands. Judge
    Kavanaugh is the best choice that liberals could reasonably
    hope for in these circumstances. I am sure that some Members of
    the Senate knew that they would disagree with Justice
    Ginsburg's legal views when she was a nominee, but Justice
    Ginsburg was confirmed 96-3.
        This body has obviously treated some nominees differently
    since then, to the detriment of our courts. I strongly disagree
    with the Senate's treatment of Judge Garland. Judge Kavanaugh
    himself spoke glowingly of Judge Garland during his pending
    nomination, stating that, quote, ``Chief Judge Garland is a
    brilliant jurist. He is thoughtful. He is considerate. He is
    collegial. He works well with others. He is a good man, great
    integrity, and he is supremely qualified by the objective
    characteristics of experience, temperament, writing ability,
    scholarly ability for the Supreme Court.''
        All of this is equally true of Judge Kavanaugh. I do not
    think it is fair to hold Judge Kavanaugh responsible for the
    fact that Judge Garland is not a Justice today. Instead, I
    would urge this Committee to treat him as we expect him to
    treat litigants that appear before him: on his own merits and
    with an open mind toward someone whose views may differ from
    our own. Our judicial system is not well served by tit-for-tat
    politics.
        At the end of the day, I enthusiastically support Judge
    Kavanaugh, and I am proud to introduce him because he is
    unquestionably qualified by his extraordinary intellect,
    experience, and temperament, and he does easily fit within the
    mainstream of legal thought.
        I look forward to the Committee over the next few days
    getting to know the Judge Kavanaugh that I know. And at the end
    of that process, I hope you will agree that he should be
    confirmed to succeed his former boss on the Supreme Court.
        Chairman Grassley. Thank you, Ms. Blatt.
        Thanks each of the panel for their introduction, and you
    are dismissed now.
        And then, Judge Kavanaugh, can you shake your head? I was
    told that you might want 5 minutes right now. Do you need that?
        Judge Kavanaugh. No.
        Chairman Grassley. Okay. Then just stay seated until we
    change the table a little bit, and then we will get to you.
        [Pause.]
        [Witness is sworn in.]
        Chairman Grassley. Thank you.
        Proceed with your statement or anything else that you want
    to tell the Committee right now.

     STATEMENT OF HON. BRETT M. KAVANAUGH, NOMINEE TO SERVE AS AN
      ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

        Judge Kavanaugh. Thank you, Mr. Chairman, Senator
    Feinstein, Members of the Committee.
        I thank Secretary Rice, Senator Portman, and Lisa Blatt for
    their generous introductions. They are patriots who represent
    the best of America. I am humbled by their confidence. I am
    proud to call each of them a friend.
        Over the past 8 weeks, I have witnessed firsthand the
    Senate's deep appreciation for the vital role of the American
    judiciary. I have met with 65 Senators, including almost every
    Member of this Committee. Those meetings are sometimes referred
    to as ``courtesy calls,'' but that term understates how
    substantive and personal our discussions have been.
        I have greatly enjoyed all 65 meetings. In listening to all
    of you, I have learned more about our country and the people
    you represent. Every Senator is devoted to public service and
    the public good, and I thank all the Senators for their time
    and their thoughts.
        I thank President Trump for the honor of this nomination.
    As a judge and as a citizen, I was deeply impressed by the
    President's careful attention to the nomination process and by
    his thorough consideration of potential nominees.
        I am also very grateful for his courtesy. At the White
    House on the night of the announcement, the President and Mrs.
    Trump were very gracious to my daughters, my wife, and my
    parents. My family will always cherish that night, or, as my
    daughter Liza calls it, her debut on national television.
        [Laughter.]
        Judge Kavanaugh. As a nominee to the Supreme Court, I
    understand the responsibility I bear. Some 30 years ago, Judge
    Anthony Kennedy sat in this seat. He became one of the most
    consequential Justices in American history. I served as his law
    clerk in 1993. To me, Justice Kennedy is a mentor, a friend,
    and a hero.
        As a member of the Court, he was a model of civility and
    collegiality. He fiercely defended the independence of the
    judiciary, and he was a champion of liberty. If you had to sum
    up Justice Kennedy's entire career in one word, liberty.
    Justice Kennedy established a legacy of liberty for ourselves
    and our posterity.
        I am here today with another of my judicial heroes, my mom.
    Fifty years ago this week, in September 1968, my mom was 26,
    and I was 3. At that time, my mom started as a public school
    teacher at McKinley Tech High School here in Washington, DC.
        1968 was a difficult time for race relations in our city
    and our country. McKinley Tech had an almost entirely African-
    American student body. It was east of the park. I vividly
    remember days as a young boy sitting in the back of my mom's
    classroom as she taught American history to a class of African-
    American teenagers. Her students were born before Brown v.
    Board of Education or Bolling v. Sharpe.
        By her example, my mom taught me the importance of equality
    for all Americans. Equal rights, equal dignity, and equal
    justice under law. My mom was a trailblazer. When I was 10, she
    went to law school at American University and became a
    prosecutor.
        I am an only child. My introduction to law came at our
    dinner table when she practiced her closing arguments on my dad
    and me. Her trademark line was, ``Use your common sense. What
    rings true? What rings false?''
        One of the few women prosecutors at the time, she overcame
    barriers and was later appointed by Democratic Governors to
    serve as a Maryland State trial judge. Our Federal and State
    trial judges serve on the front lines of American justice.
        My mom taught me that judges do not deal in abstract
    principles. They decide for real cases, for real people in the
    real world, and she taught me that good judges must always
    stand in the shoes of others. The Chairman referred to me today
    as Judge Kavanaugh, but to me, that title will always belong to
    my mom.
        For 12 years, I have been a judge on the U.S. Court of
    Appeals for the D.C. Circuit. I have written more than 300
    opinions and handled more than 2,000 cases. I have given it my
    all in every case. I am proud of that body of work, and I stand
    behind it. I tell people do not read about my judicial
    opinions, read the opinions.
        I have served with 17 other judges, each of them a
    colleague and a friend on a court now led by our superb Chief
    Judge Merrick Garland. My judicial philosophy is
    straightforward. A judge must be independent and must interpret
    the law, not make the law. A judge must interpret statutes as
    written. A judge must interpret the Constitution as written,
    informed by history and tradition and precedent.
        In deciding cases, a judge must always keep in mind what
    Alexander Hamilton said in Federalist 83, ``The rules of legal
    interpretation are rules of common sense.''
        A good judge must be an umpire, a neutral and impartial
    arbiter who favors no litigant or policy. As Justice Kennedy
    explained in Texas v. Johnson, one of his greatest opinions,
    judges do not make decisions to reach a preferred result.
    Judges make decisions because the law and the Constitution as
    we see them compel the results.
        Over the past 12 years, I have ruled sometimes for the
    prosecution and sometimes for criminal defendants, sometimes
    for workers and sometimes for businesses, sometimes for
    environmentalists and sometimes for coal miners. In each case,
    I have followed the law. I do not decide cases based on
    personal or policy preferences. I am not a pro-plaintiff or
    pro-defendant judge. I am not a pro-prosecution or pro-defense
    judge. I am a pro-law judge.
        As Justice Kennedy showed us, a judge must be independent,
    not swayed by public pressure. Our independent judiciary is the
    crown jewel of our constitutional republic. In our independent
    judiciary, the Supreme Court is the last line of defense for
    the separation of powers and for the rights and liberties
    guaranteed by the Constitution.
        The Supreme Court must never, never be viewed as a partisan
    institution. The Justices on the Supreme Court do not sit on
    opposite sides of an aisle. They do not caucus in separate
    rooms. If confirmed to the Supreme Court, I would be part of a
    Team of Nine, committed to deciding cases according to the
    Constitution and laws of the United States. I would always
    strive to be a team player on the Team of Nine.
        Throughout my life, I have tried to serve the common good,
    in keeping with my Jesuit high school's motto, ``Men for
    others.'' I have spent my career in public service. I have
    tutored at Washington Jesuit Academy, a rigorous, tuition-free
    school for boys from low-income families. At Catholic Charities
    at 10th and G, I serve meals to the homeless with my friend
    Father John Enzler.
        In those works, I keep in mind the message of Matthew 25
    and try to serve the least fortunate among us. I know I fall
    short at times, but I always want to do more and do better.
        For the past 7 years, I have coached my daughters'
    basketball teams. I love coaching. All the girls I have coached
    are awesome, and special congratulations to the girls on this
    year's sixth grade CYO championship team--Anna, Quinn, Kelsey,
    Ceane, Chloe, Alex, Ava, Sophia, and Margaret.
        I love helping the girls grow into confident players. I
    know that confidence on the basketball court translates into
    confidence in other aspects of life.
        Title IX helped make girls' and women's sports equal. And I
    see that law's legacy every night when I walk into my house as
    my daughters are getting back from lacrosse or basketball or
    hockey practice. I know from my own life that those who teach
    and coach America's youth are among the most influential people
    in our country.
        With a kind word here and a hint of encouragement there, a
    word of discipline delivered in the spirit of love, teachers
    and coaches change lives. I thank all of my teachers and
    coaches who have gotten me to this point, and I thank all of
    the teachers and coaches throughout America.
        As a judge, I have sought to train the next generation of
    lawyers and leaders. For 12 years, I have taught constitutional
    law to hundreds of students, primarily at Harvard Law School. I
    teach that the Constitution's separation of powers protects
    individual liberty. I am grateful to all my students. I have
    learned so much from them, and I am especially grateful to the
    dean who first hired me, now Justice Elena Kagan.
        One of the best parts of my job as a judge is each year
    hiring four recent law school graduates to serve as my law
    clerks for the year. I hire the best. My law clerks come from
    diverse backgrounds and points of view. A majority of my 48 law
    clerks have been women. More than a quarter of my law clerks
    have been minorities, and I have had far more African-American
    law clerks than the percentage of African-American students in
    U.S. law schools. I am proud of all my law clerks.
        I am grateful for my friends. This past May, I delivered
    the commencement address at Catholic University Law School. I
    gave the graduates this advice: ``Cherish your friends. Look
    out for your friends. Lift up your friends. Love your
    friends.'' Over the last 8 weeks, I have been strengthened by
    the love of my friends, and I thank all my friends.
        I am grateful to have my family behind me. My mom rightly
    gets a lot of attention, but a few words about my dad. He has
    an unparalleled work ethic and the gift for making friends with
    people, regardless of who they are or where they come from.
        My dad and I are both passionate sports fans. When I was 7,
    he took me to the 1972 NFC Championship Game at RFK stadium
    just 2 miles from here--upper deck, Section 503, Row 3, Seats 8
    and 9. When I was 17, we sat in the same seats for the 1982 NFC
    Championship Game.
        In 1995, when I was 30, we were at Camden Yards together
    when Cal Ripken played in his 2,131st consecutive game and
    broke Lou Gehrig's seemingly unbreakable record. And so many
    other games with my dad, a lifetime of friendship forged in
    stadium seats over hot dogs and beer.
        My daughters, Margaret and Liza, will be in and out of this
    hearing room over the next few days. They are strong girls,
    dedicated students, outstanding athletes. In the time since you
    last saw them at the White House ceremony on July 9th, I am
    pleased to report that Margaret has gotten her braces off and
    has turned 13. Margaret is the sweetest girl you will ever
    know. As for Liza, I tell her every night that no one gives a
    better hug than Liza Kavanaugh.
        Finally, I thank my wife, Ashley. She is a strong West
    Texan, a graduate of Abilene Cooper Public High School and the
    University of Texas at Austin. She is now the popular Town
    Manager of our local community.
        This has not exactly been the summer she had planned for
    the family, but I am grateful for her love and inspiration.
    Ashley is a kind soul. She always sees the goodness in others.
    She has made me a better person and a better judge. I thank God
    every day for my family.
        Mr. Chairman, Senator Feinstein, Members of the Committee,
    I look forward to the rest of the hearing and to answering your
    questions. I am an optimist. I live on the sunrise side of the
    mountain, not the sunset side of the mountain. I see the day
    that is coming, not the day that is gone.
        I am optimistic about the future of America. I am
    optimistic about the future of our independent judiciary. I
    revere the Constitution. If confirmed to the Supreme Court, I
    will keep an open mind in every case. I will do equal right to
    the poor and to the rich. I will always strive to preserve the
    Constitution of the United States and the American rule of law.
        Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, Judge Kavanaugh.
        I have something I want to say to the Committee, but before
    that, we have been here approximately 8 hours. You have had a
    lot to hear today and listen to. I think it is very noteworthy
    that no one has seriously questioned your qualifications to
    receive a promotion to the Nation's highest court, and they
    have learned a lot about you being an exceptional teacher,
    coach, volunteer, and dad, in addition to being an exceptional
    judge.
        So I thank you very much for your statement.
        Questions for the record are due Monday, September the
    10th, at noon. We will notice Judge Kavanaugh's markup meeting
    for Thursday, September 13th. This timeline is consistent with
    how we have handled past Supreme Court nominations. I want
    everybody to know that right now, so that Members and their
    staff can be working on written questions throughout the week.
        With that, we will recess until tomorrow morning at 9:30,
    when we will start the first round of questions. Again, each
    Senator will have 30 minutes for the first round of questions,
    and I intend to go like we have with Gorsuch, that people will
    have a chance to ask the questions they want to ask. But we
    start out with the 30 minutes, then the 20-minute second round.
    So everybody is going to have a chance for a 50-minute crack at
    this strong judge.
        Meeting adjourned.
        [Whereupon, at 4:55 p.m., the Committee was recessed.]
        [Additional material submitted for the record for Day 1
    follows Day 5 of the hearing.]

                              CONTINUATION OF THE
                          CONFIRMATION HEARING ON THE
                     NOMINATION OF HON. BRETT M. KAVANAUGH
                       TO BE AN ASSOCIATE JUSTICE OF THE
                       SUPREME COURT OF THE UNITED STATES

                                  ----------

                          WEDNESDAY, SEPTEMBER 5, 2018

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:35 a.m., in
    Room SH-216, Hart Senate Office Building, Hon. Charles E.
    Grassley, Chairman of the Committee, presiding.
        Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
    Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
    Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
    Booker, and Harris.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Chairman Grassley. Good morning, everybody. And we welcome
    everybody back again and especially Judge Kavanaugh and his
    wife, Ashley.
        Yesterday, each Senator made their opening remarks. We also
    heard from three people who had the honor of introducing Judge
    Kavanaugh--Secretary Rice, Senator Portman, and attorney Lisa
    Blatt. And we heard for the first time directly from Judge
    Kavanaugh. He made a powerful, compelling, and convincing
    statement demonstrating his exceptional background and
    qualifications to serve our Nation's highest court.
        NBC News reported that Democratic Members of the Committee
    plotted with the Minority Leader to disrupt the hearing
    yesterday. Democratic Senators interrupted the hearing 63 times
    before lunch, and in the audience, 70 people were arrested
    yesterday who were following their lead.
        All probably very constitutionally prepared to do that,
    doing what the Constitution says, the right of freedom of
    speech. But we also were able to finally conduct our hearing
    the way it should be conducted.
        [Disturbance in the hearing room.]
        Chairman Grassley. Yesterday was just opening statements.
    It was only--it was only our time as Committee Members that we
    wasted on disruption and disorder over procedural matters. But
    today is different.
        [Disturbance in the hearing room.]
        [Pause.]
        Chairman Grassley. It was our time, as Committee Members,
    yesterday to make our case. Today is different. Today is the
    day that the American people are supposed to hear from the
    nominee. This morning, we will begin our questioning of Judge
    Kavanaugh. We will get through all Members' first rounds of
    questions today, no matter how long it takes.
        Members are allotted 30 minutes for the first round. If
    your time expires, your remaining questions may be continued,
    of course, in the second round tomorrow.
        We will take a lunch break as well as probably two other
    15-minute breaks throughout the day. For now, let us plan our
    first break after five Senators or so have completed their
    questions. I assume that this will be around 12:15 p.m., which
    will hopefully coincide with the floor vote that is already
    scheduled. This would be a 3-minute--or 30-minute break for
    vote and lunch.
        But, Judge, if you would like to take a break any other
    time, let us know. We are happy to accommodate that. And with
    that, I will start the questioning of my 30 minutes.
        Judge, for the last 12 years, you have served as a Federal
    circuit judge on one of the most influential Circuits in
    America. You have authored 307 judicial opinions and joined
    hundreds more, totaling more than 10,000 pages of record. You
    have decided some of the most pressing legal issues facing our
    country. The Supreme Court of the United States, the one you
    are nominated to be on, has adopted a legal position--your
    legal position from at least 12 opinions.
        The Senate Judiciary Committee has received dozens of
    strong letters of support from hundreds of people, many of whom
    you know best, from all across the political and ideological
    spectrum. And the American Bar Association has given you its
    highest rating, unanimously ``well qualified.'' My Democratic
    colleagues have said that this is the ``gold standard'' of
    judicial nomination.
        There is no dispute that you are one of the most qualified
    Supreme Court nominees. Some people say the most qualified, and
    I do not disagree with their judgment, and that could be for
    anybody coming before the United States Senate. I am not the
    only one who says that because we have a letter from Robert
    Bennett, surprisingly, President Clinton's attorney and your
    opposing Counsel during the independent counsel investigation
    of President Clinton. He wrote a very strong letter in support
    of your confirmation: ``Brett is the most qualified person any
    Republican President could possibly have nominated. Were the
    Senate to fail to confirm Brett, it would not only mean passing
    up the opportunity to confirm a great jurist, but it would also
    undermine civility in politics twice over, first in playing
    politics with such an obviously qualified nominee and then
    again in losing the opportunity to put such a strong advocate
    of decency and civility on our Nation's highest court.''
        Mr. Bennett also speaks highly of your integrity and to
    your fairness and open-mindedness. And so, without objection, I
    would enter that letter in the record.
        [The information appears as a submission for the record.]
        Chairman Grassley. Now to a question. I imagine that your
    12 years of judicial service on the second-highest court in the
    land has given you plenty of opportunity to think about my
    first question, which is what makes a judge a good one, and
    what influences in your life have shaped your vision of how a
    judge should go about doing his job?
        Judge Kavanaugh. Thank you, Mr. Chairman.
        I think the first quality of a good judge in our
    constitutional system is independence. Independence comes
    directly from Article III of the Constitution. The independence
    of the Federal judges really is guaranteed by the Framers in
    our life tenure and our protection from pay reduction. So
    because we have life tenure, we are independent and immune from
    political or public pressure.
        So I think the first thing that makes a good judge is
    independence, not being swayed by political or public pressure.
    That takes some backbone. That takes some judicial fortitude.
        The great moments in American judicial history, the judges
    had backbone and independence. You think about Youngstown
    Steel. You think about, for example, Brown v. Board of
    Education, where the Court came together and knew they were
    going to face political pressure and still enforced the promise
    of the Constitution.
        You think about United States v. Nixon, which I have
    identified as one of the greatest moments in American judicial
    history, where Chief Justice Burger, who had been appointed by
    President Nixon, brought the Court together in a unanimous
    decision to order President Nixon, in response to a criminal
    trial subpoena, to disclose information. Those great moments of
    independence and unanimity are important.
        Respect for precedent is another one. We are a system of
    constitutional precedent. Precedent is not just a judicial
    policy. It is sometimes stated that it is just a policy.
    Precedent comes right from Article III of the Constitution.
        Article III of the Constitution refers to the judicial
    power. What does that mean? What does ``judicial power'' mean?
    Judicial power, you look at Federalist 78, and what is
    described there is a system of precedent. So precedent is
    rooted right into the Constitution itself, and it is
    constitutionally dictated to pay attention and pay heed to
    rules of precedent.
        Beyond that, being a good judge means paying attention to
    the words that are written, the words of the Constitution, the
    words of the statutes that are passed by Congress. Not doing
    what I want to do, not deferring when the Executive rewrites
    the laws passed by Congress, but respect for the laws passed by
    Congress, respect for the rule of law, the words put into the
    Constitution itself. That is part of being a good judge. That
    is part of being independent. That is part of precedent.
        And then I would say being a good judge, there are human
    qualities in terms of the interaction. Although these
    confirmation processes focus on one person, as if you are
    making all of the decisions, as I said yesterday, I am joining
    a Team of Nine, if I were fortunate enough to be confirmed. And
    that means something. It means something in sports. It means
    something in judging.
        I do not make decisions by myself. For the last 12 years, I
    have not been making decisions by myself. Every case has been
    in a panel of at least three judges, and you learn from each
    other when you are deciding cases. You work with each other
    when you are deciding cases.
        And so having collegiality and civility, as Justice Kennedy
    showed us so powerfully repeatedly with how he conducted
    himself over the years. That is very important because those
    great moments that I was talking about at the beginning like
    United States v. Nixon, like Brown v. Board, the Court came
    together in unanimous decisions. And the unanimity of the
    decisions added force. That took personal interaction. That
    took collegiality.
        So I think, you know, I have tried to be a very collegial
    judge. I have tried to be civil. I want, Mr. Chairman, the
    losing party, the losing party in every case to come out and
    say, ``Kavanaugh gave me a fair shake. He was well prepared. He
    wrote a clear opinion. He explained everything. I disagree, but
    at least I get it.''
        So I want the losing party and I want both parties to walk
    out at oral argument and say, ``He had an open mind. He gave me
    a fair shake.'' And I think I have done that for 12 years. I
    have tried to do that consistently. Everything you do as a
    judge matters in terms of being a good judge--oral argument,
    writing opinions, how you decide.
        So those are the qualities. I guess the last thing I always
    remember about it is the thing I said my mom told me from the
    first instance. Judging is not just about theory. It is not
    theory. It is not just what a Law Review article is. Judging is
    real people in the real world, and every decision we make, no
    matter how high-minded it might sound, affects real people in
    the real world with real interests. And we have to remember
    that in how we explain the decisions.
        Thank you, Mr. Chairman.
        Chairman Grassley. Now following up on the wise words of
    Senator Sasse yesterday on separation of powers, your record
    before the Senate includes more than 10,000 pages of judicial
    writings over your dozen years. We have over 440,000 pages of
    emails and other records from your legal service at the White
    House and Judge Starr. And you have written extensively on the
    issue of our Constitution, separation of power among the three
    branches. And a key component of the separation of powers is
    the independent judiciary.
        Obviously, everybody learns in eighth grade civics about
    judges interpreting law. The judiciary must continue to be the
    least political and least dangerous branch. A judge's sole job
    is to find and apply the law evenly and fairly without regard
    to the President who nominated him, the Senators who voted for
    him, the parties before him, and the political consequences of
    his judicial decisions.
        So, Judge, let us discuss judicial independence from the
    executive branch. No one, not even the President, is above the
    law. Some of my colleagues have criticized your views of
    Presidential authority, suggesting--wrongly, in my opinion--
    that your views of Presidential authority would not allow any
    meaningful check on the President, particularly this one.
        Please tell us what judicial independence means to you,
    including whether you have any trouble ruling against a
    President who appointed you and against the executive branch in
    any case before you. You have partly talked about independence,
    but apply it specifically to a ruling against a President or
    the executive branch generally.
        Judge Kavanaugh. Thank you, Mr. Chairman.
        To begin with, you are correct. No one is above the law in
    our constitutional system. Federalist 69, Hamilton makes clear
    all the ways that the executive branch, as designed by the
    Framers of the Constitution, was different from the monarchy.
    Under our system of Government, the executive branch is subject
    to the law, subject to the court system, and that is an
    important part of Federalist 69. It is an important part of the
    constitutional structure.
        In general, so, too, we, as judges, are separate from the
    Congress. We are not supposed to be influenced by political
    pressure from the Executive or from the Congress. We are
    independent. We make decisions based on law, not based on
    policy, not based on political pressure, not based on the
    identity of the parties. No matter who you are in our system,
    no matter where you come from, no matter how rich you are or
    how poor you are, no matter your race, your gender, no matter
    your station in life, no matter your position in Government, it
    is all equal justice under law.
        And again, look at our examples in history. I always will
    go back to the great moments in our history where these
    principles, which sound abstract if you are just describing
    them, were actually implemented. And I go back to Youngstown
    Steel, and you think about it, it is a 6-to-3 decision where
    the Supreme Court rules that President Truman has violated the
    law by seizing the steel mills.
        Now this is a time of war, a time of war where lots of
    Americans were killed, and the Supreme Court is under pressure
    to defer to the President's war effort in a 6-to-3 decision.
    But what is interesting to me, Justice Clark--we do not usually
    talk about Justice Clark in that decision. Why is he important?
        He is important. He was appointed by President Truman to
    the Supreme Court. What a moment of judicial independence there
    to rule in that case.
        You think about Justice Jackson, who had been working for
    President Roosevelt, and then he dissents in the Korematsu
    case. Stands up and says letting racism like this is like
    letting a loaded weapon lie around.
        [Disturbance in the hearing room.]
        Judge Kavanaugh. Dissents against President Roosevelt's
    decision. Justice Jackson's----
        Senator Feinstein. Ask him to suspend.
        Judge Kavanaugh. Justice Jackson's concurrence in
    Youngstown, which is, of course, what has become the law, that
    three-part test--Category 1, Category 2, Category 3. But again,
    he writes that concurrence in Youngstown. Why is that a moment
    of judicial independence? He had taken positions contrary to
    that when he had worked in the executive branch in the
    Roosevelt administration. Yet, when he is a judge, he sees it
    differently as an independent judge.
        How about Chief Justice Burger? United States v. Nixon.
    Writes the opinion, unanimous. Moments of judicial
    independence. So it is resisting public pressure, political
    pressure. It is treating everyone equally, no matter where you
    are, what station.
        When I was a--became a judge on the D.C. Circuit, I had a
    case called Hamdan v. United States. Who is Hamdan?
        [Disturbance in the hearing room.]
        Judge Kavanaugh. So in the Hamdan case, Hamdan is one of
    bin Laden's associates. You will never have a nominee--Mr.
    Chairman, should I proceed?
        Chairman Grassley. This is coming out of my time, but that
    is okay. Let these people have their free speech and interrupt
    the other 300 million people listening, that this is your
    opportunity to speak to the American people and for them to
    make a judge about it. If they want to affect what the other
    300 million people hear from you, then that is just too bad.
    You proceed now.
        Judge Kavanaugh. Hamdan is one of bin Laden's associates
    involved before September 11th, worst attack ever on American
    soil. He was prosecuted before a military commission, signature
    prosecution of the Bush administration.
        Comes to the D.C. Circuit. I am on the panel. I write the
    opinion saying that his military commission prosecution is
    unconstitutional, violates ex post facto principles.
        You will never have a nominee who has ruled for a more
    unpopular defendant than ruling for Salim Hamdan. And why did I
    do that in that case? Why did I rule for someone who had been
    involved in the September 11th? It is because the law compelled
    it.
        As Justice Kennedy showed us in the Texas v. Johnson case,
    we do not make decisions based on who people are or their
    policy preferences or the moment. We base decisions on the law.
    Justice Kennedy's example of independence is something I have
    tried to follow.
        And it means, you know, you are not a pro--as I said
    yesterday, not a pro-plaintiff or pro-defense judge, not a pro-
    prosecution or pro-defense judge. I am a pro-law judge, and I
    have ruled for parties based on whether they have the law on
    their side.
        That is part of being an independent judge is ruling for
    the party no matter who they are, so long as the party is
    right. If you walk into my courtroom and you have the better
    legal arguments, you will win.
        Chairman Grassley. I think you answered my next question
    based upon what you said about Hamdan. But there are probably
    other examples. You do not need to go into detail. But you have
    President----
        [Disturbance in the hearing room.]
        Chairman Grassley. President Bush appointed you. Are there
    other cases that--there has been other cases presumably you
    have ruled against the administration of the person that
    appointed you?
        Judge Kavanaugh. Absolutely, Mr. Chairman. There were a
    slew of cases on everything from Freedom of Information Act to
    some of the administrative law cases. The Hamdan one is
    certainly the one that comes to mind most because of the
    importance of that case. Yet I ruled that it was unlawful.
        Chairman Grassley. Yes. Now did anyone ask you to make any
    promises or assurances at all about the way that you would rule
    in certain cases?
        Judge Kavanaugh. No.
        Chairman Grassley. Were you asked about your views on Roe
    v. Wade?
        Judge Kavanaugh. No.
        [Disturbance in the hearing room.]
        Chairman Grassley. We were talking about separation of
    powers. Have you ever written any decisions where you use the
    Tenth Amendment? I am talking about division of powers between
    Federal and States.
        Judge Kavanaugh. Mr. Chairman, most of the cases that come
    to the D.C. Circuit are at the national level and, therefore,
    involving questions of separation of powers between the
    legislative, executive, and judicial branches. Of course,
    federalism is a critical part of our constitutional structure
    as well.
        The genius of our system, Federalist 39, as described by
    Madison, is that we have both a national Government and a
    Federal Government simultaneously. And the House of
    Representatives really represents in some ways the national
    part, proportional representation. This body, with two Senators
    from each State, represents in many ways the Federal part, each
    State represented equally.
        And the federalism system by which the States are allowed
    to regulate local matters, and some of the Commerce Clause
    cases, such as United States v. Lopez and United States v.
    Morrison, reinforce the idea that there is a core of authority
    that is exclusively in the province of the States and beyond
    the scope of the Federal Government.
        The Tenth Amendment----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. The Tenth Amendment reinforces the
    structure of federalism that is in our constitutional system.
    It is important always to remember the role of the States in
    our constitutional systems, and it is important to recognize as
    individual citizens something we often forget, particularly in
    a process like this. Our rights and liberties are protected by
    the Federal Constitution and by the Federal courts, but they
    are also protected by State constitutions and State courts.
        A great judge on the Sixth Circuit, Judge Jeff Sutton, has
    written a new book about using State constitutions to help
    protect your individual liberties and rights, too. This whole
    document, through the separation of powers and the federalism,
    tilts toward liberty----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. Tilts toward liberty.
        Chairman Grassley. Now we have talked about your
    independence from a President. There is also the question of
    independence from the legislative branch, equally as important.
        You are going to be asked about your personal views on a
    variety of topics and whether you believe various Supreme Court
    cases were correctly decided. Presumably, this is because
    Senators are going to try to predict how you will rule in cases
    before you. The idea is that if you agree with your personal
    views--if they agree with your personal views on particular
    issues of morality or on Supreme Court precedent, they maybe
    would vote to confirm you. If not, they might not.
        Of course, that is improper. Judges should never promise
    their future votes on the bench in exchange for a Senator's
    vote for them. If you answer these questions about your views
    on specific Supreme Court cases or public controversies of the
    day, you would be showing the opposite of independence from the
    legislative branch.
        Politicians can make promises about how they will vote on
    issues. Judges, by the very nature of the job, should never
    promise any outcome. If a nominee answers these questions, it
    threatens to undermine judicial independence.
        Of course, there may be times where it is appropriate to
    reconsider certain decisions, especially if more recent
    opinions have called into question the rationale of the
    original decisions. So with this in mind, I would like to
    explore the approach that you would take toward Supreme Court
    precedent.
        Could you tell us your views on the value of precedent? I
    think you have already done that, but if you want to expand on
    it, go ahead. Have you ever followed precedent of the Supreme
    Court when doing so conflicted with your personal beliefs?
        Judge Kavanaugh. My personal beliefs are not relevant to
    how I decide cases. The role of precedent in our system, which
    I said is rooted in Article III of the Constitution, it is not
    just a judicial policy. The role of precedent is to ensure
    stability in the law, which is critically important.
        It is also to ensure predictability of the law. People who
    order their affairs around judicial decisions need to know that
    the law is predictable. Whether you are an individual or
    business or worker, you need to have predictability.
        People rely on the decisions of the courts, and so reliance
    interests are critically important to consider as a matter of
    precedent. They are one of the reasons we have the system of
    precedent, so that people can rely on the decisions.
        Precedent also reinforces the impartiality and independence
    of the judiciary. The people need to know in this country that
    the judges are independent and that we are not making decisions
    based on policy views. Part of that is to understand we are
    following a system of precedent, of what has been done before.
        The Court, every time someone gets on it, is not just
    bouncing around to, ``What do I think is best? '' It is, ``What
    is the precedent of the Supreme Court? '' is always part of the
    analysis, an important part.
        And for 12 years, I have been applying precedent of the
    Supreme Court and of my court. Every day for 12 years, I have
    not been getting up saying how can I rewrite the law? I have
    been getting up for 12 years every day saying, okay, how can I
    apply this Fourth Amendment precedent to this fact pattern that
    comes before me? Or how can I apply this First Amendment
    precedent to this fact pattern that comes before me?
        So precedent is the foundation of our system. It is part of
    the stability. It is ensuring predictability, and it is just
    foundational to the Constitution, as Article III and Federalist
    78 make clear.
        Chairman Grassley. Now you will be asked by other Members
    which Supreme Court precedents you like and do not like. But as
    you know, it is inappropriate for a nominee to answer those
    questions. And this refers to Justice Ginsburg. She said, ``A
    judge sworn to decide impartially can offer no forecasts, no
    hints, for that would show not only disregard for the specifics
    of a particular case, it would display disdain for the entire
    judicial process.''
        The underlying reason for this, of course, is that making
    promises or giving hints undermines the very independence that
    we have discussed. Would you agree with that?
        Judge Kavanaugh. I do, Senator, Mr. Chairman. And one of
    the things that I have to remember sitting in this seat is that
    this moment is a moment of judicial independence with how I
    interact with this Committee.
        And what I have done in each of the jobs I have had, and
    particularly as a judge over the last 12 years, but also in the
    executive branch, you always ask--I always ask myself and I
    tell people I am working with to ask how has it been done
    before? How has it been done before? So, as a judge, how has it
    been done before as precedent? That is, how has it been done
    before?
        When I am sitting here, what did I do? I went and studied
    all the nominee precedent. I have studied. I have read Thurgood
    Marshall's hearing and Justice Brennan's hearing, and I have
    read the hearings of the eight Justices currently sitting on
    the Supreme Court. It is what I call nominee precedent.
        And so all of the nominees currently sitting on the Supreme
    Court, all the Justices have made clear a couple things. First
    of all, they cannot discuss cases or issues that might come
    before them. As Justice Ginsburg said, no hints, no forecasts,
    no previews.
        That also means with respect to at least the vast body of
    Supreme Court precedent going back, you cannot give a thumbs up
    or thumbs down on the case. That is Justice Kagan's
    formulation. She said repeatedly no thumbs up or thumbs down
    when she was asked, ``What do you do think about this case?
    What do you think about that case? '' I liked her formulation
    there. No thumbs up or thumbs down.
        That nominee precedent, as I call it, is now, in my view,
    part of the independence of the judiciary, and that nominee
    precedent is something I need to adhere to when I am here as a
    nominee now. Because that is--one of my jobs here is not to
    advance my own interests, but remember I am a representative of
    the judiciary as a whole, and I have a responsibility to do
    judicial independence right here, right now as a nominee. So
    following that nominee precedent is going to be critical.
        Now there is an exception that the eight Justices have
    drawn currently sitting on the Court, if you read all the
    hearings, for some older cases. And I will be happy to give
    some older cases where nominee precedent does allow the
    Justices--has allowed them to talk about a few older cases.
        And again, why do we do this? Why is this nominee
    precedence there? When eight Justices of widely ranging views
    do this, there must be a reason. The reason is judicial
    independence. What does that mean? It means two things in this
    context.
        One, the litigants who come before us have to know we have
    an open mind, that we do not have a closed mind, that we have
    not committed something in this process that is going to affect
    how we decide a case because we feel bound by what we promised
    to this Committee. And believe me, judges do feel bound by what
    they said to this Committee.
        So if I say something and a case comes before me 5 years
    from now, I am going to feel morally bound by what I said here.
    And if I have crossed the line of what I should say, then I am
    not going to have an open mind in that case. That is a
    violation of judicial independence.
        Second, as Chief Justice Roberts described perhaps better
    than anyone, if I get into some kind of process that appears to
    be a bargaining process where I say, well, I will agree with
    this decision in exchange for your vote, it is never that
    explicit. But that is--as Chief Justice Roberts described it,
    that is kind of what seems to be going on sometimes. Well, that
    is a complete violation of judicial independence because then
    the judges are not making the decisions based on their reading
    of the law. It is really, as Chief Justice Roberts described
    it, it is the Senate or the Senate Judiciary Committee really
    sending a nominee as a delegate to the judiciary and really
    doing what the Senate Judiciary Committee thinks is the right
    thing to do.
        Chief Justice Roberts explained very forcefully that doing
    that would be a violation of judicial independence. That
    nominee precedent weighs heavily on me as a nominee here
    because it is rooted in judicial independence. And I have said
    repeatedly already that I am going to be an independent judge.
    Well, I have to be an independent nominee as well, so I am
    going to have to adhere to the lines drawn by those prior
    nominees, Mr. Chairman.
        Chairman Grassley. There is only 25 seconds left. I am
    going to reserve that time and go to Senator Feinstein.
        Senator Feinstein. Thank you very much, Mr. Chairman.
        Good morning, Judge.
        Judge Kavanaugh. Thank you.
        Senator Feinstein. I am sorry about the circumstances, but
    we will get through it.
        I wanted to talk to you this morning about guns, and go
    back to Roe v. Wade, if I might. My office wrote the assault
    weapons legislation in 1993. It was law from 1994 to 2004, and
    it essentially prohibited the transfer, sale, and manufacture
    of assault weapons. It did not at the time affect possession.
        I happen to believe that it did work and that it was
    important. And I have watched case after case, and I think I
    mentioned earlier, school shootings, which are just--I never
    thought this would happen in our country, that someone would
    bring a semi-automatic assault weapon into a school and just
    mow down children and staff.
        And so I have been very interested in your thinking on
    assault weapons. You specifically argued that the DC assault
    weapons ban was unconstitutional, and I think because you said
    these weapons were in common use. What did you base your
    conclusion that assault weapons are in common use, and what
    evidence or study did you use to do that?
        Judge Kavanaugh. Thank you, Senator Feinstein, for the
    question.
        I understand, of course, your role on that issue and your
    long leadership on that issue and appreciate that. I faced a
    decision where, as in every other decision just about on the
    D.C. Circuit, I had to follow precedent, precedent of the
    Supreme Court. I do not get to pick and choose which Supreme
    Court precedents I get to follow. I follow them all.
        And so, in the Second Amendment context, the Supreme Court
    in the Heller decision, written by Justice Scalia, had held
    that there was an individual right to keep and bear arms. And
    then in explaining what that meant and what exceptions would be
    allowed to that right, Justice Scalia's opinion for the Court
    in Part 3 of the opinion went through this does not mean that
    there is no gun regulation permissible.
        So that was an important part of the opinion, Part 3 of the
    Supreme Court's opinion, where it pre-identified a number of
    exceptions that would be allowed. Felon in possession laws,
    concealed carry laws, possession of mentally ill, possession of
    guns in schools, possession in certain kinds of buildings, he
    pre-identified that.
        As to the weapons, the way I understood what he said there,
    and what was said in the McDonald case later, was that
    dangerous and unusual weapons could be prohibited. And what he
    referred to specifically is machine guns could be prohibited.
    So it is very important to recognize, under the Heller
    decision, machine guns can be prohibited. And machine----
        Senator Feinstein. They were in the Firearms Act a long
    time ago.
        Judge Kavanaugh. Yes, and that is----
        Senator Feinstein. Machine guns have been prohibited.
        Judge Kavanaugh. Yes, Senator. And Justice Scalia's opinion
    did not disturb that longstanding regulation. In fact, it
    specifically reaffirmed that machine guns could be prohibited.
    The Court in Heller, the Supreme Court upheld--or struck down a
    DC ban on handguns, most of which are semi-automatic----
        Senator Feinstein. I do not mean--let me interrupt you
    because I think we are on totally different wavelengths. I am
    talking about your statement on ``common use''--``common use''
    being a justification. And assault weapons are not in common
    use.
        Judge Kavanaugh. And Justice Scalia's opinion used that
    phrase, and I think the next sentence of the opinion talked
    about dangerous and unusual weapons. And the Court in Heller
    itself, the Supreme Court, struck down a DC ban on handguns.
        Now most handguns are semi-automatic. That is something
    that not everyone appreciates. Most handguns are semi-
    automatic. And the question came before us of semi-automatic
    rifles, and the question was, can you distinguish as a matter
    of precedent--again, this is all about precedent for me, trying
    to read exactly what the Supreme Court said if you read the
    McDonald case. And I concluded that it could not be
    distinguished as a matter of law semi-automatic rifles from
    semi-automatic handguns.
        And semi-automatic rifles are widely possessed in the
    United States. There are millions and millions and millions of
    semi-automatic rifles that are possessed. So that seemed to fit
    common use and not being a dangerous and unusual weapon. That
    was the basis of my dissent.
        But in a nutshell, the basis of my dissent was I was trying
    to follow strictly and carefully the Supreme Court precedent.
    And I know you have read the opinion----
        Senator Feinstein. You are saying the numbers determine
    common use? Common use is an activity. It is not common storage
    or possession. It is use. So what you said was that these
    weapons are commonly used. They are not.
        Judge Kavanaugh. They are widely possessed in the United
    States, Senator, and they are--they are used and possessed. But
    the question is, are they dangerous and unusual? They are
    certainly dangerous. All weapons are dangerous. Are they
    unusual? And given how prevalent they are in the United States,
    it seemed under Justice Scalia's test, and if you look at the
    majority opinion in McDonald, the same thing.
        I want to reiterate the Supreme Court made clear that
    machine guns can be banned. Machine guns can be banned.
        Senator Feinstein. Let me speak to you. I am talking about
    the Heller case. Let me be specific. And you specifically
    argued that it was unconstitutional to defend assault weapons
    because they are--to ban assault weapons because they are in
    common use. And that, I believe, was your dissent in the case.
        Judge Kavanaugh. Yes, and I was referring to some semi-
    auto--some kinds of semi-automatic rifles that are banned by DC
    are widely owned in the United States. And that seemed to be
    the test that the Supreme Court had set forth in the Heller and
    McDonald cases. In other words, if a type of firearm is widely
    owned in the United States.
        Now whether I agree with that test or not was not the issue
    before me. I have to follow the precedent of the Supreme Court
    as it is written, and that is what I tried to do in that case.
    It is a very long opinion.
        I also made clear, Senator Feinstein, at the end of the
    opinion, I am a native of this area. I am a native of an urban/
    suburban area. I grew up in a city plagued by gun violence and
    gang violence and drug violence. So I fully understand, as I
    explained in the opinion, the importance of this issue.
        I specifically referenced that Police Chief Cathy Lanier's
    goals of reducing gang and gun violence was something I
    certainly applauded, but that I had to follow the precedent of
    the Supreme Court in that case. And as I read it, that is what
    it said--I am sorry?
        Senator Feinstein. How do you reconcile what you have just
    said with the hundreds of school shootings using assault
    weapons that have taken place in recent history? How do you
    reconcile that?
        Judge Kavanaugh. Senator, of course, the violence in the
    schools is something we all detest and want to do something
    about, and there are lots of efforts, I know, underway to make
    schools safer. I know at my girls' school, they do a lot of
    things now that are different than they did just a few years
    ago in terms of trying to harden the school and make it safer
    for everyone.
        Guns, handguns, and semi-automatic rifles are weapons used
    for hunting and self-defense. But as you say, Senator, you
    rightly say, they are used in a lot of violent crime and cause
    a lot of deaths. Handguns are used in lots of crimes that
    result in death, and so are semi-automatic rifles. That is one
    of the--that is what makes this issue difficult.
        As I said in the last two pages of my dissent in Heller, I
    fully understand the gang violence, gun violence, drug violence
    that has plagued various cities, including Washington, DC. This
    was known as the murder capital of the world for a while, this
    city. And that was a lot of handgun violence at the time.
        And so I understand the issue. But as a judge, my job, as I
    saw it, was to follow the Second Amendment opinion of the
    Supreme Court, whether I agreed with it or disagreed with it.
    At the end of the opinion, I cited Justice Kennedy's Texas v.
    Johnson quote, which I read yesterday, as the guiding light for
    the lower court judges and all judges.
        Senator Feinstein. Let me give you a couple of other quotes
    because I am going to change the subject. Do you agree with
    Justice O'Connor that a woman's right to control her
    reproductive life impacts her ability to, quote, ``participate
    equally in the economic and social life of the Nation''?
        Judge Kavanaugh. Well, as a general proposition, I
    understand the importance of the precedent set forth in Roe v.
    Wade. So Roe v. Wade held, of course, and it reaffirmed in
    Planned Parenthood v. Casey, that a woman has a constitutional
    right to obtain an abortion before viability, subject to
    reasonable regulation by the State up to the point where that
    regulation constitutes an undue burden on the woman's right to
    obtain an abortion.
        And one of the reasons for that holding, as explained by
    the Court in Roe, and also in Planned Parenthood v. Casey more
    fully, is along the lines of what you said, Senator Feinstein,
    about the quote from Justice O'Connor. So that is one of the
    rationales that undergirds Roe v. Wade. It is one of the
    rationales that undergirds Planned Parenthood v. Casey.
        Senator Feinstein. Well, let me give you another one--
    rationale. In the 1950s and 1960s, the two decades before Roe,
    deaths from illegal abortions in this country ran between
    200,000 and 1.2 million. That is according to the Guttmacher
    Institute. So a lot of women died in that period.
        So the question comes, and you have said today--not today,
    but it has been reported that you have said that Roe is now
    settled law. The first question I have of you is what do you
    mean by ``settled law''? I tried to ask earlier do you believe
    it is correct law?
        Have your views on whether Roe is settled precedent or
    could be overturned, and has your views changed since you were
    in the Bush White House?
        Judge Kavanaugh. Senator, I said that it is settled as a
    precedent of the Supreme Court, entitled the respect under
    principles of stare decisis. And one of the important things to
    keep in mind about Roe v. Wade is that it has been reaffirmed
    many times over the past 45 years, as you know, and most
    prominently, most importantly, reaffirmed in Planned Parenthood
    v. Casey in 1992.
        And as you well recall, Senator, I know when that case came
    up, the Supreme Court did not just reaffirm it in passing. The
    Court specifically went through all the factors of stare
    decisis in considering whether to overrule it, and the joint
    opinion of Justice Kennedy, Justice O'Connor, and Justice
    Souter, at great length went through those factors. That was
    the question presented in the case.
        Senator Feinstein. Could I interrupt you to say, since you
    mentioned stare decisis, and I have sat on nine of these
    hearings. And when the subject comes up, the person says, ``I
    will follow stare decisis,'' and they get confirmed, and then,
    of course, they do not.
        So I think knowing going into it how you make a judgment on
    these issues is really important to our vote as whether to
    support you or not. Because I do not want to go back to those
    death tolls in this country, and I truly believe that women
    should be able to control their own reproductive systems within
    obviously some concern for a viable fetus.
        Judge Kavanaugh. And I understand your point of view on
    that, Senator, and I understand how passionate and how deeply
    people feel about this issue. I understand the importance of
    the issue. I understand the importance that people attach to
    the Roe v. Wade decision, to the Planned Parenthood v. Casey
    decision.
        I do not live in a bubble. I understand. I live in the real
    world. I understand the importance of the issue. And----
        Senator Feinstein. Well, my staff just passed me a note.
    Let me read it to you because I think it is good. Have your
    views about whether Roe is settled precedent changed since you
    were in the Bush White House?
        Judge Kavanaugh. My----
        Senator Feinstein. ``Yes'' or ``no''?
        Judge Kavanaugh. Well, I will tell you what my views--I am
    not sure what it is referring to about ``Bush White House,''
    but I will tell you what my view right now is. Which is, it is
    important precedent of the Supreme Court that has been
    reaffirmed many times. But then Planned--and this is the point
    that I want to make that I think is important. Planned
    Parenthood v. Casey reaffirmed Roe and did so by considering
    the stare decisis factors.
        So Casey now becomes a precedent on precedent. It is not as
    if it is just a run of the mill case that was decided and never
    been reconsidered, but Casey specifically reconsidered it,
    applied the stare decisis factors, and decided to reaffirm it.
    That makes Casey a precedent on precedent.
        Another example of that, because you might say, are there
    other cases like that, Miranda. So Miranda is reaffirmed a lot,
    but then in the Dickerson case in 2000, Chief Justice Rehnquist
    writes the opinion, considering the stare decisis factors and
    reaffirming Miranda. Even though Chief Justice Rehnquist, by
    the way, had been a fervent critic of Miranda throughout his
    career, he decided that it had been settled too long, had been
    precedent too long, and he reaffirmed it.
        So precedent on----
        Senator Feinstein. What----
        Judge Kavanaugh. I am sorry to interrupt.
        Senator Feinstein. I am sorry to interrupt, but I want to
    switch subjects, and one last question. What would you say your
    position today is on a woman's right to choose?
        Judge Kavanaugh. Well, as a judge----
        Senator Feinstein. As a judge.
        Judge Kavanaugh. As a judge, it is an important precedent
    of the Supreme Court. By ``it,'' I mean Roe v. Wade, and
    Planned Parenthood v. Casey, they have been reaffirmed many
    times. Casey is precedent on precedent, which itself is an
    important factor to remember. And I understand the significance
    of the issue, the jurisprudential issue, and I understand the
    significance as best I can--I always try and I do hear--of the
    real world effects of that decision, as I try to do, of all the
    decisions of my court and of the Supreme Court.
        Senator Feinstein. Well, I thank you for that. Let us go to
    Presidential power for a moment. You were part of Ken Starr's
    independent counsel team, which conducted a sweeping
    investigation into possible wrongdoing by President Clinton and
    the first lady. At the time, you argued for aggressive
    questioning of the President. You did not take the position
    that President Clinton was immune from investigation.
        Since then, you have taken the opposite position. In fact,
    you have said that, and I quote, ``If the President were the
    sole subject of a criminal investigation, I would say no one
    should be investigating that at all.'' What did you mean by
    that, and what are the circumstances where a sitting President
    could be subject to criminal investigation?
        Judge Kavanaugh. And I appreciate the sign there. Senator,
    the last sign, I should have mentioned while it was up, the
    Second Amendment sign actually had brackets around part of my
    quote. And I am not sure if it was the exact quote.
        But this one--I just wanted to point that out.
        Senator Feinstein. Is this accurate?
        Judge Kavanaugh. Here is what I was saying, Senator. Let me
    explain it, this one.
        Senator Feinstein. Oh.
        Judge Kavanaugh. The last one may or may not have been
    accurate. I just wanted to point that out for the record. It
    had brackets for my quote.
        This one, so what happens after the Starr investigation?
    Then I work 5\1/2\ years in the White House. So let me just
    give you, if I can, some context here, and I am going to get
    specifically to your question.
        So I work on the independent counsel investigation, and
    that is obviously difficult, controversial, a moment for our
    country that I wish had not happened. We all wish it had not
    happened. And I reflect on that. I wrote a Georgetown
    University Law Journal article in 1999 reflecting on some of my
    thoughts about that. This seems to be a tendency of mine to go
    through an experience, write an article reflecting on it.
        And then I work in the Bush White House for 5\1/2\ years,
    and I write an article in the Minnesota Law Review, Senator
    Klobuchar, in 2009, when President Obama is in office, I should
    point out, and I reflected on a number of things I had learned
    working in the independent counsel office and then working in
    the White House. And I thought there were a number of things
    Congress could take a look at that I had experienced.
        One of them was I proposed timelines for consideration of
    judicial nominees. I proposed a 180-day, up-or-down vote for
    every judicial nominee. That was something that from my
    experience I thought would avoid controversy and have rules of
    the road set in advance, and I proposed that specifically for
    Congress to consider.
        Other aspects, I said----
        Senator Feinstein. Well----
        Judge Kavanaugh. Another thing I proposed was, for Congress
    to consider whether it should look at Clinton v. Jones or the
    principle of Clinton v. Jones. So, you recall, Clinton v. Jones
    had said a President is subject to civil suit while in office,
    the Paula Jones suit. That was a controversial decision, but
    the Supreme Court made clear at the end of the decision,
    Congress could provide extra deferral of suits, not immunity,
    but deferral of suits for Presidents, if Congress so wanted.
        And so in the Minnesota Law Review article, I put out some
    ideas about whether Congress may want to think about that. And
    why did I do that? I think Senator Durbin asked yesterday, what
    changed that made me think about that from the time? What
    changed was September 11th. That is what changed.
        So after September 11th, I thought very deeply about the
    Presidency, and I thought very deeply about the independent
    counsel experience, and I thought very deeply about how those
    things interacted. And I thought very deeply about seeing
    President Bush, when he came into the Oval Office on September
    12, 2001, in the morning, President Bush said this will not
    happen again. This will not happen again.
        And he was of single-minded focus. Every morning for the
    next 7 years for President Bush was still September 12, 2001.
    Single-minded focus. And then thinking back to the independent
    counsel experience and August 1998. So I proposed some ideas
    for Congress to consider.
        Here is the bottom-line point. They were ideas for Congress
    to consider. They were not my constitutional views. If a case
    came up where someone was trying to say this is a
    constitutional principle, I would have a completely open mind
    on that because I have never taken a position on the
    Constitution on that question. I have only put out proposals
    for you all to study to think about the balance of a President
    fighting a war, leading a war, and a President subject to, say,
    ordinary civil lawsuits as in the Clinton v. Jones case.
        Senator Feinstein. Let me ask you. You have become very
    good. You are learning to filibuster.
        [Laughter.]
        Senator Feinstein. But let me ask this question precisely.
    The Supreme Court has unanimously ruled that a President can be
    required to turn over information. It upheld the subpoena for
    the tapes of Oval Office conversations that revealed President
    Nixon's efforts to cover up the Watergate break-in. This, as
    you know, was U.S. v. Nixon.
        You have said that the Nixon case might have been wrongly
    decided. Was U.S. v. Nixon wrongly decided in your view?
        Judge Kavanaugh. So that quote is not in context and is a
    misunderstanding of my position that is up there. I have
    repeatedly called U.S. v. Nixon one of the four greatest
    moments in Supreme Court history. So I have called that--the
    four I have always identified are Marbury v. Madison,
    Youngstown Steel, Brown v. Board of Education, and United
    States v. Richard Nixon.
        And why have I--Brown v. Board, by the way, the single
    greatest----
        Senator Feinstein. Was it rightly decided?
        Judge Kavanaugh. So I have said that--I have said, yes,
    that the Court's holding that a criminal trial subpoena to a
    President in the context of the special counsel regulations in
    that case for information, a criminal trial subpoena for
    information under the specific regulations in that case, I have
    said that holding is one of the four greatest moments in
    Supreme Court history.
        So, not only what I was--I can explain how that
    misunderstanding came up because that is--I know there was a
    news story about that, and that is just not correct impression
    of my views. My views have been consistently why was it one of
    the greatest moments? It was one of the greatest moments
    because of the political pressures of the time. The Court stood
    up for judicial independence in a moment of national crisis.
        The Supreme Court, we need the Supreme Court to decide the
    things we can foresee. But one of the things that is really
    important for the Supreme Court, we are going to have crisis
    moments at the Supreme Court on things we cannot even predict,
    and we need people on the Supreme Court who are prepared for
    that. And U.S. v. Nixon----
        Senator Feinstein. My time is going to run out very
    quickly. Let me just ask you this. Can a sitting President be
    required to respond to a subpoena?
        Judge Kavanaugh. So that is a hypothetical question about
    what would be an elaboration or a difference from U.S. v.
    Nixon's precise holding. And I think going with the Justice
    Ginsburg principle, which is really not the Justice Ginsburg
    alone principle, it is everyone's principle on the current
    Supreme Court. And as a matter of the canons of judicial
    independence, I cannot give you an answer on that hypothetical
    question.
        Senator Feinstein. So you cannot give me an answer on
    whether a President has to respond to a subpoena from a court
    of law?
        Judge Kavanaugh. My understanding is that you are asking me
    to give my view on a potential hypothetical, and that is
    something that every--each of the eight Justices currently
    sitting on the Supreme Court when they were sitting in my seat
    declined to decide potential hypothetical cases.
        I can tell you about the U.S. v. Nixon precedent, and I did
    about Chief Justice Burger's role in forging a unanimous
    opinion, and really all the Justices worked together on that.
    But Chief Justice Burger, who had been appointed by President
    Nixon--been appointed by President Nixon, writes the opinion in
    U.S. v. Nixon, 8-to-0. Rehnquist was recused--8-to-0, ordering
    President Nixon to disclose the tapes in response to a criminal
    trial subpoena.
        A moment of crisis argument, I think July 8, 1974. They
    decided 2 weeks later. A really important opinion. A moment of
    judicial independence. Important precedent of the Supreme
    Court. But how that would apply to other hypotheticals, I best,
    as a sitting judge and as a nominee, follow the precedent of
    the nominees who have been here before and as a matter of
    judicial independence not give you a precise answer on a
    hypothetical that could come before me.
        Senator Feinstein. I understand. Thank you very much for
    being forthcoming. I appreciate it.
        Judge Kavanaugh. Thank you, Senator.
        Senator Feinstein. Thank you, Mr. Chairman.
        Chairman Grassley. I assume you want to reserve your 3
    minutes?
        Senator Feinstein. Can I do that?
        Chairman Grassley. Yes.
        Senator Feinstein. I will.
        Chairman Grassley. Senator Hatch.
        Senator Hatch. Well, thank you, Mr. Chairman. Before I
    begin, I would like to enter into the record three letters and
    an op-ed supporting Judge Kavanaugh's confirmation. The first
    letter, which I mentioned yesterday in my opening statement, is
    a letter from 41 attorneys who are members of the Supreme Court
    Bar. The signers include people like Lisa Blatt, Deanne
    Maynard, and Kathleen Sullivan. As the letter notes, the
    signers ``hold a broad range of political, policy, and
    jurisprudential views,'' but they ``speak as one in supporting
    Judge Kavanaugh's nomination.'' The letter's authors write,
    ``Based on our experience with Judge Kavanaugh and his work
    over 12 years of distinguished judicial service, we are
    confident that he possesses the character, temperament, and
    intellect that will make him an asset to our Nation's highest
    court.''
        Now, the second letter is from Carolyn Williams, a partner
    at the venerable DC law firm, Williams & Connolly, who served
    on the ABA Standing Committee on the Federal judiciary. She
    writes that she has followed Judge Kavanaugh's legal career
    since 1990 when she was the hiring partner at the firm and he
    was a law student. Ms. Williams says, that Judge Kavanaugh
    ``has all the qualities litigants and lawyers hope to find in a
    Supreme Court Justice: superb intellect and legal acumen,
    fundamental fairness and decency, abiding respect for precedent
    and the rule of law.''
        And I also want to enter into the record a letter--a letter
    and op-ed by Jay Lefkowitz. The op-ed appeared in National
    Review and is entitled, ``Brett Kavanaugh is a Mensch.'' In it,
    Mr. Lefkowitz writes that Judge Kavanaugh ``has a strong
    commitment to protecting Americans' freedom of religion, no
    matter what their faith.'' And Mr. Lefkowitz should know. He
    and Judge Kavanaugh worked together in private practice on a
    pro bono religious freedom case representing a Jewish synagogue
    in Maryland, and they won the case, vindicating the right of
    the congregation to build a place of worship in their
    neighborhood.
        [The information appears as a submission for the record.]
        Senator Hatch. Now, let me just begin with this. Before I
    begin, Judge, I would like to ask you to keep your answers to
    my questions as concise as you can so I can get through as many
    of them as time allows. Some of my colleagues have suggested
    that President Trump nominated you because he thought you would
    rule in his favor should certain issues come before the Court.
    Suppose you had a case involving President Trump or an issue
    near and dear to the President, what assurances can you provide
    that you will not allow the President's personal views on a
    case or personal interest to impact your decision?
        Judge Kavanaugh. Senator, I am independent judge. For 12
    years I have been deciding cases based on the law and the
    precedent in each case. If confirmed to the Supreme Court, that
    is how I will do it as well, be part of a Team of Nine. I will
    decide cases based on the Constitution, the law, the precedents
    of the Supreme Court working with that, the other eight
    Justices, without fear or favor, independently, without
    pressure from any quarter. And the person who has the best
    arguments on the law and the precedent is the person who will
    win in--with me.
        Senator Hatch. Well, thank you. If at the end of the
    process--of this process you are confirmed to the Supreme
    Court, which I expect you will be, what sort of loyalty will
    you owe to the--to the President? How will that loyalty differ
    from the loyalty you owe to, say, the American people?
        Judge Kavanaugh. Senator, if confirmed to the Supreme Court
    and as a sitting judge, I owe my loyalty to the Constitution.
    That is what I owe loyalty to, and the Constitution establishes
    me as an independent judge, bound to follow the law as written,
    the precedents of the Supreme Court as articulated, subject to
    the rules of stare decisis. And I would do so.
        Senator Hatch. Okay. You were appointed to the D.C. Circuit
    by George W. Bush. I think it is fair to say you were close to
    President Bush. You worked for him for a number of years. Can
    you give us some examples of cases in which you ruled against
    the Bush administration, notwithstanding that President Bush
    was the one who put you on the bench?
        Judge Kavanaugh. Senator, the prominent example is the
    Hamdan case.
        Senator Hatch. Yes.
        Judge Kavanaugh. That was the military commissions case.
    That was a signature prosecution of the Bush administration.
    They had established, with congressional authorization
    eventually after a unilateral effort did not succeed in the
    courts, established military commissions. The military
    commissions were to try al-Qaeda terrorists who had committed
    war crimes. And one case came to us, Salim Hamdan, and the
    question was, was the prosecution unlawful because the crime of
    which he convicted was not an identified crime as of 2001 when
    he was alleged to have committed it, ex post facto principles.
    And I wrote the opinion reversing his conviction, even though
    it was a signature prosecution of the United States, even
    though it was a national security case, because that was the
    right answer under the law. And it does not matter who you are,
    where you come from, if you are right under the law, you
    prevail.
        Senator Hatch. I would like to turn now to your work in the
    Bush administration. As you know, my Democratic colleagues are
    demanding to see every piece of paper or every single scrap of
    paper you ever touched during your 6 years in the Bush
    administration, in part because they want to know what role, if
    any, you played in developing the Bush administration's
    interrogation policies. Well, 6 years ago, Ranking Member
    Feinstein, who was then the Chairman of the Senate Intelligence
    Committee, and a good one at that, issued a lengthy report on
    the CIA's detention and interrogation program under President
    Bush. The report detailed the origins, development, and
    implementation of the program.
        In 2014, a declassified version of that report was released
    to the public. The declassified version or report runs well
    over 500 pages, and your name appears nowhere in it. Now, I
    myself spent over 20 years on the Intelligence Committee. I
    know the quality of its staff and the work that they do, and I
    know the Ranking Member and how diligent she is. If you had
    played a role in the Bush administration's interrogation
    policies, I think the Ranking Member would have discovered it.
    Numerous administration lawyers appear in the report, but not
    you, and that should tell us something.
        With that said, Judge Kavanaugh, I want you--I want to ask
    you for the record, what role, if any, did you play in
    developing or implementing the Bush administration's detention
    and interrogation policies?
        Judge Kavanaugh. Well, the policies that are reflected and
    described in Senator Feinstein's extensive, thorough report
    were very controversial, as you know, Senator, the enhanced
    interrogation techniques.
        Senator Hatch. Right. Right.
        Judge Kavanaugh. And the legal memos that were involved in
    justifying some of those techniques also were very
    controversial when they were disclosed in 2004. And I was not
    involved--I was not read into that program, not involved in
    crafting that program nor crafting the legal justifications for
    that program. In addition to Senator Feinstein's report, the
    Justice Department did a lengthy Office of Professional
    Responsibility report about the legal memos that had been
    involved to justify some of those programs. My name is not in
    that report, Senator, because I was not read into that program
    and not involved.
        There were a number of lawyers, and this came up at my last
    hearing, a number of lawyers who were involved, including a
    couple who were then judicial nominees. At my last hearing, I
    recall Senator Durbin asking about whether I also was likewise
    involved as these other judicial nominees had been, and the
    answer was no, and that answer was accurate, and that answer
    has been shown to be accurate by the Office of Professional
    Responsibility report, by Senator Feinstein's thorough report.
        And I do want to say on Senator Feinstein's report, that is
    a--that is an important piece of work that collected facts
    about a program, that it is important for us to know those
    facts for the future. And I know it was an enormous effort and
    a lot of tough work to get all that information for Senator
    Feinstein and the Intelligence Committee. But I have looked
    through that report and looked through the Office of
    Professional Responsibility report. I was not read into that
    program, Senator. Thank you for--thank you for asking.
        Senator Hatch. Okay. Judge, you have been accused of
    misleading this Committee during your 2006 confirmation hearing
    regarding your role in developing the Bush administration's
    detention policy. Now, you have a strong reputation in the
    legal community for honesty and integrity. Read any one of the
    dozens we received supporting your nomination, and you will see
    that right away. Now, some of my colleagues may not give you
    the opportunity to answer this question fully, so I would like
    to give you the opportunity now. Did you mislead this Committee
    in 2006? If not, what is the source of the confusion about your
    prior testimony?
        Judge Kavanaugh. I told the truth and the whole truth in my
    prior testimony. I was not read into that program. The
    subsequent reports of Senator Feinstein and the Office of
    Professional Responsibility show that. And that is what I did
    then, and that is the answer now. I was not read--I was not
    read into that program.
        Senator Hatch. Okay. As I mentioned in my opening
    statement, 18 of your former women law clerks have written to
    the Committee in support of your nomination. That is all of
    your former women law clerks who were not precluded by their
    current or pending employment from signing the letter. Now,
    these women described the mentoring and encouragement that you
    have given them in their careers, and they say that you are
    ``one of the strongest advocates in the Federal judiciary for
    women lawyers.'' Quite a compliment. A majority of your clerks,
    in fact, have been women.
        Now, I understand that you were the first judge in the
    history of the D.C. Circuit to have an all-female class of
    clerks. Why do you believe it important to encourage young
    women lawyers and to ensure that both men and women are well
    represented in the legal profession?
        Judge Kavanaugh. Senator, I believe in equality, equality
    for all Americans, men and women, also regardless of race,
    ethnicity. My mom was an example, as I described yesterday, of
    breaking barriers, showing me first on racial equality by her
    example of teaching at McKinley Tech. Then when she became a
    lawyer in the late '70s, there were not many women prosecutors
    at the time, definitely male dominated, and how she overcame
    barriers, was a great prosecutor, became a State trial judge in
    Maryland appointed by Democratic Governors.
        She showed me by her example the importance of women's
    equality. During college--you have received a letter from 10
    college friends of mine who are women, women athletes at Yale,
    talked about how I treated them and women's sports with respect
    and as equal even when I was in college. You have a letter from
    84 women I worked with in the Bush administration who talked
    about my efforts to work with them in the tense environment of
    the West Wing, especially after September 11th.
        Senator Hatch. Did you say 84?
        Judge Kavanaugh. Eighty-four women signed a letter who had
    worked in the Bush White House--in the Bush White House and
    worked in that tense environment. But I came to be a judge in
    2006. May 2006. And August 2006, Linda Greenhouse of The New
    York Times runs a story in The New York Times about the
    scarcity of women law clerks at the Supreme Court that year.
    There were seven, I believe, that year out of 37, and she wrote
    a story about that.
        And that seemed to me very odd and unacceptable, and I
    started thinking about what I could do. First of all, why is
    that happening, and what can I do about it. What's the problem,
    and what can I do. So, the problem seemed to me these networks
    that people--judges rely on for clerk hirings. Some professor
    networks were getting--were excluding women, or at least women
    weren't fully represented in those. That is true with
    minorities as well, by the way.
        And so, I made sure when I was talking to professors at law
    schools, I made sure--I wanted to see a broad pool of
    qualified--well-qualified applicants, including women. And in
    that year, for example, fall of 2006, which was my first year
    on the bench--we hire a year ahead, so I am hiring for 2007--I
    hired three women for that clerk class of 2007, three out of
    the four: Zina Bash, Brit Grant, and Porter Wilkinson. Zina is
    right here.
        And that was the start of my efforts to make sure that
    women were not being excluded, and I really worked on why is
    this happening. So, Yale Law women did a study about 5 years
    ago about participation in class, the differences on who gets
    on in class, and there are slight differences there, men and
    women, who then get selected as research assistants, slight
    differences there. And it just keeps building until you get a
    disparity in the clerk network, and there is a pipeline
    problem.
        And I said I am breaking through that problem. I am not--I
    am not listening to that. And so, I have been very aggressive
    about hiring the best and understanding the best include women.
    And as you say, Senator, a majority of my clerks have been
    women, 25. I believe 21 of them have gone on to clerk at the
    Supreme Court, and they are an awesome group. And if confirmed
    to the Supreme Court, I will continue to do this.
        What it takes, and I think--my mom showed me this,
    President Bush showed me this a little. What it takes is just
    not accepting the same old answer, ``Oh, there is a
    disparity.'' Well, why? And then, do something about it. And I
    tried to figure out why, and we can talk about minority clerks,
    too. But on women, why were those disparities existed--existing
    as described by Linda Greenhouse, and I tried to figure out
    why, and then I did something about it.
        I am very proud of that because I do believe that all
    people should be treated equally. And the law clerk position,
    which may sound ministerial, and, to some extent, the job is
    helping the judge, and shortly out of law school. But those
    positions are very important launching pads for the next
    generation of leaders, the people who will be sitting in these
    seats, the people who will be sitting in my seat. Lots of them
    are going to come from law clerks.
        So, if we are not being inclusive now, that will show up
    later, and so, it has just been a critical part. It is
    something I am very focused on at all times is equality in the
    clerkship hiring process and making sure women are getting the
    same opportunities that men are. I appreciate the question,
    Senator.
        Senator Hatch. Well, thank you, and I appreciate the
    answer, and I think everybody in this country should appreciate
    the answer, and I think it distinguishes you. Late last year,
    allegations against the former Ninth Circuit Judge Alex
    Kozinski surfaced when The Washington Post published an article
    detailing disturbing allegations of misconduct by the Judge.
    You clerked for Judge Kozinski for 1 year in 1991-1992. Some of
    your opponents have suggested that you must have known about
    these allegations. This seems to me to be an effort at guilty
    by association, which is not the way this Committee should
    operate in any way.
        With that in mind, I want to give you a chance to answer a
    few questions about Judge Kozinski so that we are all operating
    on the same foundation of facts. First, how long have you known
    Judge Kozinksi?
        Judge Kavanaugh. I clerked for him in 1991-1992, so I
    started the clerkship 27 years ago.
        Senator Hatch. Second, I understand from media reports that
    Judge Kozinski operated an email list where he would send
    inappropriate material. Were you on this email list?
        Judge Kavanaugh. I do not remember anything like that,
    Senator.
        Senator Hatch. How often did you talk with Judge Kozinski
    on the phone?
        Judge Kavanaugh. Not often. Not often, Senator.
        Senator Hatch. How often did you see him in person?
        Judge Kavanaugh. Again, not often. Maybe there was a legal
    convention or----
        Senator Hatch. That is what a lot of people do not seem to
    understand, you know.
        Judge Kavanaugh. I was not working in the court--he was in
    the Pasadena courthouse in California with--a small courthouse
    with 10 other court of appeals judges in that courthouse. I, of
    course, was working in Washington, DC.
        Senator Hatch. When you did see and talk with Judge
    Kozinski, what type of things did you talk about?
        Judge Kavanaugh. We were among the 12 co-authors of the
    Bryan Garner-led book on judicial precedent, so for several
    years that was a project all of us were--the 12 of us, I guess
    it was, in total were working on that: Diane Wood, Chief Judge
    of the Seventh Circuit.
        Senator Hatch. Right.
        Judge Kavanaugh. Justice Gorsuch was also a co-author, so
    we worked on that as a group. And then Justice Kennedy for the
    last 30 years had had Judge Kozinski his--run Justice Kennedy's
    law clerk hiring process, and in that--in the course of that
    process, I would have communications with the Judge.
        Senator Hatch. Okay. Did you know anything about these
    allegations?
        Judge Kavanaugh. Nothing.
        Senator Hatch. Okay. Before they became public last year?
        Judge Kavanaugh. No. When they--when it became public, you
    know, the first thought I had was no woman should be subjected
    to sexual harassment in the workplace ever, including in the
    judiciary, especially in the judiciary. And when I heard, when
    it became public, I think it was in December, it was a gut
    punch. It was a gut punch for me.
        Senator Hatch. It was for me, too.
        Judge Kavanaugh. It was a gut punch for the judiciary, and
    I was shocked and disappointed, angry, swirl of emotions. No
    woman should be subjected to sexual harassment in the
    workplace, and I applaud--Chief Justice Roberts appointed a
    committee of judges to establish better procedures. Chief
    Justice Garland did the same thing for our court, and those are
    first steps. I do not think they are a final steps by any
    stretch. And what--this is part of a much, much larger national
    problem of abuse and harassment, and one of the things we have
    learned is we need better reporting mechanisms.
        Women, particularly in the workplace, need to know if they
    are the victim of harassment where to report it immediately,
    who to report it to. They need to know that they will be safe
    if they report it. They need to have a safe working environment
    and be safe if they report it. They will not be retaliated
    against, and they will be protected if they report it, and that
    is part of the steps, or one of the steps, that is, I think,
    being improved as a result of the working group--or, the
    committee that the Chief Justice has appointed.
        And I am interested in doing everything I can to assist
    those efforts to make those workplaces safe. Again, it is part
    of a broader national problem whether it is priests, or
    teachers, or coaches, or doctors, or business people, or news
    people. There is a lot--there is a lot--it is a broad national
    problem that needs to be addressed, including in the judiciary.
    And I applaud Chief Justice Roberts for doing so.
        Senator Hatch. Okay. I would like to talk to you now about
    the----
        [Disturbance in the hearing room.]
        Senator Hatch. I would like to talk to you now about the
    Chevron doctrine. Now, this is an important judicial doctrine
    that takes its name from the Supreme Court case that created it
    back in the 1980s. In that case, the Supreme Court instructed
    Federal courts to defer an agency's interpretation of the law
    if the law is ``ambiguous.'' Some of your academic writings
    express skepticism about the Chevron doctrine, and concern that
    it allows an administration to impose its policy preference by
    avoiding the political process.
        I can understand why this would be appealing to an
    administration, but I also think it is a threat to the
    separation of powers because it transfers power from Congress
    and the judiciary to the executive branch. That is why I have
    introduced the Separation of Powers Restoration Act to reverse
    the Chevron doctrine. Many Members of this Committee have
    cosponsored this legislation. And as someone who has written
    extensively about the separation of powers, can you tell us why
    the separation of powers is so important, and how it helps to
    protect individual freedom?
        Judge Kavanaugh. The separation of powers protects
    individual liberty because it responds to the concern the
    Framers had that--something Senator Klobuchar said yesterday
    from Federal 47, that the accumulation of all power in one body
    would be the very definition of tyranny. So, Federalist 47
    talks about that, Federalist 69. So, the separation of powers,
    to begin with, protects individual liberty. It does so because
    Congress can pass the laws, but you cannot enforce the laws. A
    separate body has to decide to enforce the laws.
        And then even if the law is enforced, a citizen may say,
    well, I want someone who did not pass the law or enforce it to
    decide whether I violated the law or whether the law is
    constitutional, and that is why we have an independent
    judiciary to guarantee, as an independent matter, our rights
    and liberties. And the three branches, therefore, do separate
    things because it all tilts toward liberty. It is hard to pass
    a law, as you know, in the Congress, and then even if it does
    get passed and affects your liberty, a separate body has to
    decide, usually a U.S. Attorney's office, to enforce the law,
    and that is a separate decision. That helps protect your
    liberty.
        And then even if that happens, you go to a court and you
    say either I did not violate that law as I am accused of doing,
    or that law is ill--unconstitutional, or they are interpreting
    that law in a way that is not consistent with what the law
    said. The court independently decides that. It is not the
    Members of Congress or the Executive deciding that. That is how
    the Constitution's separation of powers tilts toward--toward
    liberty in all its respects.
        Now, as to your specific question, Senator, one of the
    things I have seen in my experience in the executive branch and
    in the judicial branch is a natural tendency, but it is a
    natural tendency that judges need to be aware and then respond
    to. So, here is the natural tendency. Congress passes laws, but
    then does not have--cannot update the law. So, maybe it is an
    environmental law, or maybe it is some kind of law dealing with
    national security. Let us take those two examples to
    illustrate.
        And then an executive branch agency wants to do some new
    policy and proposes a new policy to Congress, but Congress does
    not pass the new policy. What often happens, or too often I
    have seen, is that the executive branch then relies on the old
    law as a source of authority to do this new thing, and they try
    to say, well, the old law is ambiguous, so we can fit this new
    policy into the old law as justification for doing this new
    thing. And I have seen this in national security cases. I have
    seen it in environmental cases. You see it all over the place.
    It is a natural phenomenon because the executive branch wants
    to--wants to implement what it thinks is good policy.
        Now, when those cases come to court, it is our job to
    figure out whether the executive branch has acted within the
    authority given to it by Congress. Have you given them the
    authority? And my administrative law jurisprudence is rooted in
    respect for Congress. Have you passed the law to give the
    authority? I have heard it said that I am a skeptic of
    regulation. I am not a skeptic of regulation at all. I am a
    skeptic of unauthorized regulation, of illegal regulation, of
    regulation that is outside the bounds of what the laws passed
    by Congress have said. And that is what is at the root of our
    administrative law jurisprudence.
        Senator Hatch. Okay. One of the--one of the most important
    qualities I look for in a judicial nominee is the ability to
    impartially interpret the law and apply it to the case before
    the court. Now, this can often be the most difficult part of a
    judge's job because it may require the judge to rule against a
    litigant that may be sympathetic or against a policy that the
    judge may personally agree with. At Justice Sotomayor's
    confirmation hearings, Senator Schumer commended her for
    ``hewing carefully to the text of statutes, even when doing so
    results in rulings that go against so-called sympathetic
    litigants.''
        Do you believe that it is important for a judge to
    interpret and apply the laws that Congress has actually passed
    rather than seeking to make up or change the law if the judge
    does not like what the Congress has done? And if so, why or why
    not?
        Judge Kavanaugh. I agree completely, Senator. That is at
    the foundation of what I view as the proper judicial
    philosophy.
        Senator Hatch. Okay.
        Judge Kavanaugh. The separation of powers system you
    described, we have to stick to the laws passed by Congress. You
    make the policy. We will follow the policy direction that you
    put into the laws that are enacted, passed by the House and
    Senate, signed by the President. We do not rewrite those laws.
    The executive branch also should not be rewriting those laws
    beyond the scope of the authority granted.
        Senator Hatch. Okay. Some of my colleagues have criticized
    you for purportedly ruling too often against environmental
    interests. It seems to me that many of these circumstances boil
    down to the fact that some of my colleagues do not like the
    environmental laws Congress has actually passed, and are
    frustrated that they have not been able to get their own
    preferred environmental policies signed into law. Now, I have
    looked through your record, and I found that you have not
    hesitated at all to uphold environmental regulations when they
    were actually authorized by statute. Could you give us a few
    examples of cases where you have upheld environmental
    regulations because you concluded that Congress had authorized
    them?
        Chairman Grassley. Limit it to as many--few as you can. His
    time has run out.
        [Laughter.]
        Judge Kavanaugh. Senator, as I said yesterday, I am a pro-
    law judge, and in environmental cases, on some cases I have
    ruled against environmentalists' interests, and in many cases I
    have ruled for environmentalists' interest. And they are big
    cases, cases like the American Trucking Associations case where
    I upheld the California renegotiating for majority over a
    dissent; stricter air quality standards in the National
    Association of Manufacturers case; EPA rules for particulate
    matter in the UARG case; permanent process applicable to
    surface coal mining in the National Mining Association case;
    the Murray Energy case rejecting a premature challenge to a
    Clean Power Plant regulation; the National Resources Defense
    Council case versus EPA, ruling for environmentalist groups in
    a case--that was a big money case where the industry wanted an
    affirmative defense to be created for accidental emissions. The
    affirmative defense was not in the statutes passed by Congress.
    The industry came in with their lawyers and said, well just
    write the affirmative defense into the law, and I wrote the
    opinion saying, no, it is not in the law, and, yes, that might
    be a problem for industry, but we follow the law regardless.
        And so, there are a large number of cases where I have
    ruled in favor of environmentalists' interests because that is
    what the law required in that case.
        Senator Hatch. Thank you, Judge. I appreciate it.
        Judge Kavanaugh. Thank you, Senator.
        Chairman Grassley. Senator Leahy.
        Senator Leahy. Thank you, Mr. Chairman, and good morning,
    Judge.
        Judge Kavanaugh. Thank you, Senator.
        Senator Leahy. You and your family. We have a lot of
    questions, and I know you have done a lot of preparation with
    some--a couple of our distinguished Republican colleagues about
    the questions you might be asked. But let me ask you something
    that normally is not an issue during Supreme Court hearings.
    You testified before this Committee in both 2004 and 2006 as
    part of your nomination to the D.C. Circuit Court. Then, you
    were nice enough to come by my office and chat with me last
    month. And I asked you if you would change anything in your
    prior testimony, and you said, no. Is that still your position?
        Judge Kavanaugh. It is, Senator. I told the truth. I was
    not read into the programs----
        Senator Leahy. No, no, I am not asking about whether you
    did or not. I just asked if you would change anything in your--
    --
        Judge Kavanaugh. Well, I would like to explain if I can.
        Senator Leahy. I am going to give you a chance, but I am
    going to ask you a couple of questions. Go ahead.
        Judge Kavanaugh. Well, I just wanted to explain that at the
    last hearing in 2006 in particular, you were concerned,
    understandably, because there had been two judicial nominees
    who had been involved in the legal memos and the legal
    discussions around crafting the enhanced interrogation
    techniques and detention policies. You were concerned whether I
    also was involved in those, and I made clear in response to
    those questions that I was not read into that program. That was
    a hundred percent accurate. It is still accurate today. I think
    Senator Feinstein's report and the Office of Professional
    Responsibility report established that I was not involved in
    those programs.
        Now, there were two judicial nominees----
        Senator Leahy. Okay. I am going to go into that in a little
    bit. I do not want to go over my time as the preceding Senator
    did. I want to be--stay with----
        Judge Kavanaugh. I just want to--Senator, I just want to be
    clear--I want to reassure you----
        Senator Leahy. I am going to go--I am going to go into it.
    I am going to give you a chance to speak a lot more.
        Chairman Grassley. Without taking----
        Senator Leahy. Well, let me--let me ask----
        Chairman Grassley. I am not going to take time away from
    you, but I want to explain something. I said yesterday that if
    a question is asked within the 30 minutes, that he can finish
    the question and it can be answered. So, I--he did not go over
    his time.
        Senator Leahy. Sorry, I did not mean to hit a sensitive
    area.
        [Laughter.]
        Senator Leahy. Let me ask you this. Between 2001--I am new
    here.
        [Laughter.]
        Senator Leahy. Between 2001 and 2003, two Republican
    staffers on this Committee regularly hacked into the private
    computer files of six Democratic Senators, including mine.
    These Republican staffers stole 4,670 files, and they used them
    to assist in getting President Bush's most controversial
    judicial nominees confirmed. Now, the theft by these Republican
    staffers became public in late 2003 when the Wall Street
    Journal happened to print some of the stolen materials. The
    ringleader behind this massive theft was a Republican staffer
    named Manny Miranda, who had worked for one of the Members of
    this Committee. In a way, it was considered by many, both
    Republicans and Democrats, as a digital Watergate, a theft not
    unlike what the Russians did in hacking the DNC.
        Now, during all this, you worked hand-in-hand in the White
    House with Manny Miranda to advance these same nominees where
    he was stealing material. Not surprisingly, you were asked
    extensively about your knowledge of this theft during both your
    2004, 2006 hearings, and I do not use the word ``extensively''
    lightly. You were asked over 100 questions from six Senators,
    both Republicans and Democrats. And you testified, and you
    testified repeatedly, that you never received any stolen
    materials, you knew nothing about it until it was public. You
    testified that if you had suspected anything untoward, you
    would have reported it to the White House Counsel, who would
    have raised it with Senator Hatch, especially as Mr. Miranda
    had worked for him.
        Now, at the time we left it there. We did not know any
    better. Today, with the very limited amount of your White House
    record that has been provided to this Committee, and it is
    limited, for the first time we have been able to learn about
    your relationship with Mr. Miranda and your knowledge of these
    events. So, my question is this: Did Mr. Miranda ever provide
    you with highly specific information regarding what I, or other
    Democratic Senators, were planning on asking certain judicial
    nominees?
        Judge Kavanaugh. Senator, well, let me contextualize
    because I am looking at what you are putting up here first.
        Senator Leahy. The question----
        Judge Kavanaugh. That--what is up there is a hundred
    percent accurate. As my memory.
        Senator Leahy. Okay. So, let me ask you this. That is----
        Judge Kavanaugh. ``Never knew or suspected,'' true. ``Never
    suspected anything untoward,'' true. ``Had I suspected
    something untoward, I would have talked to Judge Gonzales''----
        Senator Leahy. And I have already----
        Judge Kavanaugh. ``I would have talked to Senator Hatch.''
    That is all a hundred percent true.
        Senator Leahy. And that is what I had already said. But,
    did Mr. Miranda ever provide you with highly specific
    information regarding what I, or other Democratic Senators,
    were planning in the future to ask certain judicial nominees?
        Judge Kavanaugh. Well, one of the things we would do as a
    White House is, on judicial nominations--and I am coming to
    your answer, but I want to explain--is to meet up here, and
    this happens on both sides all the time, with teams up here
    about, okay, their judicial nominations: our judicial nominees
    are coming up, how are we going to get them through, here's a
    hearing coming up. And during those meetings, of course, it
    would be discussed, well, I think here is what Senator Leahy is
    going to be interested in. That is very common. I am sure in
    President Obama's administration when they had similar
    meetings, they would probably have meetings and say, well, I
    think this is what Senator Graham will be interested in. That
    is what you do in meetings with--so, ``highly specific'' would,
    I think--I am not sure what you are getting at by ``highly
    specific.''
        Senator Leahy. Judge, I have been here over 40 years. I
    know--I know what both Republicans and Democratic
    administrations do in preparing. I am not asking about that. I
    am asking you why, before this, did Mr. Miranda send you an
    email asking you, on July 19th, 2002, asking you and another
    Bush official why the Leahy people were looking into financial
    ties between two special interest groups and Priscilla Owen, a
    particular, controversial nominee to the Fifth Circuit. You had
    handled the Owen nomination. As you know, as a judge she had
    received a lot of contributions. Did Mr. Miranda send you an
    email asking you why the Leahy people were looking into her
    financial ties?
        Judge Kavanaugh. Is that what this email is?
        Senator Leahy. I am just asking you.
        Judge Kavanaugh. Could I take a minute to read it?
        Senator Leahy. Of course.
        Judge Kavanaugh. Okay.
        Senator Leahy. And this says it was 4 days before her
    hearing on July 23rd.
        [Brief pause.]
        Judge Kavanaugh. Did I send any of the emails on this
    chain? I do not think so. I think I am cc'd. In any event, if
    he said why are the Leahy people looking into this--from Manny
    Miranda--I do not really have a specific recollection of any
    this, Senator, but it would have been--it would not have been
    at all unusual for--and this happens all the time I think,
    which is, the Leahy people are looking into this, and the Hatch
    people are looking into that, I think.
        Senator Leahy. You say, ``all the time.'' Two days before
    the hearing, he told you that the Democrats were passing around
    a related ``60 Minutes'' story, and he said his ``intel--
    intelligence suggests that Leahy will focus on all things
    money.'' Well, that appears to come from a stolen email to me--
    stolen by the Republican staff member, sent to me the night
    before, and then given to you the next morning. Were you aware
    that you were getting, from Mr. Miranda, stolen emails?
        Judge Kavanaugh. Not at all, Senator. It was part of what
    appeared to be standard discussion about--it is common,
    Senator, for--at the White House, it would be common to hear
    from our Leg Affairs team. This is, in fact, in this process,
    that is common to hear, ``This is what Senator X is interested
    in.'' ``This is what Senator Y is going to focus''----
        Senator Leahy. Was it common to have copies of a private
    email sent to a particular Senator?
        Judge Kavanaugh. Copies of a private email sent to a
    particular Senator?
        Senator Leahy. Yes. Would that not jump out at you? For
    example----
        Judge Kavanaugh. What are you referring to?
        Senator Leahy. Well, Mr. Miranda is telling you about
    emails sent to me the night before. There would be no way that
    he would even have that unless he stole it. Did that raise any
    question in your mind?
        Judge Kavanaugh. Did he refer to that email in this?
        Senator Leahy. Yes.
        Judge Kavanaugh. Where is that, Senator?
        Senator Leahy. I will let you read it.
        Judge Kavanaugh. Well, I am not seeing where you are--I am
    not seeing what you are referring to.
        Senator Leahy. Okay. Well, let me take you to one that you
    do have because you have this information from Mr. Miranda. And
    the very limited amount of material that the Republicans are
    allowing us to see of your information about you, that at least
    did come through. But in January 2003, let me go to something
    very specific. Mr. Miranda forwarded you a letter from me and
    other Judiciary Democrats to then-Majority Leader Tom Daschle.
    The letter was clearly a draft. It had typos and it was not
    signed. Somebody eventually--we never put it out, but somebody
    eventually leaked the existence of it to Fox News. I am not
    sure who. I could guess. It was a private letter. At the time,
    I was shocked to learn of its existence had been leaked.
        But here is the thing. You had the full text of my letter
    in your inbox before anything had been said about it publicly.
    Did you find it at all unusual to receive a draft letter from
    Democratic Senators to each other before any mention of it was
    made public?
        Judge Kavanaugh. Well, the only thing I said on the email
    exchange, if I am looking at it correctly, Senator, was ``Who
    signed this,'' which would imply that I thought it was a signed
    letter.
        Senator Leahy. It was sent to you. Were you surprised to
    get it? I mean, it is obviously a draft. It has got typos and
    everything in it. Were you surprised the draft letter
    circulated among Democrats ended up in your inbox from Mr.
    Miranda?
        Judge Kavanaugh. But I think the premise of your question
    is not accurately describing my apparent recollection or
    understanding of it at the time because I would not have said,
    ``Who signed this'' if it was a--if I thought it was a draft,
    and my email says, ``Who signed this.''
        Senator Leahy. So, you did not realize what you had was a
    stolen letter signed by--signed by me, that you had a letter
    that had not been sent to anybody, had not been made public?
        Judge Kavanaugh. Well, all I see that I said was, ``Who
    signed this.'' That is all I see.
        Senator Leahy. Well, let me ask you some more because so
    much of this came from Mr. Miranda, who was a Republican
    staffer who was, as we now know, stealing things. Did he ever
    ask to meet privately with you in an offsite location somewhere
    other than the White House or Capitol Hill?
        Judge Kavanaugh. I think sometimes, Senator, that the
    meetings with Senate staffers and White House and Justice
    Department----
        Senator Leahy. I am just asking you about one particular
    one, Mr. Miranda.
        Judge Kavanaugh. Yes, sometimes--usually it would be either
    at the White House or the Senate, but I think sometimes we
    would meet--or DOJ, but sometimes it could be somewhere else.
        Senator Leahy. Well, did he ask to meet with you privately
    so he could give you information about Senator Biden and
    Senator Feinstein?
        Judge Kavanaugh. I am not remembering anything specific,
    that is certainly possible. And, again, Senator, I just want to
    be clear here because it is very common when you are in the
    judicial selection process to determine what are all the
    Senators interested in for an upcoming nominee or an upcoming
    hearing. That is the coin of the realm. Senator X is interested
    in focusing on administrative law. Senator Y is going to ask
    about environmental law. Senator is concerned about your past
    work for this client. And that is a very common kind of
    discussion.
        Senator Leahy. Did he ever ask to have you meet him not at
    the White House, not in the--at the Capitol, but at his home?
        Judge Kavanaugh. I do not remember that.
        Senator Leahy. Okay. Did he ever ask you to meet you
    outside of the White House or the Capitol?
        Judge Kavanaugh. I cannot rule that out, but, again, that
    would not have been typical.
        Senator Leahy. Did he--did he ever hand you material
    separately from what would be emailed back and forth?
        Judge Kavanaugh. Not remembering--if you are referring to
    something in particular, I can answer that.
        Senator Leahy. Well, let me ask you this. Did you ever
    receive information via Mr. Miranda of information marked,
    ``Confidential'' that informed you, or my staff was sharing
    with, other Democrats?
        Judge Kavanaugh. I do not know the answer to that, Senator,
    but, again, people on the--it is not always the case, at least
    my understanding, that the--that the people--for example, your
    staff and Senator Hatch's staff were necessarily working at
    odds. It seemed like a lot of times the staff was cooperating
    at times, not at other times, obviously, but at times about
    judicial nominations. And so, it would not have raised anything
    in particular in my mind if we learned, oh, Senator Leahy is
    concerned about this.
        Senator Leahy. Did my staff ever send you confidential
    material from Senator Hatch that was stolen from his emails?
        Judge Kavanaugh. Not the last part, but the--I certainly
    did talk to your when we working on the airline bill--on the
    September 20th, 2001 airline bill. I do remember being here all
    night one night with your staff, and I am sure we did talk that
    night about what other Senators thought. And that was the
    airline bill where, as I think you recall, Speaker Hastert was
    involved, and we were up there with the OMB team. So, and
    that--I worked hard with your staff on that.
        It just struck me as very--as not uncommon at all to be
    talking with our leg team about what Senators on both sides
    thing. I did not strike me that it was always armed camps.
        Senator Leahy. But, no, and oftentimes it was not. But here
    you are getting obviously very private Democratic emails. You
    were not concerned how Mr. Miranda got them?
        Judge Kavanaugh. Well, I guess I am not sure about your
    premise.
        Senator Leahy. Were you at all concerned about----
        Judge Kavanaugh. The draft----
        Senator Leahy [continuing]. Where Mr. Miranda got some of
    the material he was showing you?
        Judge Kavanaugh. I do not recall that, but on the premise
    of your last question, I want to--I want to step back to that.
    I am not sure I agree with the premise.
        Senator Leahy. I was just saying, if you are getting
    something that is marked ``Confidential,'' would you not assume
    that is not something being shared back and forth?
        Judge Kavanaugh. Unless it was shared. I mean, this is the
    thing, if a staffer said here is what we are sending to--you
    all should be aware of this because we are going to make a--we
    are going to be really opposed to this judicial nominee. It
    seemed--so, just to be clear, it seemed to me sometimes there
    were judicial nominees you were very opposed to, sometimes you
    were supportive of, sometimes in between, and there would be
    messages passed back and forth and sharing of information. Very
    cooperative, as I recall.
        Senator Leahy. Well, I----
        Judge Kavanaugh. You were transparent, in other words. When
    you are--when you had problems with a nominee's, I recall,
    transparency, and when you were supportive. You were at the May
    9th, 2001 event at the White House, I recall, where the
    President announced his first 11 court of appeals nominees, and
    you were supportive of many of them.
        Senator Leahy. Well, as you know--you know, it is a fact I
    voted for a lot of Republican nominees.
        Judge Kavanaugh. Yes.
        Senator Leahy. Both to the Supreme Court, the courts of
    appeals--and the district court.
        Judge Kavanaugh. Yes.
        Senator Leahy. But when I have opposed one, like with Judge
    Owen, when I was raising some varied questions about funding
    that she was getting from people that were before her court,
    that might have raised a red flag that I had some concerns
    about her. Now, when you worked at the White House, did anyone
    ever tell you they had a mole that provided them with secret
    information related to nominations?
        Judge Kavanaugh. I do not recall the reference to a mole,
    which sounds highly specific, but certainly it is common--
    again, the people behind you can probably refer to this. But it
    is common, I think, for everyone to talk each other at times
    and share information. At least this was my experience--this is
    20 years ago almost--where you would talk to people on the
    Committee.
        Senator Leahy. So, you never received an email from a
    Republican staff member with information claiming to come from
    spying, a Democratic mole?
        Judge Kavanaugh. I do not--I am not going to rule anything
    out, Senator, but if I did, I would not have thought that--I
    would not have thought the literal meaning of that.
        Senator Leahy. Would it have surprised you that--if you got
    an email saying you got that from somebody spying on the
    Democratic----
        Judge Kavanaugh. Well, is there such an email, Senator?
        Senator Leahy. Well, we would have to ask the Chairman what
    he has in his confidential material.
        Judge Kavanaugh. But here is the--if you are referring to
    something particular. Here is what I know.
        Chairman Grassley. Just stop a minute here. Reference twice
    in your 30 minutes, and do not take this off of his time, you
    made reference--you made reference. You are talking about the
    period of time that he was White House Counsel.
        Senator Leahy. Yes.
        Chairman Grassley. That material is available to everybody.
        Senator Leahy. So, that bit of material about him that is
    marked ``committee confidential'' is now public and available?
    Is that what you are saying? If that is what the Chairman is
    saying, we got a whole new series of questions.
        Chairman Grassley. No, not if it----
        [Laughter.]
        Chairman Grassley. Not if it is ``committee confidential.''
    But you have access to it.
        Senator Leahy. Not, so I----
        Chairman Grassley. But do not forget, 80 percent of the
    material we have gotten from the library is on the website of
    the Judiciary Committee, so the public has access to it.
    Proceed.
        Senator Leahy. I want--I want Judge Kavanaugh to have
    access so that we can ask him these questions under oath and he
    can see them. So, I would ask the--and we will have another
    round, but I would ask the Chairman if he might look at some of
    these that are marked ``committee confidential,'' which limits
    the ability of us to ask you specifically and hand you the
    specific emails. But I would state on what has been public----
        Chairman Grassley. Let me answer that for you. There is
    only one Democratic Senator asked for access to that. Senator
    Klobuchar got it. If you are interested in it, you could have
    been asking ever since August the 25th, I believe.
        Senator Leahy. We have been asking to have that--those made
    public. I do not--I am not interested--if I see this in a
    closed room where I cannot talk about it. I want Judge
    Kavanaugh to see the emails which came from Mr. Miranda and----
        Chairman Grassley. Give us a citation of the documents, and
    we will get them for you.
        Judge Kavanaugh. That testimony up there is true, a hundred
    percent.
        Senator Feinstein. Can somebody read it? I cannot see it.
        Senator Leahy. Well, of course, it would be helpful if we
    allowed the National Archives time to complete their review.
        Judge Kavanaugh. But I just want to reassure you, Senator,
    because you are asking important questions. I want to reassure
    that what you have got up on the board is a hundred percent
    accurate.
        Senator Feinstein. Can somebody move it so we can see it
    here?
        Senator Leahy. Well, I am concerned because there is
    evidence that Mr. Miranda provided you with materials that were
    stolen from me, and that would contradict your prior testimony.
    It is also clear from public emails, and I am restraining from
    not going into the non-public ones, that you have reason to
    believe materials were obtained inappropriately at the time.
        Now, Mr. Chairman, there are least six documents that you
    consider committee confidential that are directly related to
    this. Just like the three documents I shared that are already
    public, these other six contain no personal information, no
    Presidential records, restrictive material. There is simply no
    reason they cannot be made public. I hope they will be before
    this next round. You know, it is difficult when to ask a
    question, I have to ask Republicans, will you allow me to ask a
    question. I certainly never did that when I was Chairman.
        Now, I asked you in 2006 whether you had seen any documents
    related to President Bush's NSA warrantless wiretapping
    program, or whether you had heard anything about it. You
    answered you learned about it with the rest of us in December
    2005 when The New York Times reported it. Now, I know it has
    been 12 years, so here is the video of your sworn testimony. It
    should be on the TV screens.
        [Video is shown.]
        Senator Cornyn. Mr. Chairman, can I----
        Chairman Grassley. Can I--again, do not take this time away
    from him. Now, as far as I know in 15 hearings, so I am going
    to read something in just a minute, but preface it with this.
    As far as I know, in 15 hearings that I have been involved in
    of Supreme Court Justices, there has never been such a video
    shown. So, this is precedential, I want to read this: ``The use
    of a video at a confirmation is highly irregular, but I see no
    reason my colleagues cannot use a video that was provided by
    the nominee himself in response to the Senate questionnaire.''
    I have been assured that the video is from Judge Kavanaugh's
    submission to the Committee. Based on this assurance, we have
    allowed this video to be shown.
        But I want to emphasize that I expect that video to be used
    fairly. The video clip should not be presented in a way that
    deprives it of relevant context. This is consistent with
    requirements in Federal court. That is why I will insist that
    Judge Kavanaugh have the opportunity before he answers this
    question to request if any additional video be played, if it
    provided appropriate context. So, Judge Kavanaugh, I would ask
    you, do you believe that more context is needed to be able to
    address the question?
        Judge Kavanaugh. Well, I do not think I have heard the
    question yet, but I will let you know when I hear the question.
        Senator Leahy. Let me--let me ask you this. I will repeat
    the question asked before. You said that you heard about this
    with the rest of us in December 2005. You said, on there, that
    you had no knowledge of anything related to this until The New
    York Times article. Now we have a declassified Inspector
    General report that, on September 17th, which was before the--
    several months before The New York Times article, John Yoo
    issued a memo on surveillance of the White House that helped
    form the legal underpinnings of the NSA warrantless wiretapping
    program.
        When you were in the White House in 2001, did you ever work
    with John Yoo on the constitutional implications of a
    warrantless surveillance program?
        Judge Kavanaugh. We are talking about a lot of different
    things, Senator, here.
        Senator Leahy. Warrantless surveillance program.
        Judge Kavanaugh. That is talking about a lot of different
    things. So, what you were asking about right there was the
    specific--what President Bush called the terrorist surveillance
    program. That was his name for it.
        Senator Leahy. Which is a warrantless surveillance program.
        Judge Kavanaugh. Along with many others, and that is--you
    were asking me about the terrorist surveillance program, TSP, I
    think he called it. That story was broken. That testimony is a
    hundred percent accurate. That story was broken in The New York
    Times. I had not been read into that program, and when it came
    in The New York Times, I actually still remember my exact
    reaction when I read that story. And then the President, that
    Saturday, I believe, did a live radio address to explain to the
    country what that program was about. There was a huge
    controversy, and so, everyone was then working on getting the
    speech together. And you asked me if I learned about it before
    then. I said ``no,'' and that is accurate.
        Senator Leahy. Okay. When you were in the White House, did
    you ever work with John Yoo on the constitutional implications
    of any warrantless surveillance program?
        Judge Kavanaugh. Well, I cannot rule that--right in the
    wake of September 11th, it was all hands on deck on all fronts,
    and then we were--we were farming out assignments, but we were
    all involved. On September 12th when we came in--let us just
    back up. On September 12th when we came into the White House,
    it was--you know, we have to work on everything. And so, then
    over time people figured out what issues they were going to
    work on. You know, the airline bill that I was up here on
    September 20th when President Bush spoke to Congress that
    night, as you recall. And then after that, we were in the
    meeting room together, you and I and others, working on the
    airline bill, but there were all sorts of other things going
    on. The Patriot Act was going on.
        Senator Leahy. I was involved with all of those----
        Judge Kavanaugh. Yes, I know----
        Senator Leahy [continuing]. And I remember the discussions.
    But what I want to know, did you ever raise questions about
    warrantless surveillance?
        Judge Kavanaugh. I cannot rule anything out like that.
    There was so much going on in the wake of September 11th,
    Senator, as you recall, up here, too, but in the White House,
    in particular, and in the Counsel's Office, in particular. We
    had eight lawyers in there. Eight or nine as I recall. And
    there were so many issues to consider for the President and for
    the legal team, and those issues--like I said, for President
    Bush, every day for the next 7 years was September 12th, 2001.
    You know, for the legal team there was a lot----
        Senator Leahy. For a lot of us it was.
        Judge Kavanaugh. Yes.
        Senator Leahy. Mr. Chairman, I sent a letter, along with
    Senators Feinstein and Durbin, August 16th of this year, asking
    we make documents related to this issue public. Without them
    being public, it is not fair to me and it is not fair to Judge
    Kavanaugh that I cannot hand him the actual documents, which I
    think would refresh his memory. And I would ask again, you
    might look at that before my next turn, can we make those
    public?
        Chairman Grassley. You tell us what documents you want, and
    I will make them available to you, but I cannot say that they
    can be made public. Just as I said last year during Justice
    Gorsuch's confirmation, I put a process in place that will
    allow my colleagues to obtain the public release of
    confidential documents for use during the hearing. All I ask
    was my colleagues to identify the documents they intended to
    use, and I would work to get the Department of Justice and
    former President Bush to agree to waive restrictions on the
    documents.
        Senator Feinstein secured the public release of 19
    documents last year under this process, and Senator Klobuchar
    secured the release of four documents this year. If my
    colleagues truly believe that other committee confidential
    documents should have been made public, they never told me
    about that.
        Senator Leahy. Well----
        Chairman Grassley. So, let us know what you want, and then
    you can--you can go ahead and we will get them for you.
        Senator Leahy. I want the same thing that I requested in
    August--on August 16th because it is directly relevant to Judge
    Kavanaugh's testimony, directly relevant to his--to the
    questions I have been asking here, and directly relevant to his
    own emails with John Yoo. So, I would--before my next turn, if
    we could take a look at that.
        Chairman Grassley. Okay. Well, we will get them for you for
    your next turn tomorrow.
        Senator Leahy. Now, may--you said everyone agrees the
    pardon prerogatives of a President, absolute, unfettered,
    unchecked power to pardon every violator of every Federal law.
    If the President issued a pardon in exchange for a bribe,
    ``yes'' or ``no''?
        Judge Kavanaugh. Senator, I think that question has been
    litigated before, and I do not want to comment about----
        Senator Leahy. Well, let me ask you this.
        Judge Kavanaugh. Scope of the pardon, the scope about--
    there are a couple--there are a couple of things involved in
    that question. One is what is the scope--what is the effect of
    the pardon, and the other question is, can you be separately
    charged with the bribery crime, both the briber and the bribee,
    and those are two distinct questions. You would want to--you
    would want to keep those two questions separate in thinking
    about how the hypothetical----
        Senator Leahy. Well, then in that, the----
        [Gavel is tapped.]
        Senator Leahy. Mr. Chairman, you know, I got interrupted an
    awful lot during my----
        Chairman Grassley. Yes, okay.
        Senator Leahy. I just want to finish this question.
        Chairman Grassley. But I--but I made sure that if the timer
    did not treat--well, give him another minute.
        [Laughter.]
        Senator Leahy. Thank you. God bless you. I will be forever
    thankful.
        [Laughter.]
        Senator Leahy. President Trump claims he has an absolute
    right to pardon himself. Does he?
        Judge Kavanaugh. The question of self-pardons is something
    I have never analyzed. It is a question that I have not written
    about. It is a question, therefore, that is a hypothetical
    question that I cannot begin to answer in this context as a
    sitting judge and as a nominee to the Supreme Court.
        Senator Leahy. And the other half of that is the obvious
    one. Does the President have the ability to pardon somebody in
    exchange for a promise from that person they would not testify
    against him?
        Judge Kavanaugh. Senator, I am not going to answer
    hypothetical questions of that sort, and there is a good reason
    for it. When we get--judges do not--when we decide, we get
    briefs and arguments of the parties. We have a record. We have
    an appendix with all the information. We have amicus briefs and
    then--I never--I never decide anything alone. I am on a panel
    of three, and if I am confirmed to the Supreme Court I would be
    on a Team of Nine.
        Senator Leahy. Thank you, Mr. Chairman. I hope for the sake
    of the country that remains a hypothetical question. Thank you
    very much.
        Chairman Grassley. And since I gave you an extra minute, I
    am not going to let you reserve the 25 seconds.
        [Laughter.]
        Senator Leahy. I am done.
        Chairman Grassley. Senator Graham.
        Senator Graham. Thank you very much.
        July 21, 1993: ``I certainly do not want you to have to lay
    out a test here in the abstract which might determine what your
    vote or your test would be in a case you have yet to see that
    may well come before the Supreme Court.''
        That was wise counsel by Senator Leahy in the Ginsburg
    confirmation.
        Very directly, did you ever knowingly participate in
    stealing anything from Senator Leahy or any other Senator?
        Judge Kavanaugh. No.
        Senator Graham. Did you ever know that you were dealing
    with anything that was stolen property?
        Judge Kavanaugh. No.
        Senator Graham. As to the terrorist surveillance program,
    did you help create this program?
        Judge Kavanaugh. No.
        Senator Graham. Did you give legal advice about it?
        Judge Kavanaugh. No. We are referring to the same program I
    was talking about?
        Senator Graham. Yes, yes. The one that the article was
    about.
        So a bit of a kind of run-through here. You are probably
    going to get 55 votes, I do not know, 54 to 56 or 57. I do not
    know what the number will be. There were 11 undecided Senators
    before the hearing, 3 of them Republicans--I like your
    chances--8 of them are Democrat. You are in play with about
    five or six of them. And I just want you and your family to
    know that in other times someone like you would probably get 90
    votes. I want your daughters to know that what happened
    yesterday is unique to the times that we live in. And I want to
    give you a chance to say some things to the people who have
    attended this hearing.
        I think there is a father of a Parkland student who was
    killed. I think there is a mother of a child who has got
    terrible health care problems. And there are many other people
    here with personal situations.
        What would you like to say to them, if anything, about your
    job as a Supreme Court Justice?
        Judge Kavanaugh. Senator, I understand the real-world
    effects of our decisions. In my job as a judge for the last 12
    years, I have gone out of my way in my opinions and in oral
    arguments, if you listen to oral arguments, to make clear to
    everyone before me that I understand the situation, the
    circumstances, the facts, for example, as I was saying to
    Senator Feinstein earlier, in the Heller II case about the
    facts in DC. And I want to reassure everyone that I base my
    decisions on the law, but I do so with an awareness of the
    facts and an awareness of the real-world consequences, and I
    have not lived in a bubble, and I understand how passionately
    people feel about particular issues, and I understand how
    personally people are affected by issues. And I understand the
    difficulties that people have in America.
        I understand, for example--well, to start, I understand the
    situation of homeless people because I see them on a regular
    basis when I am serving meals and----
        Senator Graham. So tell me about that. What interaction do
    you have with homeless people?
        Judge Kavanaugh. Senator, I regularly serve meals at
    Catholic Charities at 10th and G with Father John Enzler, who
    is the head of Catholic Charities DC, and I have known since I
    was 9 years old when I was an altar boy. He was at Little
    Flower Parish. And what you learn when you are--I said, I am a
    Matthew 25, try to follow the lesson of serving the least
    fortunate among us. You know, when I was hungry, you gave me
    food; thirsty, you gave me drink; stranger and you welcomed me;
    naked and you clothed me; sick and you cared for me; imprisoned
    and you visited me. Six groups that--that is not exclusive, but
    that is a good place to start with your charitable works in
    your private time.
        Senator Graham. So describe the difference between Brett
    Kavanaugh, the man, and Brett Kavanaugh, the Judge.
        Judge Kavanaugh. Well, as a man, I am trying to do what I
    can in community service, as a dad, as a coach, as a volunteer,
    as a teacher, as a husband, and serving meals to the homeless.
    The one thing, Senator, you know, we are all God's children. We
    are all equal. People have gotten there because maybe they have
    a mental illness; maybe they had a terrible family situation;
    maybe they did not have anyone to care for them; maybe they
    lost a job and had no family. But every person you serve a meal
    to is just as good as me, or better, frankly, because they
    have--what they have had to go through on a daily basis just to
    get a meal. And you talk to them. That is the other thing. When
    you are walking by the street, you see people--and I
    understand--I am sure I have done this. I am not--I do not want
    to sound better than someone in describing this, but you do not
    necessarily look and you do not say, ``How is it going? '' But
    when you serve meals to them, you talk to people who are
    homeless, and they are just as human and just as good a people
    as all of us. You know, we are all part of one community, and
    so I think about that. You know, I do not want to sound like I
    am--I can always do more and more, and do better. I know I fall
    short. But Father John has been a big influence on that, and
    thinking about others.
        So that is as a person. I try to do--Washington Jesuit
    Academy, so I tutor up there. I am now on the board of
    Washington Jesuit Academy. That is a little different
    situation. Those are low-income--boys from low-income families,
    a tuition-free school, one of these 7:30 a.m. to 7 schools. And
    I started tutoring up there because I wanted to do some more
    tutoring and just be involved more. Judging is important, but I
    wanted to be more directly involved in the community. They have
    tutoring. You do all your homework there because it was a
    situation, you do not want to go home and have anything else to
    do. You get three meals there, and you do your homework there.
    And I help them do their homework, and you see these great
    kids, and they are in a structured environment, and you make an
    effect on their lives.
        And like I said yesterday, the teachers and coaches
    throughout America, they change lives. And for me to be able to
    participate--you know, you cannot change everything at once,
    but just changing one life, one meal 1 day at the shelter or
    one kid that remembers something you said in a tutoring
    program, you know, if we all did that more--and I fall short,
    too, I know, and I want to do more on that front. But you can
    make a big difference in people's lives.
        I would just bring that into the judging. I think--I judge
    based on the law, but how does that affect me as a judge? I
    think, first of all, just standing in the shoes of others. We
    could all be that homeless person. We could all be that kid who
    needs a more structured educational environment. And one of the
    things I was taught by my mom, but also I remember Chris Abell,
    my sixth-grade English teacher and religion teacher and
    football coach and baseball coach, one of his--and he drove me
    to school. One of his--and he is now on the board of Washington
    Jesuit Academy with me. But one of his lessons in ``To Kill a
    Mockingbird'' was to stand in the shoes of others. And I still
    have the ``To Kill a Mockingbird'' that we used in sixth grade.
    It is in my chambers still, the same copy.
        Senator Graham. Is it fair to say that your job as a judge
    is to not so much stand in the shoes of somebody you are
    sympathetic to, but stand in the shoes of the law?
        Judge Kavanaugh. You are in the shoes of the law, but with
    awareness of the impacts of your decisions.
        Senator Graham. Right.
        Judge Kavanaugh. And that is the critical distinction. You
    cannot be unaware. When you write an opinion, how is it going
    to affect people?
        Senator Graham. Right.
        Judge Kavanaugh. And understand, try to explain. I think,
    you know, it is--explaining is such an important feature, and
    then when people come into the courtroom, and how you treat
    litigants. So we are all familiar--we have all been in
    courtrooms where the judge is acting a little too full of being
    a judge and too--well, we have all been there. I try not to do
    that. I cannot say I am perfect, but I try to make sure the
    litigants understand that I get it, whether it is a criminal
    defendant case--we had a pro se case, a pro se case where a
    litigant comes in and argues pro se in our court, which rarely
    happens in our court where the pro se actually argues. And it
    was a guy who said he had been called the ``N'' word by his
    supervisor. And he is arguing pro se, and the question is
    whether a single instance of the ``N'' word constitutes racial
    harassment under the civil rights laws. And I wrote a separate
    opinion explaining, yes, a single instance of the ``N'' word
    does constitute a racially hostile work environment. And I
    explained--in doing that, I explained the history of racism in
    this country and how that word--no other word in the English
    language so powerfully or instantly calls to mind our country's
    long and brutal struggle against racism, I wrote in that
    opinion. And I cited ``To Kill a Mockingbird'' in that opinion,
    among other things.
        But what I wanted to make clear by bringing this example up
    is I understood his situation. I tried to understand what that
    would be like, and I decided the case based on the law, but I
    understood with the pro se litigant, the point being I always
    try to be aware of the facts and circumstances.
        Senator Graham. Have you ever made a legal decision that
    personally was upsetting to you?
        Judge Kavanaugh. Well, I am sure I have, and that is what
    Justice Kennedy talked about in Texas v. Johnson. That case, in
    case people did not know what I was referring to in Texas v.
    Johnson, that is the flag-burning case. Justice Kennedy was in
    the majority with Justice Scalia and Justice Brennan and
    Justice Marshall and says that a law against flag burning is
    unconstitutional under the First Amendment. And that obviously
    tore Justice Kennedy--you know, it really bothered him because
    he is such a patriot. But he still ruled the way he did because
    he read the First Amendment to compel that result, and that is
    why he wrote that great concurrence in that case. And that
    concurrence is such a great model for judging, a great model of
    independence and a great model, to your point, Senator Graham,
    of we follow the law but we are aware--we are aware, and you
    are a better judge if you are aware.
        Senator Graham. Well, I just want to say this to my
    colleagues. Everything he said I think has been verified by the
    people who know him the best. I cannot say I have read 307 of
    your opinions. I can tell you without hesitation I have not. I
    did not read Sotomayor's opinions or Kagan's writings. But what
    I chose to do was look at the people who knew them the best,
    and I think Bob Bennett, who defended President Clinton during
    impeachment--I know him very well--said that Brett is ``a
    judge's judge, someone doing his absolute best to follow the
    law rather than his policy preferences. Brett is an all-star in
    both his professional and his personal life.''
        I have yet to find anybody that I find credible, really
    anybody at all, that would suggest that you were unfair to
    litigants. I have yet to find a colleague that thought you were
    a politician in a robe. But you are a Republican. Is that true?
        Judge Kavanaugh. I registered----
        Senator Graham. Was. Okay.
        Judge Kavanaugh. Yes.
        Senator Graham. The only reason--I am glad to hear you say
    that. It makes a lot of sense given who you worked for.
        Judge Kavanaugh. I have not--well, I will let you finish
    your question.
        Senator Graham. You worked for a lot of Republicans.
        Judge Kavanaugh. Yes.
        Senator Graham. Like the President, who was a Republican.
        Judge Kavanaugh. President Bush I worked for, yes.
        Senator Graham. So that----
        [Disturbance in the hearing room.]
        Senator Graham. So I remember--I remember----
        [Disturbance in the hearing room.]
        Senator Graham. I will tell you what I remember when she
    leaves.
        So, I asked Elena Kagan about a statement that Greg Craig
    made. Do you know Greg Craig, by any chance?
        Judge Kavanaugh. I have met him. I have not seen him in
    many years, but yes.
        [Disturbance in the hearing room.]
        Senator Graham. He was one of the defenders of President
    Clinton during the impeachment hearing, and somewhere in here I
    have got Greg Craig's statement about Kagan. I am looking for
    Greg Craig's statement.
        Here we go. Here is what--``Kagan was a progressive in the
    mold of Obama himself.'' ``Elena Kagan is clearly a legal
    progressive and comes from the progressive side of the
    spectrum,'' according to Ronald Klein. The first was Greg
    Craig.
        And I had an exchange with Justice Kagan when she was the
    nominee: ``I am not trying to trick you. I do not have anything
    on Greg. He said, on May 16th, that you are largely progressive
    in the mold of Obama himself. Do you agree with that?''
        Ms. Kagan, ``Senator Graham, you know, in terms of my
    political views, I have been a Democrat all my life. I worked
    for two Democrat Presidents, and that is what my political
    views are.''
        And I asked, ``Would you consider your political views
    progressive?''
        Ms. Kagan, ``My political views are generally
    progressive.''
        Which is true. I really appreciate what she said, because I
    expect President Obama to go to someone like Elena Kagan who is
    progressive, shares his general view of judging, and who
    happened to be highly qualified.
        Sotomayor. President Obama nominated Sotomayor because he
    wanted someone whose philosophy of judging was his--which, as
    applied to the law and constitutional principles was, be ready
    to adopt them to a modern context. So President Obama nominated
    Sotomayor because he wanted someone whose philosophy of judging
    was his.
        I expect that to happen. If Donald Trump is President in
    2020, he will be our next President. If it is somebody else, I
    expect that to happen.
        To my colleagues on the other side, what do you really
    expect? You should celebrate, even though you do not vote for
    him--and I do not know why you would not--the quality of the
    man chosen by President Obama. Elena Kagan and Sotomayor came
    from the progressive wing of the judging world and of legal
    thought. They are absolutely highly qualified, good, decent
    people, and they got--let me see if I can find the vote totals.
    Ms. Kagan got 63 votes and Sonia Sotomayor got 68. It is going
    to bother me that you do not get those numbers. But what
    bothers me is, they should have gotten 90. They should have
    gotten 95. Anthony Kennedy got 97. Antonin Scalia got 98. Ruth
    Bader Ginsburg got 96. So what is happening? Between then and
    now, advise and consent has taken on a different meaning.
        It used to be the understanding of this body that elections
    have consequences, and you would expect the President who won
    the election to pick somebody of their philosophy. I promise
    you that when Strom Thurmond voted for Ruth Bader Ginsburg, he
    did not agree with her legal philosophy. And I doubt if Senator
    Leahy agreed with Justice Scalia. Senator Leahy has voted for a
    lot of Republicans. I have voted for everyone presented since I
    have been here because I find them to be highly qualified,
    coming from backgrounds I would expect the President in
    question to choose from.
        So, as to your qualifications, how long have you been a
    judge?
        Judge Kavanaugh. I have been a judge for 12 years.
        Senator Graham. How many opinions have you written?
        Judge Kavanaugh. I have written over 300 opinions.
        Senator Graham. Okay. Do you think there is a lot we can
    learn from those opinions if we spent time looking at them?
        Judge Kavanaugh. Yes. I am very proud of my opinions, as I
    mentioned, and I tell people do not just read about the
    opinions. Read the opinions. I am very proud of them.
        Senator Graham. You were nominated by President Trump on
    July the 9th, my birthday, which I thought was a pretty good
    birthday present for somebody who thinks like I do--and I think
    that may have something to do with that--at 9 o'clock. By 9:23,
    Chuck Schumer says, ``I will oppose Judge Kavanaugh.'' By 9:25,
    Senator Harris, ``Trump Supreme Court Justice nominee Judge
    Kavanaugh represents a direct and fundamental threat to the
    rights and health care of hundreds of millions of Americans. I
    will oppose his nomination.''
        Elizabeth Warren at 9:55, ``Brett Kavanaugh's record as a
    judge and a lawyer is clear, hostile to health care for
    millions, opposed the CFPB, corporate accountability, thinks
    President Trump is above the law,'' on and on and on.
        Nancy Pelosi at 10:11, Bernie Sanders at 10:18, ``If Brett
    Kavanaugh is confirmed to the Supreme Court, it will have a
    profoundly negative effect on workers' rights, women's rights,
    and voting rights for the decades to come.''
        All I can say, within an hour and 18 minutes of your
    nomination, you became the biggest threat to democracy in the
    eyes of some of the most partisan people in the country who
    would hold Kagan and Sotomayor up as highly qualified and would
    challenge any Republican dare vote against them. You live in
    unusual times, as I do. You should get more than 90 votes, but
    you will not. And I am sorry it has gotten to where it has. It
    is got nothing to do about you.
        If you do not mind--and you do not have to--what did you
    tell your children yesterday about the hearing?
        Judge Kavanaugh. They did as they--I will tell what they
    told me. I do not think--they gave me a big hug and said,
    ``Good job, Daddy.'' And Margaret, before she went to bed, made
    a special trip down and said, ``Give me a special hug.''
        Senator Graham. I just wish we could have a hearing where
    the nominee's kids could show up. Is that asking too much?
        [Disturbance in the hearing room.]
        Senator Graham. So what kind of country have we become?
    None of this happened just a couple years ago. It is getting
    worse and worse and worse, and all of us have an obligation to
    try to correct it where we can.
        Roe v. Wade, are you familiar with the case?
        Judge Kavanaugh. I am, Senator.
        [Laughter.]
        Senator Graham. Can you, in 30 seconds, give me the general
    holding of Roe v. Wade?
        Judge Kavanaugh. As elaborated upon in Planned Parenthood
    v. Casey, a woman has a constitutional right, as interpreted by
    the Supreme Court under the Constitution, to obtain an abortion
    up to the point of viability, subject to reasonable regulations
    by the State, so long as those reasonable regulations do not
    constitute an undue burden on the woman's right.
        Senator Graham. Okay. As to how the system works, can you
    sit down with five--you and four other judges and overrule Roe
    v. Wade just because you want to?
        Judge Kavanaugh. Senator, Roe v. Wade is an important
    precedent of the Supreme Court. It has been reaffirmed----
        Senator Graham. But do you not have to have a case as a--I
    mean, you just cannot--``What are you doing for lunch? '' ``Let
    us overrule Roe v. Wade.'' It does not work that way, right?
        Judge Kavanaugh. I see what you are asking, Senator. Right.
    The way cases come up to us in that context or in other
    contexts would be a law is passed----
        Senator Graham. Can I give you an example? Because I can do
    this quicker.
        Judge Kavanaugh. Yes.
        Senator Graham. So some State somewhere or some town
    somewhere passes a law that runs into the face of Roe. Somebody
    will object. They will go to lower courts, and eventually it
    might come up to the Supreme Court challenging the foundations
    of Roe v. Wade. It would take some legislative enactment for
    that to happen. Is that correct?
        Judge Kavanaugh. That is correct.
        Senator Graham. If there was such an action by a State or a
    local government challenging Roe and it came before the Supreme
    Court, would you listen to both sides?
        Judge Kavanaugh. I listen to both sides in every case,
    Senator. I have for 12 years, yes.
        Senator Graham. When it comes to overruling a longstanding
    precedent of the Court, is there a formula that you use, an
    analysis?
        Judge Kavanaugh. So, first of all, you start with the
    notion of precedent. And as I have said to Senator Feinstein,
    in this context this is a precedent that has been reaffirmed
    many times over 45 years, including in Planned Parenthood v.
    Casey, where they specifically considered whether to overrule,
    and reaffirmed and applied all the stare decisis factors. So
    that importantly became precedent on precedent in this context.
    But you look at--there are factors you look at whenever you are
    considering any precedent.
        Senator Graham. So there is a process in place that the
    Court has followed for a very long time. Is that correct?
        Judge Kavanaugh. That is correct, Senator.
        Senator Graham. Citizens United, if somebody said Citizens
    United has been harmful to the country and made a record that
    the effects of Citizens United has empowered about 20 or 30
    people in the country to run all the elections, and some State
    or locality somewhere passed a ban on soft money, and it got to
    the Court, would you at least listen to the argument that
    Citizens United needs to be revisited?
        Judge Kavanaugh. Of course. I listen to all arguments. You
    have an open mind. You get the briefs and arguments. And some
    arguments are better than others. Precedent is critically
    important. It is the foundation of our system. But you listen
    to all arguments.
        Senator Graham. Okay. Where were you on September 11, 2001?
        Judge Kavanaugh. Initially, I was in my then office in the
    EOB, and then after the first, as I recall, as the first
    building was hit, I was in the Counsel's office on the second
    floor of the West Wing for the next few minutes. Then we were
    all told to go down to the bottom of the West Wing. And then we
    were all evacuated, and I think the thought was Flight 93 might
    have been heading for the White House. It might have been
    heading here. And Secret Service--we were being hustled out,
    and then kind of panic, started screaming at us, ``Sprint,''
    ``Run,'' and we sprinted out. My wife was a few steps ahead of
    me. She was President Bush's personal aide at the time, and we
    sprinted out. She was wearing a black and white checked shirt,
    I remember, and we sprinted out the front gate kind of into
    Lafayette Park, and no iPhones or anything like that,
    BlackBerrys, at that point in time, we did not have that, and
    our cell phones did not work, so we were all just kind of out
    there. And then I remember somehow ending up seeing on TV--down
    more on Connecticut Avenue there were TVs out, Mayflower Hotel.
    I remember I was with Sara Taylor who worked at the White
    House, and we watched--we were watching as the--I was standing
    with her when the two--when the two buildings--when the
    buildings fell.
        Senator Graham. So when somebody says post-9/11, that we
    have been at war and it is called the ``War on Terrorism,'' do
    you generally agree with that concept?
        Judge Kavanaugh. I do, Senator, because Congress passed the
    Authorization for Use of Military Force, which is still in
    effect, and that was passed, of course, on September 14, 2001,
    3 days later.
        Senator Graham. Let us talk about the law and war. Is there
    a body of law called ``the law of armed conflict''?
        Judge Kavanaugh. There is such a body, Senator.
        Senator Graham. Is there a body of law that is called
    ``basic criminal law''?
        Judge Kavanaugh. Yes, Senator.
        Senator Graham. Are there differences between those two
    bodies of law?
        Judge Kavanaugh. Yes, Senator.
        Senator Graham. From an American citizen's point of view,
    do your constitutional rights follow you? If you are in Paris,
    does the Fourth Amendment protect you as an American from your
    own Government?
        Judge Kavanaugh. From your own Government, yes.
        Senator Graham. Okay. So, if you are in Afghanistan, do
    your constitutional rights protect you against your own
    Government?
        Judge Kavanaugh. If you are an American in Afghanistan, you
    have constitutional rights as against the U.S. Government. That
    is long-settled law.
        Senator Graham. Is there not also a long-settled law that
    goes back to the Eisentrager case? I cannot remember the name
    of it.
        Judge Kavanaugh. Johnson v. Eisentrager.
        Senator Graham. Right, that American citizens who
    collaborate with the enemy are considered enemy combatants?
        Judge Kavanaugh. They can be.
        Senator Graham. Can be.
        Judge Kavanaugh. They can be. They are often--they are
    sometimes criminally prosecuted, sometimes treated in the
    military----
        Senator Graham. Well, let us talk about ``can be.'' I think
    the----
        Judge Kavanaugh. Under Supreme Court precedent.
        Senator Graham. Right. There is a Supreme Court decision
    that said that American citizens who collaborated with Nazi
    saboteurs were tried by the military. Is that correct?
        Judge Kavanaugh. That is correct.
        Senator Graham. I think a couple of them were executed.
        Judge Kavanaugh. Yes.
        Senator Graham. So if anybody doubts there is a
    longstanding history in this country that your constitutional
    rights follow you wherever you go, but you do not have a
    constitutional right to turn on your own Government and
    collaborate with the enemy of the Nation. You will be treated
    differently.
        What is the name of the case, if you can recall, that
    reaffirmed the concept that you could hold one of our own as an
    enemy combatant if they were engaged in terrorist activities in
    Afghanistan? Are you familiar with that case?
        Judge Kavanaugh. Yes. Hamdi.
        Senator Graham. Okay. So the bottom line is, on every
    American citizen, know you have constitutional rights, but you
    do not have a constitutional right to collaborate with the
    enemy. There is a body of law well developed, long before 9/11,
    that understood the difference between basic criminal law and
    the law of armed conflict. Do you understand those differences?
        Judge Kavanaugh. I do understand that they are different
    bodies of law, of course, Senator.
        Senator Graham. Okay. If you are confirmed--and I believe
    you will be--what is your hope when all of this is said and
    done and your time is up, how would you like to be remembered?
        [Brief pause.]
        Judge Kavanaugh. A good dad. A good judge.
        Senator Feinstein. A good husband.
        Senator Graham. I think he is getting there.
        Judge Kavanaugh. Good husband.
        [Laughter.]
        Senator Graham. Thanks, Dianne. You helped him a lot.
        It is going to be better for you tonight.
        [Laughter.]
        Judge Kavanaugh. I owe you--I owe you. Good son, I will
    quickly add. Good friend. I think about the pillars--the
    pillars of my life are being a judge, of course; being a
    teacher, I have done that, and either way this ends up I am
    going to continue teaching; coaching, as I mentioned, a huge
    part of my life, I will try to continue that. Senator Kennedy
    advised me when we met, ``Make sure you keep coaching even if
    you get''--I am going to follow that. Volunteering and being a
    dad and a son and a husband, and being a friend. You know, I
    talked about my friends yesterday. I did not really expect--I
    got a little choked up talking about my friends.
        Senator Graham. That was well said. You have got to tighten
    it up because I just ran out of time.
        Judge Kavanaugh. Okay. Thank you, Senator. I can go on, as
    you know, but I will stop there.
        Senator Graham. Thank you.
        Chairman Grassley. We are about ready to break for lunch
    and the vote that we have, and it will be 30 minutes. But
    before I do that, I have letters that Senator Feinstein asked
    me to put in the record from--70 letters from people in
    opposition to your nomination.
        [The information appears as submissions for the record.]
        Chairman Grassley. And then we also have letters in support
    of Judge Kavanaugh from hundreds of men and women across the
    country holding diverse political views. They strongly support
    his confirmation. Without objection, those will also be entered
    in the record.
        [The information appears as a submission for the record.]
        Chairman Grassley. And then I wanted to explain the
    exchange that I had with Senator Leahy, just so people do not
    think that that is something that I did on my own. We had
    previously sent out a letter and only Senator Klobuchar up to
    that point had taken advantage of the letter to be able to ask
    for documents that were committee confidential so that they
    could use them at the hearing. And the only thing I have done
    for Senator Leahy that was not already in that letter was to
    remind people that we did the same thing for the Gorsuch
    nomination to the Supreme Court, and it is a policy that
    Senator Leahy when he was Chairman of the Committee followed.
    So the only courtesy was extended to Senator Leahy, the fact
    that he did not make the request by the timeline that was in
    the letter, which I think was August 25th.
        We are going to adjourn 30 minutes for a lunch break, and I
    think that we will be back here exactly in 30 minutes. If not,
    Judge Kavanaugh, we will let your staff know if it is going to
    be a little later, because you never know what happens in the
    United States Senate when you have a vote.
        [Whereupon, at 12:16 p.m., the Committee was recessed.]
        [Whereupon, at 12:46 p.m., the Committee reconvened.]
        Chairman Grassley. Welcome back, Judge Kavanaugh.
        The next person to ask questions is Senator Durbin.
        Senator Durbin. Thank you, Mr. Chairman.
        Judge Kavanaugh. Senator.
        Senator Durbin. Judge Kavanaugh, Mrs. Kavanaugh, thank you
    for being back today to face this next round.
        If I had to pick an area of clear expertise when it comes
    to Brett Kavanaugh, it would be the area of judicial
    nominations. You have been engaged in that at several different
    levels, including your own personal experience. And so I would
    like to ask you if you would comment on the strategy of your
    own nomination. Specifically, I would like to ask you whether
    those who were planning that strategy sat down and cleared with
    you their decision on the release of documents.
        Judge Kavanaugh. No. I was not involved in the documents
    process or substance.
        Senator Durbin. No one told you that you would be the first
    Supreme Court nominee to assert executive privilege to limit
    the access to 100,000 documents relating to your service in the
    White House?
        Judge Kavanaugh. Senator, there are a couple of things
    packed into your question. So, I did study the nominee
    precedent, read all the hearings. This came up in Justice
    Scalia's hearings, so I read that. There were all his memos
    from being the head of the Office of Legal Counsel, and he was
    asked about that. And I know with Chief Justice Roberts, there
    was 4 years of information when he was Principal Deputy
    Solicitor General that those were not disclosed either.
        Senator Durbin. But as for White House documents, you are
    breaking new ground here, or I should say covering up old
    ground here.
        Judge Kavanaugh. Well, I guess--I was not involved in the
    documents discussions or process or substance in terms of the
    decisions that were made. But in terms of thinking about the
    issue, in terms of questions that could come to me, like
    Justice Scalia and Chief Justice Roberts received, or at least
    Justice Scalia did, I guess I do not distinguish. It is all--
    executive branch documents, Justice Department documents, and
    White House documents are not different.
        Senator Durbin. But you realize that when it comes to the
    role of the National Archives, we are being asked to give you
    special treatment.
        Judge Kavanaugh. I cannot comment because I do not know.
        Senator Durbin. Judge Kavanaugh, this is your field,
    judicial nominations. This is your nomination.
        Judge Kavanaugh. Let me ask you what the question is.
    Sorry.
        Senator Durbin. You are now embarking on this journey in
    this Committee, denying us access to documents which were
    routinely provided for other judicial nominees. You had to have
    known that was taking place.
        Judge Kavanaugh. Senator, I think what Justice Scalia said
    in his hearing when he was asked about his Office of Legal
    Counsel memos is the right thing, which is that is a decision
    for the Senate and the executive branch to work out. As a
    nominee, I will--and there are long-term privileges and
    protections, as he mentioned, that were in effect for that
    discussion. It is not for the nominee to make that decision.
        Senator Durbin. Well, that is an interesting comment,
    because the way you are being presented to the American people,
    with only 10 percent of the public documentation that could be
    provided to this Committee, it is going to reflect on you and
    your nomination. And, of course, you know that.
        Judge Kavanaugh. Well, I guess I--again, looking at the
    nominee precedent, Senator, that was true in Justice Scalia's
    case also. All his memos from 1974 to 1977, when he was head of
    the Office of Legal Counsel, a consequential time, at least as
    I understand it, those might not have been disclosed. He was
    asked about that at his hearing. Chief Justice Roberts, 4 years
    of Deputy Solicitor General memos, which would have been----
        Senator Durbin. So you are perfectly fine with this notion.
        Judge Kavanaugh. No. I said I am--it is up to the Chairman
    and you and the Committee, the Senate and the executive
    branch----
        Senator Durbin. In fairness, Judge Kavanaugh, I think it is
    up to you. I think it is up to you. If you said at this moment
    to this Chairman and to this Committee, stop, pause, hit the
    pause button, I do not want any cloud or shadow over this
    nomination, I trust the American people, I want them to trust
    me, I am prepared to disclose those public documents--take
    Senator Leahy's line of questioning. He was not the only victim
    of Manny Miranda. I was, as well. I did not realize that this
    Republican staffer had hacked into my computer, stolen my staff
    memos, and released them to the Wall Street Journal until they
    showed up in an editorial.
        So now, your knowledge of this--your role in this, we are
    limited to even discuss because of the fact that we are
    classifying and withholding information about your nomination.
    First is Mr. Bill Burck, who has some magic power to decide
    what the American people will see about your role in the White
    House. Then the decision by those who put your nomination
    before us to take 35 months of your service as staff secretary
    to the President of the United States and to exclude the
    documents. Then the unilateral classification of documents
    coming to this Committee as Committee classified in a manner no
    one has ever seen in the history of this Committee.
        Judge Kavanaugh, that reflects on your reputation and your
    credibility. If you said at this moment, I do not want to have
    a cloud over this nomination, I am prepared to suggest to the
    Committee and ask the Committee humbly, please withhold further
    hearings until you disclose everything, why will you not do
    that?
        Judge Kavanaugh. Senator, I do not believe that is
    consistent with what prior nominees have done who have been in
    this circumstance. It is a decision for the Senate and the
    executive branch. Justice Scalia explained that very clearly, I
    thought, in his hearing.
        Senator Durbin. Are you happy with that decision?
        Judge Kavanaugh. I do not--it is not for me to say,
    Senator. This is a decision--the long-term interests of the
    Senate and the executive branch, particularly the executive
    branch, are at play. Justice Scalia, again, explained that
    well, I thought, in his hearing----
        Senator Durbin. I was not here for Justice Scalia, but I
    will tell you that----
        Chairman Grassley. Let me interrupt without taking time
    away from you. So, do not charge him for this time. But here is
    something that--the nominee does not need any help for me to
    answer this, but we do not care what the nominee thinks. We
    have to follow the Presidential Records Act, and that is what
    we are following, is the law.
        Senator Durbin. Mr. Chairman, with all due respect,
    following the Presidential Records Act involves the National
    Archives. The National Archives is not involved in this
    process. It is a Mr. Bill Burck, who was a former assistant to
    the nominee, who has decided what will be withheld, whether it
    is going to be Committee confidential. So it is not the
    Presidential Records Act, please.
        Chairman Grassley. Well, still, let me make clear here, we
    anticipated some of this, so let me read. Criticize the
    Committee process for obtaining Judge Kavanaugh's records. They
    have accused us of cutting the National Archives out of the
    process, so this is where I want to set the record straight.
        President Bush acted consistently with Federal law when he
    expedited the process and gave us unprecedented access in
    record time to Judge Kavanaugh's record, but we have worked
    hand in glove with the Archives throughout this process, and
    the documents this Committee received are the same as if the
    Archives had done the initial review.
        In fact, the Archives is not permitted by law to produce
    records to the Committee without giving both President Bush and
    a current President an opportunity to review. The National
    Archives was not cut out of the process. As President Bush's
    representative informed the Committee, quote from his letter,
    ``Because we have sought, received, and followed NARA's''--that
    is the same as when I use the word, ``Archivist''--``views on
    any documents withheld as personal documents, the resulting
    production of documents to the Committee is essentially the
    same as if NARA had conducted its review first and then sought
    our views and the current administration views, as required by
    law.''
        In other words, the documents this Committee received are
    the same as if the Archives had done the initial review. We are
    just able to get the documents faster by doing it this way,
    which gave the Senate and the American people unprecedented
    access in record time to a Supreme Court nominee record.
        Continue.
        Senator Durbin. Mr. Chairman, the National Archives have
    stated publicly that the way we are handling the records for
    this nomination is unprecedented, and they have had nothing to
    do with it. They have asked until the end of October to produce
    records, and they have been told, ``we do not need you, we are
    going to finish this hearing long before then.''
        I would like to ask that it be placed in the record the
    statement from the National Archives related to the records
    related to Judge Kavanaugh. Do I have consent to place this in
    the record?
        Chairman Grassley. I am sorry, what?
        Senator Durbin. The statement from the National Archives?
        Chairman Grassley. Yes, without objection.
        Senator Durbin. Thank you.
        [The information appears as a submission for the record.]
        Senator Durbin. And now I am going to throw you a pitch
    which you have seen coming for 12 years. I want to talk to you
    about your 2006 testimony which you gave before this Committee.
    It was at a different time. We were very concerned about the
    issue of torture and detention and interrogation.
        Yesterday I asked you to show the American people that you
    have nothing to hide by coming clean with us on this issue, and
    I would like to refer specifically to some of the questions
    that were raised because of that 2006 testimony. I believe, we
    have here a statement of my question, as well as your response.
    And I am sure you have seen this because it has been reported
    in the paper that you have been waiting for this question for a
    long time.
        When I was, back in the day, a trial attorney preparing a
    witness for interrogation, testimony, deposition, giving
    testimony at trial, I said two things: tell the truth, and do
    not answer more than you are asked--do not volunteer
    information. Judge Kavanaugh, you failed on the second count.
        The question I asked you: ``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?''
        Your response: ``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.''
        Judge Kavanaugh. Could you raise it a little higher? I
    cannot see the bottom.
        Got it, okay.
        Senator Durbin. I asked you about this when we had a
    meeting in my office.
        Judge Kavanaugh. Yes.
        Senator Durbin. And I still do not understand your answer
    in terms of how you could state clearly and unequivocally, ``I
    was not involved and am not involved in the questions about the
    rules governing detention of combatants.'' You were involved in
    the discussions about access to counsel for detainees. You
    confirmed this during the meeting that we had in my office, and
    there are multiple media reports as well. You were involved in
    discussions regarding detained U.S. combatants Yaser Hamdi and
    Jose Padilla. You confirmed that in our meetings, and there are
    emails that support that fact.
        You were involved--and this is one that I want to be
    specific about. You were involved with President Bush's 2005
    signing statement on Senator John McCain's amendment banning
    cruel, inhuman, and degrading treatment of detainees, and you
    confirmed that in the meeting.
        There were no exceptions in your answer given to me in
    2006, not for litigation or detainee access to counsel or the
    McCain Torture Amendment. So if those three, based on the
    limited documents which we have been given, are obvious, what
    were you trying to tell me here? Did you really disclose
    accurately your role?
        Judge Kavanaugh. Yes. I understood the question then and my
    answer then, and I understood----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. I understood the question then and the
    answer then, and I understand the question now and the answer
    now to be 100 percent accurate. You were concerned about
    whether I was involved in the program that two other nominees
    had been involved in, and the report that Senator Feinstein
    produced, the Justice Department report, they showed that I was
    not. In other words, the program, crafting the program for the
    enhanced interrogation techniques for the detainees----
        Senator Durbin. Judge Kavanaugh, that is not the question.
    Do you see me asking you whether you crafted the program? I did
    not. I asked you about your involvement in the Haynes--and then
    you went further----
        Judge Kavanaugh. Crafting----
        Senator Durbin. Yes, and then you went further. You
    violated the second rule I give to every witness. You answered
    more than I asked.
        Judge Kavanaugh. I adhered to the first one. I told the
    truth.
        Senator Durbin. Well, you volunteered more information than
    I asked, and you went further than you should have, because in
    the three specific instances that I have given you, you clearly
    were involved in questions about rules governing detention of
    combatants.
        Judge Kavanaugh. So, I understood the question then, and I
    understand it now, and my answer about that program. I told the
    truth about that, and the reports that have come out
    subsequently have shown that I have told the truth about that.
    My name is not in those reports.
        Now, for the 2005 signing statement, by that time I am in
    the staff secretary office, and everything that went to the
    President's desk--everything that went to the President's desk,
    with a few covert exceptions, would have somehow crossed my
    desk on the way. So you ask--I said on the signing statement it
    would have crossed my desk on the way. So would a speech draft
    on the Iraq war. Those things would have crossed my desk,
    prepared by others, not prepared by me, but they cross my desk
    on the way to the President.
        Senator Durbin. In the 2006 hearing you told Senator Arlen
    Specter you gave President Bush advice on signing statements,
    including, ``identifying potential constitutional issues in
    legislation.'' Did you make any comments regarding the December
    30, 2005 signing statement on the McCain Torture Amendment,
    including potential constitutional issues?
        Judge Kavanaugh. I cannot recall what I said. I do recall
    that there was a good deal of internal debate about that
    signing statement, as you can imagine there would be. I
    remember that it was controversial internally, and I remember
    that I thought--and I cannot remember all the ins and outs of
    who thought what, but I do remember that the Counsel to the
    President was in charge ultimately of signing statements in
    terms of the final recommendation to the President.
        Senator Durbin. And just a few months later you, under
    oath, told us you were not involved in any of the questions
    about the rules governing detention of combatants.
        Judge Kavanaugh. Senator, again, at least I understood it
    then and I understand it now to be referring to the program
    that we were talking about that was very controversial that
    Senator Feinstein spent years trying to dig into, and I was not
    read into that program. I told the truth about that.
        Senator Durbin. Let me go to another area of questioning,
    if I can. Thank you very much.
        In your dissent in Garza v. Hargan, you wrote that the
    Court had created ``a new right for unlawful immigrant minors
    in U.S. Government detention to obtain immediate abortion on
    demand, thereby barring any Government efforts to expeditiously
    transfer the minors to their immigration sponsors before they
    make that momentous life decision.'' You argued that permitting
    the Government additional time to find a sponsor for a young
    woman in the case did not impose an undue burden, even though
    the Government's conduct in the case had already forced her to
    delay her decision on an abortion by several weeks.
        We are talking about a young woman, characterized as Jane
    Doe, who discovered that she was pregnant after crossing the
    border into the United States. She made a personal decision
    that she was not ready to be a parent and did not want to
    continue her pregnancy. She went through every step necessary
    to comply with Texas State law, as well as steps forced on her
    by the Federal Government. She visited a religious anti-
    abortion crisis pregnancy center, she underwent an ultrasound
    for no medical purpose, and she went before a judge and
    obtained a judicial bypass of the State's parental consent
    requirements.
        In other words, this young woman complied with every legal
    requirement, including Texas State requirements, placed in
    front of her so she could move forward with her decision, a
    decision affecting her body and her life.
        Do you believe that this was an abortion on demand?
        Judge Kavanaugh. Senator, the Garza case involved, first
    and foremost, a minor. It is important to emphasize it was a
    minor.
        Senator Durbin. Yes.
        Judge Kavanaugh. So she is in an immigration facility in
    the United States. She is from another country. She does not
    speak English, and she is by herself. If she had been an adult,
    she would have a right to obtain the abortion immediately. As a
    minor, the Government argued that it was proper or appropriate
    to transfer her quickly first to an immigration sponsor. Who is
    an immigration sponsor, you ask? It is a family member or
    friend who she would not be forced to talk to but she could
    consult with, if she wanted, about the decision facing her.
        So we had to analyze this first as a minor, and then for
    me, the first question always is, what is the precedent? The
    precedent on point from the Supreme Court is there is no case
    on exact point, so you do what you do in all cases: you reason
    by analogy from the closest thing on point. What is the closest
    body of law on point? The parental consent decisions from the
    Supreme Court, where they have repeatedly upheld parental
    consent laws over the objection of dissenters who thought that
    is going to delay the procedure too long, up to several weeks.
        I am getting to the point, I am getting to the point.
        Senator Durbin. Before you get to the point, you have just
    bypassed something. You have just bypassed the judicial bypass,
    which she received from the State of Texas when it came to
    parental consent. That has already happened here, and you are
    still stopping her.
        Judge Kavanaugh. I am not. The Government is arguing that
    placing her with an immigration sponsor would allow her, if she
    wished, to consult with someone about the decision. That is not
    the purpose of the State bypass procedure. So I just want to be
    very clear about that.
        Senator Durbin. But, Judge, the clock is ticking.
        Judge Kavanaugh. It is.
        Senator Durbin. The clock is ticking, 20-week clock is
    ticking. She made the decision early in the pregnancy, and all
    that I described to you, the judicial decisions, the clock is
    ticking, and you are suggesting that she should have waited to
    have a sponsor appointed who she may or may not have consulted
    in making this decision.
        Judge Kavanaugh. Again, this is--I am a judge. I am not
    making the policy decision. My job is to decide whether that
    policy is consistent with law. What do I do? I look at
    precedent, and the most analogous precedent is the parental
    consent precedent. From Casey, has this phrase, page 895:
    ``minors benefit from consultation about abortion.'' It is a
    quote talking about consultation with a parent----
        Senator Durbin. So, you are adding a requirement here
    beyond the State of Texas requirements that there be some
    sponsor chosen who may or may not be consulted for this
    decision, and the clock is ticking on her pregnancy.
        Judge Kavanaugh. A couple of things there, Senator. You
    said, ``you are adding.'' I am not adding, I am a judge. The
    policy is being made by others. I am deciding whether the
    policy is then consistent with Supreme Court precedent.
        There are two things to look at in this context, Senator.
    First, is the Government's goal reasonable in some way? And
    they say we want the minor to have the opportunity to consult
    about the abortion. Well, the Supreme Court precedent
    specifically says, specifically says that that is an
    appropriate objective. Second----
        Senator Durbin. Was it a State requirement?
        Judge Kavanaugh. The second question----
        Senator Durbin. Was that a State requirement?
        Judge Kavanaugh. The second question is the delay, your
    point, and the parental consent cases of the Supreme Court
    recognized that there could be some delay because of the
    parental consent procedures. And, in fact, Justices Marshall,
    Brennan, and Blackmun repeatedly dissented in cases because
    they thought the delay was too long.
        I quoted all that in my Garza opinion, and I made clear it
    had to happen very quickly, and I looked at the time of the
    pregnancy to make sure, on safety--I specifically talk about
    safety. I specifically say the Government cannot use this as a
    ruse to somehow prevent the abortion. I spent a paragraph
    talking about she was in an undeniably difficult situation.
        So, as I was saying to Senator Graham earlier, I tried to
    recognize the real-world effects on her. I said consider the
    circumstances. She is a 17-year-old, by herself, in a foreign
    country, in a facility where she is detained, and she has no
    one to talk to, and she is pregnant. Now, that is a difficult
    situation, and I specifically recognized and tried to
    understand that. And then as a judge, not the policymaker, I
    tried to understand whether the Government's policy was
    consistent with the Supreme Court's precedents, and I did the
    best I could.
        And I said--on those parental consent precedents--I said,
    some people disagree with those precedents and think those
    kinds of statutes should not be allowed. But precedent is not
    like a cafeteria where I can take this but not that. I had to
    take Casey completely. Casey reaffirmed Roe----
        Senator Durbin. I have some other questions, so I would ask
    if you would please----
        Judge Kavanaugh. Well, it is an important question, though,
    and I want to----
        Senator Durbin. It is a critical question.
        Judge Kavanaugh. And I did my level best in an emergency
    posture. So I had basically 2 days to do this case.
        Senator Durbin. A 2-to-1 en banc decision which you
    dissented from. Correct?
        Judge Kavanaugh. I did the best to follow precedent, and as
    I always try to do, to be as careful as I can to follow the
    precedent of the Supreme Court.
        Senator Durbin. Let me ask you a personal question. What is
    the dirtiest, hardest job you have ever had in your life?
        Judge Kavanaugh. I worked construction in the summer after
    I was 16 for a summer, 7 a.m. to 3:30 p.m. My dad dropped me
    off every morning at 7, 6:55. He wanted me to be early. And
    that is probably the one.
        I also, I should say, Senator, I had what--a one-person
    lawn business, I guess, for many summers, business. I cut a lot
    of lawns, and that is how I made some cash when I was--I
    started that probably eighth grade, maybe seventh grade. I cut
    my parents' lawn, but then I cut a lot of lawns in the
    neighborhood and actually distributed flyers all over the place
    to say if you need your lawn cut, call me. So lawn cutting, and
    then the construction job, the one summer.
        Senator Durbin. My dirtiest job I ever had was four summers
    working in a slaughterhouse. I always wanted to go back to
    college. I could not wait to get out of there. It was
    unbearable. It was dirty, it was hot. The things I did were
    unimaginable, and I would not even start to repeat them.
        Then came a case before you called Agri Processor Co. v.
    NLRB. At least a third of the workers, Judge Kavanaugh, in our
    Nation's slaughterhouses are immigrants. In visits to Iowa,
    Illinois, Delaware, you pick it, you are going to find a lot of
    immigrants doing these miserable, dirty, stinking, hot jobs.
    Many of them are undocumented. The work is low-paid and
    dangerous. And as the GAO has noted, immigrants are pressured
    not to even report injuries on the job.
        The Agri Processors case was a notorious meat packing
    company owned by Sholom Rubashkin, who was convicted of 86
    counts of fraud and money laundering in 2009. His 27-year
    sentence recently was commuted by President Trump.
        Agri Processors had, at the core of its business model, the
    exploitation of undocumented workers. Half their workers,
    almost 400 of them, were not authorized. Workers alleged the
    company fostered a hostile workplace environment that included
    12-hour shifts without overtime pay, exposure to dangerous
    chemicals, sexual harassment, and child labor. A truck driver
    at Agri Processor's Brooklyn warehouse told reporters, ``We
    were treated like garbage, and if we said anything, we got
    fired immediately.''
        Judge Kavanaugh, you bent over backward to take the
    company's side against these workers. In a 2008 D.C. Circuit
    case, Agri Processor v. NLRB, your dissent argued that this
    company's workers should be prohibited from unionizing because
    they did not fit your definition of an ``employee.'' To reach
    this conclusion, you imported a definition of ``employee'' from
    a totally different statute. You ignored the plain language of
    the controlling statute, the National Labor Relations Act,
    which has a broad definition of ``employee,'' as well as
    binding Supreme Court precedent. The majority in this case--and
    you were a dissenter--the majority in this case noted that
    their opinion stuck to the text of the National Labor Relations
    Act and to the 1986 Immigration Reform and Control Act, which
    did not amend the National Labor Relations Act.
        They said that your dissent, these other judges said about
    your dissent, would, quote, ``abandon the text of the
    controlling statute and lead to an absurd result.'' The
    majority in this decision included one Republican- and one
    Democratic-appointed judge.
        Judge Kavanaugh, you claim over and over again, to be a
    contextualist, to be carefully weighing every word of a
    statute. So why did you go out of your way to interpret the
    word ``employee'' in a way that benefited this horrible
    business and disadvantaged these exploited workers? Why did you
    not stick to the plain language of the controlling statute and
    the binding Supreme Court precedent?
        Judge Kavanaugh. Because the Supreme Court precedent
    compelled me to reach the result that I reached, and here is
    why, Senator. Let me explain.
        The Supreme Court had a case in 1984 called the Sure-Tan
    decision. The Sure-Tan decision considered the interaction of
    the National Labor Relations Act and the immigration laws. What
    the Supreme Court did in Sure-Tan is, had this question and
    said it is at that time permissible to consider an immigrant
    unlawfully in the country as an employee under the National
    Labor Relations Act. In Part 2(b) of the opinion--you have to
    read Part 2(b) of the opinion, of the Supreme Court decision.
    If you read Part 2(b) of the opinion, the Court then goes on to
    say that because the immigration laws do not prohibit
    employment of people unlawfully in the country, it makes clear,
    the Supreme Court makes clear--this is when it is being
    considered in Congress in '84 and ends up in the '86 Act. The
    Court makes clear, as I read Part 2(b), and I think I am
    correct on this, that if the immigration laws did prohibit
    employment of someone here unlawfully in the country, then that
    would also mean that they cannot vote in the union election.
        So what I was doing there, Senator, was all about
    precedent. I read that and, in my opinion, if you look at the
    dissenting opinion, I really parsed this very carefully, and I
    went deep into this case. So I went back and pulled from the
    Sure-Tan case. I asked for the Marshall papers, the Thurgood
    Marshall papers from the library to read all the memos that
    went back and forth among the Justices in the Sure-Tan case. I
    cited the oral argument to make sure that what I was reading in
    there actually reflected what had been going on in the Supreme
    Court, and it is quite clear from the oral argument they were
    aware that the immigration law was about to be changed, and
    they were aware of the interaction between the labor law and
    the immigration law.
        So I think I stand by what I wrote then, and I think I
    correctly analyzed Part 2(b). Now, Senator----
        Senator Durbin. I have to--I am running out of time here.
        Judge Kavanaugh. I know, but if it ends--if the Supreme
    Court Sure-Tan opinion had ended at Part 2(a), 100 percent
    would agree with you and my decision would have been different.
    If you read Part 2(b), I think you see----
        Senator Durbin. You said earlier today you do not get to
    pick and choose which Supreme Court precedent you follow. The
    majority in the Agri Processor case was following Supreme Court
    precedent. In the Sure-Tan case, the Supreme Court, a 7-to-2
    decision, said that undocumented immigrants are employees under
    the National Labor Relations Act. I quote: ``Since undocumented
    aliens are not among the few groups of workers expressly
    exempted by Congress, they plainly come within the broad
    statutory definition of employee.'' That is a quote from the
    case.
        Judge Kavanaugh. That is Part 2(a). You have to go to Part
    2(b).
        Senator Durbin. Well, hang on. Let me tell you some people
    who went to both parts and could not disagree with you more.
    Everyone else who looked at this question--the administrative
    law judge, the National Labor Relations Board, including
    Republican appointees, two Appeals Court Judges, including one
    Republican appointee--followed the Supreme Court precedent and
    came to the opposite conclusion that you did.
        I understand you may have preferred the Sure-Tan dissent,
    but you failed to follow Supreme Court precedent. This was a
    case where the National Labor Relations Act included those who
    were undocumented who could unionize to protect themselves in
    the workplace. You went out of your way to dissent all the way
    along and make sure they did not, in your view, have that
    right, that they did not have that right to unionize.
        Judge Kavanaugh. I very respectfully disagree, Senator. And
    the reason I disagree is that the Supreme Court did say that
    the immigrant was covered under the definition of NLRA. If it
    ends there, I am with you 100 percent. But then the Supreme
    Court goes on to say that we consider also in resolving this
    question that conflict between the National Labor Relations Act
    and the immigration laws and makes clear, as I read it, if the
    immigration laws had made employment of someone here in the
    country unlawfully illegal, then that would be prohibited in
    the case. And I went back, like I said. If you look at
    Justice--I mean, I quote the oral argument transcript from
    Sure-Tan in my dissenting opinion.
        Look, I had no agenda in any direction on--I am a judge. So
    I am just trying to resolve the precedent----
        Senator Durbin. Let me just close. Let me close by saying
    this. ``I am just a judge, I just follow precedent.'' Gosh, we
    have heard that so often, and I hope it is the case, but we
    know that there is much more to your job than that.
        Judge Kavanaugh. I agree.
        Senator Durbin. The fact that you were a dissenter and
    everyone else saw this the other way should give us pause when
    you say, ``I am just following precedent.''
        Judge Kavanaugh. Well, I respectfully, Senator--that
    opinion, I am proud of that opinion because I think it
    carefully details the law in that case following the Supreme
    Court precedent. And to your point that other judges disagree,
    there was a case I had about 10 years ago or 8 years ago called
    Papagno. It was a case where I ruled in favor of a criminal
    defendant on a restitution matter. Every other court before
    that disagreed. I wrote the majority opinion with Judge Edwards
    and Judge Griffith. Every other court after us disagreed.
    Finally we got to the Supreme Court this year in the Lagos
    case, and they agreed with our one opinion, the Papagno
    opinion. Just to point out that just because other courts might
    have disagreed does not necessarily mean we were necessarily
    wrong, because the Supreme Court ultimately decides that.
        I understand your questions, and I appreciate them. Thank
    you.
        Chairman Grassley. Senator Cornyn.
        Senator Lee is going to chair while I have another
    appointment.
        Senator Cornyn. Thank you, Mr. Chairman.
        Mr. Chairman, I was grateful that today's hearing, at least
    as far as the Committee is concerned, is a lot more dignified
    and civil. But unfortunately, some of the hijinks continue even
    on the Senate floor. I know that Senator McConnell asked
    consent for the Judiciary Committee to continue to meet during
    today's session of the Senate. Senator Schumer objected, so
    Senator McConnell was left with no option but to adjourn the
    Senate and allow the Committee to continue to meet. That is
    unfortunate.
        So, Judge, I believe we met in the year 2000, and just to
    take a little walk down memory lane here, when I was Attorney
    General of Texas and had a chance to argue a case in front of
    the Supreme Court of the United States, you, Ted Olson, and
    Paul Clement, I believe----
        Judge Kavanaugh. Yes.
        Senator Cornyn [continuing]. Helped me get ready. I regret
    you did not have better material to work with.
        [Laughter.]
        Judge Kavanaugh. It was an honor, Senator. It was an honor.
        Senator Cornyn. It was a great experience, an educational
    experience. I got to appreciate your skills as a lawyer from
    that time and have followed your career closely since, and I am
    proud to support your nomination based on my personal knowledge
    of your skills and your temperament and your character and your
    fidelity to the rule of law.
        But I do want to pick one bone with you. This is not unique
    to you. Based on that experience, that case, as you may recall,
    involved a tradition in the Santa Fe Independent School
    District, unfortunately, which was the site of the shooting
    here in more recent days. But back then, the practice before
    football games was that the students would be able to volunteer
    to offer a prayer before the football game. They were not
    required to do so. The school did not pick them. They could
    offer an inspirational saying or read a poem or anything else.
    But that was the practice.
        Well, until the ACLU filed suit, and unfortunately it was
    held to be unconstitutional and a violation of the
    Establishment Clause. I am not going to ask for your opinion
    because this issue will likely come back before the Court, but
    since I mentioned it to Judge Gorsuch--Justice Gorsuch, I am
    going to mention it to you.
        The thing that has stuck in my craw for the last 18 years
    is the dissent written by Chief Justice Rehnquist which takes
    exception to the majority's decision saying they distorted
    existing precedent. But he goes on to say, even more disturbing
    than its holding is, the tone of the Court's opinion. It
    bristles with hostility to all things religious in public life.
    Neither the holding nor the tone nor the opinion is faithful to
    the meaning of the Establishment Clause when it is recalled
    that George Washington himself, at the request of the very
    Congress which passed the Bill of Rights, proclaimed ``a day of
    public thanks-giving and prayer to be observed by acknowledging
    with grateful hearts the many signal favors of Almighty God.''
        Since I had you here, I thought I would mention that. I am
    not asking for your opinion since likely you will be called
    upon to decide cases involving the Establishment Clause in the
    future. But since we had that history together, I thought I
    would tell you that still sticks in my craw.
        Judge Kavanaugh. I understand, Senator. We remember,
    certainly, cases I lost--I remember, and they still stick in my
    craw too, Senator.
        Senator Cornyn. Well, I just marvel that under the First
    Amendment, that a variety of voices can speak, and that is
    generally a good thing, but it can be about violence, sexism,
    it can be about almost anything, but you cannot speak about
    religion in a public forum.
        Judge Kavanaugh. There have been cases from the Supreme
    Court I think in more recent years, cases like the Good News
    Club case, cases like the Trinity Lutheran case, cases like the
    Town of Greece case where I think the Supreme Court has
    recognized the importance, of course, of religious liberty in
    the United States, and also has recognized, I think, that
    religious speakers, religious people, religious speech is
    entitled to a space in the public square and not to be
    discriminated against.
        I think the Trinity Lutheran case is an important one on
    that. The Good News Club case, that is a case where there was
    an afterschool program at a school gym, I think, or an
    auditorium, and that religious group was excluded, and the
    Supreme Court made clear, no, you cannot just exclude the
    religious group.
        So I think there have been some developments since then in
    terms of religious equality and religious liberty that are
    important. Those cases are always difficult factually, but the
    principle you are espousing, I do think, is reflected in some
    more recent Supreme Court precedent.
        Senator Cornyn. Well, I will just conclude with this. As I
    understand the Constitution, it requires the Government to be
    neutral. As Chief Justice Rehnquist said in this case, the
    Government demonstrated hostility to religious speech in the
    public square. That is just one person's opinion. And again, I
    am not asking you for any opinion with regard to----
        [Disturbance in the hearing room.]
        Senator Cornyn [continuing]. That may come before the
    Court.
        [Disturbance in the hearing room.]
        Senator Cornyn. Mr. Chairman, I hope that time will not be
    subtracted from my 30 minutes.
        Senator Lee [presiding]. It will not be.
        Senator Cornyn. Thank you.
        So, Judge Kavanaugh, I am intrigued by your comment that
    you made earlier about the role of precedent. We have heard a
    lot about precedent. You alluded to this book that you and
    others, other judges wrote with Bryan Garner on the law of
    judicial precedent. I checked it out. It is 900 pages long, and
    I have not read every page of it either.
        Judge Kavanaugh. I do not think it is meant--it is not
    meant to be read word for word. It is a treatise where you go
    to a section that might be on point or something.
        Senator Cornyn. But let me just ask you a more basic
    question, and then we can work our way into that.
        When people go to court, should they expect a different
    outcome if the judge was nominated by a Republican from a court
    where the judge was nominated by a Democrat?
        Judge Kavanaugh. No. That is an important principle of
    judicial independence and the judicial role where ``the judge
    is umpire'' vision that Chief Justice Roberts articulated, and
    I have talked about many times, as critical. When you go to a
    baseball game, the umpire is not wearing the uniform of one
    team or another, and that is a critical principle.
        Senator Cornyn. Well, it strikes me as an important point
    given the suggestion that one of the reasons that people have
    objected to your nomination--I believe the quote was, you
    ``have Republican blood flowing in your veins.'' That strikes
    me as a strange and bizarre statement.
        Judge Kavanaugh. I have been a judge for 12 years, Senator,
    with 307 opinions. I am very proud of that record and have been
    an independent judge for 12 years. As a judge, you are not a
    Republican or Democrat, as a Federal judge.
        Senator Cornyn. And you talked a little bit about the
    constitutional basis for a judge's obligation to apply existing
    precedent. Could you expand on that a little bit more? Because
    I think most people are under the impression this is sort of a
    discretionary matter and you can sort of cherry pick between
    what precedents you decide to follow and which ones you do not
    follow.
        Judge Kavanaugh. Well, there has been a debate sometimes
    about what are the origins of precedent, why do you follow
    precedent. And as I see it, there are a number of reasons you
    would cite: stability, predictability, impartiality, reliance
    interests. But all of those are not mere policies in my view.
        As I see it, the system of precedent comes from Article III
    itself. When Article III refers to, the judicial power shall be
    vested in one Supreme Court and such inferior courts as
    Congress shall, from time to time, establish--to my mind the
    phrase, ``judicial power.'' You think about, what does that
    entail? And you look at the meaning, the meaning at the time of
    judicial power, and you look, one source of that is Federalist
    78. In Federalist 78, it is well explained that judges make
    decisions based on precedent. And precedent, therefore, as I
    read ``judicial power,'' has constitutional origins and a
    constitutional basis in the text of the Constitution.
        Senator Cornyn. And I think you have touched on this as
    well. Judges, unlike legislators, do not run for election. You
    do not have a platform, ``Vote for me, this is what I will do
    if elected into office.''
        One of the most important elements of limiting the
    important role of judges, I think, under the Constitution is
    that you are required to decide a case on a case-by-case basis
    rather than issuing some sort of oracle saying, ``Henceforth
    the law will be thus,'' assuming you could get eight other
    judges on the Team of Nine we talked about to agree with you.
        [Disturbance in the hearing room.]
        Senator Cornyn. Could you talk about the importance of
    deciding cases on a case-by-case basis?
        Senator Lee. We will add another 20 seconds.
        Senator Cornyn. Thank you.
        Judge Kavanaugh. Absolutely, Senator. It is important to
    understand, and I think Senator Graham alluded to this as well.
    As judges, you do not just issue policies or issue opinions out
    of the blue. You decide, as Article III says, cases and
    controversies, and that means there is a process. Litigants
    come into the Federal trial court, for example, and litigate
    against one another, and there is a process there, a trial or a
    summary judgment motion. The district judge renders a decision.
    Then that comes up to the court of appeals in my case, and
    there is briefing and oral argument. I like to say there is a
    process. I like to say process protects you. That is one of the
    things I always like to keep in mind.
        You go through a process to help make the decisions, a
    deliberative process, and we have a process. Judges are very
    focused on process and having that oral argument, having the
    briefing, and then talking to your colleagues. You change your
    mind. Senator, you have been a judge, of course. You change
    your mind sometimes based on the comments of colleagues. So
    that process is important.
        Then to your point about how you are deciding that case,
    you write an opinion. You are not trying to resolve every issue
    imaginable in the opinion. You are trying to resolve this case
    under the principles and precedents, the text of the law in
    question, the text of the statute in question, and decide that
    case or controversy. That is how judges build up a system of
    precedent over time, by deciding one case at a time and not
    trying to do more than they can or more than they should.
        [Disturbance in the hearing room.]
        Senator Cornyn. Judge, do you not think that what you have
    described for us in deciding cases on a case-by-case basis has
    an important foundation in fairness to the litigants, the
    parties that come to your court? Because how would somebody
    feel if they know you have already announced, in all cases that
    have to do with subject X, I have made up my mind, I do not
    care what the facts are? Is that not unfair to the litigants?
        Judge Kavanaugh. It can be, Senator, at least where an
    over-broad ruling may resolve things that people who are
    affected by it may have thought that, well, I was not part of
    that case; why am I now affected in a particular way?
        I think one of the things I can say about how I have tried
    to write my opinions, the 300 opinions, is that I am always
    concerned about----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. I am always concerned about unintended
    consequences. This is one of the reasons I always go through so
    many drafts of my opinions and really work through them, is
    even just a sloppy footnote or an ambiguous word in an
    opinion--it is true when you are drafting laws here too, but--
    --
        [Disturbance in the hearing room.]
        Judge Kavanaugh. You are concerned about unintended
    consequences, which is why it is so important to be clear in
    the opinions and to be exactly precise and not----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. To decide too much.
        [Disturbance in the hearing room.]
        Senator Cornyn. Judge, let me ask you to tell us a little
    bit about September 11, 2001. Where were you when you heard
    that the planes hit the World Trade Center, and in Washington,
    DC, another plane hit the Pentagon here?
        Judge Kavanaugh. I remember I was in the West Wing when
    they hit the second tower. I remember that, up in the upstairs
    Counsel's office, with a couple of other people in the
    Counsel's office. And then we were ushered downstairs and then
    told to get out, run out, because there was fear, as we later
    learned, about Flight 93. I do not know whether it was headed
    to the Capitol or the White House or some other target, of
    course. And the heroes of Flight 93 saved so many Americans, a
    sacrifice that we still, of course, all celebrate in the sense
    of celebrating their lives and their heroism for saving all of
    us here in Washington. But I ended up out in Lafayette Park
    with the rest of the staff, bewildered.
        It changed America, it changed the world, it changed the
    Presidency, it changed Congress, it changed the course, all the
    issues that came before us. It was a new kind of war, as
    President Bush described, with an enemy that did not wear
    uniforms and that would attack civilians. So new kinds of laws
    had to be considered in Congress, had to work through that. And
    President Bush had to focus so intently. As I have said before,
    my remembrance of September 12, his basic mentality of this
    will not happen again. Having traveled with him from 2003 to
    2006 everywhere as staff secretary and seeing him up close, I
    still think every day I was with him during those years, every
    morning when he got up, it was still September 12, 2001, this
    will not happen again.
        And to see that focus--of course, he had to do all the
    other things of the Presidency and all the other legislative
    and regulatory and ceremonial aspects. But he was so focused on
    that, and I am sure that has been true of the succeeding
    Presidents as well, because the threat still exists, of course.
        Senator Cornyn. Well, as we came to learn, Osama bin
    Laden--and al-Qaeda--was responsible for that attack and has
    now morphed into other organizations like ISIS and the like.
        But I want to ask you, you had to then sit in judgment
    later on in a case, the Hamdan case, which you alluded to
    earlier, where the defendant was Osama bin Laden's personal
    bodyguard and driver. He was captured by U.S. forces in
    Afghanistan after 9/11 and detained in Guantanamo Bay. He
    subsequently went through a military tribunal, and then that
    case was appealed to your court.
        Just correct me if I am wrong, but notwithstanding the
    experience that you and everybody you cared about, having been
    through this terrible travesty of 9/11, you ruled in favor of
    Osama bin Laden's bodyguard and driver; correct?
        Judge Kavanaugh. That is correct. I wrote the majority
    opinion.
        Senator Cornyn. How could you do that? How could you
    possibly do that?
        Judge Kavanaugh. The rule of law applies to all who come
    before the courts of the United States.
        Senator Cornyn. Even an enemy combatant?
        Judge Kavanaugh. Equal justice under law. Everyone is
    entitled to----
        Senator Cornyn. Even a non-citizen?
        Judge Kavanaugh. Yes. Non-citizens who are tried in U.S.
    courts have constitutional rights. And really, my model on
    that, my judicial model for thinking about something like that,
    because I thought about what you are asking about, Justice
    Jackson, of course, Robert Jackson, who had been Franklin
    Roosevelt's Attorney General, in the Korematsu case, even
    though that was one of President Roosevelt's policies, the
    majority opinion now overruled, but Justice Jackson dissented
    and ruled against the Roosevelt policy. Justices Clark and
    Burton, two appointees of President Truman, are the two
    deciding votes in Youngstown Steel. That is a 6-to-3 decision.
    Those two are the deciding votes, therefore. They both were
    appointees of President Truman, and it is wartime against
    Korea. They get to the Supreme Court. They are the deciding
    votes in the Youngstown Steel case, which was an extraordinary
    national moment, one of the great moments.
        So your conception of the role of the judge is that it is
    about the law. It is distinct from policy, and our judiciary
    depends on having people in it, and we are fortunate to have a
    wonderful Federal judiciary, people in it who understand the
    difference between law and policy and are willing to apply
    principles of equal justice under law to anyone who comes
    before the court. Even the most unpopular possible defendant is
    still entitled to due process and the rule of law, and I have
    tried to ensure that as a judge.
        Senator Cornyn. Well, it is hard for me to imagine a more
    unpopular defendant than Osama bin Laden's driver and personal
    bodyguard. So I find the suggestion that somehow you are
    prejudiced against the small guy in favor of the big guy, or
    that you are picking and choosing who you are going to render
    judgment in favor of based on something other than the rule of
    law, I think this answers that question conclusively for me,
    the fact that you could separate yourself from the emotional
    involvement you had, along with so many people you worked
    closely with in the White House on September 11, and you could
    then as a judge, after you put on the black robe and take the
    oath of office, you could then render a judgment in favor of
    Osama bin Laden's bodyguard and driver because you applied the
    law equally to everybody that comes to your court.
        Let me allude to something I think Senator Sasse was
    eloquently speaking about yesterday in terms of the separation
    of powers, a very important aspect of our constitutional system
    and one that I know you have dealt with often on the D.C.
    Circuit Court of Appeals, and that has to do with what I have
    read some judges talk about, some constitutional scholars talk
    about, a conversation between the branches.
        In other words, when the D.C. Circuit Court or the Supreme
    Court decides a case, they finally decide that case, but they
    do not finally decide what the policy is for the United States
    or the American people; correct?
        Judge Kavanaugh. That is correct, Senator. I think one of
    the important things that judges can do is to adhere, of
    course, to the laws passed by Congress, but then in writing the
    opinion make clear--and I have done this before, and a lot of
    my colleagues do this--is that perhaps the statute needs
    updating. But if it does, that is the role of Congress to
    update the statute. Or sometimes there will be a hole in a
    statute or something that seems unintended in a statute, and to
    alert Congress to that.
        Chief Judge Katzmann of the Second Circuit, who is a great
    judge I serve with on the Judicial Branch Committee, which is
    appointed by the Chief Justice, he has written a book about
    statutory interpretation, but he has also been the leader of a
    project to make sure that Congress is alerted to potential
    statutory issues that look like they might have been things
    that perhaps Congress would not have intended, or at least
    Congress would want brought to its attention so it could fix.
        [Disturbance in the hearing room.]
        Judge Kavanaugh. So that project has been very successful.
    That is Chief Judge Katzmann's project, and it is one--even
    without that project, how you write your opinion, I think, is
    important. We do not update the statutes. You update the
    statutes. But it is good for us to write our opinions in a way
    that points out potential issues that Congress might want to be
    aware of.
        Senator Cornyn. And that is part of the conversation
    between the two co-equal branches of Government.
        Judge Kavanaugh. Absolutely, and I think that is an
    important dialogue to have between Congress and the judiciary,
    and the back-and-forth is very important on that front, and I
    think that is one thing I am always thinking about in my
    opinions. You write the laws, but if the law looks like there
    is some issue with it, some flaw or something that might be an
    unintended consequence, in the opinion you can identify it, and
    that can be something that Congress can turn its attention to
    sometimes, because I am well aware that statutory drafting is a
    very difficult process.
        It is something that I think judges actually need to be
    more aware of, how difficult the legislative drafting process
    is. Even if you are doing it as one person, it would be
    difficult. But then you are doing it as a collective body, and
    then you are doing it with the House and with the President
    involved. There are a lot of people in it, and it is hard to
    have, with all the compromises inherent in that, hard to have
    crystal clarity on every possible topic.
        So as judges I think, number one, we have to recognize the
    process that you go through as legislators. That means adhere
    to the compromises that are made, the text as written. But also
    when we write our opinions, if there seems to be something that
    is not working out, it is appropriate I think for judges to
    point that out in their opinions.
        Senator Cornyn. And, of course, even if it is the
    constitutional basis for your opinion, that can be changed by
    constitutional amendment. Correct?
        Judge Kavanaugh. Well, that is correct as well. The Framers
    did not think the Constitution was perfect by any stretch. They
    knew it had imperfections. For starters, the original
    Constitution did not have the Bill of Rights, the first 10
    Amendments. So there was a lot of discussion at the ratifying
    conventions about having a Bill of Rights, and that was quickly
    done in the First Congress in New York in 1789, of course, by
    James Madison taking the lead on that.
        But so, too, they did not think it was perfect. They have
    an amendment process that specified in Article V of the
    Constitution, and that amendment process was intended to be
    used, and we have seen it used to correct structural issues:
    the Twelfth Amendment on Presidential elections; the
    Seventeenth Amendment, of course, as you all know well, on
    Senate elections; the Twenty-second Amendment, which limited
    Presidents to only two terms; the Twenty-fifth Amendment, which
    corrected some issues with respect to the Vice Presidency. So
    too, of course, the Thirteenth, Fourteenth, and Fifteenth
    Amendments, the most important amendments in the Constitution
    in many respects, because it brought the promise of racial
    equality that had been denied at the time of the original
    Constitution into the text of the Constitution.
        So the job of the people, which is the Congress and the
    State legislatures, is to amend the Constitution. It is not the
    job of judges to do that on our own. Obviously, that is a basic
    divide of constitutional responsibility that is set forth right
    in the text of Article V of the Constitution.
        Senator Cornyn. I cannot remember who said it, I think
    Justice Jackson perhaps, who said the Supreme Court is not
    final because it is always right; it is right because it is
    final, or words to that effect. But I always thought the more I
    got into that, the more I disagreed with that, because it is a
    conversation between the branches, and if the American people
    believe that it is a constitutional matter, the way the
    Constitution is being interpreted, it is within our power as
    the American people to change our own Constitution by
    amendment. There are provisions in the Constitution itself to
    do that.
        It is hard, and it should be hard, but ultimately the
    authority that we delegate to the Government finds its origin
    in the consent of the governed. It is not something dictated to
    us from on high, from the marble palace or somewhere like that
    here in Washington. It is ultimately our Government, our
    responsibility, our authority that provides legitimacy to the
    Government itself. Do you agree with that?
        Judge Kavanaugh. I agree, of course, with that, Senator.
    The people, we the people form the Constitution of the United
    States and the sovereignty. The people are the ultimate
    authority. And you are right about Justice Jackson's line. I
    think it is a clever line, but ultimately I agree with you. I
    have always had a little bit of a problem with that line, we
    are infallible because we are final. No, both parts of that are
    wrong in some sense, because I never want to think of the Court
    as infallible, and I also never want to think of it necessarily
    in the way you are describing either, because the people always
    have an ability to correct through the amendment process.
        Now, the amendment process is hard and has not been used as
    much in recent decades. But, of course, at the beginning of the
    country the amendments were critical, and Dred Scott, of
    course, the awful example of just a horrific Supreme Court
    decision that is then corrected in part, at least on paper, in
    the Fourteenth Amendment--the Thirteenth and Fourteenth
    Amendments, and that is an important example, I think, probably
    the best example, frankly, of the point you are making about
    the people being able to respond to a horrific decision of the
    Supreme Court.
        Senator Cornyn. Well, in fairness to Justice Jackson, maybe
    he was thinking, as I originally thought, about the expression
    as being binding on lower court judges, trial judges, appellate
    court judges, and the Supreme Court does have the final word in
    that food chain of the judiciary, but not in terms of the
    fundamental authority of the American people to decide what
    laws should govern them.
        Judge Kavanaugh. I think that is probably right, Senator. I
    do not want to be--Justice Jackson is one of our greatest
    Justices. So to question anything, whether it is the Korematsu
    dissent or Barnett or Youngstown or Morissette on mens rea,
    Justice Jackson wrote some of the greatest opinions, and the
    example of judicial independence as well.
        But on that one line, I take your point.
        Senator Cornyn. Let me just ask you one last question. We
    talked a lot about the role of precedent, and Senator Feinstein
    talked about stare decisis, that basically cases that have been
    decided provide the precedent for future cases.
        But on occasion, the Supreme Court has decided that its
    decisions were just wrong and has chosen to overrule those
    previous decisions. I am thinking of Plessy v. Ferguson, for
    example, which was a scar on our body politic that said that
    separate but equal educational facilities met the
    constitutional requirement of the Fourteenth Amendment.
        But can you talk about the extraordinary circumstances
    under which the Supreme Court would revisit a precedent?
        Judge Kavanaugh. Well, Brown v. Board of Education, of
    course, overturned Plessy. Plessy was wrong the day it was
    decided. It was inconsistent with the text and meaning of the
    Fourteenth Amendment, which guaranteed equal protection.
        The Supreme Court in Strauder v. West Virginia in 1880, a
    jury selection case, had said, what is this amendment but that
    the law shall be the same for the Black and the White? And the
    Supreme Court, unfortunately, backtracked from that clear
    principle in the Plessy decision, and a horrific decision which
    allowed ``separate but equal,'' and then Brown v. Board
    corrected that in 1954, of course, corrected it on paper. It is
    still decades, and we are still seeking to achieve racial
    equality. The long march for racial equality is not over.
        But Brown v. Board, as I have said publicly many times
    before, the single greatest moment in Supreme Court history,
    by, in so many ways, the unanimity which Chief Justice Warren
    achieved, which is a great moment; the fact that it lived up to
    the text of the Equal Protection Clause; the fact that it
    understood the real-world consequences of the segregation on
    the African-American students who were segregated into other
    schools and stamped with the badge of inferiority; that moment
    in Brown v. Board of Education is so critical to remember, and
    the opinion is so inspirational. I encourage everyone to--it is
    a relatively short opinion, but it is very powerful. It is very
    focused on the text of the Equal Protection Clause--and
    correcting that awful precedent of Plessy v. Ferguson--a great
    example of leadership.
        And just the last point I will mention on process, they
    knew they were going to face popular backlash. They knew they
    were--but they still did it. So that shows independence and
    fortitude. But they also had re-argument, which I think is a
    good--they had argument originally and then decided there was a
    lot going on and maybe not everyone is seeing it the same way
    as the Justices, and they had a re-argument. I think it is a
    good lesson on process protecting us, and keep working at it
    and keep working at it and see--you know, the Team of Nine that
    I mentioned yesterday, and mentioned today, keep working at it
    as a Team of Nine, and they came out unanimous. Chief Justice
    Warren, thankfully, led the Court in that decision. That was a
    great moment, the greatest moment in Supreme Court history.
        Senator Cornyn. Thank you, Judge.
        Senator Lee. Thank you. I awarded two additional minutes to
    Senator Cornyn because he was interrupted, by my count, 5 times
    during his testimony.
        Senator Whitehouse is next.
        Senator Whitehouse. Thank you. Good afternoon, Judge
    Kavanaugh.
        Judge Kavanaugh. Thank you, Senator.
        Senator Whitehouse. Are you good for another half hour?
        Judge Kavanaugh. I am good.
        Senator Whitehouse. All right, good. In my office, you told
    me that you could provide no assurance to me that you would
    uphold a statute requiring insurance companies to provide
    coverage for pre-existing medical conditions. Is that still
    true, here in public?
        Judge Kavanaugh. Well, I think, Senator, it is important to
    understand the principle at play here. The principle----
        Senator Whitehouse. We have talked a lot about that, but is
    the statement you made--have I recited it accurately, and is it
    still true today, that you can give no assurance that you would
    uphold----
        Judge Kavanaugh. Well, Senator, judges like to explain
    their decisions.
        Senator Whitehouse. Yep, but I get to ask the questions.
    Usually you get to ask the questions because you are the
    appellate judge, but today for half an hour I get to. So, is it
    still true that you can give no assurance that you would uphold
    a statute requiring insurance companies to cover pre-existing
    medical conditions?
        Judge Kavanaugh. So, to prepare for this moment, I went
    back and read----
        Senator Whitehouse. I really would like you to be as
    careful with your time as you can, because I have a very
    limited amount of time with you. So, the quicker you can get to
    the answer--it could be as simple as ``yes'' or ``no.''
        Judge Kavanaugh. But I can enhance your understanding of my
    answer if I explain it, I think.
        Senator Whitehouse. I really just want your answer on the
    record. I think I am pretty capable of understanding it on my
    own.
        Judge Kavanaugh. But, well, then everyone to understand my
    answer. So, there is nominee precedent of how Justices and
    nominees in my position have answered in the past. I will be
    succinct, if I can. And all eight sitting Justices----
        Senator Whitehouse. I know. You have actually said this in
    the hearing, so people who are listening and interested have
    actually already heard you say this.
        Judge Kavanaugh. Well, I think it is really important, so I
    want to----
        Senator Whitehouse. Say it again, then.
        Judge Kavanaugh. I want to underscore it. All eight sitting
    Justices of the Supreme Court have made clear that it would be
    inconsistent with judicial independence, rooted in Article III,
    to provide answers on cases or issues that could come before
    us. Justice Ginsburg, ``no hints, forecasts.'' Justice Kagan,
    talking about precedent, ``no thumbs are up or down.''
        And I went back. Justice Thurgood Marshall was asked
    repeatedly in his hearing, ``What do you think about Miranda
    ?'' ``What do you think about Miranda ?'' ``What do you think
    about Miranda ? ''
        Senator Whitehouse. Got it. Everybody else does it, and
    your answer is still ``no.''
        Judge Kavanaugh. So, the reason everyone else does it,
    though, is rooted in judicial independence and my respect for
    precedent. So, it is a combination of my respect for precedent,
    nominee precedent, and my respect for judicial independence.
    So, I cannot give assurances on a specific hypothetical.
        Senator Whitehouse. Okay, thank you. Let me go on to
    another subject, which is executive privilege. Executive
    privilege is a principle that is founded in the Constitution in
    the separation of powers, correct?
        Judge Kavanaugh. The Supreme Court so ruled in the United
    States v. Richard Nixon case. So, that was the first--the key
    issue in United States----
        Senator Whitehouse. That is all right. I just needed the
    answer to the question, and you have answered it.
        Judge Kavanaugh. But the source is important.
        Senator Whitehouse. As a privilege, it needs to be
    asserted, does it not? That is true of privileges generally?
        Judge Kavanaugh. I do not know where you are--where this is
    going, but the----
        Senator Whitehouse. It is a pretty straightforward
    question. Do privileges not need to be asserted in order to
    apply?
        Judge Kavanaugh. Well, privileges are recognized.
        Senator Whitehouse. Once they are asserted.
        Judge Kavanaugh. I think as a general proposition.
        Senator Whitehouse. Fair enough. I am only asking a general
    proposition.
        Judge Kavanaugh. Yes, in attorney-client privilege, you
    would assert the attorney-client privilege.
        Senator Whitehouse. Yes, assert it.
        Judge Kavanaugh. Yes.
        Senator Whitehouse. And who asserts executive privilege?
        Judge Kavanaugh. Ordinarily--well, that is a complicated
    question, Senator, actually. That----
        Senator Whitehouse. Who does it come back to? Ultimately,
    who asserts executive privilege?
        Judge Kavanaugh. So, it depends what you are talking about.
    So, what kind of executive privilege document you are talking
    about, it depends. In my experience----
        Senator Whitehouse. Ultimately, it is the President.
        Judge Kavanaugh. There is not--there is not as much
    precedent on that. There is some. The Supreme Court, this was--
    the Supreme Court in the United States v. Richard Nixon----
        Senator Whitehouse. Is it not fair to say that executive
    privilege belongs to the President of the United States, the
    Chief Executive?
        Judge Kavanaugh. Yes, it can also belong to the former
    President in the case of former Presidential records. That is
    one caveat I want to put on that.
        Senator Whitehouse. Okay, fair caveat. Is the assertion of
    executive privilege by the President subject to judicial
    review?
        Judge Kavanaugh. Well, of course, because under the
    precedent, United States v. Richard Nixon----
        Senator Whitehouse. Yes.
        Judge Kavanaugh. Said two things. It said, one, that
    executive privilege is constitutionally rooted. The special
    prosecutor in that case argued that actually there was no such
    thing as executive privilege, and the Supreme Court rejected
    that argument and held that the executive privilege is rooted
    in the separation of powers and in Article II. But second----
        Senator Whitehouse. The reason I am asking does not have
    much to do with you. It goes back to a point that we were
    talking about earlier in the hearing, which is that we have
    received hundreds and hundreds of pages of documents of your
    record that looked like this. They both say ``committee
    confidential'' across them at an angle, and then across the
    front they say ``constitutional privilege.'' And as a Member of
    the Senate--this is not a question, I am speaking to my
    colleagues--I find myself in a quandary here about being denied
    those particular documents because I cannot find any assertion
    of the privilege.
        These documents just suddenly appeared and somebody had put
    ``constitutional privilege'' on the page and wiped out all the
    text that was on the page. And my understanding is that there
    is ordinarily a process for getting to that determination that
    allows for ultimately a judicial review, and we have failed to
    get subpoenas out of the Committee for documents, so we cannot
    trigger it that way. And there is no apparent assertion of
    executive privilege that I can find in the record of how this
    particular paper got here.
        So, I just wanted to establish some of the basic ground
    rules of executive privilege with you because I think we agree
    on that. I think that is basically commonly agreed and put that
    into the context of what we are looking at, and particularly
    with respect to Chairman Leahy's questioning earlier. If some
    of the documents he is looking for have now been protected by
    this non-assertion assertion of executive privilege, we have a
    problem. It is a continuing problem in the Committee. We have
    had other witnesses come and do non-assertion assertions of
    executive privilege, and so I am sorry to drag Committee
    business before you, but I do think it is important that we try
    to get this right.
        Judge Kavanaugh. Can I make one addendum based on my
    experience from the time, which is I do not think formal
    assertions usually occur until after there has been a subpoena,
    at least from my time working in the Bush----
        Senator Whitehouse. Which is why not being able to get a
    subpoena kind of bolixes up the process, yes indeed. The role
    of the Federalist Society in bringing you here today has been
    of interest to me. As you know, we spoke about it quite a lot
    when you and I met in my office. Mr. McGahn, who is sitting
    very patiently behind you--I can see him over your shoulder----
        Judge Kavanaugh. Yes.
        Senator Whitehouse [continuing]. Has said that the
    Federalist Society was insourced into the White House to make
    these recommendations, specifically to make the recommendation
    that you should be the nominee. You have said this regarding
    President Bush, that he thought it was, and I am quoting here,
    ``improper to give one group, especially a group with interests
    in many issues, a preferred or favored position in the
    nomination process.'' That was--those were words speaking, I
    guess, to the Federalist Society National Lawyers Convention.
    On another occasion, you wrote a draft speech for Attorney
    General Gonzales or White House Counsel Gonzales--probably
    White House Counsel Gonzales--look at the date--to deliver to
    the Federalist Society. And you said in that speech, ``As a
    matter of constitutional principle, it is simply inappropriate,
    we believe, to afford any outside group a quasi-official role
    in the President's nomination process.'' How do you square
    those comments about the role of the American Bar Association
    in the nomination process with the role of the Federalist
    Society in your nomination process, assuming that Mr. McGahn
    was speaking accurately when he said they had been insourced to
    the White House for this process?
        Judge Kavanaugh. Right. So, I can speak to the ABA part of
    that. President Bush in 2001 had to make a decision of how the
    ABA should play its usual rating role with respect to nominees,
    and the ABA takes files, amicus briefs, and takes policy
    positions on issues. And, therefore, after some deliberation,
    it was decided that there was nothing wrong with the ABA rating
    the nominees, but to give an organization that files amicus
    briefs and takes policy positions a preferred role in the
    constitutional nomination process was unfair in some ways and
    favoring----
        Senator Whitehouse. Would it be a fair description of the
    Federalist Society's role in your selection as the nominee to
    say that it was preferred over other groups?
        Judge Kavanaugh. Well, my experience was when Justice
    Kennedy retired on the Wednesday, Mr. McGahn called me later
    that afternoon, said we need to talk on Friday. He came over to
    my office on Friday evening or late afternoon. We talked for
    three or 4 hours, interview and going through the usual kinds
    of questions you would go through when you are embarking on a
    process like this. And then I met with the--interviewed with
    the President on Monday morning, interviewed----
        Senator Whitehouse. So, is it your testimony that you do
    not what the role of the Federalist Society was in your
    selection?
        Judge Kavanaugh. My experience--my personal experience and
    what I know is that President Trump made the decision for
    starters. President Trump made the nomination, and I know he,
    as I explained yesterday, I know he spent a lot of time in
    those 12 days on this issue, and I was aware of that. I also
    know that Mr. McGahn was directly involved with me and spent a
    lot of time on it. And I also know that the Vice President----
        Senator Whitehouse. But you have no knowledge to share with
    us today about the role of the Federalist Society and how they
    were insourced into the White House. That is a mystery to you
    as well as to us.
        Judge Kavanaugh. I am not sure what Mr. McGahn meant. I
    think by that comment--I think Federalist Society members are--
    the lawyers in the administration are Federalist Society
    members, and so it should not be a surprise that--because it is
    an organization----
        Senator Whitehouse. Leonard Leo's role specifically from
    the Federalist Society?
        Judge Kavanaugh. I do not know.
        Senator Whitehouse. Okay.
        Judge Kavanaugh. I do not know the specifics.
        Senator Whitehouse. Well, let us go from specifics to
    generals, and let me put up a graphic that shows some of the
    folks who fund the Federalist Society.
        Senator Whitehouse. It is a pretty significant group of
    people who tend to share very conservative and pro-corporate
    points of view. It reflects that at least 14 of the donors are
    actually anonymous, which is a very unfortunate part of our
    current political world. Actually, probably more than that
    because Donors Trust here is an organization whose sole purpose
    is to launder the identity off of big donors so that a
    recipient of funds can report that they got the money from
    Donors Trust rather than the true party in interest. So, we do
    now know how much anonymous money flowed through them, but I
    would contend that this is a pretty strong group of right-wing,
    conservative, pro-corporate funders.
        And presuming that to be true, should that give you or
    anyone in this process pause that groups like this may have had
    such a significant role in selecting you to be in this seat
    today?
        Judge Kavanaugh. Senator, Mr. McGahn was the one who
    contacted me. I interviewed with the President, and I know the
    President was--I am the President's nominee. He was directly
    involved in making that decision. I am sure he consulted with
    Mr. McGahn and others. I know he consulted widely with a lot of
    people to get input on the--very widely to get input on the--at
    least the people who were the finalists. So, that part of it,
    my 12-day experience, was with the White House Counsel's Office
    and the President and Vice President, too.
        Senator Whitehouse. Okay. So----
        Judge Kavanaugh. And I also do not--I am not familiar with
    all the----
        Senator Whitehouse. Whatever the role of the Federalist
    Society was in all of this, it was, and there is plenty of
    reporting. We do not need to litigate that. Between us, you do
    not know is what you have testified, and that is fine.
        Judge Kavanaugh. On my process, and, again, yes.
        Senator Whitehouse. But you are fairly familiar with the
    process generally because you used to run it in the Bush White
    House or have a significant role in it, the process of judicial
    nomination selection. Judicial nominee selection, correct? You
    have been inside that machine.
        Judge Kavanaugh. I did not run it. Judge Gonzales, when I
    was in the Counsel's Office, was the Counsel. He----
        Senator Whitehouse. But you have been inside the process.
        Judge Kavanaugh. I have--I have been inside the process,
    yes.
        Senator Whitehouse. So, the next thing that happens going
    forward is that we see the Judicial Crisis Network showing up,
    and they spend millions and millions and millions and millions
    of dollars to run ads urging Senators to support you. Now, I do
    not know whether we can show that those were the same funders
    because they are engaged in what is called, as you know, dark
    money funding. They do not report their donors. But I would be
    prepared to make a very substantial guess that there is
    enormous overlap between the funders of the Judicial Crisis
    Network campaign for your confirmation and the Federalist
    Society donor group, to the extent that we are aware of it
    since so many of them are anonymous.
        Hypothetically, should the American people have concern
    about the role of very, very big spenders and influencers doing
    things like being involved in the selection of a Supreme Court
    nominee and running dark money campaigns to support the
    confirmation of a nominee? Is there any cause for concern there
    as a general proposition?
        Judge Kavanaugh. Senator, there are a lot of premises in
    your question that I am not sure about.
        Senator Whitehouse. I am not asking you accept the premises
    as true. I am asking it as a hypothetical.
        Judge Kavanaugh. Well, I----
        Senator Whitehouse. If there were very, very significant
    big special interest funding behind the organization that was
    responsible for selecting you and recommending to the President
    that he nominate you, and again from a very similar group in
    supporting the dark money campaigns that are being run on your
    behalf for your confirmation, would that be a matter of
    concern, or is that all just fine and we should not even care
    about getting the answers?
        Judge Kavanaugh. So, two things, Senator. One is, I have
    described the process I went through with Mr. McGahn, the
    President, and the Vice President----
        Senator Whitehouse. Yes.
        Judge Kavanaugh. And the selection. And that is what I know
    about my process. Two, on the ads, there were a lot of ads
    against me, as well, and I have seen those, and, you know, our
    family has seen those. And then there were ads for me, and we
    have seen those, too. And as Chief Justice Roberts said in his
    hearing, it is a free country, and there are ads for and
    against, and obviously we--as Senator Durbin said----
        Senator Whitehouse. Should we as citizens know who they
    are, who is funding the ads, just as a matter of citizenship?
    Is that----
        Judge Kavanaugh. Well, I think that is, first and foremost,
    a policy question for the Congress to decide on what disclosure
    requirements it wants to put in. And then if those disclosure
    requirements were put in or State governments could try to make
    disclosure requirements. I think, some have tried, and then
    there would undoubtedly be challenges to that, and what is the
    First Amendment implications of that. And that would come to a
    court, and I would keep an open mind on that case under the
    precedent and First Amendment law, and we would think about
    that.
        The policy question, I think, is really for Congress in the
    first place to determine, assess, study exactly what kind of
    disclosure requirements should be in place.
        Senator Whitehouse. Yes.
        Judge Kavanaugh. I understand----
        Senator Whitehouse. The potential hazard there is that the
    unleashed power of unlimited political dark money then becomes
    like a ratchet, the obstacle to solving that problem. And I
    hope you can understand that as a matter of political
    principle.
        Judge Kavanaugh. I do understand the concerns about money
    in the political system. When I worked for--and the time it
    takes all of you and when I worked for President Bush in the
    2004--2003-2004 timeframe, for example, and how many
    fundraisers he had to do, and going back to the September 11th
    point and the time and burdens on the Presidency, he had to do
    a lot of fundraisers. Running for President while being
    President----
        Senator Whitehouse. It has gotten a lot easier since now
    you can just get a huge special interest to set up a 501(c)(4)
    and drop tens of millions of dollars in, and it is [snapping of
    fingers] like that, and the public does not know who is behind
    it. Only the--a very few people are in on what the deal is. So,
    it has gotten easier since President Bush, but not better.
        Judge Kavanaugh. Well, I think for some Members,
    particularly in the House, if you have a--if you are running
    for re-election and a third party group comes in against you,
    and you do not have--you have to go out fundraising and spend
    even more time, I think--at least as I understand it, that is
    part of the concern I have heard over the years just generally,
    is the time that each of you has to spend and the Members of
    the House have to spend.
        Senator Whitehouse. So, let me just continue on forward
    through this problem of funders. On the Court, on the D.C.
    Circuit and potentially on the Supreme Court, you will often
    see cases brought by groups, like, for instance, the Pacific
    Legal Foundation. Are you familiar with that group?
        Judge Kavanaugh. I have seen briefs by the Pacific Legal
    Foundation.
        Senator Whitehouse. Do you know what they do?
        Judge Kavanaugh. I will take your description.
        Senator Whitehouse. Okay. My description is that they get
    money from right-wing conservative and corporate interests, and
    they look for cases around the country that they believe they
    can use to bring arguments before the Court. I argued against
    them in the Supreme Court at one point. They came all the way
    across the country to the shores of Winnapaug Pond, Rhode
    Island, to hire a client whose case they could take to the
    Supreme Court with a purpose to make a point. And they are not
    alone in doing this. There are a number of similar groups who
    perform this service.
        And it causes me to think that sometimes the true party in
    interest is actually not the named party before the Court, but
    rather the legal group that has hired the client and brought
    them to the Court more or less as a prop in order to make
    arguments trying to direct the Court in a particular direction.
    Is that an unreasonable concern for us to have about the
    process?
        Judge Kavanaugh. Senator, I think there are public interest
    litigation groups spanning the ideological spectrum that look
    for cases to weigh in on as amicus briefs--in amicus briefs,
    and there are--also, of course, there have been historically--
    you look for--as I understand it, people try to identify
    suitable plaintiffs to challenge--and this, again, is across
    the entire ideological spectrum.
        Senator Whitehouse. What are the signals that that has
    gotten out of hand, that there is something rotten in Denmark?
        Judge Kavanaugh. That is an interesting question, Senator,
    and I think it is an important one, but it is not one that I
    think I have a great answer to.
        Senator Whitehouse. Well, let me propose one thought to
    you, which is that the Supreme Court at least should fix its
    rules on who the amici are who turn up, and require some
    disclosure of who is really behind them. The only thing the
    Supreme Court requires is to disclose who paid for the brief.
    The brief itself is not a very big expense. And so, very
    powerful interests can come in behind an amicus group that has
    a lovely name like Citizens for Peace and Prosperity and
    Puppies, and nobody knows who is really in interest. So, that
    would be one thing that I think would be a concern.
        Judge Kavanaugh. Can I----
        Senator Whitehouse. Another thing that would be a concern,
    I would think, would be when you see these special interest
    groups rushing out trying to lose cases in order to get before
    a friendly court. It really seems improbable that somebody who
    has actually tried cases, and who has been around courtrooms a
    lot, and who has seen a lot of litigation and a lot of great
    litigators, I have never seen anybody once try to lose a
    legitimate case. So, in the wake of Justice Alito's signaling
    about what then became Friedrichs and Janus, to see these
    groups rush out and ask the Court to rule against them so they
    can get--hot foot up to the Supreme Court where they expect a
    good outcome, to me that--there is just something that does not
    seem right about that. That seems to me a little bit like faux
    litigation; that there is something else going on other than
    real parties having real arguments, and the Supreme Court
    ultimately settling properly prepared real disputes.
        Do you have any concern about the optics of people rushing
    to lose cases below to come before what they think is a
    friendly Supreme Court? Does that seem just a little bit odd?
        Judge Kavanaugh. I will----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. Acknowledge, Senator, I am not entirely
    familiar with that phenomenon.
        Senator Whitehouse. Okay.
        Judge Kavanaugh. I would be interested in more----
        Senator Whitehouse. I might follow up with you with a, you
    know, question for the record to get your more deliberate
    thoughts about it.
        Judge Kavanaugh. And on your amicus thought, I am
    interested in the specifics of your proposal, and certainly if
    confirmed, I would----
        Senator Whitehouse. Because here is the concern. You know
    perfectly well that the Court depends on--as much as anything--
    on its reputation. You do not have a purse and you do not have
    an army, you stand on your reputation in the judiciary, and you
    must not only act justly, but be seen to act justly. And what I
    have laid out is a scenario in which very big special interests
    have a significant role in funding the group that I believe,
    and much reporting says, is responsible for getting you to the
    top of the greasy pole of----
        [Applause.]
        Senator Whitehouse [continuing]. Of nominee selection. And
    that the same funders are behind the Judicial Crisis Network
    operation that is politically pushing for you.
        [Disturbance in the hearing room.]
        Senator Whitehouse. That the----
        Senator Lee. Senator Whitehouse, we are going to add 1
    minute to your time.
        [Disturbance in the hearing room.]
        Senator Whitehouse. That some portion of the Supreme
    Court's docket is made up of strategic cases rather than real
    litigation in which somebody has gone out to find an
    appropriate plaintiff, hire the client, bring them in. And by
    the way, when they are done with them, they fire the client
    rather unceremoniously, in my experience. And then when the
    proper case comes up, you see this flood of special interest
    amici with terrible transparency into who is behind them. In
    one case, we tracked one of these big funding groups behind 11
    different amicus briefs in the same Supreme Court case. So, the
    whole amicus thing begins to have a really rank odor to it.
        And then at the end of the day, where things really start
    to go haywire, in my view, is when you go back to those 5-to-4
    decisions that I talked about yesterday, which I think is the
    most heartbreaking thing that I experienced in my political
    life. I used to argue in front of appellate courts. It was what
    I did, not at your level, but I have been in front of the First
    Circuit a lot. I have been in front of the Supreme Court once.
    I have been in front of the Rhode Island Supreme Court more
    than I can remember. I kind of thought that I was a reasonably
    good appellate lawyer, and the idea that our Supreme Court is
    deciding as many as 80 cases under Justice Roberts on a pure
    partisan divide, I think that has a real signaling problem. And
    I hope that you will at least consider that that is something
    that the Court needs to cure rather than make worse in order to
    continue having its credibility.
        I think 80 cases in which all the Republicans go one way
    and cannot bring a single Democrat appointee with them, that is
    a tough data point. And then when you look at that tough data
    point and you see that more than 90 percent of those cases, if
    you look behind at the outcome, it had a big--one of the
    interests that I mentioned that are very, very important to big
    special interests that were implicated. And then when you look
    at the win/loss rate in those cases, and it is 100 percent--100
    percent--for this crowd of big special interests. And then here
    is where you come in at the end. This is the Roberts' Five
    majority in those 5-to-4 cases where these conservative groups
    have come in to make their pitch. They have won 92 percent of
    the time in those 5-to-4 cases.
        If you figure they have thrown a couple of long balls, you
    know, like Hail Marys, and maybe that is the 8 percent, that is
    a hell of a record. And then if you look at your record on the
    D.C. Circuit where these conservative groups come in, you line
    right up: 91 percent, 92 percent. And I think when you put the
    whole saga together, from the big special interests lurking
    behind the Federalist Society, to the big special interest
    funding, the Judicial Crisis Network, to the big special
    interests behind the Pacific Law Foundation and the Washington
    Law Foundation, and this little array of, I would say,
    strategic litigators who are funded by corporative interests
    and right-wing interests, and then these amici, we do not know
    who is behind them, and then you see this result, that is a
    tableaux that is an alarming one, I think, for the Court. And I
    would urge you to think hard about whether that is the
    direction you would want to continue to go as an Associate
    Justice of that Court, because at some point, those numbers
    catch up with you. At some point, as I said yesterday, pattern
    is evidence of bias.
        Judge Kavanaugh. Senator, a couple of thoughts. First, on
    the amicus briefs, at least in my experience, I pay attention
    to the quality of the arguments in the briefs, not the identity
    of the parties on them. But I take your point on the
    disclosure. I would be interested in the specifics of anything
    you are talking about disclosure requirements for the Supreme
    Court.
        Two, I do believe deeply in the idea that we are a Team of
    Nine and need to be working together. And I take--I take the
    point, too, that it is very important if I am confirmed that I
    work with, as best I can, and I will, to maintain the
    confidence of all the American people in the independence and
    impartiality of the Supreme Court at all times. I am aware that
    we ultimately----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. I am aware everything I do, if I were to
    be confirmed, would help affect that, how I decide, what I
    write in opinions, how I treat litigants in oral argument,
    where I speak, when I speak, where I teach, what I say on the
    outside, everything goes into how I behave, what I do in my
    volunteer time. Everything goes into the impressions of me as
    one part, if I am confirmed, of the Supreme Court. And I take
    very seriously your broader point about maintaining confidence
    of all the American people and the integrity and impartiality
    and independence of the Supreme Court. So, I appreciate that
    broader point.
        [Disturbance in the hearing room.]
        Senator Whitehouse. My time has expired, Chairman. There
    will be a second round, correct?
        Senator Lee. There will be. I am happy to give you an
    additional minute in light of the fact that you had two
    additional interruptions, if you would like.
        Senator Whitehouse. Well, I--just to make a final point,
    actually I think this is not an offshore storm. It has made
    landfall when you see polling that shows that 49 percent of
    Americans think a corporation will get a fairer shot in the
    United States Supreme Court than an individual, seven times as
    many that think it is the other way. Now, you still have a few
    to work with who are undecided on that question, but the fact
    that about half of the American people already believe that
    corporations will be treated more fairly in the United States
    Supreme Court than human beings will, and the alignment of that
    with the facts that I have shown you about the Supreme Court's
    record of 80 partisan decisions, 92 percent involving big
    corporate special interests and a hundred percent win rate for
    them in those cases. I think we are at a tough place right now,
    and I think we really need to get back away from that. So,
    thank you.
        Senator Lee. Thank you, Senator Whitehouse.
        Judge Kavanaugh, I want to get back to a couple of
    questions that colleague, Senator Whitehouse, was asking you a
    minute ago. Just to be clear, did anyone from the Federalist
    Society contact you about the vacancy after Justice Kennedy
    made his announcement that he would be stepping down from the
    Court?
        Judge Kavanaugh. No.
        Senator Lee. And during the campaign of President Trump, as
    I recall, he came out with two different lists, two different
    lists of possible Supreme Court nominees. The first list had 11
    names on it. The second list, if I am not mistaken, had 21
    names on it, which included the previous 11. There were reports
    at the time that some outside groups had had some involvement
    in that. Were you involved in the first list? Were you included
    in the first list?
        Judge Kavanaugh. I was not.
        Senator Lee. Were you included in the second list?
        Judge Kavanaugh. I was not.
        Senator Lee. Okay. So, you were--you became under
    consideration only after President Trump took office, correct?
        Judge Kavanaugh. That is my understanding. That is when I
    became identified.
        Senator Lee. And after he was staffed up, after he had his
    own staff, his own staff within the White House. Within the
    Supreme Court, is it the case that there is an aisle, much as
    there in the United States Senate or the United States House of
    Representatives?
        Judge Kavanaugh. There is no aisle or separate caucus rooms
    in the Supreme Court, either literally or figuratively, in my
    view.
        Senator Lee. And under most circumstances in most years, in
    recent--in the last decade or so, the number of cases that are
    decided on a 5-to-4 margin have been very low, less than 20
    percent as far as I can count. Is that roughly consistent with
    your understanding?
        Judge Kavanaugh. That is.
        Senator Lee. Meaning that the configuration of 5-to-4 is
    much less common than basically all of the others. It is
    dwarfed in comparison to those cases that are decided either 9-
    to-0, which is often the biggest contingent, or 8-to-1, or 7-
    to-2, or 6-to-3. Now, even in those cases that are decided 5-
    to-4, does the fact that it was decided 5-to-4 make it any less
    of a legitimate decision? Does it make the judgment any less
    binding on the parties in that case?
        Judge Kavanaugh. No, it is still a decision of the Court no
    matter what the--what the ultimate majority opinion is composed
    of.
        Senator Lee. And would it behoove a lawyer who is an
    officer of a court to call into question the subjective
    motivations of a court simply because of the fact that the
    Court decided a case on a 5-to-4 basis?
        Judge Kavanaugh. Well, if I were a lawyer arguing before
    the Supreme Court, I probably would refrain from questioning
    the motivations of the Justices. I think each of the Justices,
    I know them. They are all committed to the Constitution of the
    United States in impartially discharging their duties. Of
    course, they have different perspectives on certain issues, but
    they are all--I think we are fortunate to have eight
    hardworking Justices who have outstanding records and are
    committed to the Constitution and committed to the independence
    of the judiciary.
        Senator Lee. What about in the--in the circuit court, in
    the D.C. Circuit where you have served? Would it be fair to
    suggest that a case is somehow less legitimately decided if
    that case were decided along the lines of the--which President
    appointed which member of the D.C. Circuit?
        Judge Kavanaugh. The precedent stands either way.
        Senator Lee. Thank you. I want to get back to a separation
    of powers point that has come up along various lines of
    questions asked my colleagues today. Is the Constitution
    relegated to the judicial branch? Is it something that is to be
    upheld and interpreted only by those who wear black robes?
        Judge Kavanaugh. No, Senator. Let me take you through the
    process, I think. So, Congress, of course, passes laws, and in
    considering laws, Congress will also often assess the possible
    constitutionality of the laws passed. So, in the first
    instance, when you are considering the passage of a law, you
    might assess the First Amendment implications, or if it is
    national security, the Fourth Amendment implications, and--or
    the due process Fifth Amendment implications.
        Senator Lee. And we have all taken our own oath to uphold
    the Constitution.
        Judge Kavanaugh. Right, so you do your best, and then the
    executive branch as well, the constitutional--whether to sign
    the bill, for example, for the President, if the President has
    a constitutional concern or a policy concern, but the President
    could veto the bill for that reason. That has certainly
    happened historically. And then when it comes to the Court, of
    course, we are--we assess in cases or controversies the
    constitutionality of a law that is challenged there in the
    context of a specific case or controversy. We do not----
        President Washington, George Washington, asked the Supreme
    Court for an advisory opinion in his first term on a disputed
    legal issue. Actually, it might have been his second term. But
    President George Washington asked for an opinion, and the
    Supreme Court respectfully wrote back and said, we do not
    provide advisory opinions on--we only decide cases or
    controversies. Thereby, I think, underscoring the point you are
    making with your question, which is constitutionality of laws
    is assessed in the----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. Is assessed in the first instance by
    Congress and the Executive.
        Senator Lee. So, it would be not--it would not be
    inappropriate for us as Members of the legislative branch to
    decide to protect something that we believe is constitutionally
    protected, regardless of where we might place our bets on what
    the courts would do it. If we see a particular right that might
    be jeopardized by an act of Congress we are considering, it
    would not be inappropriate for us to say, look, we are not sure
    exactly how far the Supreme Court will go here. Out of an
    abundance of caution, out of respect for the Constitution, we
    are going to draw the line more carefully so that we make sure
    that we do not step into unconstitutional territory.
        Judge Kavanaugh. That has happened historically, and I
    think happens today. And that underscores how the Constitution
    tilts toward liberty in so many different ways. It tilts toward
    liberty because it is hard to pass a law, as you know, with
    both Houses and the President, and then not only might be there
    be policy objections, but Members of Congress might say, well,
    even if the Supreme Court would uphold this law based on my
    assessment of the Supreme Court, I have a First Amendment
    objection, a Fourth Amendment objection, Eighth Amendment,
    Cruel and Punishments Clause objection, Equal Protection
    objection, and based on my view of the Constitution, I am going
    to vote ``no'' on this law. That is another way in which the
    constitutional structure all fits together and tilts toward
    liberty.
        Senator Lee. For that very reason, it would probably lead
    to some bad results if we were to not do that. In other words,
    if we were always inclined to say let us just pass this, if it
    is unconstitutional, the Court will do something about it. And,
    of course, you have instances in which they could create
    problems.
        Judge Kavanaugh. Yes, Senator. I think Justice Kennedy has
    written eloquently about this. Each official--each officer in
    Congress, each Member of Congress, each Senator, the President
    takes an oath, of course, constitutional oath, to abide by the
    Constitution. And that is very important for each Member to
    understand and underscore, as I know all of you do, and that is
    an important part of the separation of powers process. I do not
    think that the Framers thought, well, let us pass something
    even though we ourselves, meaning the Members of Congress,
    think there is a constitutional problem here. That is not how
    it has worked historically, nor do I think that is how the
    Framers necessarily intended for Congress to work.
        Senator Lee. And there are myriad of instances moreover in
    which we might enact something that for one reason or another
    might not be challenged for a long time, or might be difficult
    to challenge due to justiciability issues, somebody lacking
    standing, absence of a ripe controversy and so forth.
        Judge Kavanaugh. That particularly happens in the national
    security context, I think, Senator, because there is often not
    someone with standing, especially if it is something being done
    in a foreign country against foreign citizens that might be
    difficult to get into court in some way or another.
        Senator Lee. One of the reasons I focus on this today is
    there was an exchange you had with one of my colleagues earlier
    today about the indefinite definition of American citizens
    apprehended on U.S. soil. There was some discussion surrounding
    this, suggesting that Ex Parte Quirin might somehow justify
    this. You do not need to respond to this, but I think it is a
    point that needs to be mentioned.
        Justice Scalia mentioned in his dissent in Hamdan that Ex
    Parte Quirin was not this Court's finest hour. And, in fact,
    what happened was the case was argued. It was decided the next
    day. The saboteurs were taken out and executed the next week.
    Then the opinion itself was issued many months later. So,
    again, I'm not asking you to opine on the ongoing validity of
    Ex Parte Quirin, but the point is, you seem to agree that
    Congress certainly has the authority to protect liberty,
    notwithstanding the possibility that the Supreme Court might
    not step in, in a particular case.
        Judge Kavanaugh. Absolutely. A couple of points in response
    to that, Senator, if I might. Justice Scalia, of course,
    dissented in that case joined by Justice Stephens, one of his
    more powerful dissents on individual liberty.
        [Disturbance in the hearing room.]
        Judge Kavanaugh. One of his more powerful dissents
    protecting individual liberty there, ruling, Justice Scalia
    with Justice Stephens, that it was impermissible to hold an
    American citizen in long-term military detention, and I thought
    that was an important opinion of his. When I gave a talk once
    about Justice Scalia, I identified that as one of his most
    important opinions and a very powerful opinion.
        On the Quirin opinion itself, it also dealt with some--many
    who were not American citizens. But you are right, there was an
    American--there were American citizens involved. The Court, you
    are right, of course--you have studied this as much as anyone,
    but the Court did resolve the case very quickly. And the
    opinion, I have spent many an hour trying to decipher certain
    paragraphs of that opinion for cases I have had. It is not
    easy.
        I will--I will say the Court to its credit--give it a
    little credit--did have an 8-hour or something oral argument.
    The Attorney General of the United States argued Quirin
    personally, and I have read the transcript of that to try to
    figure out what was going on in the opinion that did not unlock
    the box completely for me on what was going on in the Quirin
    opinion. But your point, Justice Scalia did say it is not--was
    not the Court's finest hour. It was a rush. It was a rush. And
    rushes--sometimes the Court has to rush, but rushed decisions
    in a judicial context sometimes are not always the best.
        Senator Lee. On that point, would you be open to the idea
    of bringing back the era of the 8-hour oral argument?
        Judge Kavanaugh. I do not--the 8--hour oral argument. We
    did have one in a--in an en banc case maybe 2 years ago that
    went all afternoon.
        Senator Lee. That sounds like----
        Judge Kavanaugh. After we got back to the conference room,
    I do not think anyone was saying we should do that in every
    case.
        Senator Lee. Understood. Understood. Let us talk about
    judicial philosophy for a minute. I would like to discuss
    Federalist 78. In Federalist 78, Hamilton discusses the
    dichotomy between will on the one hand and judgment on the
    other; ``will'' being something that is exercised by the
    political branches, primarily by the Congress, by the
    legislative branch, and ``judgment'' being something exercised
    by the judicial branch. What is the difference between those
    two?
        Judge Kavanaugh. The judicial branch is deciding cases or
    controversies according to law. The legislative branch is
    making the policy, exercising the will. The judicial branch can
    never exercise the policymaking role that is reserved to the
    Congress. Now, admittedly that is speaking to the level of
    generality and there are tough cases at the margins always in
    trying to figure out what the line is here.
        But as a general proposition, it is important for every
    judge to go in with the mindset of I am not the policymaker. I
    am the law interpreter, the law applier in a particular case.
    And I think that is a very important part of the Federalist
    papers that is woven into the constitutional structure into
    Article III. And that judges--I certainly have tried for 12
    years as a judge on the D.C. Circuit to incorporate that basic
    foundational principle into how I approach each case. And it is
    a very critical bedrock principle of what judges do in our
    constitutional system.
        Senator Lee. Now, within that framework, when we enact a
    law, what determines what it is that you have interpret, that
    you have to interpret? Is it what we say or is what we
    subjectively intended?
        Judge Kavanaugh. It is what is written in the text of the
    statute, Senator. Just Kagan said it well at a talk 2 years
    ago, maybe 3, at Harvard Law School. I was present in the
    audience. She said we are all textualists now. She was talking
    about Justice Scalia, who, of course, brought about significant
    change in the focus of all Federal judges. I have seen it
    across the supposed philosophical spectrum. All Federal judges
    pay very close attention to the text of the statute, and that
    is why I think Justice Kagan said we are all textualists now
    because she explained that every judge really cares about the
    words that are passed by Congress.
        Now, why is that? I think about it both from a formal and a
    functionalist perspective. As a formal matter, the law passed
    by Congress is the binding law, is what is signed by the
    President. It is what has gone through Senate and the House,
    and that is the law. But also as a practical or functional
    matter, I think having seen the legislative process, I know how
    compromises come together in the House and the Senate, within
    the Senate, within the House. There are negotiations late at
    night over precise words and compromises inevitably.
    Legislation is compromise. The Constitution was a compromise
    Legislation is a compromise.
        And when we depart from the words that are specified in the
    text of the statute, we are potentially upsetting the
    compromise that you all carefully negotiated in the legislative
    negotiations that you might have had with each other. And so,
    that is a danger that I try to point out when we are having
    oral argument in a case or we are deciding cases, that if we
    deviate from what Congress wrote, we are potentially upsetting
    this careful compromise. Even if we think we would have struck
    the compromise in a different place as judges, that is not
    really our role. So, I think both as a formal and functional
    matter, it is important to stick to the text.
        There are canons of interpretation, which occasionally
    cause you a presumption of mens rea, presumption against extra
    territoriality and the like that cause you to superimpose a
    presumption on the text. But otherwise, sticking to what you
    passed is very important.
        Senator Lee. But you certainly consider yourself a
    textualist, and if you follow Justice Kagan's statement, we are
    all textualists now. That is what judging is. Judging is----
        Judge Kavanaugh. Judging is paying attention to the text,
    in statutory cases paying attention to the text of the statute
    informed by those canons of construction such as presumption
    against extraterritoriality, presumption of mens rea,
    presumption against implied repeals, things like that, that are
    settled canons, although some of the canons are not so settled,
    which is a whole separate half hour of discussions.
        Senator Lee. How does textualism relate to or differ from
    originalism?
        Judge Kavanaugh. So, originalism, as I see it, has--to my
    mind means, in essence, consequential textualism, meaning the
    original public meaning of the constitutional text. Now,
    originalism, it is very careful when you talk about originalism
    to understand that people are hearing different things
    sometimes. So, Justice Kagan, again, at her--at her
    confirmation hearing said we are all originalists now, which
    was her comment. By that, she meant the precise text of the
    Constitution matters, and by that, the original public meaning,
    of course, informed by history, and tradition, and precedent.
    Those matter as well.
        There is a different conception that some people used to
    have of originalism, which was is there original intent. In
    other words, what did the people--some people----
        Senator Lee. Subjectively.
        Judge Kavanaugh. Subjectively intend the text to mean, and
    that has fallen out of the analysis because, for example, let
    us just take the Fourteenth Amendment, Equal Protection Clause.
    Well, it says right in the text, ``equal protection.''
    ``Equal'' means ``equal.'' As the Supreme Court said in
    Strauder, what is that but the law shall be the same for the
    Black and the White, and Brown v. Board focuses on the text.
    But there were some racist Members of Congress involved in that
    who did not think it should apply in that way to certain
    aspects of public life, but we do not--if you are doing--paying
    attention to the text, you do not take account of those
    subjective intentions, nor is it proper as a general
    proposition to take account of the subjective intentions.
        They can be evident in certain cases, the First Amendment,
    for example, of the meaning of the words----
        Senator Lee. Of the original public meaning.
        Judge Kavanaugh. Of the original public meaning. They can
    be evidence of that, but you are not--you do not follow the
    subjective intention. So, original public meaning, originalism,
    what I refer to as constitutional textualism, what Senator Cruz
    yesterday, I think, referred to as constitutionalism or
    constitutionalist. I think those are all referring to the same
    things, which is the words of the Constitution matter.
        Of course, as I have said repeatedly, you also look at
    historical--the history. You look at the tradition. Federalist
    37 tells us to look at the liquidation of the meeting by
    historical practice over time. And then you look at precedent,
    which is woven into Article III, as I said in Federalist 78.
    But the--you know, start with the words as Justice Kagan said,
    we are all originalists now in that respect of paying at least
    some attention to. More than some. Paying attention to the
    words of the Constitution.
        Senator Lee. So, if we stipulate, for our purposes today,
    as we are having this conversation, that originalism refers to
    basically textualism applied in the constitutional sphere with
    an eye toward identifying the original public meaning of the
    constitutional text at issue, you are an originalist.
        Judge Kavanaugh. That is correct, and as Justice Kagan
    said, I think that is what she meant, we are all originalists
    now. And I do not--I think she said what she meant and meant
    what she said when said that.
        Senator Lee. Sure. What, by the way, would be the argument
    against that? To me, that sounds like judging. Why would one
    argue against being that type of judge, against being a
    textualist originalist?
        Judge Kavanaugh. Well, there are different philosophies of
    what a judge does, but I think that judges, you know, what the
    role of a judge is. But I think the law--Article VI of the
    Constitution says this Constitution shall be the supreme law of
    the land, and the word ``law'' is very important there. It is
    not a set of aspirational principles. It is law that can be
    applied in court, and what is the law? The law are the words
    that were ratified by the people, and, therefore, can be
    applied in the--in the courts of the United States. And it says
    the ``supreme law.'' What does it mean by that? It means when
    you pass a statute that is inconsistent with the Constitution,
    the supreme law controls, namely the Constitution controls over
    a contrary statute, and that is, of course, also discussed in
    Federalist 78 as well of what is the supreme law of the land,
    and the Constitution is the supreme law.
        Again, precedent, historical practice subsequent to the
    passing of the text. We see that, for example, in the
    Establishment Clause cases. The Court will often look at the
    text. What is the historical practice and precedent, which I
    have said is rooted in Article III. Those things all go into
    it, but the words, the original public meaning are an important
    part of constitutional interpretation, and has been, I think,
    throughout.
        Senator Lee. Let us suppose Congress in its infinite
    wisdom--with its approval rating that ranges between 9 and 11
    percent, making us slightly less popular than Raul Castro in
    America, and slightly more popular than the influenza virus,
    which is rapidly gaining on us--what if we decided that, you
    know, we are all busy. There are parades to attend. There are
    political rallies to organize. We get tired of the busy,
    drudgerous work of actually making laws, and we also do not
    want to make ourselves accountable for the laws we pass. It is
    much easier to just pass a broader statement. So, we say we
    hereby pass a law that says we in the United States of America
    shall have good law, and we hereby delegate to the herewith
    created United States commission on the creation of good laws
    the power to promulgate, and interpret, and enforce good laws
    in the United States. What constitutional issues do you see
    there?
        Judge Kavanaugh. Senator, the Congress is, of course,
    assigned the legislative power in Article I of the
    Constitution, so if it delegates wholesale the constitutional
    power to another body, then that naturally poses a question of
    whether the body exercising that power ultimately has
    improperly exercised the legislative power, and whether that
    rule or what have you that is enacted by that body is lawful
    because it was not enacted by Congress. So, the Framers
    intended that Congress would enact the laws, and that the
    Executive would enforce the laws, and that the judiciary would,
    of course, resolve cases and controversies arising under those
    laws.
        Senator Lee. And yet in some respects, it is not that far
    removed from some of what we do today. We may not pass
    something as extreme as what I have described in my
    hypothetical, but in some cases we will essentially say we
    shall have good law in area X, and we hereby give commission Y
    the power to make and enforce good laws in that area. So, is
    there some point at which we cross a threshold of
    unconstitutional delegation?
        Judge Kavanaugh. Well, the Supreme Court, as you know,
    Senator, has a non-delegation principle, and at least under
    current precedent, it is allowed the delegation--and I do not
    want to get too specific here, but it is allowed some
    delegation. Some Justices or judges would say actually when the
    Executive enacts rules pursuant to those delegations, that is
    the exercise of Executive power, but I think there has been
    some pushback on that. And in any event, the Supreme Court has
    doctrine on the non-delegation principle, and the line is
    debated on where that should be drawn. But there is precedent
    that does suggest that at some point, Congress can go too far
    in how much power it delegates to an executive or independent
    agency.
        Senator Lee. And when we do that at some point, we are
    shirking our own responsibility because we are making lawmakers
    rather than laws, and we are also consolidating into one body
    the power to make and enforce laws, which is not only something
    that can lead to tyranny, it is the very definition of
    ``tyranny'' itself.
        I want to get to the campaign finance discussion that you
    were having a few minutes ago with Senator Whitehouse. With
    regard to Citizens United, did the Supreme Court uphold the
    disclosure requirements at issue in Citizens United?
        Judge Kavanaugh. It did. I believe that was an 8-to-1
    margin.
        Senator Lee. And, in fact, you have written on this, that
    there is a distinction for First Amendment purposes, for
    constitutional purposes, between laws mandating disclosure and
    laws banning the doing or the saying of something. Is that not
    right?
        Judge Kavanaugh. That is what the Supreme Court has said in
    certain context, and that is the law as set forth by the
    Supreme Court. Citizens United is a good example of that,
    Senator.
        Senator Lee. And in a case called EMILY's List v. FEC, you
    wrote that disclosure requirements trigger rights that receive
    ``less First Amendment protection'' than speech prohibitions--
    other types of speech prohibitions.
        Judge Kavanaugh. And I think that followed from Supreme
    Court law and is consistent, I believe, with subsequent Supreme
    Court law. Of course, the subsequent Supreme Court law
    controls.
        Senator Lee. Do you have a favorite among the Federalist
    Papers?
        [Laughter.]
        Senator Lee. I am not asking you to choose here between
    Liza and----
        Judge Kavanaugh. Yes, no, that is right. Yes. So, I like a
    lot of Federalist Papers. Federalist 78, of course, the
    independent judiciary, the role of the judiciary. Federalist
    69, which says the Presidency is not a monarchy is a very
    important one. Hamilton explains all the ways in which the
    Presidency is not a monarchy in our constitutional system. I
    think that is very important. Federalist 10, which talks about
    factions in America, and explains that having the separation of
    powers in the federalism system, dividing power in so many
    different ways would help prevent a faction from gaining
    control of the entire--all the power for the people of the
    United States. And that makes it frustrating at times because
    it is hard to pass new legislation, but that also--that
    division of power helps protect individual liberty, and I think
    that comes a bit from Federalist 10.
        Federalist 37 and 39 talk about, on the one hand, how we
    were just talking, laws or the Constitution over time can be
    the term liquidated by historical practice. What does that
    mean? That means that as the branches fill out the meaning of
    the Constitution over time with practices, those can be
    relevant in how the Court subsequently interprets certain
    provisions. We see that in Dames & Moore v. Regan, for example.
    We talk also about the national and Federal Government, so the
    combination in 39, the combination that we have this odd--that
    is the genius, right--of having a national government plus
    State governments, and then within the national government, the
    House is proportional representation, the Senate is State
    representation. That interesting compromise which Madison, by
    the way, was opposed to, but that compromise at the Convention.
        Federalist 47, which Senator Klobuchar mentioned yesterday,
    the accumulation of all power in one body is the very
    definition of tyranny. I start--so, I start my separation of
    powers class every year with that exact quote that you read
    yesterday, Senator Klobuchar, because that is very important.
    51, if men were angels, we do not--we would not need
    government. So, sorry, I have got eight kids.
        [Laughter.]
        Senator Lee. No, it is brilliant, and I think that is a
    greatest hits list. If these were on Spotify, I would say you
    put together a list of those. Let us close in the minute and a
    half I have got left, and I gave myself an additional 30
    seconds because of the two interruptions there. Tell me how you
    were informed by Federalist 51, and how that relates to your
    role as a jurist, your role as a jurist now on the D.C.
    Circuit, the role that you would play if you were confirmed to
    the United States Supreme Court. This understanding that
    government is an exercise in understanding human nature. If we
    were angels, we would not need government, and if we had access
    to angels to govern over us, we would not need all these rules,
    these cumbersome rules that make government so inefficient and
    so frustrating. Why is that important, and how does that affect
    you as a judge when trying to interpret the Constitution and
    trying to interpret acts taken pursuant thereto?
        Judge Kavanaugh. That is an--that is an interesting
    question, Senator. I think we recognize that we are all
    imperfect, first of all. All of us as humans are imperfect, and
    that that includes judges, and that includes legislators, and
    it includes all of us are imperfect. And so, we recognize that
    in how we go about setting up our Government. If there were
    some perfect group of people, we would put all the power in
    that one body, but because we are imperfect, putting all the
    power in that one body would be, as Senator Klobuchar was
    saying, the definition of tyranny.
        So, I think the way we deal with the imperfection while
    also having a government, because we are imperfect, is dividing
    the power, separating the power. And, again, to my mind, that
    all reinforces why the Framers, the genius--despite the flaws
    in the Constitution, and there were flaws--the genius of
    separating the legislative, executive, and judicial powers,
    tilting toward liberty in all those respects, and then having a
    federalism system where we would still have State governments
    that can further protect liberty and be laboratories of
    democracy as well. I think all that, because we are imperfect
    and because we recognize the imperfections.
        It is also why we have things like a jury system and even
    within the judiciary we did not trust a judge to do trials on
    his or her own, criminal trials or civil trials. We have a jury
    system to recognize, and we have usually 12, and that is
    designed to recognize that we are imperfect, and sometimes that
    is why we group decisionmaking. That is why we have 535
    legislators. That is why we have nine Justices. We do not
    usually have one person, and so, too, in juries.
        So, I think that all maybe stems from the same
    philosophical understanding that we are imperfect beings, and
    that we divide power, and that we make sure that no one person
    in a jury situation or other situations where our liberty can
    be affected is exercising total control.
        Senator Lee. Great. Thank you very much, Judge. My time has
    expired. I am not the Chairman of this Committee, even though I
    am playing him on TV. I understand that under the previous
    order entered before he left, we are supposed to take a 10-
    minute break. We will stand in recess for 10 minutes.
        [Whereupon the Committee was recessed and reconvened.]
        Chairman Grassley. Welcome back, Judge Kavanaugh.
        Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman. I was
    just visited by your wife, who is here, and she just told me
    you celebrated your 64th wedding anniversary. Is that correct?
        Chairman Grassley. Well, nobody's going to believe that.
        Senator Klobuchar. Yes, well, that is what she told me. I
    thought this was very romantic that you are gathered here.
        [Laughter.]
        Senator Klobuchar. I want to start, Judge Kavanaugh, going
    back to where we started yesterday, and that is about the
    documents, the production of documents from the time that you
    worked in the White House. Do you personally have any
    objections to the release of the documents from your time as
    staff secretary?
        Judge Kavanaugh. Senator, I am not going to take a
    position. That is, in my view, a decision for the Committee in
    consultation or discussion with the executive branch and the--
    --
        Senator Klobuchar. So you are not going to say whether or
    not you have a problem with it?
        Judge Kavanaugh. I do not think it is my role to say one
    way or another, at least, as I analyze the current situation.
    That is a decision for the Committee and the executive branch
    and the Presidential library. They are President Bush's
    documents ultimately.
        Senator Klobuchar. Since right now we are not able to
    review those documents in addition to the 102,000 that the
    White House has deemed ``theirs,'' that we are not able to see
    and asserted a privilege that has never happened before in a
    Supreme Court nomination hearing, is there anything in those
    documents or in the staff secretary documents that you think we
    would like to know that is relevant to some of the topics we
    have discussed today? I mean, you must know what is in them.
        Chairman Grassley. Before you answer, without taking time
    off of her time, it is incorrect that ``committee
    confidential,'' no Senators can see those records. Any--all 100
    Senators can see those records. In fact, we set up separate
    terminals so people can go there. We have not had very many
    people take us up on the offer.
        Senator Klobuchar. Okay. But, Mr. Chairman, not to go into
    my time either, to respond to you, I was not talking about
    those 189,000 documents. I was talking about the ones that we
    are not allowed to see at all from the staff secretary time, as
    well as the 102,000 that the White House has asserted privilege
    on that we are not able to see. So I am not even talking about
    the 189,000. Okay. Thank you.
        Chairman Grassley. I stand corrected.
        Senator Klobuchar. All right.
        So, again, I asked if there is anything in those documents
    you think would be relevant to our discussion here?
        Judge Kavanaugh. Senator, those documents are President
    Bush's documents and for the Committee and the Bush Library and
    the executive branch to negotiate about. And as discussed, I
    have 12 years of judicial record, and this is not a new issue.
    This is an issue that came up in Justice Scalia's hearing and
    Chief Justice Roberts' experience with the SG documents with
    Justice Kagan.
        Senator Klobuchar. Those are Solicitor General. I am
    talking about the ones in the White House time.
        Judge Kavanaugh. I guess I am not seeing a distinction.
    They are both executive branch documents, so there is one
    executive branch.
        Senator Klobuchar. I think one is involving the ongoing
    Solicitor General, but I have just one more question on this
    line. You just said that rush decisions are not always the best
    in answer to the discussion with Senator Lee. Do you think a
    good judge would grant a continuance to someone who just
    received 42,000 documents on the day before the start of a
    trial?
        Judge Kavanaugh. Senator, I am not--that is a decision for
    the Committee, and I am not familiar with the circumstances of
    the document.
        On the Solicitor General documents, I just want to say one
    thing. With Chief Justice Roberts, it was not active cases.
    Those 4 years of his documents from the time he was Solicitor
    General from 1989 to 1993--he was nominated in 2005. It is my
    understanding that those documents--so my only point is it is
    not a new issue, but it is also not for the nominee to decide
    because they are the President's, former President's documents.
        Senator Klobuchar. Okay. Why don't we move on to the
    Executive power issues. Yesterday I mentioned your submission
    to the University of Minnesota Law Review. We thank you for
    making our law review so famous over the last month or so. In
    that article, you said that a President should not be subject
    to investigations while in office. You said in our meeting that
    Congress would likely act quickly if the President does
    something, in your words, ``dastardly,'' a word you also used
    in the article. And I am struggling with the practical
    implications of that. What about a President who commits murder
    or if she jeopardizes national security or he obstructs an
    investigation or a white-collar crime? How do you differentiate
    between these crimes when you characterized them as
    ``dastardly''?
        Judge Kavanaugh. So I think there are several issues going
    on in that question, Senator. The first thing I want to
    underscore is that what I wrote in the Minnesota Law Review was
    in 2009 when President Obama was President or becoming
    President, was thoughts on a variety of topics reflecting on my
    experience----
        Senator Klobuchar. I just want to pick up the tempo a
    little with my questions because I have so many of them. Could
    we get to that point about the ``dastardly,'' if there is a way
    to differentiate?
        Judge Kavanaugh. Yes, but just to underscore it is real
    important. That was a proposal to be considered. It was not a
    constitutional position. I did not take any constitutional
    position on the issues you are raising. I want to underscore
    that. And if a constitutional question came to me, I would have
    an open mind and decide that.
        On your point----
        Senator Klobuchar. But there is not any clear text in the
    Constitution that speaks to the question, so instead these are
    your own recommendations based on your own views and
    experience. Would that be a fair characterization?
        Judge Kavanaugh. But there are two different things going
    on. The one is about special counsel investigations, for
    example, or criminal investigations or civil lawsuits, and that
    is a question for Congress to consider whether they want to
    supplement the protection provided by Clinton v. Jones because
    there was a lot of criticism of Clinton v. Jones.
        The second question, getting right to your point, is what
    is an impeachable offense, and that is actually a decision for
    you, not for me, because the House and the Senate----
        Senator Klobuchar. But I am just figuring out how whether
    we know something is dastardly or not if we cannot even
    investigate it.
        Judge Kavanaugh. Well, I think I am going to repeat that is
    a question for the--you are asking for--is it a high crime or
    misdemeanor?
        Senator Klobuchar. I am asking about your position that you
    stated in this law review article that a President is not
    subject to investigations while in office.
        Judge Kavanaugh. The ``dastardly'' comment----
        Senator Klobuchar. You are only saying that they should be
    subject to investigation as part of an impeachment and that
    there is no other investigation that could occur? Is that----
        Judge Kavanaugh. No. I was--first of all, on constitutional
    position on criminal investigation and prosecution, I did not
    take a position on the constitutionality, period. The idea that
    I talked about was something for Congress to look at if it
    wanted, so that is point one. Point two is the idea that if
    the--what is an impeachable offense, and that really is a
    question for the House and the Senate.
        Senator Klobuchar. Let me move on. This is about actual
    opinions and really along the same lines, and I know Senator
    Coons is going to talk to you about the special counsel
    statute, and we are very concerned about that. But in the
    Seven-Sky v. Holder case, I quote, this is you: ``Under the
    Constitution, the President may decline to enforce a statute
    that regulates private individuals when the President deems the
    statute unconstitutional, even if a court has held or would
    hold the statute constitutional.''
        And so then you told me when we had the talk in my office
    that you attempted to clarify your views two years later in the
    Aiken County case, but it seems inconsistent to me. So is it
    the case, your views, as expressed in actual opinions, not law
    review articles, that a President can just ignore a law until a
    court upholds it, like you said in Aiken County, or that a
    President can continue to ignore a law even after a court
    upholds it, like you said in Seven-Sky?
        Judge Kavanaugh. So ignore is not--the concept there, as I
    think we discussed when we met, and we had a good back-and-
    forth on that--the concept is prosecutorial discretion, and
    that is the concept I referred to in the Aiken County opinion
    to explain the footnote you are referencing. And prosecutorial
    discretion is, of course, firmly rooted--United States v.
    Richard Nixon case says the executive branch has the absolute--
    ``exclusive authority and absolute discretion whether to
    prosecute a case.'' That is an exact quote from United States
    v. Richard Nixon. And then Heckler v. Chaney says that that
    applies also in the civil context. And the limits--so
    prosecutorial discretion is well recognized. In other words,
    the U.S. Attorney's Office might prosecute gang violence, but
    let low-level marijuana offenses go, in terms of an exercise of
    prosecutorial discretion.
        Senator Klobuchar. So if a court has held a statute
    constitutional, do you believe that a President should have to
    enforce it?
        Judge Kavanaugh. So, for example, let us talk about, for
    example, the marijuana laws. Those are constitutional. But a
    U.S. Attorney or the Attorney General could say, ``We are not
    going to devote our resources to low-level marijuana
    offenses.'' Those are perfectly constitutional.
        Senator Klobuchar. Let me just try one other example, the
    Texas case on pre-existing conditions. The administration has
    taken the position that that is unconstitutional, that part of
    the Affordable Care Act down in the Texas case, taking the
    position that you could actually throw people off of their
    insurance if they have a pre-existing condition. So let us say
    that that law is found to be constitutional. Could the
    President choose not to implement the part of the law providing
    protections for pre-existing conditions?
        Judge Kavanaugh. Senator, that is a pending case, so I
    cannot talk about it.
        Senator Klobuchar. Okay. This is just my concern because of
    this expansive view of Executive power where it brings us and
    where we end up.
        I want to move on to some consumer issues. In 2016, you
    wrote an opinion, which was later overturned by the full D.C.
    Circuit, in which you found the Consumer Financial Protection
    Bureau unconstitutional. The majority recognized that millions
    of people were devastated by the financial crisis, and they
    upheld this Bureau, and we know now, in real time, the Bureau
    has helped about 30 million consumers obtain more than $12
    billion in relief. But you dissented in the case, and I want to
    talk about the consequences of this legally. I know you focused
    on the Bureau's structure. We talked about that. You looked at
    the relevant history, and you said that agencies like the CFPB,
    the Consumer Financial Protection Bureau, amount to a headless
    fourth branch of our Government, and that they ``pose a
    significant threat to individual liberty.''
        So does it follow that you think that other independent
    agencies are also constitutionally suspect?
        Judge Kavanaugh. The Supreme Court has, of course, upheld
    since 1935, the Humphrey's Executor decision, the concept and
    practice of independent agencies. On the CFPB decision, the
    structure of that agency deviated from the traditional
    historical practice of independent agencies----
        Senator Klobuchar. So you think the Humphrey's case that
    was 80 years ago was correctly decided?
        Judge Kavanaugh. It is a precedent of the Supreme Court,
    and it has been reaffirmed many times. But on that CFPB case, I
    need to get this out, which is, I did not say that the agency
    had to stop operating. It could continue operating, and it
    still operates. What my constitutional concern was, was the
    structure with the single-member head, which had never been
    done before for an independent agency of that kind, and my
    remedy would not have been to invalidate the agency at all but
    would have been to make that person removable at will, and then
    you could have, if you wanted, amended the statute to have a
    multi-member agency.
        Senator Klobuchar. It also concerns me because other
    agencies like, say, the Social Security Administration, which
    you note in the dissent, in the opinion, they are also just
    headed up by one person, right? So then, does it follow that
    that agency, as well, would be unconstitutional?
        Judge Kavanaugh. Again, Senator, my--let us go from the
    back door, which is the remedy, if there is a problem, is not
    that the agency has to stop operating. The remedy is that the
    person, a single person, would be removable at will instead of
    for cause. But the agency would continue to operate and perform
    its----
        Senator Klobuchar. But it would not have anyone heading it
    up.
        Judge Kavanaugh. No. It would have a single person heading
    it up, but removable at will in the case of the CFPB, so the
    agency----
        [Disturbance in the hearing room.]
        Senator Klobuchar. I want to turn to what the majority felt
    about your dissent, and I think they recognized that the
    dissent would threaten many, if not all, independent agencies.
    I think they specifically mentioned the FTC, and I would add
    other ones like the Federal Reserve, Securities and Exchange
    Commission. Does it follow that you think these agencies are
    unconstitutional?
        Judge Kavanaugh. No, I did not say anything remotely like
    that, respectfully, Senator, in the case. All I was talking
    about was a single-headed independent agency.
        Senator Klobuchar. But that is like Social Security.
        Judge Kavanaugh. But the SEC, the FTC, those are the
    traditional--the FERC, the NLRB, are all--the Fed, are all
    multi-member independent agencies. And so those agencies are
    all the traditional Humphrey's Executor agencies. And the
    concern I explained with the single-director independent agency
    goes back to your point about Federalist No. 47, which is if
    you have an independent agency that is completely unaccountable
    to Congress or the President and it is one person in charge,
    that becomes an extremely powerful position.
        Senator Klobuchar. Okay. But Social Security has been like
    that for a long time, and so my issue is, when we were talking
    about Executive power, you talked about how Congress has to
    step in, right? That is a lot of the argument you have made to
    some of my colleagues--Senator Sasse; Congress has to step in.
    But in this case, Congress stepped in. Congress said we had
    this major financial crisis. That is why we started this
    agency. We have done this. And then you come in and in a
    minority opinion here, and you say that it is unconstitutional.
    And I would throw another Federalist Society back at you,
    Federalist quote. You quoted Hamilton yesterday from Federalist
    83 when he said, ``the rules of legal interpretation are rules
    of common sense.'' Right?
        Judge Kavanaugh. Yes. I agree with that.
        Senator Klobuchar. All right. So it just does not make
    common sense to me that we would throw an agency out like that
    or----
        Judge Kavanaugh. But I did not.
        Senator Klobuchar [continuing]. Even the head of it. You
    are basically putting your judgment in the place of Congress.
        Judge Kavanaugh. But I did not throw the agency out. I said
    the agency could continue operating as it was. The only change
    would be instead of being for-cause removal, it would be at-
    will removal. That was the only--there was a judge, not me, on
    our court who said because of that constitutional flaw, the
    whole agency had to stop operating. I specifically and
    explicitly rejected that as a remedy and said, no, the agency
    can continue operating, doing its important consumer functions.
        Senator Klobuchar. Okay. But let us go to one where you
    actually did throw out the rules, and that is net neutrality.
    Right? And that is in my mind a bedrock of a free and open
    Internet, allowing consumers and small businesses to have an
    equal playing field. But in U.S. Telecom Association v. FCC, in
    your own opinion you went out of your way to dissent against
    the protections. This was the full D.C. Court against you, and
    the rules were upheld by a panel of judges appointed by
    Presidents from both parties. And here you relied on something
    else that you came up with called the ``major rules doctrine,''
    and I know it has been mentioned in dicta, in a 2015 case, but
    in claiming that the FCC lacked authority to issue net
    neutrality rules because they were, in your words, ``major.''
        So, again, it feels to me like Congress set up the FCC, and
    the FCC is doing their job in a really complex policy matter.
    They put forward these rules on net neutrality. And then you
    insert your judgment to say that they are unconstitutional. So
    tell me why I am wrong.
        Judge Kavanaugh. The major rules doctrine, or major
    questions doctrine, is rooted in Supreme Court precedent, and,
    therefore, as a lower-court judge, I was bound to apply it. It
    was applied by the majority opinion in the Brown & Williamson
    decision. The godfather of the major rules, or major questions
    doctrine is Justice Breyer who wrote about it in the 1980s as a
    way to apply Chevron. The Supreme Court adopted that in the
    Brown & Williamson case, applied it in the UARG case, the one
    you referenced Justice Scalia's opinion. And what that opinion
    says is, it is okay for Congress to delegate various matters to
    the executive agencies to do rules, but on major questions of
    major economic or social significance, we expect Congress to
    speak clearly before such a delegation, and that had not
    happened, in my view, with respect to net neutrality, and I
    felt bound by precedent, therefore, to apply the major
    questions or major rules doctrine.
        Senator Klobuchar. So minor rules would be okay, but not
    major? And I know in the decision you said, well, you will know
    the difference when you see it, and I think that is why the
    other judges on the court, appointed by both parties, went with
    the traditional and precedential view of how to look at this,
    and you used the 1986 law review article by Justice Breyer, and
    then in dicta, from the King v. Burwell case in 2015. And it
    just--what I am trying to show here is this pattern where to
    say, oh, Congress should step in and do everything, you are
    stepping in in these cases.
        Judge Kavanaugh. So I would say it is a pattern of adhering
    to precedent.
        Senator Klobuchar. Okay. Well, it just seems that the
    precedent to me when you look at, for instance, Chevron, and I
    know the White House touted the fact that you have overruled
    the Federal agency action 75 times, and they said that you led
    the effort to rein in executive agencies in the press release
    when you were announced. How do you explain--what does that
    mean, how you led the effort?
        Judge Kavanaugh. I do not know. I do not know what that is
    referring to. I know my record. I am sure I have upheld agency
    decisions dozens and dozens and dozens and dozens of times. We
    get agency cases. That is what we do on the D.C. Circuit, and I
    have upheld them, I am sure, in the same range, if not many
    more times. And so I think my record will show that I have
    ruled both ways on those kinds of cases. I do not think I have
    a pro this or pro that record.
        Senator Klobuchar. One last question in this area on
    consumers. The major rules doctrine actually raises questions
    to me about your view of Chevron, and as you know, it is that
    1984 case--I would think it is settled law, but I will ask you
    that--where courts generally defer to reasonable
    interpretations of agencies. And what would you replace it with
    if you are not going to uphold it?
        Judge Kavanaugh. The precedent says that courts should
    defer to reasonable agency interpretations of ambiguous
    statutes, and the whole question of ambiguity has become a
    difficult inquiry. At least it has been in my 12 years of
    experience in the D.C. Circuit. How much ambiguity is enough?
    And I wrote a law review article in the Harvard Law Review
    about that problem of judges disagreeing about ambiguity and
    how much is enough. But I also said in that article that
    Chevron serves good purposes in cases where it is somewhat of
    an overlap with the State Farm doctrine, so statutory terms
    like ``feasible'' or ``reasonable'' are terms of discretion
    that are granted to agencies and that courts should be careful
    not to unduly second-guess agencies. And I have written an
    opinion, American Radio Relay League, where I made clear that
    courts should not be unduly second-guessing agencies.
        Senator Klobuchar. Okay. I want to move to campaign finance
    since those were the documents that I received and we are able
    to make public. Of course, I think they all should be made
    public, the ones that--and I do not like this Committee
    classification, what happened, but the Chairman did allow me to
    make those public. And in those documents, in one email from
    March 2002, you discuss limits on contributions to candidates
    saying, ``And I have heard very few people say that the limits
    on contributions to candidates are unconstitutional, although I
    for one tend to think those limits have some constitutional
    problems.''
        I just want to know with the Buckley v. Valeo case from
    1976 being settled law, it seems like you have some issues with
    those rulings. How do you view the precedent created by
    Buckley? And would you respect it?
        Judge Kavanaugh. The Buckley divide, as you know, Senator,
    is that expenditures on the one side, Congress does not have
    substantial authority to regulate contribution limits; on the
    other side, Congress does have authority to regulate and has
    done so.
        With respect to contribution limits, however, there are
    cases where the contribution limits are too low, so subsequent
    to the email you are talking about, the Supreme Court has twice
    struck down contribution limits, one in a case Randall v.
    Sorrell----
        Senator Klobuchar. I am aware of these cases.
        Judge Kavanaugh. Justice Breyer wrote. So I do not think
    there is--Buckley v. Valeo is an important precedent. There is
    a lot of case law subsequent to those emails: McConnell,
    Wisconsin Right to Life, Citizens United, which fleshes out
    some of those----
        Senator Klobuchar. I mean, my issue is that we have had
    past nominees who said they would honor precedent, and then
    they joined the Citizens United opinion. And when I was hearing
    your discussion with Senator Whitehouse in which you talked
    about how Congress should step in again, and they did with the
    McCain-Feingold bill, and we tried, and then it was struck down
    basically with Citizens United. And so, that is the problem. We
    are left with nothing now but a constitutional amendment. And I
    personally view this as lawmaking from the Court, the Citizens
    United case. So I am trying to figure out where you are on
    this. Do you think contribution limits have constitutional
    problems? And what can Congress actually do to rein in the
    flood of money?
        Judge Kavanaugh. As a D.C. Circuit judge, I have upheld
    contribution limits in two important cases--one ruling against
    the RNC in RNC v. FEC, where it was challenging limits on
    contributions to political parties, and I rejected that
    challenge; in another, Bluman v. FEC, contributions by foreign
    citizens to U.S. election campaigns, and I upheld that law.
        Senator Klobuchar. Let us just talk about that case because
    your opinion left open the possibility of unlimited spending by
    foreign nationals in the United States on issue advocacy, the
    same kind of activity that we saw by the Russians in 2016. And,
    in fact, a Russian company facing charges brought by Special
    Counsel Mueller actually cited your opinion in arguing to have
    these charges thrown out. Does that concern you at all?
        Judge Kavanaugh. Our case dealt with contribution limits,
    so that is what I was opining on in that case. So I am not sure
    that there are--the state of the law and the expenditure limits
    was not before us in that case, and so I do not want to opine
    on expenditure limits.
        What I did do----
        Senator Klobuchar. Well, you should know that it was--that
    opinion was cited by----
        Judge Kavanaugh. Well, I do not know if it was cited--well,
    I do not want to talk about a pending case.
        Senator Klobuchar. All right.
        Judge Kavanaugh. But my case, I upheld--importantly, I
    upheld limits on contributions in the RNC case and in the
    Bluman case, and the Supreme Court has upheld contribution
    limits generally, but struck them down when they are too low in
    cases like Randall v. Sorrell and McCutcheon.
        Senator Klobuchar. Okay. In light of the recent
    indictments, do you stand by your interpretation of the
    Bipartisan Campaign Reform Act in that case, the Bluman case?
        Judge Kavanaugh. I am not sure the question----
        Senator Klobuchar. We can go back to it on the second
    round. I look forward to it.
        Judge Kavanaugh. Okay.
        Senator Klobuchar. Okay, antitrust. Senator Lee and I run
    the Antitrust Subcommittee, and, as you know, in recent years--
    we talked about this in my office--the Supreme Court has made
    it harder to enforce our antitrust laws in cases like Trinko,
    Twombly, Leegin, and, most recently, Ohio v. American Express.
    This could not be happening, in my view, at a more troubling
    time. We are experiencing a wave of industry consolidation.
    Annual merger filings increased by more than 50 percent between
    2010 and 2016. I am concerned that the Court, the Roberts
    Court, is going down the wrong path, and your major antitrust
    opinions would have rejected challenges to mergers that the
    majority has found to be anticompetitive. So I am afraid you
    are going to move it even further down that path, starting with
    the 2008 Whole Foods case where Whole Foods attempted to buy
    Wild Oats Markets. It is very complicated, so I am just going
    to go to the guts of it from my opinion.
        The majority of courts and the--what happened: There was a
    Republican majority; FTC challenges a deal; and then you
    dissent, and you apply your own pricing test to the merger. My
    simple question is: Where did you get this pricing test?
        Judge Kavanaugh. Well, I affirmed--I would have affirmed
    the decision by the district judge in that case which allowed
    the merger, and the district judge, Judge Friedman, an
    appointee of President Clinton's to the district court, and I
    was following his analysis of the merger. That case is, as I
    think we discussed, very fact-specific, really turns on whether
    the larger supermarkets sell organic foods or not. And so that
    was a fact----
        Senator Klobuchar. But where did you get the pricing test,
    is what I want to know, because you used a different test? And
    I am trying to figure that out, what legal authority actually
    requires a Government to satisfy your standard to block a
    merger? I think what I remember in our discussion, you cited
    these nonbinding horizontal merger guidelines that you used to
    come up with this test.
        Judge Kavanaugh. Well, you are looking at the effect on
    competition and what the Supreme Court has told us, at least
    from the late 1970s, is to look at the effect on consumers and
    what is the effect on the prices for consumers. And the theory
    of the district court and Judge Friedman in this case was that
    the merger would not cause an increase in prices because they
    were competing in a broader market that included larger
    supermarkets that also sold organic food. The question was
    really: Is there an organic food market solely, or is there a
    broader supermarket market? And that is what the case----
        Senator Klobuchar. I was just trying to get to where that
    new test came from. So in the second case, you also dissented
    in the Anthem case last year, and your opinion would have
    allowed a merger between two of the four nationwide health
    insurance providers, which was eventually blocked because it
    would lead to higher prices for health care in the long term
    and what was viewed as poorer quality insurance. And here you
    actually went a step farther than Whole Foods. Instead of just
    trying to raise the bar on what the Government would have to
    prove to block a merger, you also tried to lower the bar for
    merging companies trying to justify their deals. And your
    opinion suggests you would lower the bar for merging companies
    that are trying to prove their deals will not harm competition.
        Does that represent your views when it comes to mergers?
        Judge Kavanaugh. It is a very fact-specific case, and the
    market in question there where two health insurers that were
    not selling health insurance in the downstream market but were
    acting as purchasing agents for employers in the upstream
    market where they negotiated prices with hospitals and doctors,
    and so the theory, at least as I understood it, which I agreed
    with, was that by having a stronger purchasing agent, they
    would be able to negotiate lower prices from hospitals and
    doctors for the employers. And I pointed out in the end of my
    dissent, Senator, that there might be a problem in the upstream
    hospital-doctor market, but I did not think there was a problem
    in the market that was at issue in the case. And I specifically
    said I would have sent it back to the district court for
    analysis of whether the merger was a problem in that other--it
    is a three--it is----
        Senator Klobuchar. But you did suggest that the Court
    should disregard two cases that have been widely relied on for
    more than 50 years in antitrust, Brown Shoe and Philadelphia
    National Bank. Do you think courts now applying these cases are
    wrong to do so?
        Judge Kavanaugh. I think the Supreme Court in the 1970s
    moved away from the analysis in those cases because those cases
    focused on the effect on competition--I mean on competitors,
    not competition. And in the 1970s, the Supreme Court moved to
    focus on the effect on competition, which in turn is really
    consumer--what would be the effect on consumers.
        Senator Klobuchar. Okay. Thank you.
        Chairman Grassley. Senator Cruz.
        Senator Klobuchar. And could I, just one----
        Chairman Grassley. Proceed.
        Senator Klobuchar. It is just that this antitrust issue is,
    as you know, very dense.
        Judge Kavanaugh. Yes.
        Senator Klobuchar. But, again, I am very concerned about
    what is going on with these cases nationally. And then when I
    looked at these two cases, it appears to me that you would go
    even further. And I think we need less mergers, not more.
        Judge Kavanaugh. Can I add one thing?
        Senator Klobuchar. And more competition. Yes.
        Judge Kavanaugh. When I referred to the overlap of Chevron
    and State Farm, that is when I was talking about words like
    ``feasible'' and ``reasonable.'' I was not sure I was clear on
    that.
        Senator Klobuchar. Okay. Thank you.
        Chairman Grassley. Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman. Welcome back, Judge
    Kavanaugh.
        Judge Kavanaugh. Thank you, Senator.
        Senator Cruz. Thank you, again, for your service.
        Before I get into questions, I just want to take a minute
    to recognize and thank the outstanding work at this hearing by
    the Capitol Police in terms of in a calm and professional
    manner dealing with the unfortunate disruptions we have seen
    and maintaining an environment where this hearing can focus on
    the record and substance of this nominee. And so thank you for
    the tremendous work that the men and women here are doing.
        Senator Whitehouse. Mr. Chairman, I think we would like to
    second--and Senator Cruz--second that sentiment on our side as
    well.
        Chairman Grassley. Thanks both of you very much. I have
    expressed it to many of the policemen individually as I see
    them. Proceed. Start his 30 minutes over.
        Senator Cruz. Judge Kavanaugh, let us start with just a
    general question. What makes a good judge?
        Judge Kavanaugh. Senator, a good judge is independent,
    first of all, under our constitutional system, someone who is
    impartial, who is an umpire, who is not wearing the uniform of
    one litigant or another, of one policy or another, someone who
    reads the law as written, informed by history and tradition and
    precedent in constitutional cases, the law as written, informed
    by canons of construction that are settled in statutory cases,
    that treats litigants with respect, that writes opinions that
    are understandable and that resolve the issues. I think
    civility and collegiality help make a good judge. A good judge
    understands that real people are affected in the real world,
    the litigants in front of them, but also the other people
    affected by the decisions the judge decides or the court
    decides in a particular case. A good judge pays attention to
    precedent, which is in constitutional cases, of course, rooted
    in Article III and critically important to the stability and
    predictability and reliance interests that are protected by the
    law.
        So there are a number of things that go into making a good
    judge: a work ethic. It is hard work to dig in and find the
    right answer in a particular case, and I think that is
    critically important as well. Judicial temperament. There are a
    lot of factors that go into it, and those are some of them. I
    am sure there are more.
        Senator Cruz. One of the things I was looking at, it is
    striking both the overheated rhetoric we have heard from some
    of our Democratic colleagues and also from some of the
    protesters over the last 2 days. I took a look at your record
    compared to that of Judge Merrick Garland. Judge Garland, of
    course, was appointed to the D.C. Circuit by Bill Clinton, and
    he was President Obama's nominee to the U.S. Supreme Court.
    What I found that was striking is that in the 12 years you have
    been on the D.C. Circuit, of all the matters that you and Chief
    Judge Garland have voted on together, you voted together 93
    percent of the time. Not only that, of the 28 published
    opinions that you have authored, where Chief Judge Garland was
    on the panel, Chief Judge Garland joined 27 out of the 28
    opinions you issued when you were on a panel together. In other
    words, he joined 96 percent of the panel opinions that you have
    written when he was on a panel with you. And the same is true
    in the reverse. Of the 30 published opinions that Chief Judge
    Garland has written on a panel, you have joined 28 out of 30 of
    them, over 93 percent of those opinions.
        What is your reaction to those data and the level of
    agreement?
        Judge Kavanaugh. Well, I think we are trying hard to find
    common ground and to--as I have said before, he is a great
    judge, a great Chief Judge. And he is very careful and very
    hardworking, and we work well together and try to read the
    statute as written, read the precedent as written. And he is a
    judge who does not, like I try to be as well, a judge who is
    not trying to impose any personal preferences onto the
    decision, but take the law as written, and that is what I have
    tried to do in those cases, and that probably explains some of
    that. I think it also goes back to--I do not think--I think
    judges are distinct from policymakers, and I think that shows
    up when you dig into the actual details of how courts operate
    and go about their business. You, of course, know well,
    Senator, from all your arguments and seeing judges decide cases
    in real time. And I think those statistics reflect the reality
    of how judges go about their business.
        I have said several times I think of the Supreme Court as a
    Team of Nine, and when you try to be a team player on a Team of
    Nine, of course, there are going to be disagreements at times,
    so I do not want to overstate, but if you have that mind-set of
    where a court, without sitting on different sides of an aisle,
    without being in separate caucus rooms, trying to find what the
    right answer is, and I think there is a right answer in many
    cases, and maybe, you know, a range of reasonable answers in
    some others, and I think that is what those statistics reflect
    to me.
        Senator Cruz. So you talked about the difference between
    your own policy preferences and what the law describes or
    mandates. How would you describe a judicial activist?
        Judge Kavanaugh. I would describe a judicial activist as
    someone who lets his or her personal or policy preferences
    override the best interpretation of the law, and that can go in
    either direction. So a judge who strikes down a law as
    unconstitutional when the text and precedent do not support
    that result or a judge in the other direction who upholds a law
    as constitutional when the text and precedent would suggest
    that the law is, in fact, unconstitutional. So, too, in
    statutory cases, it is the same principle. When a judge does
    not stick with the compromises that you have reached and
    written into the text of the statute passed by Congress and
    signed by the President, but thinks the judge can improve on it
    in some way or maybe picks a snippet out of a Committee report
    and says, ``Well, I agree with that view in the Committee
    report, and I am going to superimpose that onto the text of the
    statute passed by Congress,'' that is to me the textbook
    definition of a judicial activist, adding to or subtracting
    from the text as informed by the precedent.
        Senator Cruz. In your time on the D.C. Circuit, you have
    written a number of opinions addressing separation of powers.
    Why does separation of powers matter? Why should an American at
    home watching this on C-SPAN care about the separation of
    powers?
        Judge Kavanaugh. People should care about separation of
    powers because it protects individual liberty, and it is really
    the foundational protection of individual liberty. We think of
    the First Amendment, freedom of religion and freedom of speech,
    as foundational protections of individual liberty. But as
    Justice Scalia used to say, the old Soviet constitution had a
    bill of rights, but it was meaningless in operation because
    they did not have an independent judiciary, they did not have a
    separation of powers system to help protect those individual
    liberties. So it works in two ways, I think, or more than two
    ways: first, the independent judiciary that helps enforce those
    rights; second, the whole structure, as I have explained, tilts
    toward liberty in the sense that you start with a system, it is
    hard to pass a law to effect what you do or cannot do, hard to
    get a law through Congress. And that is by design. The
    bicameralism principle, a House and a Senate, as well as adding
    the President, was designed to prevent the passions of the
    moment from overwhelming and enacting a law based on the
    passions as opposed to a more difficult process. That all helps
    protect individual liberty.
        Then even after you pass a law, the President has, as I was
    discussing with Senator Klobuchar, some--or the executive
    branch has prosecutorial discretion, when and how to enforce
    particular laws. Who is protected by prosecutorial discretion?
    Ultimately, it protects individual liberty. And then, even when
    the Congress has passed a law and the Executive has enforced a
    law, that does not mean you go straight to prison. If you are
    charged with a crime, you go before an independent judiciary.
        And just to add further protections for liberty, you have
    the jury protections that are in the original text of the
    Constitution and also reflected in the Bill of Rights. So in
    check after check after check, the Constitution tilts toward
    individual liberty.
        The separation of powers also ensures that there are checks
    on the branches. So what do we do--for example, Members of
    Congress do not serve for life. You have to run for reelection,
    and that is a check, again, to help protect individual liberty,
    to help ensure accountability as well. So, too, with
    Presidents.
        So the document is just chock full with protections of
    individual liberty, and that is ultimately why the separation
    of powers matters as much as the individual protections that
    are in the Bill of Rights and also in Article I, Section 9, and
    Article I, Section 10, of the original Constitution.
        Senator Cruz. How about the doctrine of federalism? That
    has been an issue you have not encountered as much serving on
    the D.C. Circuit, but can you share with this Committee why
    federalism matters and, again, why Americans watching this
    hearing at home should care about the principles of federalism?
        Judge Kavanaugh. Federalism matters for several reasons,
    Senator. Again, it helps further individual liberty in the
    sense of additional protection, so let me give you an example.
    If the U.S. Constitution only protects--the Fourth Amendment
    only protects you against unreasonable searches and seizures up
    to a certain line, it is possible that your State Constitution
    will protect you even further under that, or your State
    legislature might protect you further, so further protections
    of individual liberty. federalism also operates in a different
    way, a laboratory of democracy in the sense of experimentation
    around the country. It is not always the same views in Texas
    that there might be in California, for example, on particular
    issues, and so you have different laws----
        Senator Cruz. Thankfully.
        Judge Kavanaugh. Yes. And different laws in those States.
    And also I think that federalism serves the more general idea
    of the Government that is closest to you for most of your day-
    to-day activities. My wife is, of course, in local government
    now as the town manager, but federalism--for the things that
    affect you on a daily basis, the paving of the roads, the leaf
    collection, the trash collection, the local schools, which is
    probably the most direct impact that many people have with the
    government, the local court system--my mom, of course, was a
    State trial judge. The whole system of State government is most
    people's interaction with government, and federalism in that
    sense makes--ensures accountability because you know better
    usually your local and State elected officials than you do--and
    you can, therefore, make your views known on whatever
    governmental issue is of concern to you. For example, the
    schools is a classic one.
        Senator Cruz. So what is the importance and the relevance
    of the Tenth Amendment?
        Judge Kavanaugh. The Tenth Amendment protects federalism in
    the sense of ensuring that the States have independent
    sovereign--they make clear, which is also clear from the
    structure, but reinforces the idea that the States are
    sovereign entities that have independent authority under the
    Constitution, and that they have the status as separate
    sovereigns under the Constitution. And so you were Solicitor
    General of Texas, of course, and I know you represented the
    State of Texas in many cases where the sovereignty of the State
    of Texas to pass its laws and to enforce its laws was critical.
    And the sovereignty of the individual States is important for
    the people, again, both for the accountability, the local
    government, and also for the protection of individual liberty.
    And I think the Tenth Amendment underscores that. It also
    makes--it helps underscore something else, which is that States
    cannot be commandeered by the Federal Government. Commandeered
    is commandeering doctrine of the Supreme Court which recognizes
    that--and this is from the structure as a whole and
    underscored, but the Federal Government cannot order States to
    do certain things that the States themselves have not chosen to
    do, and so that is an important part of the federalism
    principles recognized by the Supreme Court and that comes out
    of the Constitution as well.
        Senator Cruz. What do you make of the Ninth Amendment?
    Robert Bork famously described it as an ``ink blot.'' Do you
    share that assessment?
        Judge Kavanaugh. So, I think the Ninth Amendment, and the
    Privileges and Immunities Clause, and the Supreme Court's
    doctrine of substantive due process, are three roads that
    someone might take that all really lead to the same destination
    under the precedent of the Supreme Court now, which is, that
    the Supreme Court precedent protects certain unenumerated
    rights so long as the rights are, as the Supreme Court said in
    the Glucksberg case, rooted in history and tradition. And
    Justice Kagan explained this well in her confirmation hearing,
    that the Glucksberg test is quite important for allowing that
    protection of unenumerated rights that are rooted in history
    and tradition, which the precedent definitely establishes, but
    at the same time making clear that when doing that, judges are
    not just enacting their own policy preferences into the
    Constitution.
        An example of that is the old Pierce case where Oregon
    passed a law that said everyone in the State of--this is in the
    1920s--everyone in the State of Oregon had to attend--every
    student had to attend a public school. And a challenge was
    brought to that by parents who wanted to send their children to
    a parochial school, a religious school. And the Supreme Court
    ultimately upheld the rights of the parents to send their
    children to a religious parochial school and struck down that
    Oregon law, and that is one of the foundations of the
    unenumerated rights doctrine that is folded into the Glucksberg
    test and rooted in history and tradition.
        So how you get there, as you know well, Senator, there are
    stacks of law reviews written to the ceiling on all of that,
    whether it is privileges and immunities, substantive due
    process, or Ninth Amendment. But I think all roads lead to the
    Glucksberg test, as the test that the Supreme Court has settled
    on as the proper test.
        Senator Cruz. Let us talk a little bit about the First
    Amendment. Free speech, why is that an important protection for
    the American people?
        Judge Kavanaugh. It is one of the bedrocks of American
    liberty, the ability to say what you think, to speak
    politically, first of all, about policy issues, and to speak
    about, for example, who you want to support for elected office
    is a critical part of the free speech principle. But it is
    broader than that. It is the idea that there is no one truth
    necessarily, that one person can dictate from on high in terms
    of policy issues or social issues or economic issues, and that
    the truth or at least the best answer emerges after debate and
    over time, and that freedom of speech is important to help
    advance that cause of the debate. And it is important just as
    an individual matter, I think, to have that protection written
    into the Constitution because you may have an unpopular view at
    a particular point in time, and if that view were suppressed,
    that view would never take hold even though that view would be
    the better view. And so it is particularly important in Supreme
    Court precedent, I think, to protect unpopular views or views
    that seem out of fashion or out of fashion at a particular
    moment in time because of both the inherent dignity that that
    provides to individual people, but also for the broader purpose
    of that advances societal progress or economic progress or
    social progress. Most good ideas were unpopular at one point or
    another and take time to take hold, and I think the Framers
    understood that. Look at where they came from and how they had
    to fight against suppression of speech and suppression also of
    religious liberty, of course, in how they came about.
        So free speech is critically important. I think, again,
    Justice Kennedy and Justice Scalia in Texas v. Johnson, what
    could be more unpopular than burning the American flag? And yet
    they upheld the right to do that, not because they liked it,
    and that is the whole point of Justice Kennedy's concurrence,
    but because they thought the First Amendment had to protect the
    most unpopular of ideas in order to accord with the precedent
    and principle of free speech.
        Senator Cruz. So you mentioned religious liberty. Religious
    liberty is one of our fundamental liberties, cherished by
    Americans across the Nation, the right to live according to our
    faith, according to our conscience. Can you share your views on
    the importance of religious liberty and how the Constitution
    protects it?
        Judge Kavanaugh. Yes, Senator. To begin with, it is
    important in the original Constitution, even before the Bill of
    Rights, that the Framers made clear in Article VI no religious
    test shall ever be required as a qualification to any office or
    public trust under the United States. So that was very
    important in the original Constitution, that the Framers
    thought it very important that there not be a test to become a
    legislator, to become an executive branch official, to become a
    judge under religion, recognizing the religious freedom at
    least to serve in public office.
        And then, of course, in the First Amendment to the
    Constitution, ratified in 1791, the principle of religious
    liberty is written right into the First Amendment to the
    Constitution. And the Framers understood the importance of
    protecting conscience. It is akin to the free speech protection
    in many ways. And no matter what God you worship or if you
    worship no God at all, you are protected as equally American,
    as I wrote in my Newdow opinion, and if you have religious
    beliefs, religious people, religious speech, you have just as
    much right to be in the public square and to participate in the
    public programs as others do. You cannot be denied just because
    you have a religious status, and the Supreme Court has
    articulated that principle in a variety of different ways in
    particular cases.
        If you look at, for example----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. In other countries around the world, you
    know, in China, for example, you----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. So if you look at other countries around
    the world, you are not as--you are not free to take your
    religion into the public square. You know, crosses are being
    knocked off churches, for example, or you can only practice in
    your own home, you cannot bring your religious belief into the
    public square.
        [Disturbance in the hearing room.]
        Judge Kavanaugh. And being able to participate in the
    public square is a part of the American tradition, I think, as
    a religious person, religious speech, religious ideas,
    religious thoughts. That is important.
        So, too, in the Establishment Clause, some of those----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. Some of those case are, as you know,
    particularly complicated in the Supreme Court precedent, but
    the Supreme Court precedent, for example, in the Town of Greece
    case and others has recognized that some religious traditions
    in governmental practices are rooted sufficiently in history
    and tradition to be upheld, and so in that case, the Town of
    Greece case, the Supreme Court upheld the practice of a prayer
    before a local legislative meeting, as Marsh v. Chambers, of
    course, also--a local town meeting, I should say, Marsh v.
    Chambers, it upheld that in a legislative meeting as well.
        So the religious tradition reflected in the First Amendment
    is a foundational part of American liberty, and it is important
    for us as judges to recognize that and not--and recognize, too,
    that as with speech, unpopular religions are protected. Our
    job--we can, under the Religious Freedom Restoration Act,
    question the sincerity of a religious belief, meaning is
    someone lying or not about it, but we cannot question the
    reasonableness of it, and so the Supreme Court has cases with
    all sorts of religious beliefs protected, Justice Brennan
    really the architect of that.
        So religious liberty is critical to the First Amendment and
    the American Constitution.
        Senator Cruz. How would you describe the interaction
    between the Free Exercise Clause and the Establishment Clause?
    And are they at cross purposes and in tension? Or are they
    complementary of each other?
        Judge Kavanaugh. I think in general it is good to think of
    them as both supporting the concept of freedom of religion
    and--in the Newdow case I wrote, tried to explain some of those
    principles, but I think it is important to think that, to begin
    with, you are equally American no matter what religion you are,
    if you are no religion at all; that it is also important, the
    Supreme Court has said, that religious people be allowed to
    speak and to participate in the public square without having to
    sacrifice their religion in speaking in the public square, for
    example, or practicing their religion in the public square.
        At the same time, I think both clauses protect the idea or
    protect against coercing people into practicing a religion when
    they might be of a different religion or might be of no
    religion at all. So the coercion idea I think comes really out
    of both clauses as well.
        The cases that are Establishment Clause cases that do not
    involve coercion but are some of the--the religious symbols
    cases, as you well know, Senator, that is a complicated body of
    law, but probably each area of that has to be analyzed in its
    own silo. But as a general matter, I think it is good to think
    of the two clauses working together for the concept of freedom
    of religion in the United States, which I think is foundational
    to the Constitution.
        Senator Cruz. When you were in private practice, you
    represented the Adat Shalom synagogue pro bono. You did that
    for free. Can you describe for this Committee that
    representation and why you undertook it?
        Judge Kavanaugh. I undertook that representation to help a
    group of people who wanted to build a synagogue, but were being
    denied the ability to do that based on a zoning ordinance that
    seemed to be--the application, at least, of a zoning ordinance
    in a way that seemed to be discriminating against them because
    of their religion, and that may have allowed other buildings to
    be built there, but they were being blocked or at least
    challenged from building a synagogue there. So it seemed to me
    potentially a case of religious discrimination that was being
    used to try to prevent them from building. So I wanted to--I
    agreed to represent them because I wanted to do pro bono work
    and I always like to help the community. In that case in
    particular, I thought these people who want to build their
    synagogue had the right to do so, as I saw it under the law.
    And I thought I could help them do so, and we did prevail in
    the district court in Maryland, and that synagogue now stands,
    and they were very grateful.
        And so that was the kind of litigation--that was the couple
    years I was actually at a law firm but did some pro bono work,
    and that was very rewarding pro bono work to have a real effect
    on real people in their practice of their religion in the State
    of Maryland. So that is something that means a lot to me. They
    gave me something to hang on the wall: ``Justice, justice shalt
    thou pursue,'' which has hung on my wall in my chambers the
    whole 12 years I have been there as just a reminder of a
    representation I had in the past and the importance of equal
    treatment in religious liberty and a successful pro bono
    representation that meant a lot to me.
        Senator Cruz. Well, and I will note, some of the Democratic
    Senators on this Committee----
        [Disturbance in the hearing room.]
        Senator Cruz. Some of the Democratic Senators on this
    Committee have suggested that you would somehow side with rich
    and powerful entities at the expense of the little guy, but at
    least in that instance, representing the synagogue against the
    power of government that was trying to prevent it being built
    is very much an instance that you chose to give your time and
    your energy and your labor for free to a litigant that I think
    most would view as the little guy in that battle.
        Judge Kavanaugh. That is correct, Senator, and I have tried
    as a judge always to rule for the party who has the best
    argument on the merits, and that has included workers in some
    cases, businesses in others, coal miners in some cases,
    environmentalists in others, unions in some cases, the employer
    in others, criminal defendants in some cases, the prosecution
    in others. And I have a long line of cases in each of those
    categories, and little guy/big guy is not the relevant
    determination. If you are the little guy, so to speak, and you
    have the right answer under the law, then you will win in front
    of me.
        Senator Cruz. Earlier in the questions from Senator Graham,
    he asked you a question, ``Are you a Republican? '' And he
    asked it in the present tense. And your answer, you
    acknowledged that you had been a registered Republican. Indeed,
    you had served in a Republican administration previously. But,
    of course, you have been a Federal judge for 12 years. Do you
    consider yourself a Republican judge?
        Judge Kavanaugh. I am not sure what the current
    registration is, but shortly after I became a judge, I assume
    the registration--I have not changed it, but I do not know if
    it is still listed. But shortly after I became a judge and had
    voted I think in one election, I decided--I had read about the
    second Justice Harlan having decided that he did not want to
    continue voting while being a Federal judge, and I thought
    about that practice, and I would be the first to say I am not
    the second Justice Harlan, not trying to compare myself in any
    way to him, but I thought that was a good model for a Federal
    judge, just to underscore the independence, because we are not
    supposed to participate in political activities, go to rallies,
    give money and that kind of thing. And it seemed to me that
    voting is a very personal expression of your policy beliefs in
    many ways and your personal beliefs. And I am not trying to----
        Senator Cruz. Let me ask one final question. My time is
    expiring, and I want to end on a lighter note.
        Judge Kavanaugh. Yes.
        Senator Cruz. You and I have both had the joys of coaching
    our daughters in basketball. Could you tell this Committee what
    have you learned coaching your daughters playing basketball?
        Judge Kavanaugh. Well, it has been a tremendous experience
    to be able to coach them for the last 7 years, and all the
    girls on the team, and I have learned about something I saw in
    my own life about the importance of coaches to the development
    of America's youth, teachers too, but coaches can have such an
    impact, I think, on building confidence, and when you see--I
    have coached girls. When you see a girl develop confidence over
    time or you see their competitive spirit, team work, the
    toughness that is developed over time, the drive, you know, win
    with class, lose with dignity, winning and--the ability to lose
    but still put forth your best effort, and so I have learned
    just how important--I think I understood that from my own
    experience, as I said, but learned how important it is for
    people, for coaches, and the effect that you can have on
    people's lives. And I have heard from a lot of the parents over
    the last 8 weeks while I have been in this process about, you
    know, the effect I had on some of the girls' lives, which was
    very nice to hear in terms of my coaching.
        So like I said yesterday, coaches have such an impact on
    people, and I have learned that. That is why Senator Kennedy
    said in our individual meeting, ``I hope you keep coaching,''
    and I am going to--either way this comes out, I am going to try
    to keep coaching.
        Thank you, Senator.
        Chairman Grassley. Senator Coons.
        Senator Coons. Thank you, Chairman Grassley. Thank you,
    Judge Kavanaugh.
        As we discussed in my office, and in a letter I have sent
    to you to follow up, I hope to question you today about your
    views on rule of law, separation of powers, Presidential power.
        And Chairman, I would like to start by entering into the
    record a series of articles that I think lay some of the
    foundation for my concerns. First----
        Chairman Grassley. Without objection, so ordered. Well, go
    ahead, if you want.
        Senator Coons. Thank you.
        First, ``Who Is Brett Kavanaugh? '' by Chicago Professor
    Eric Posner and Emily Bazelon.
        Second, ``The Kavanaugh Nomination Must Be Paused, and He
    Must Recuse Himself'' by former Third Circuit Judge Timothy
    Lewis, former White House Ethics Counsel Norm Eisen, and
    Harvard Law Professor Tribe.
        Third, ``Brett Kavanaugh's Radical View of Executive
    Power'' by Professor Brettschneider.
        ``Brett Kavanaugh Is Devoted to the Presidency'' by Law
    Professor Garrett Epps.
        And ``Brett Kavanaugh's Legal Opinions Show He Would Give
    Donald Trump Unprecedented New Powers'' by Fordham Professor
    Shugerman.
        Chairman Grassley. As I previously said, without order----
        [The information appears as submissions for the record.]
        Judge Kavanaugh. Would you repeat who the third one was?
    Sorry, I want to make sure I know the names.
        Senator Coons. I think it was, ``Brett Kavanaugh's Radical
    View of Executive Power'' by Brown University Professor Corey
    Brettschneider, if I am not mistaken.
        Judge Kavanaugh. Okay. That is not a law professor, though,
    right?
        Senator Coons. Correct.
        Judge Kavanaugh. Okay.
        Senator Coons. It is a range of opinions from a range of
    folks from a range of backgrounds.
        Judge, the rule of law requires that those who are governed
    and those who govern both be bound by the law. And a key way to
    ensure, as you said in your opening, that no one is or should
    be above the law is to ensure that the President is not above
    the law by preventing him from firing someone appointed to
    investigate him.
        Sitting on a panel at Georgetown in 1998, you took a
    different view. You said at that time, and I quote, ``The
    prosecutor should be removable at will by the President.''
    Given what is in your record, a long record of writing and
    speaking on this topic, I think there is legitimate cause for
    concern about your views on Presidential power and whether it
    is possible President Trump chose you so you would protect him.
        Please answer directly. Do you still believe a President
    can fire at will a prosecutor who is criminally investigating
    him?
        Judge Kavanaugh. That is a question of precedent, and it is
    a question of that could come before me either as a sitting
    judge on the D.C. Circuit or, if I am confirmed, as a Supreme
    Court Justice. So I think that question is governed by
    precedent that you would have to consider.
        United States v. Nixon, of course, the special prosecutor
    regulation in that case was at issue in the United States v.
    Richard Nixon in the subpoena----
        Senator Coons. Judge, if I could, I am just asking whether
    you stand by your record, something that you chose to write in
    1998. You expressed a view at the time that a President can
    fire at will a prosecutor criminally investigating him. Is that
    still your view?
        Judge Kavanaugh. Well, that would depend----
        Senator Coons. I am not asking for a recitation of
    precedent. We will get into some precedent later.
        Judge Kavanaugh. Okay.
        Senator Coons. I am just trying to make sure I understand
    if you stand by that publicly expressed view back in 1998.
        Judge Kavanaugh. I think all I can say, Senator, is that
    was my view in 1998.
        Senator Coons. Okay. Well, then let us move to a more
    recent statement that I think is equally important. In the wake
    of the Watergate Presidential scandal, a scandal precipitated
    by a President who had committed some crimes and then was
    investigated, Congress passed the independent counsel statute,
    a statute which restricted in part when the President can fire
    an independent counsel.
        And during a recent speech, a 2016 speech, you described
    this law as, and I quote, ``a goo-goo post-Watergate reform,''
    and ``a constitutional travesty.'' Do you stand by your
    criticism of the independent counsel statute as a
    constitutional travesty?
        Judge Kavanaugh. Well, that was understated compared to
    what Members of this Committee and others said in 1999, when
    the decision was made----
        Senator Coons. But, Judge, I am interested in your views--
    --
        Judge Kavanaugh. Right.
        Senator Coons [continuing]. Not the views of Members of
    this Committee. And when you chose in a public speech as a
    sitting judge to say that that statute was a constitutional
    travesty, you had something in mind. What are your views on
    this statute, and why do you view it as a constitutional
    travesty?
        Judge Kavanaugh. So let me make a few things clear. This is
    the old independent counsel statute.
        Senator Coons. Yes.
        Judge Kavanaugh. That is distinct from the special counsel
    system that I have specifically said is consistent with our
    traditions. I said that in the Georgetown article, as you know.
    I said that, actually, in the PHH case most recently.
        The statute you are talking about, the independent counsel
    statute was a distinct regime that Congress itself decided not
    to reauthorize in 1999. I think Senator Durbin said it was
    unrestrained, unaccountable, unconstitutional statute. That
    statute----
        Senator Coons. But I am interested, if I might, Judge, in
    your views. You chose to describe the independent counsel as a
    constitutional travesty. What did you mean?
        Judge Kavanaugh. Well, I meant I think what Justice Kagan
    said, when she said at Stanford a few years ago, that Justice
    Scalia's dissent in Morrison v. Olson--and this is a quote--
    ``was one of the greatest dissents ever written, has gotten
    better every year.'' By identifying Justice Scalia's dissent as
    one of the greatest dissents ever written, Justice Kagan seemed
    to be saying, at least I think this is the only reading of it,
    that the Morrison v. Olson decision was--was wrong.
        Senator Coons. I will actually strongly disagree. You
    offered that quote, that cite of Justice Kagan when we met. I
    was struck--perhaps I should call Justice Kagan and tell her
    she is one of your judicial heroes. I think that citation is
    actually literally true, but misleading in context.
        Justice Kagan wrote in a famous Harvard Law Review article
    in 2001 strongly rejecting the unitary executive theory, which
    is at the root of the Scalia dissent in Morrison v. Olson. I
    believe Justice Kagan was complimenting the forcefulness and
    the clarity of Scalia's writing in the dissent, not agreeing
    with the legal theory.
        I am trying to get to the point of----
        Judge Kavanaugh. I think I disagree with that, Senator.
        Senator Coons. Well, I look forward to exchanging some
    papers on this, and perhaps in our next round tomorrow, we can
    have more fun on it. But it is an important point.
        Judge Kavanaugh. It is. But I think in that article, and I
    have read that article. It is a great article, ``Presidential
    Administration'' by Justice Kagan, then-Professor Kagan. I
    think she was referring to the concept of independent agencies
    generally, so the Humphrey's Executor line of cases.
        [Disturbance in the hearing room.]
        So I think she is referring there, at least I read her as
    referring there, to independent agencies are traditional and
    permissible. The independent counsel statute was something
    quite different from the traditional independent agencies that
    existed with the Federal Trade Commission, the Securities and
    Exchange Commission. So I did not read her old article to, in
    any way----
        Senator Coons. Let us put it this way. Justice Kagan may
    have complimented Scalia's dissent in its writing or its
    holding. You have criticized the independent counsel statute as
    a constitutional travesty, and I am simply trying to get to the
    bottom of why you held that view and why you chose to say that
    in a speech just 2 years ago.
        Judge Kavanaugh. Well, it was Morrison v. Olson was a one-
    off case about a one-off statute that has not existed for 20
    years. The statute is gone. The case, as Justice Kagan--I think
    I took my lead from her comment. I know I read that. I have
    cited it many times in speeches I have given. But that statute,
    it is just real important to be clear here, and I know you know
    this, Senator, but so everyone understands. That statute has
    not existed since 1999. Special counsel systems----
        Senator Coons. But Morrison v. Olson is still good law, is
    it not? But the holding by the Supreme Court in Morrison v.
    Olson, even though the independent counsel statute has passed
    into history, Morrison v. Olson, as a decision of the Supreme
    Court, is still good law. In fact, your own Circuit said so
    forcefully this year.
        Judge Kavanaugh. I think Humphrey's Executor is good law.
        Senator Coons. I think that is a ``yes'' or ``no''
    question. The D.C. Circuit held this year in PHH, where you
    wrote a dissent, that Morrison v. Olson is still good law.
    Correct?
        Judge Kavanaugh. I think they were applying Humphrey's
    Executor. They might have cited Morrison. But the principle
    being----
        Senator Coons. They literally said, and I quote, ``Morrison
    remains valid and binding precedent,'' and----
        Judge Kavanaugh. In how it applied Humphrey's.
        Senator Coons [continuing]. Criticized your minority as,
    ``flying in the face of Morrison''.
        Judge Kavanaugh. And again, we are talking about
    independent agencies. So the traditional independent agencies
    on the one hand, and the old independent counsel regime that is
    long gone, on the other. And the independent counsel regime,
    this Committee and the Congress as a whole decided was a
    serious mistake. Just Senator Durbin's words--unrestrained,
    unaccountable, unconstitutional. And I think the case----
        Senator Coons. So what I am concerned about, Judge--what I
    am concerned about, Judge, is not so much whether there are
    Members of this Committee or other Justices who view the
    independent counsel statute as a serious mistake, but whether
    you view Morrison v. Olson and the majority holding there as a
    serious mistake. So let us move to that point, if I could.
        In Morrison v. Olson, as you well know, the Court upheld a
    restriction on the President's power to fire the independent
    counsel, in fact, by a vote of 7-to-1. It is an opinion written
    by your first judicial hero, Chief Justice Rehnquist. It was
    only Justice Scalia who dissented in arguably a well-crafted
    dissent.
        But for those seven Justices, they wrote an important
    decision, which I believe you have challenged and criticized
    because it restrained the President's power to fire the
    independent counsel. Just 2 years ago, you were asked at a
    public event to name a case that deserved to be overturned--any
    case. And after a pregnant pause, you said, ``Well, I can think
    of one.'' There was some chuckling. And then you said, ``Well,
    sure, Morrison v. Olson.''
        And I am struck by that, having watched that speech. Not
    Korematsu, not Buck v. Bell, cases that, you know, are taught
    to all first-year law students as terrible examples of shameful
    decisions. No, you chose Morrison v. Olson to say, ``it has
    already been effectively overturned''--which I disagree with--
    and, ``I would put the final nail in the coffin.''
        So, here is a recent public statement by a sitting D.C.
    Circuit judge who is now before me as a nominee to serve on the
    Supreme Court. So, I have got a question: Would you vote to
    overturn Morrison?
        Judge Kavanaugh. Senator, first of all, I--Korematsu has
    been now overturned, and Buck v. Bell is a disgrace. So I am--
    --
        Senator Coons. Right. So it is striking you did not choose
    either of them. You reach out and say, oh, this old, 30-year-
    old decision about a statute long gone, that is the one I am
    going to hold up to get rid of.
        Judge Kavanaugh. And I really did have Justice Kagan's
    comment foremost in mind. I thought she had already talked
    about Morrison v. Olson and----
        Senator Coons. Nothing to do with a view of Presidential
    power?
        Judge Kavanaugh. Well, I have written about the special
    counsel system, and I have said in the 1999 Georgetown article
    that the special counsel system is the traditional approach
    that is used. When there is a conflict of interest in the
    executive branch, there is a need for an outside counsel. And I
    have said that is traditional, and it was when I said that
    again in the PHH case that you just cited.
        Senator Coons. And is that special counsel fireable at will
    or only for cause in your conception of what is the most
    appropriate structure?
        Judge Kavanaugh. So that is the hypothetical that you are
    asking me, and I think what that depends on is, is there some
    kind of restriction on for-cause protection either regulatorily
    or statutorily that is permissible that is different from the
    old independent counsel, for example? And that is the kind of
    open question, gray area question that you would want to hear
    the briefs, get the oral arguments, keep an open mind on. What
    is the specific statute you have at issue?
        Remember, the old independent counsel had a lot of moving
    parts to it that were--all of which were novel and together
    produced Justice Scalia's dissent. I do not think any one
    aspect----
        Senator Coons. So given your enthusiasm for Justice
    Scalia's dissent, given your choice to say, forgive me, I would
    put the final nail in, let me go back to that question. Would
    you vote to overturn Morrison?
        Judge Kavanaugh. Senator, I am not going to say more than
    what I said before.
        Senator Coons. Well, I think what you said before is clear.
    I think your enthusiasm for overturning Morrison is
    unmistakable.
        [Disturbance in the hearing room.]
        Judge Kavanaugh. I want to repeat two things, Senator,
    because they are important. One is, Humphrey's Executor is the
    precedent that stands--and I have called it an entrenched
    precedent in an opinion--on independent agencies generally. And
    two is, the special counsel system, both in the PHH decision
    recently and in the old Georgetown Law Journal article, I have
    specifically said that that is the traditional way that
    criminal investigations proceed when there is a conflict of
    interest and the usual Justice Department process is not
    appropriate.
        Senator Coons. Humphrey's Executor has been settled law now
    for 83 years, right? And early on, you said that you would be
    willing to offer views on long-settled cases. Can you just tell
    me if Humphrey's Executor was correctly decided?
        It is long-settled precedent, yes. You have said that about
    a number of cases. But a key difference here is whether you
    will say that something was rightly decided. I am struck about
    this--frankly, a little concerned about it--because in your own
    opinion, in your dissent in PHH, you went into a long criticism
    of Humphrey's Executor that at least that is how I read it.
        You laid out a very strong articulation of this unitary
    executive theory, this theory that the President is imbued with
    all the power of the executive branch, which is the core of
    Scalia's dissent in Morrison, which is a radical theory that
    has been rejected by the Supreme Court, I would argue.
        And you go on to then say that Humphrey's Executor, yes, it
    is long-settled. But you know, if we were to overturn it, it
    would not mean the elimination of independent agencies. Why did
    you need to go there? Why have that conversation if this long-
    settled case is actually well reasoned?
        Judge Kavanaugh. What I said in the PHH case is that
    Humphrey's Executor is the precedent that governs independent
    agencies. I have applied it dozens of times, Humphrey's
    Executor, and referred to it that way.
        What concerns me constitutionally as a judge in the PHH
    case was that the CFPB did not follow the traditional model of
    independent agencies and, therefore, departed from this
    traditional exception, one might say, to the idea that a single
    President controls the executive branch. And I explained all
    that, that the--having one head of an independent agency both
    diminished Presidential authority more than Humphrey's Executor
    and posed a serious threat to individual liberty and was a
    departure from historical practice, which under the Supreme
    Court's precedent made--makes a big difference, as you know, of
    course.
        And so I referred--so that is why I concluded in the CFPB
    case that the statute was--the bureau was unconstitutionally
    structured. But the remedy was not to get rid of the whole
    agency. The remedy was simply to make the person removable at
    will.
        Senator Coons. So Humphrey's Executor was essentially about
    whether or not the head of the FTC could be removable at will
    or have a good cause removal protection?
        Judge Kavanaugh. Right. President Roosevelt wanted to fire
    Humphrey, who was a Republican holdover.
        Senator Coons. Will you simply just state that it is well-
    reasoned, well-decided, long-settled law?
        Judge Kavanaugh. I will say it is an important precedent of
    the Supreme Court that I have applied many times. It has been
    reaffirmed----
        Senator Coons. It is troubling to me that you cannot say
    that Humphrey's Executor was well-decided.
        Judge Kavanaugh. But again, I will follow what the eight
    nominees----
        Senator Coons. Was Marbury v. Madison well-decided?
        Judge Kavanaugh. Of course. Of course. The--of course it
    is. The concept of judicial review was not even invented in
    Marbury v. Madison. It is right here in the Constitution, as I
    read it, and also referred to in Federalist 78. We mistakenly
    say Marbury created the concept of judicial review. It actually
    exists right there. So it is a correct application.
        But the reason I am hesitating----
        Senator Coons. So let me bring this back to the current
    context and why all of this is of concern to me and relevant--
    --
        Judge Kavanaugh. But I did not finish my answer.
        Senator Coons. We have a series of public statements by you
    that are recent about your enthusiasm for overturning Morrison.
    And you are not going to comment on that here. You will not
    answer that question here. You have got a recent decision as a
    D.C. Circuit judge where you forcefully articulate this unitary
    executive theory that would give the President significantly
    more power. And if Humphrey's Executor is at any risk, we might
    then see a whole series of agencies moved or a whole series of
    long-established protections from at-will removal at some risk.
        Let me just make sure I get this right. In your view, can
    Congress restrict the removal of any official within the
    executive branch?
        Judge Kavanaugh. Under the Supreme Court precedent, which I
    have applied many times, Humphrey's--and referred to it as an
    entrenched precedent--Congress historically has restricted the
    removal of independent agency heads. And that is--that is law
    that has been in place for a long time.
        Senator Coons. For decades.
        Judge Kavanaugh. On Morrison, you may disagree with what I
    am about to say. But the reason I think Justice Kagan probably
    felt free to talk about Morrison, and I did as well, is, it
    seemed a one-off case about a statute that does not exist
    anymore and that Humphrey's is the precedent on independent
    agencies.
        Now you may disagree with me on that, but I think that is
    the premise on which she spoke. I do not want to put words in
    her mouth, but that is certainly the premise on which I spoke.
    But I was not intending to do either of two things. I was not
    intending to say anything about Humphrey's, and I was not
    intending to say anything about traditional special counsels,
    which I have explicitly distinguished multiple times over the
    years.
        Senator Coons. So I am just--I am concerned that I am
    having difficulty getting what I think is a clear and decisive
    answer from you on a number of things. Would you overturn
    Morrison? What is your view of executive theory? Is it
    appropriate for a President to fire a special counsel
    investigating him?
        I am just going to come back to a decision that you
    rendered this year, this PHH decision, and I urge folks who are
    having any interest in this or trouble following it to just
    read your decision in this case. Because you lay out--you
    embrace this theory of the Executive, that the Executive has
    all the power of the executive branch, which I think is
    directly relevant to the question whether a special prosecutor
    should be fireable at will by the President or could be
    protected from being fired by the whims of the President.
        This is a theory that was rejected not just by the Supreme
    Court in Morrison v. Olson, not just by the D.C. Circuit, but
    by a number of Members of this Committee in a recent vote, a
    bipartisan vote advancing a bill that is predicated on the idea
    that Congress can impose some restrictions on the Executive
    power to fire at will executive branch senior officers.
        Judge Kavanaugh. But just with respect, Senator, I think
    you are significantly overreading what I wrote in that case. I
    did not in any way say that the traditional independent
    agencies are in any way constitutionally problematic. In fact,
    I took that as the baseline on which I said that this new
    agency departed from that traditional model and was
    problematic.
        So I did not--I did not cast doubt on Humphrey's in that
    case as I--at least as I read it. I guess you do not agree with
    the opinion, but I explained in great detail why I thought this
    deviation from Humphrey's mattered as a matter of historical
    practice.
        Senator Coons. Let us get then, if we could, Judge, in the
    few minutes I have got left, to the question of investigations
    because this is also something you have written about, you have
    spoken about. And it is related, I think, to this issue.
        Now back in Georgetown on a panel in 1998, you said, and I
    quote, ``It makes no sense at all to have an independent
    counsel investigate the conduct of the President. If the
    President were the sole subject of a criminal investigation, I
    would say no one should be investigating that.''
        Is that still your view that if there is credible evidence
    that a President committed crimes, no one should investigate
    it?
        Judge Kavanaugh. That is not what I said, Senator. So two
    things on that. One, the independent counsel you are referring
    to there, it is just important because people forget this, is
    distinct from the special counsel system. So it is very
    important. I specifically in that Georgetown Law Journal
    approved of the traditional special counsel system.
        That is----
        Senator Coons. And the traditional special counsel system
    has a special counsel that can be fired at will by the
    President. Correct?
        Judge Kavanaugh. Well, in the Watergate situation, there
    was a regulation that protected the special counsel from--from
    that.
        Senator Coons. And what happened to the special counsel in
    Watergate?
        Judge Kavanaugh. Well, there was a new regulation then put
    in place, as you know, and then in the United States v. Richard
    Nixon, that new regulation was parsed pretty carefully. And
    then, more generally----
        Senator Coons. This is exactly why your quote that the
    independent counsel statute was ``a goo-goo post-Watergate
    reform'' gave me some agita.
        Judge Kavanaugh. But that was not the--but that was a
    statute put in well after Watergate, of course, 1978. In
    Watergate itself, what the system that was in place was the
    traditional special counsel system with a new regulation put in
    after the episode you are referring to. And then when the
    independent counsel system came up in 1999 for reauthorization,
    there was everyone here, everyone----
        Senator Coons. Well----
        Judge Kavanaugh. Agreed it was--I mean, I think I am not--
    --
        Senator Coons [continuing]. You are not alone. You are not
    alone.
        Judge Kavanaugh. I am not exaggerating to say that the
    quote you put up before that one was understating what everyone
    here said about the independent counsel system.
        Senator Coons. Well, in a 1999 article in that exact
    period, I think this is the American Spectator article, you
    called it, ``constitutionally dubious'' for a criminal
    prosecutor to have the responsibility to investigate the
    President.
        Help me understand that. Is that still your view, Judge? Is
    it still your view that it is constitutionally dubious for a
    criminal prosecutor to investigate the President?
        Judge Kavanaugh. I have never taken a position on the
    constitutionality. All I have done is point out that, as I did
    in the Minnesota Law Review article, that Congress might want
    to consider the balance of--and that is when President Obama
    was in office----
        Senator Coons. So this is just a policy argument, not a
    constitutional argument?
        Judge Kavanaugh. Correct. If I have a constitutional case
    come before me as a judge on the D.C. Circuit or, if confirmed,
    on that Court, I will have an open mind. I will listen to the
    arguments. I will dig into the history.
        I have seen all sides of this. I will--I will have a
    completely open mind on the constitutional issue. And again,
    briefs and arguments, I think I have also shown a capacity to,
    if I am presented with a better argument than something I have
    had before, to adopt the better argument.
        I have certainly done that. A good example of that in the
    national security context in the first Bahlul case, I pointed
    out how I had reconsidered something I had written before in a
    national security context. I am not a--but the larger point is
    that I have not taken a position on constitutionality before.
        Senator Coons. Well, and I will just come back to a point
    we have now talked about several times. In several different
    contexts, in several different ways, you have chosen to make a
    constitutional point, either expressing enthusiasm for
    overturning a 30-year-old long-settled precedent in Morrison v.
    Olson, or arguing for the unitary executive theory that Scalia
    advanced in his dissent there.
        Or I will give you another quote. In a different 2016
    speech, you said there Justice Scalia never wrote a better
    opinion than his dissent in Morrison v. Olson, and you may have
    been commenting on the quality of his writing. But you go on to
    say you believe his views will 1 day be the law of the land.
        I assume here you are talking about the constitutional
    analysis in Scalia's dissent, and you are expressing a hope, an
    expectation that it will some day be the law of the land. You
    sit before me as the nominee to be in a seat where that will be
    eminently within your reach.
        Judge Kavanaugh. But again, Senator, I just want to avoid
    melding a lot of different things into one because they are
    very important to keep distinct here, very important. The first
    is the independent counsel statute, and I view Morrison as only
    about the independent counsel statute. And I realize you may
    have a different view on that.
        But if it is only about the independent counsel statute, as
    I see it, and the independent counsel statute does not exist
    anymore, that is why Justice Kagan probably felt free to
    comment about Morrison as well.
        Senator Coons. Well----
        Judge Kavanaugh. And then on special counsels, I have said
    what I have repeated many times here. On investigation and
    indictment of a sitting President, number one, I have never
    taken a position on it, and number two, it is important to
    underscore the Justice Department for 45 years--now this is the
    Justice Department, not me. The Justice Department for 45 years
    has taken the position and written opinions that a sitting
    President may not be indicted while in office, but it has to be
    deferred. Not immunity, but a deferral.
        And Randy Moss, who was head of President Clinton's Office
    of Legal Counsel, wrote a very long opinion on that. He is now
    a President Obama-appointed district judge in DC and an
    excellent district judge. I am not saying I agree with that or
    disagree with that. I am saying that is the consistent Justice
    Department view for 45 years.
        So before a case like this would come before the courts,
    whether I am on the D.C. Circuit or otherwise, the Justice
    Department presumably would have to change its position. That
    is one. Two, a prosecutor at some point in the future would
    have to decide to seek an indictment of a sitting President at
    some point, and three, it would have to be challenged in court.
    Then all the briefs and arguments, and then it would come up on
    appeal to me in the D.C. Circuit.
        So there is a lot of things that would have to happen
    before this hypothetical that you are presenting even comes to
    pass. And if it does come to pass, you can be assured that I
    have not taken a position on the constitutional issue that you
    are raising on that specific question, at least as I understand
    the question. And that is totally distinct from the Morrison
    issue as I understand it.
        Senator Coons. Well, and I will tell you again the reason
    this has been gravely concerning to me, why I raised it in our
    meeting and sent you a letter about it and why I have dedicated
    so much time to this question is I really do not view the issue
    in the independent counsel statute and the Morrison v. Olson
    decision as dealing with some now long-past statute and some
    really sort of obscure and now not particularly relevant issue.
        I think the reason you reached out and volunteered that you
    would love to overturn Morrison v. Olson is not because Scalia
    wrote a powerful and moving dissent. It is because of a view of
    the executive branch having all the power of the executive
    branch in the President's hands that you have articulated
    across speeches, interviews, writings, and an opinion, an
    opinion this year.
        I think that is really your view of the executive branch.
    And it rings as real concern for me.
        Judge Kavanaugh. But I have not said--I have never said
    that. I have never said that, number one. So there are two
    issues here, and I want to be very, very clear on them so
    people understand that, too.
        One is----
        Senator Coons. This is how I read your dissent in PHH this
    year, is arguing--advancing a unitary executive theory.
        Judge Kavanaugh. And I refer to a single President, but
    same concept. But----
        Senator Coons. Single President means the President is the
    chief law enforcement officer of the United States and should
    have all the power of the executive branch, including the
    ability to fire at will, which is really what is at issue in
    all of these articles and cases, the ability to fire at will a
    special prosecutor. Correct?
        Judge Kavanaugh. So the--I have taken as a given in all
    these cases----
        Senator Coons. That is a ``yes'' or ``no,'' is that what
    you mean?
        Judge Kavanaugh. I just want to be real clear, and I am
    going to be repeating myself for about the tenth time. But I
    have repeatedly said that Humphrey's Executor is the precedent
    that allows independent agencies and that I have applied time
    after time. That is point one.
        Point two is, I have specifically said what I have said
    about special counsel systems being the traditional mechanism.
    Point three is, I have never taken a position on the
    constitutionality of indicting or investigating a sitting
    President. And point four is, that the question of who controls
    the executive----
        Senator Coons. I have got just a minute or two left, if I
    might? On that point that you have never taken a position on
    the constitutionality of investigating a President, it was this
    American Spectator article where you said, and I am quoting,
    ``If there is an allegation of Presidential wrongdoing, a
    congressional inquiry should take precedence over the criminal
    investigation, including an investigation of any Presidential
    associates.''
        This American Spectator article was striking to me, this
    one in which you said it was constitutionally dubious for a
    criminal prosecutor to investigate a President. Because you
    suggested not just that the President should not be criminally
    investigated as during his term, but that even his associates
    should not be held accountable through the criminal justice
    system.
        You mentioned you might make an exception for violent
    crime, and I----
        Judge Kavanaugh. Now that is----
        Senator Coons [continuing]. Have a last question for you,
    if I might. Whether--what if a Presidential aide commits an
    assault, an act of domestic violence?
        Judge Kavanaugh. I never said anything like that, Senator,
    in terms of----
        Chairman Grassley. I will--I will let you--I will let you
    answer that, and then we will go on to the next Senator.
        Senator Coons. And I would like to conclude, if I might?
        Judge Kavanaugh. Yes, I have not said anything approaching
    what your broad description was. There has always been a
    question based on the Justice Department's own position for the
    last 45 years. The Justice Department's own position assumes
    that the proper thing to do is to wait for indictment, is that
    that occurs after a President leaves office, whether that is
    because the term ends or because of the impeachment process.
        And that is how the Justice Department--again, for 45
    years, that has been the law. But it is not my--that is not my
    law. That is the Justice Department's law, again, with Randy
    Moss writing the most important thinking on that.
        Senator Coons. I recognize I am out of time. I would like
    to conclude, if I might, Mr. Chairman, briefly?
        I look forward to continuing this line of discussion with
    you in our next round, Judge. I do think that there is good
    reason for Members of this Committee, myself, principally, to
    be concerned about a whole range of things that you have said,
    that you have written, and that you have decided as a judge
    about whether or not a President can be held accountable.
        I think the ability of a special counsel to conduct an
    independent investigation of the President is foundational to
    the rule of law.
        Judge Kavanaugh. I have said the same thing. I have said
    that.
        Senator Coons. And I look forward to the next round where
    we can investigate that more thoroughly.
        Judge Kavanaugh. I have said the exact same thing.
        Senator Coons. But frankly, Judge, your views about
    Executive power, as I think you have detailed, your statements
    about what you would like to overturn and what limits you think
    there should be, really leave me concerned. And it is because
    of our current context. It is because of the environment we are
    operating in.
        And I look forward to another round and to more questions.
        Judge Kavanaugh. I look forward, too. But just to reiterate
    what you said about special counsels, is exactly what my
    article said in 1999 and exactly what PHH said.
        Senator Coons. Thank you, Mr. Chairman.
        Chairman Grassley. Before I call on Senator Sasse, a couple
    things. One, in regard to independent counsel statute at issue
    in Morrison, that statute was never renewed and does not have
    any effect today. And we in Congress chose not to renew it
    because it was nearly universally condemned.
        I often quote Senator Durbin about independent counsels'
    ``unchecked, unbridled, unrestrained, and unaccountable
    authority.'' According to him, unchecked power is tyranny. We
    had Eric Holder, President Obama's Attorney General, said the
    law was too flawed to be renewed.
        Also I want to insert in the record 30 op-eds from all
    across the country that support the confirmation of Judge Brett
    Kavanaugh. The editorial boards of the Los Angeles Times, the
    Chicago Tribune, the Wall Street Journal, among those 30
    supporting confirmation.
        Without objection, I will enter in the record all 30 of
    these op-eds.
        [The information appears as submissions for the record.]
        Senator Coons. Mr. Chairman? Mr. Chairman?
        Chairman Grassley. Senator Sasse.
        Senator Coons. While we are on that exact point, there are
    four committee confidential documents that I would--I wanted to
    be able to question our witness about today, the nominee, the
    Judge. I would like to submit those for the record. They reveal
    his thinking on a unitary executive theory.
        Chairman Grassley. Give that, and I can advocate that you
    get them. And we will put into it, just like we said to Senator
    Leahy, give us the citations, and we will try to get them. So
    far, we have been very fortunate.
        Senator Sasse.
        Senator Sasse. Thank you, Mr. Chairman.
        Judge, by my count, you are about half done.
    Congratulations.
        [Laughter.]
        Senator Sasse. You are going to be here past midnight, I
    think.
        I also want to talk about limited government in general and
    about limits on Executive power in particular. I think today
    has been--Senator Cruz did a nice job complimenting the Capitol
    Police. I think today has been a tough environment to manage,
    and I think we all are glad that people get a right to express
    their First Amendment views and have the right to protest.
        I do not want to draw too much more attention to it,
    though, because I think it disrupts the events. But four things
    that have been said that I think are relevant to this question,
    protesters that have been carried out or led out in the last
    couple of hours.
        Just a few minutes ago, a woman shouting, ``Please vote
    `no' on Kavanaugh. Presidents should not have the power to do
    whatever they want.'' ``Vote `no' on Kavanaugh'' is one of the
    loudest shouts of today. ``He will be a Trump puppet.''
        A separate one, ``He will support Presidential
    criminality,'' and ``Executive immunity has no place in a
    democracy.''
        I think that I want to empathize with concerns that people
    have about those kinds of statements. And frankly, if I thought
    that you would be a puppet for this or any President, if you
    would support Presidential criminality, if you believe that
    Executive immunity is something that is fitting for our system,
    or if you believe that Presidents should have the power to do
    whatever they wanted, I could not vote for you either.
        So I am headed toward voting for you because I do not
    believe any of those things are true. But I think the American
    people need to understand why not. So already today you cited
    the Federalist Papers and said the President is not a monarchy.
    I think it would be useful--the Presidency is not a monarchy.
        I think it would be useful to just have you back us up and
    let us go again. I think Senator Coons asked lots of fair
    questions, but as a non-lawyer, many times we got lost in
    weeds. Not critical of his questioning, but I would like to
    have it at a high school sophomore level for a little while.
        If you were going to explain to the American people what
    the limits on Executive power are, what are they? Where do you
    start?
        Judge Kavanaugh. I would start with the fact that the
    President is elected by the people through the electoral
    process specified in the Constitution. So not a hereditary
    monarchy was something that was specified in Federalist 69.
    Second, the President serves a term in office, not an unlimited
    term in office. Again, specified in Federalist 69.
        The President is subject to the law. No one is above the
    law in the United States, including the President of the United
    States. And that is something that is made clear in Federalist
    69. The President does not--a President does not have absolute
    power to make the laws because Congress has the power to make
    the laws. The President does not have the power to adjudicate
    disputes because an independent judiciary has the power to
    adjudicate disputes and cases and controversies, along with a
    jury.
        As Justice Jackson's framework in Youngstown famously made
    clear, it is important to understand that, though, even in the
    national security context where the Constitution gives the
    Commander-in-Chief power to the President, the President
    remains subject to the law, both the Constitution and the laws
    passed by Congress.
        So, for example, as I have said in writings and my review
    of Judge David Barron's book on war, for example, and some of
    my cases, Congress has substantial power--and this is often
    forgotten--a substantial power in the war powers arena. Of
    course, to declare war, authorize war, but also to regulate the
    war effort. And Congress has done so historically and
    currently, including post September 11th on issues such as
    interrogation, detention, military commissions, surveillance.
    Congress has been actively involved in those areas historically
    and through post September 11th.
        And I have made clear in my writings that the President has
    very limited power in Youngstown Category 3 to disregard such a
    law and/or practice. The historical example that is accepted by
    the Supreme Court is command of troops in battle, for example,
    that Congress could not get in the middle of that. But outside
    examples like that and narrow examples like that, Congress
    regulates the--can regulate the war effort.
        Now Congress often chooses to give the executive branch
    broad discretion on national security policy, but sometimes not
    because the Congress does not like what the Executive has done.
    Usually we are very reactive, and that is understandable.
    Something happens that seems bad. Congress will come in and say
    we do not want that to happen again in wartime or otherwise in
    the national security context.
        And Justice Jackson set forth that framework, which has
    stood the test of time and been applied by the Supreme Court.
    And that is a very critical part because where else would we
    expect the Executive to really exercise unilateral power but in
    the national security context, but also at the same time, what
    else is a greater time of threat to liberties than the national
    security context? Youngstown Steel again being the classic
    example, where the President said, well, we are trying to win
    the war, so I can seize steel mills.
        And that did not work by a 6-to-3 vote of the Supreme
    Court, given the statutes Congress has passed. So, too, no
    President is above the law in the sense that a President
    remains subject to, the Supreme Court said in the Clinton v.
    Jones case, civil process. So that is a precedent of the
    Supreme Court on civil suits while in office.
        So, too, the criminal process, Hamilton specifies this in
    Federalist 69, a President is not above the law with respect to
    the criminal process. The only question that the Justice
    Department, as I was saying to Senator Coons, has opined on for
    45 years is the timing of the indictability question. And the
    Justice Department, through Democratic and Republican
    administrations for 45 years, has said that should occur when
    the President leaves office, either because the term has
    expired or because of the impeachment process.
        Senator Sasse. Can I interrupt to unpack there? And then I
    will come back.
        Judge Kavanaugh. Yes.
        Senator Sasse. I want to have you finish because I think
    you are building a list that has duration in time of the office
    of the Presidency, authorities that the legislature may or may
    not have given to the executive branch, powers of the purse to
    fund things that may have authorities but may not have current
    dollars available to them.
        I think a lot of your debate with Senator Coons--again, I
    think it is an important debate--is about personnel matters.
    But for just a second, let us play out this question of
    criminality versus civil charges against a President. And I
    admit that I am sort of, as a non-lawyer, I follow in the
    Midwestern tradition of the Chairman, of being a non-lawyer on
    the Committee. I know a whole bunch of big legal brains told me
    if I ask any hypothetical, you will run circles around me
    telling me why you cannot answer.
        But I kind of want to try the start of a hypothetical.
    Imagine 10 years in the future: There is a President from the
    Purple Party. So it is none of the current participants in
    public life, and it is none of these parties even. And this
    President ran for office with an instinct to demonstrate self-
    reliance, and he/she decides that they will not be a part of
    any motorcades. They are going to drive themselves. And they
    are drunk one night, and there is a motor vehicle homicide
    committed by the President.
        That is both a criminal and a civil matter. Is the
    President immune from either being sued or being charged with a
    crime because they are President?
        Judge Kavanaugh. No. No one has ever said, I do not think,
    that the President is immune from civil or criminal process. So
    immunity is the wrong term to even think about in this process.
    The only question that has ever been debated is whether the
    actual process should occur while still in office. That is the
    Jones v. Clinton case where strong arguments were presented by
    both sides, and the Supreme Court ultimately decided that the
    civil process could go forward against President Clinton.
        President Clinton was arguing that the civil process should
    be deferred until after he left office. The Supreme Court
    rejected that. So, too, the only question with the criminal
    process is not immunity. That is the wrong term. It is timing,
    and the--as I have said, the Justice Department for 45 years
    has taken the position that the timing of the criminal process,
    a criminal process should be after the President leaves office.
        Now that does not prevent investigations, gathering of
    evidence, questioning of witnesses, I would not think
    necessarily. I do not want to opine too much. But that is
    certainly how it has proceeded under the special counsel system
    that we have had traditionally that has coexisted with the
    Justice Department position on the ultimate timing question.
        So those are just timing questions from Jones v. Clinton
    and from the Justice Department position. But immunity is not--
    not the correct word, and I do not think anyone thinks of
    immunity. And why not? No one is above the law. And that is
    just such a foundational principle of the Constitution and
    equal justice under law, and that is what Hamilton was
    concerned about in Federalist 69, and that is what the Framers
    were concerned about.
        Even with having--if you read the Constitutional Convention
    debates, even with having a single President, they were
    concerned, well, that may seem like a monarchy. And that is why
    Hamilton felt the need to convince the people, ``no, this is
    not a monarchy.''
        And how did Hamilton go about convincing the people of
    that? He wrote all the ways it was distinct in Federalist 69,
    some of which I have outlined to you. Appropriations is another
    important one to--I mean, as Senator Byrd reminded me when I
    met with him in my 2006 process, Senator Byrd pulled out his
    pocket Constitution. And Senator Byrd, as everyone who
    remembers Senator Byrd knows, was very focused on the
    Appropriations Clause of the Constitution, the fact that the--
    --
        Senator Sasse. As any drive through West Virginia will show
    you.
        [Laughter.]
        Judge Kavanaugh. Yes, exactly.
        Senator Sasse. I want you to finish that list, and then I
    want to ask some personnel-specific questions. But, so, I think
    you have duration of the President's term in office. Specific
    authorities that the President may or may not have been given.
    Appropriations. Personnel questions.
        Are there any other--I guess vertical and horizontal
    federalism. So there is not just executive-legislative
    distinction here. In my hypothetical, the drunk driving
    accident could have happened in Virginia or Maryland, instead
    of DC, and so then we would have to have debates about which
    level of government would be involved.
        Are there any other categories of limitation on Executive
    power?
        Judge Kavanaugh. Well, I think a huge one, really the
    hugest question, as I have said many times in my writings in
    the entirety of constitutional law, is the President's ability
    unilaterally to take the country into war. That really dwarfs
    all other questions in many ways, and Hamilton made clear in
    Federalist 69 the answer to that question was no.
        Now it is sometimes thought and opined by commentators or
    even scholars that, oh, actually, that has changed over time
    and actually Presidents have--that really has not changed in
    practice, at least, over time. Obviously, there is no
    definitive Supreme Court case.
        But you look at all the significant wars, and I wrote this
    in the book review of the Barron book, which I, you know,
    recommend to you. I think you would enjoy that. All----
        Senator Sasse. Thanks for calling me a nerd on national TV.
        [Laughter.]
        Judge Kavanaugh. Yes, I know you would enjoy it, really. Is
    the--all the significant wars in U.S. history have been
    congressionally authorized, with one major exception, the
    Korean War. And the Korean War is an anomaly in many respects,
    and I think some of the fact that it was undeclared and
    unauthorized really did lead to the Youngstown decision.
        But you know, Vietnam, the Persian Gulf War, the AUMF
    against al-Qaeda, the 2003 Iraq War, and then going back, World
    War II, World War I, the War of 1812, they are all
    congressionally authorized. You can go back throughout, and I
    specify that.
        And so the war power, the power to the take the Nation into
    war, at least a significant one, and there are some questions
    about short-term air strikes and things like that. But a
    significant war, that is the biggest of all, and that is
    something that Hamilton talked about in 69 and that our
    historical practice, I think, has actually lived up to.
        I do not mean to footnote Korea. That is an enormous
    exception. But since then, they have all been congressionally
    authorized. People debate the Gulf of Tonkin resolution, but
    the words of it are quite broad.
        Senator Sasse. This is not the place for this full detour,
    but I just want to underscore one thing you said about Hamilton
    and just in the Federalist Papers more broadly, how many times
    we see our Founders writing about the norms of our civics. And
    one of the things that goes wrong in these kind of proceedings
    is we so regularly conflate policy and politics with civics,
    and I think that our jurisprudence should fit inside our
    civics, not inside our politics because it is the overarching
    thing.
        Ken Burns often says ``E pluribus unum'' is a core motto
    for America, and we have a whole bunch of pluribus and very
    little unum right now. We should have a lot more unum, a lot
    more unity about what we think the role of the judge is. And I
    think Senator Cruz did a really nice job of unpacking how often
    you and Judge Garland have been on the same side of issues, 93
    and 96 percent of the time.
        Your comments yesterday about being on the Team of Nine,
    about there being no center aisle that needs to be crossed over
    at the Court, about there being no caucus rooms in the Supreme
    Court, that is another way of saying if we are doing civics
    right in America, we should be seeing fewer and fewer political
    disputes trying to be settled at the Court.
        And it means that we need to attend more to the norms. When
    things are going wrong in America, and we should all admit that
    things are a mess in this country. We have had--in the
    governance of our country. There is a lot that is great in
    America right now.
        But in the idea that in our public square we agree on very
    much, I think we know that that is not true. And if you look at
    survey data of what high school students turn up if they try to
    take the immigration and naturalization test and huge shares of
    high school juniors do not know that we have three branches of
    Government, shame on us. Not shame on them that they do not
    understand that because we are not doing that basic civics.
        Well, Washington thought it was essential that when he was
    explaining what his job is as President and that it not be
    confused with the monarchy, he wanted to be called Mr.
    Washington, not honorifics. He rebuked people for bowing before
    him because we might confuse our kids and grandkids that the
    Presidency is a monarchy.
        So one of the fundamental problems about not understanding
    the limits on Executive power is that we are not doing a very
    good job of talking together in common about all the ways that
    all three branches of Government should be limited.
        But let us go back to Senator Coons' point about personnel.
    I sit on the Armed Services Committee as well, and one of the
    things that we do there, I do not know, every second week
    maybe, is that we have confirmation votes of dozens, scores,
    sometimes hundreds of promotions and flag officers. And why do
    we do that?
        It is because there are all sorts of constraints on
    Executive power at the level of personnel. And when somebody is
    getting promoted in the Navy or when somebody is getting
    promoted at the Air Force, the Congress actually has oversight
    of that. And because that process works so well, because there
    is so much collegiality between the legislature and the
    executive branch, it tends to not turn up on TV. It is often a
    pretty pro forma moment at the start of our hearings, even
    though any Senator, Republican or Democrat, that wants to delay
    the promotion of those officers, we can do that because almost
    all that stuff is moving by consent.
        So there are things where there is unity in hiring or in
    promotion. It is just a lot of that is noncontroversial. So it
    does not end up salacious. It does not end up on TV.
        Jump in, please. I know you are trying to say something.
        Judge Kavanaugh. I think that is an important addition is
    that the President, and this goes to Senator Coons as well,
    does not have the unilateral power to--under the Constitution
    to appoint even members of the Cabinet, which if you are
    thinking of a monarchy, of course, you would be able to
    dispense offices and dispense--you cannot create offices, first
    of all. You cannot unilaterally fill even Secretary of Defense
    or Secretary of State because the Framers were so concerned
    about overbroad Executive power that they required Senate
    confirmation for even those positions who, if confirmed, then
    become executive officers.
        That is another really hugely important check on the
    executive branch, which is a reality. And of course, the
    confirmation process for executive officers, as you say,
    becomes a part and parcel of the oversight in many ways. And I
    think that is very important. And I think we have spent--I
    spent a little too little time. I mentioned it on
    appropriations. But that is the lifeblood of the Government, of
    course, is the money that causes the Government to--allows the
    Government to be able to operate in terms of without money, you
    cannot do things.
        And the President does not--a President does not have the
    unilateral power to appropriate money. And so Congress
    ultimately, through that appropriations power, and you all know
    this better than anyone, can restrict activities of the
    executive branch in multiple ways, and I think that is an
    important thing that Hamilton also talked about.
        So Congress has substantial power, but that is not to say--
    the President has large powers, of course, under the
    Constitution. But we sometimes forget, and I think your civics
    lesson is a reminder that all these checks and balances work
    together, including on judges, in a way that has served the
    test of time but could always be improved in some respects, I
    suppose.
        Senator Sasse. And one of the reasons that the executive
    branch seems so powerful right now is, again, because of how
    weak the legislature is. I mean, it is a fundamental part of
    why we have the term ``President.'' In the 1780s, this was not
    a very common term in the English language. ``President'' was a
    nounified form of the name ``presiding officer,'' and we made
    it up, our Founders made it up so that we would not have a term
    that sounded a lot like a king.
        And so we wanted to be sure that the term ``presiding
    officer'' sounded pretty boring and administrative because the
    legislative, the policymaking powers were supposed to sit in
    this body, and the Article II branch is supposed to preside
    over and execute the laws that have been passed.
        It is not supposed to be the locus of all policymaking in
    America. But one of the reasons we have some of these problems
    with so many of these executive agencies is because Congress
    regularly does not finish its work, punts those powers to
    Article II, and then it is not clear who exactly can execute
    all those authorities. And so we end up with this debate about
    the unitary executive, and you had a different term for it.
        But unpack for us a little bit why you have a different
    view about both the prudence and the constitutionality of one
    person-headed independent executive agencies or pseudo-
    independent agencies versus commission structure-headed
    independent agencies.
        Judge Kavanaugh. The traditional independent agencies that
    were upheld by the Supreme Court in Humphrey's Executor in 1935
    are multi-member independent agencies. And so usually sometimes
    three, five, occasionally more, but they are multi-member
    independent agencies. And that has been all the way through.
    And then--for the significant independent agencies.
        The CFPB, and I have no--it is not my role to question the
    policy or to question the creation of the new agency. In fact,
    I think it was designed to--for efficiency and centralization
    of certain overlapping authorities. It is not my role to
    question that policy. Someone challenged the fact that it was
    headed for the first time on something like this by a single
    person.
        And a couple things then I wrote about in my dissent in
    that case. I will just repeat what I wrote in the dissent. I
    said, first of all, that is a departure from historical
    practice of independent agencies, and that matters, according
    to the Supreme Court.
        They had a previous case involving the PCAOB, where they
    had a different innovation there the Supreme Court had struck
    down in part because of the novelty of it. So departure from
    historical practice matters because precedent always matters,
    including Executive precedent.
        Then a diminution of Presidential authority beyond the
    traditional independent agencies in this sense. With a
    traditional independent agency, when a new President comes in
    office, almost immediately the President has been given the
    authority to designate a new chair of the independent agency.
    So when a new--when President Obama came in, was able to
    designate new chairs of the various independent agencies, and
    the chairs, of course, set the policy direction and control the
    agency. That has historically been the way. That does not
    happen with the CFPB.
        And finally, having a single person, just going back to
    liberty, who is in charge, who is not removable at will by
    anyone, not accountable to Congress, in charge of a huge
    agency, is something that is different and has an effect on
    individual liberty.
        So a single person can make these enormous decisions--
    rulemakings, adjudications, and enforcement decisions, all of
    them. And from my perspective--I am just repeating what I wrote
    here, I am not intending to go beyond what I wrote in that
    opinion--that was an issue of concern.
        And I did put in a hypothetical because it seems abstract
    that I think we will realize this issue with that agency or any
    other when a President comes into office and has to live for 3,
    4 years with a CFPB director appointed by the prior President.
    And then I think everyone is going to realize--of a different
    party in particular.
        Senator Sasse. Right.
        Judge Kavanaugh. And then I think everyone is going to
    realize, wow, that is an odd structure. Now maybe not, but that
    is what I wrote in my opinion that that will seem very weird
    because that is not what happens with all the traditional
    independent agencies, and so when President--whenever any
    President leaves and is appointed in the last 2 years, the CFPB
    director--the new President might campaign on consumer
    protection.
        Let us imagine, okay, Presidential campaign, candidate
    campaigns on consumer protection and consumer issues and then
    comes into office and cannot actually appoint a new CFPB
    director for the whole term of his or her office. That is going
    to seem, I think, quite odd structurally. At least that is what
    I said in my opinion, again not intending to go beyond what I
    said in my opinion.
        Senator Sasse. So is it fair to say that if you have a
    single person-headed agency and the President does not have the
    authority to hire or fire this person, that that person having
    policymaking functions, executive functions, and judicial
    functions, functionally becomes a fourth branch of Government
    because who are they accountable to? Is that a fair summary of
    the concern?
        Judge Kavanaugh. Absolutely, that is a fair summary. A
    branch unto itself.
        Senator Sasse. I want to ask unanimous consent to enter
    into the record, Mr. Chairman, I have got a letter from several
    dozen legal scholars. They are professors that teach at
    Harvard, Stanford, Yale, Duke, Northwestern, and other schools,
    a diverse group of folks, very varied politics and legal
    scholarship.
        But a few of their quotes I want to include here are, that
    they ``all agree that Judge Brett M. Kavanaugh displays
    outstanding scholarly and academic virtues and that he would
    bring to the Court an exceptional record of distinction in his
    judicial service.'' As well, ``Judge Kavanaugh's long record of
    teaching and mentoring students of diverse backgrounds is to be
    applauded,'' and ``Judge Kavanaugh would continue to help build
    productive bridges between the bench, legal practitioners, and
    the academy.''
        Mr. Chairman, can I ask unanimous consent? Chairman, can I
    ask unanimous consent to include it?
        Chairman Grassley. Without objection, so ordered.
        [The information appears as a submission for the record.]
        Senator Sasse. Thank you.
        I have a series of questions I would like to ask you about
    both precedent and the First Amendment, but I am going to be
    out of time too soon. So I am going to do some smaller ball
    stuff first and save for the next round.
        I would like to go back to the Kagan quote on Scalia and
    the ``We are all textualists now'' point. What is a fair way to
    characterize the position that folks would have held before
    Justice Kagan said we have all become textualists now?
        When people were--when there were nontextualists, who were
    they, and how does it make any sense? What is the fairest
    construction you can put on it?
        Judge Kavanaugh. I think one way to describe it is that
    judges would try to figure out what the general policy was
    reflected in the statute and then feel free to shape the
    particular textual provision in a way that the text itself
    would bear to serve that broad policy end.
        And so I think that is probably one way to think about it.
    Another way is that judges would sometimes use a snippet of a
    Committee report or a floor statement and say that is really
    what Congress was getting at in terms of the statute. And
    therefore, we are going to follow that Committee report or
    floor statement rather than following the text of the statute.
        So that is another way I think in which judges would depart
    from the text of the statute. And that mode of statutory
    interpretation I do think Justice Scalia had a very profound
    effect on the Supreme Court itself and the lower courts in
    particular. And one of the things Justice Kagan said in that
    speech was he probably did not get 100 percent of what he
    wanted in terms of moving the statutory interpretation, but he
    got pretty darned close in terms of moving the ball in his
    direction and that everyone really does pay attention to the
    text.
        And if you sat in my court for a week and listened to
    argument after argument, which I do not recommend, Senator. But
    if you did that, you would hear judge after judge saying, well,
    what about the text of the statute? What about Clause 2 of the
    statute?
        Every judge is focused on the text of the statute, again
    because that is what you passed and that is what matters under
    the Constitution, and because we know the compromises that are
    inherent in any legislative product and we have to respect that
    compromise.
        Senator Sasse. So I think one of the things that concerns
    me about the way we have talked about your nomination and a lot
    of media reports about it is that it has been said that you
    have been nominated to the so-called ``swing seat'' on the
    Court.
        I think two ways that we can go wrong. One of them are
    thinking about judges as Republican versus Democrat, and you
    are supposedly because you have been--you have worked in a
    Republican White House. You have worked in the George W. Bush
    White House and because you are being nominated by a Republican
    President today, there are a whole bunch of people who say,
    heck, yes. We won the election. We get our guy on the Court.
    Wear your jersey. You are supposed to be a Republican when you
    are on the Bench.
        And then there are other people--I think that is a terrible
    view. There are other people who say, well, hopefully, he can
    grow in office. And because he is going to be nominated and
    confirmed to the swing seat, the Kennedy vote, the Powell vote
    on the Court, he will be big enough to rise above the all the
    muck of politics. And when there are really big issues facing
    the country that get to the Court, at least in a 4-to-4 Court,
    this could be the guy who rises to the level of giving us
    Solomonic wisdom and functioning not just as a judge, but maybe
    as a quasi-kingly figure.
        What do you say to people who have a conception of a swing
    seat on the Court? What does that mean?
        Judge Kavanaugh. I am not entirely sure what it means to
    individual people who use that term.
        Senator Sasse. Are you being considered for the swing seat?
        Judge Kavanaugh. I am being nominated to replace Justice
    Kennedy, who was his own man, as am I my own judge. And I have
    talked about his jurisprudence and his devotion to liberty,
    which he found as the unifying theme of all the constitutional
    provisions and, as I said, established a legacy of liberty for
    ourselves and our posterity, as the Framers established this
    Constitution to secure the blessings of liberty for ourselves
    and our posterity.
        But I have read that he publicly in public statements did
    not like that term, and I am not sure I always know what people
    mean by that term. As I said repeatedly, but I really believe
    it, I think that the Court, at least if I am on it--well, I
    think of the Court, period, as a Team of Nine. And if I am on
    it, I am fortunate enough to be confirmed, I think of myself as
    trying to be a team player.
        I do think of things through a sports line sometimes, as I
    know you do, too, Senator. And I think that is important. I am
    not naive. I am not naive. There would be cases where people
    divide. But I do think that mindset and that attitude matters
    in any collegial body, and the Court is a collegial body.
        And so different--different cases----
        Senator Sasse. I am only interrupting you because I watched
    the Chairman pull his little gavel.
        Judge Kavanaugh. Yes, yes.
        Senator Sasse. And if I do not get my question in before
    the bell, I am done. So I can get one more off, if I fire fast.
        Chairman Grassley. Make sure it is a short question.
        Senator Sasse. Yes, sir. When I was writing my
    dissertation, I struggled to find my voice at one point, and I
    had an adviser who was great. He said, put an 8-by-10 picture
    up, next to your keyboard, and make it be somebody that you are
    writing to every day and make it be somebody who is smarter
    than you but knows nothing about your topic.
        This was great advice. I took a picture of my aunt, from
    one of the farms I used to work on when I was a kid, and she is
    far smarter than I am. She did not know anything about the
    topic I was writing about, and it was an incredibly helpful
    device for me to every day figure out who I was writing to that
    day.
        When you write your opinions, who are you writing for?
        Judge Kavanaugh. Multiple audiences, Senator. I am thinking
    first and foremost about the litigants before us, and I want
    the losing party in particular to respect the opinion. They are
    not going to agree with it by definition, but I want them to
    respect the opinion. The clarity of the opinion, the
    thoroughness of the opinion, the fact that I understood the
    real world consequences, that I have grappled with the law,
    that I grappled with the best argument.
        So I want the losing party to come away saying he got it.
    As a litigant, I knew how important that was when I lost, at
    least I felt like I got a fair shake. Why does that matter?
    Both due process and the individual case, but it builds overall
    confidence I think in the judiciary to know you are getting a
    fair shake even when you lose.
        I am also writing for the parties affected by the decision.
    So we decide cases and controversies, but we write opinions
    that have precedential effect, as we have discussed often. So
    the opinions need to be clear. They need to be organized.
        They can, if there is a screwed up footnote or something,
    that is going to--I have seen it in my executive branch and
    private practice experience. That is going to cause all sorts
    of complications. So to get it just exactly right is so
    important, which takes draft after draft after draft.
        But I am thinking about the affected parties, whether it is
    agencies or regulated parties or the criminal defense bar or
    the prosecution, the U.S. Attorney's Office. I am always
    thinking about that.
        I am thinking about someone like you said, I think similar
    to your model, someone who just picks up the decision and is a
    lawyer, and I want them to be able to read it and understand it
    and get it and to be able to follow it. So I always try to have
    an introductory paragraph or few pages, as you have seen in a
    few of them. Like the PHH case has a long introduction where
    they could just read the introduction, say ``I got it.'' And
    then they could read the whole thing if they want. I think that
    is very important as well.
        I am writing, I think about students. So students, where do
    they learn law? They learn law oftentimes by reading opinions.
    I have taught for 12 years, and I certainly understand the
    value of teaching. But teaching through your opinions, that is
    not the first thing I am thinking about. But I am, that is,
    okay, could a student learn from this about the criminal--the
    Fourth Amendment or learn about the First Amendment if they
    read my opinion?
        If I give the--to Senator Coons' conversation, if I give
    the historical backdrop of the independent agencies, maybe a
    student will pick that up and think that is good.
        And then I am thinking, I think also about professors as
    well. Not in a sense of trying to convince necessarily if it is
    not something convincible, but the sense of professors are
    thinking for years about things I might by definition have a
    week or two or four to spend. And they are writing treatises
    and Law Review articles, and I want them to at least be able to
    understand and help look at my opinions to build the body of
    law.
        Senator Sasse. Thank you. Oh, and thank you, Chairman.
        Chairman Grassley. How come you did not ask that question
    first?
        Senator Sasse. You told me to ask last.
        Chairman Grassley. We are going to take a 10-minute break,
    but if you can be back in 5 minutes, it would benefit Senator
    Blumenthal.
        Judge Kavanaugh. Yes, okay. I will do it.
        [Whereupon, at 5:24 p.m., the Committee was recessed.]
        [Whereupon, at 5:35 p.m., the Committee reconvened.]
        Chairman Grassley. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman. Good afternoon,
    Judge.
        I want to begin by talking about the elephant in the room,
    non-theoretical. The President of the United States who has
    nominated you is an unindicted co-conspirator implicated in
    some of the most serious wrongdoing that involves the
    legitimacy of his Presidency. There is a distinct possibility,
    even a likelihood, that issues concerning his personal criminal
    or civil liability may come before this Supreme Court as early
    as the next term. The issues may involve his refusal to comply
    with a grand jury subpoena or to testify in a criminal trial
    involving one of the officials in his administration or his
    friends or even his own actual indictment.
        We are in uncharted territory here. It is unprecedented for
    a Supreme Court nominee to be named by a President who is an
    unindicted co-conspirator. In the U.S. v. Nixon case, two of
    the Justices had been appointed by Richard Nixon, but not while
    he was an unindicted co-conspirator. I would like your
    commitment that you will recuse yourself if there is an issue
    involving his criminal or civil liability coming before the
    United States Supreme Court. In other words, will you take
    yourself out of ruling on any of the issues involving his
    personal criminal or civil liability?
        Judge Kavanaugh. Senator, one of the core principles I have
    articulated here is the independence of the judiciary, which I
    know you care about deeply, too, and I think undergirds some of
    your comments yesterday. And the independence of the judiciary
    is critical to the confidence of the American people in the
    judiciary and to the rule of law in the United States. But one
    key facet of the independence of the judiciary, as I have
    studied the history of nominees, is not to make commitments on
    particular cases----
        Senator Blumenthal. I am not asking for a particular
    commitment, and I am going to take your answer as a ``no.'' It
    is really a ``yes'' or ``no'' question. You will not commit to
    recuse yourself. You will not commit to take yourself out of
    that decision despite the unique circumstances of your
    nomination.
        Judge Kavanaugh. Senator, I think to be consistent with the
    principle of independence of the judiciary, I should not and
    may not make a commitment about how I would handle a particular
    case, and the decision to participate in a case is itself a
    decision in a particular case. And, therefore, following the
    precedent set by all the nominees before me, I need to be
    careful. And, again, you may disagree with this, but this is
    part of what I see as the independence of the judiciary.
        Senator Blumenthal. Well, I do disagree, and I am troubled
    and disturbed by your refusal to say that you will take
    yourself out of that kind of case.
        I want to move on to some examples of real-world impacts on
    real people and taking that as a factor, as you have
    articulated it, in the decisions that you have made. I want to
    talk about Jane Doe in Garza v. Hargan. As you know, she was a
    17-year-old unaccompanied minor who came across this border
    having escaped serious threatening, horrific physical violence
    in her family in her homeland. She braved horrific threats of
    rape and sexual exploitation as she crossed the border. She was
    8 weeks pregnant. Under Texas law she received an order that
    entitled her to an abortion, and she also went through
    mandatory counseling as required by Texas law. She was eligible
    for an abortion under that law. The Trump administration
    blocked her. The Office of Refugee Resettlement forced her to
    go to a crisis pregnancy center where she was subjected to
    medically unnecessary procedures. She was punished by her
    continued requests to terminate her pregnancy by being isolated
    from the rest of the residents. She was also forced to notify
    her parents, which Texas law did not require. And the
    pregnancy, which was 8 weeks, was 4 weeks further when you
    participate on a panel that upheld the Trump administration in
    blocking her efforts to terminate her pregnancy.
        The decision of that panel was overruled by a full court of
    the D.C. Circuit Court of Appeals. It reversed that panel, and
    the decision and opinion in that case commented, ``The flat
    barrier that the Government has interposed to her knowing and
    informed decision to end the pregnancy defies controlling
    Supreme Court precedent.'' And it said further, ``The
    Government's insistence that it must not even stand back and
    permit abortion to go forward for someone in some form of
    custody is freakishly erratic.''
        In addition to being erratic, it also threatened her health
    because she was unable to terminate her pregnancy for weeks
    that further increased the risk of the procedure--one study
    said 38 percent every week. Her health was threatened. She was
    going through emotional turmoil. And yet in your dissent, you
    would have further blocked and delayed that termination of the
    pregnancy.
        All of what I have said is correct as to the facts here,
    correct?
        Judge Kavanaugh. No, Senator. I respectfully disagree in
    various parts. My ruling, my position in the case would not
    have blocked----
        Senator Blumenthal. It would have delayed it, and it would
    have put her perilously close to the 20-week limit under Texas
    law. Correct?
        Judge Kavanaugh. No. We were still several weeks away. I
    said several things that are important, I think. First----
        Senator Blumenthal. Well, I want to go on because I can
    read your dissent, but I want to go to----
        Judge Kavanaugh. Well, but you read several things--
    respectfully, first of all, I think the opinion was by one
    judge that you were reading from. That was not the opinion for
    the majority.
        Second, I was trying to follow precedent of the Supreme
    Court on parental consent which allows some delays in the
    abortion procedure so as to fulfill the parental consent
    requirements. I was reasoning by analogy from those. People can
    disagree, I understand, on whether we were following precedent,
    you know, how to read that precedent. But I was trying to do so
    as faithfully as I could and explained that. I also did not
    join the separate opinion, the separate dissent that said she
    had no right to attain an abortion at all. I did not say that.
    And I also made clear that the Government could not use this
    immigration sponsor provision as a ruse to try to delay her
    abortion past, to your point, the time when it was safe.
        Senator Blumenthal. Let us talk about your dissent in just
    a moment, but, first, I want to talk about a list. It is the
    list that Donald Trump circulated in May 2016 of his potential
    Supreme Court nominees. May 2016. Was your name on that list?
        Judge Kavanaugh. It was not.
        Senator Blumenthal. And then he circulated another list in
    November 2017, another list of Supreme Court nominees. November
    2017. Was your name on that list?
        Judge Kavanaugh. 2017, yes. There was another list in the
    interim between those two, but----
        Senator Blumenthal. And his litmus test for that list was
    that a Justice that he would nominate would have to
    automatically overturn Roe v. Wade, correct?
        Judge Kavanaugh. I am not going to comment on what he had
    said. Whatever he had said publicly----
        Senator Blumenthal. Well, he said it. That is not in
    dispute. And in between, in----
        Judge Kavanaugh. I am not sure the exact words you just
    used are consistent with what he said, but whatever he said
    publicly will stand in the record.
        Senator Blumenthal. Exactly.
        October 2017, your decision and dissent in Garza occurred.
    Correct?
        Judge Kavanaugh. It did, but that case came to us in an
    emergency posture. I did not seek that case. That was not a
    speech. I was driving home on a Wednesday night, as I recall,
    and the clerk's office called and said, ``We have an emergency
    abortion case,'' which is very unusual in our court. First time
    I had had one.
        Senator Blumenthal. Okay. What occurred then between May
    2016 and November 2017 besides your Garza dissent that put you
    on that list?
        Judge Kavanaugh. Well, Mr. McGahn was White House Counsel,
    and the President has taken office by then, if I am--sorry, I
    am looking at the dates. I think I got it--May.
        Senator Blumenthal. We can hold it up higher.
        Judge Kavanaugh. No; that is okay. I got it now. The
    interim list----
        Senator Blumenthal. So let me ask you----
        Judge Kavanaugh. But so President Trump had taken office.
    Mr. McGahn was White House Counsel. Those are just facts. And
    then what else happened, I----
        Senator Blumenthal. It is a mystery.
        Judge Kavanaugh. No, it is not a mystery. I am just
    debating whether I want to say, but a lot of judges and lawyers
    who I know----
        Senator Blumenthal. Let us talk about your dissent for a
    moment.
        Judge Kavanaugh. Can I answer the question? Can I answer
    the question?
        Senator Blumenthal. I want to talk about your dissent.
        Judge Kavanaugh. But I had an answer to your question. You
    said, ``What else happened? '' And I have an answer.
        Senator Blumenthal. Go ahead.
        Judge Kavanaugh. A lot of judges and lawyers I know made
    clear to, I think, various people that they thought I should at
    least be considered based on my record for the last 12 years.
    And colleagues of mine thought I should be considered, and I
    think that--I appreciate that.
        Senator Blumenthal. And maybe more than a few of them cited
    your dissent in Garza.
        Judge Kavanaugh. I think it had happened long before that,
    actually. They----
        Senator Blumenthal. Well, let us talk about the dissent,
    though. In that dissent, three times you used the term
    ``abortion on demand.'' ``Abortion on demand,'' as you know, is
    a code word in the anti-choice community. In fact, it is used
    by Justices Scalia and Thomas in their dissents from Supreme
    Court opinions that affirm Roe v. Wade. They have used it
    numerous times in those dissents, and it is a word used in the
    anti-choice community. And, in addition, in that dissent, you
    refer to Roe v. Wade as ``existing Supreme Court precedent.''
    You do not refer to it as Roe v. Wade protecting Jane Doe's
    right to privacy or her right to an abortion. You refer to it
    as ``existing Supreme Court precedent''--not ``Supreme Court
    precedent''--``existing Supreme Court precedent.''
        Now, I do not recall seeing a judge refer to ``existing
    Supreme Court precedent'' in other decisions, certainly not
    commonly, unless they are opening the possibility of
    overturning that precedent. It is a little bit like somebody
    introducing his wife to you as, ``my current wife.'' You might
    not expect that wife to be around for all that long. ``My
    current wife''--``existing Supreme Court precedent.''
        And throughout your opinion, you are careful to never say
    that the Constitution protects the right to choose. You concede
    that the parties have ``assumed for purposes of this case''
    that the plaintiff has a right to end her pregnancy, but not
    that she actually has that right. You write, ``As a lower
    court, our job is to follow the law as it is, not as we might
    wish it to be.''
        Judge Kavanaugh. There I have to interrupt, Senator,
    because I was referring to the parental consent cases as well,
    which I talked about at some length there. And my disagreement
    with the other judge was that I thought I was, as best I could,
    faithfully following the precedent on the parental consent
    statutes, which allowed reasonable regulation. As Casey said,
    ``minors benefit from consultation about abortion.'' That is an
    exact quote from Casey, and the Supreme Court had upheld those
    statutes even though they allowed--I mean they occasioned some
    delay in the abortion procedure. Justices Marshall, Brennan,
    and Blackmun dissented in those.
        And so an ``existing Supreme Court precedent,'' I put it
    all together, Roe v. Wade plus the parental consent statutes,
    and I said different people disagree about this from different
    directions, but we have to follow it as faithfully as possible,
    and the parental consent were the--was the model--not the
    model, the precedent.
        And can I say, on ``abortion on demand,'' I do not--I am
    not familiar with the code word. What I am familiar with is
    Chief Justice Burger in his concurrence in Roe v. Wade itself,
    so he joined the majority in Roe v. Wade, and he wrote a
    concurrence that specifically said that the Court today does
    not uphold abortion on demand. That is his phrase. And he
    joined the majority in Roe v. Wade. And what that meant in
    practice over the years, over the last 45 years, is that
    reasonable regulations are permissible so long as they do not
    constitute an undue burden. And that has been the parental
    consent, the informed consent, the 24-hour waiting period,
    parental notice laws, and that is what I understood Chief
    Justice Burger to be contemplating and what I was recognizing
    when I used that term. I am not familiar----
        Senator Blumenthal. Well, it also was a signal. Let us be
    very blunt here. It was a signal to the Federalist Society and
    the Heritage Foundation and to the preparers of those lists--
    the President outsourced that task to those groups--that you
    were prepared, and you are, to overturn Roe v. Wade. ``Abortion
    on demand'' has a very specific meaning in the dissents after
    Roe, and the concurrences. ``Existing Supreme Court
    precedent,'' and reference to that precedent not as you wished
    it to be, but as the law, Supreme Court precedent existing now,
    required.
        Is it a fact, Judge, also that while you were in the Bush
    White House, you took the position that not all legal scholars
    actually believe that Roe v. Wade is the settled law of the
    land and that the Supreme Court could always overturn it as
    precedent and, in fact, there were a number of Justices who
    would do so?
        Judge Kavanaugh. I think that is what legal scholars have--
    some legal scholars have undoubtedly said things like that over
    time, but that is different from what I as a judge--my position
    as a judge is that there are 45 years of precedent and there is
    Planned Parenthood v. Casey, which reaffirmed Roe, so that is
    precedent on precedent, as I have explained, and that is
    important. And that is an important precedent of the Supreme
    Court. It is not the only----
        Senator Blumenthal. I think----
        Judge Kavanaugh. It is not the only precedent, though, and
    Casey, it is very important to understand, I think, and it goes
    to your point about existing. Planned Parenthood v. Casey
    reaffirmed Roe, but at the same time upheld Pennsylvania's
    waiting period, its informed consent provision, and the
    parental consent provision of the Pennsylvania law, and
    Justices Blackmun and Stevens dissented from that part of the
    decision in Planned Parenthood v. Casey. That was Justices
    Kennedy, O'Connor, and Souter who upheld that. So, in many
    ways, Casey reached--in applying the undue burden standard,
    reached a position that allowed some reasonable regulation, as
    the Court put it, so long as it does not constitute an undue
    burden. And so existing Supreme Court precedent is the body of
    precedent on the regulations, too. It is Roe, but then what
    regulations, and that is the body of existing Supreme Court
    precedent.
        Senator Blumenthal. And that is exactly the point here. You
    were telling the Trump administration that if they wanted
    someone who would overturn Roe v. Wade, you would make the
    list. These were your bumper stickers in that campaign:
    ``Abortion on demand,'' ``Existing precedent,'' ``Law not as it
    necessarily was as you wished it now.''
        Judge Kavanaugh. Well, I would just say two other things,
    Senator. One, I did not join the separate opinion of another
    dissenter who said that there was no constitutional right at
    all for the minor in that case. I did not join that opinion.
    And, second, I--I will say three things. Second, I said in a
    footnote, joined by Judge Henderson and Judge Griffith, that--
    my whole dissent was joined by both of them--that the
    Government could not use this transfer to the sponsor procedure
    as a ruse to delay the abortion past unsafe time.
        Senator Blumenthal. You did not join that dissent, but let
    me ask you----
        Judge Kavanaugh. And I said, third, that if the 9 days or 7
    days expired, that the minor at that point, unless the
    Government had some other argument that had not unfolded yet
    that was persuasive, and since they had not unfolded it yet--I
    am not sure what that would have been--that the minor would
    have to be allowed to obtain the abortion at that time. So the
    whole point was simply--and it was not my policy, but my
    question was to review the policy set forth by the Government,
    and the question was: Was that policy consistent with
    precedent? And it was a delay, undoubtedly, but a delay
    consistent, as I saw it, with the Supreme Court precedent on
    parental consent provisions.
        Senator Blumenthal. Well, let me just ask you then: Can you
    commit, sitting here today, that you would never overturn Roe
    v. Wade?
        Judge Kavanaugh. So. Senator, each of the eight Justices
    currently on the Supreme Court, when they were in this seat,
    declined to answer that question.
        Senator Blumenthal. I understand--I understand your answer.
    You have given it on other issues before. But you can
    understand also given what we have seen in Garza and the
    pattern here of sending a signal about your willingness to
    overturn Roe v. Wade, that your response leaves in serious
    question your commitment to this precedent. And, in fact, given
    the real-world consequences here, a young woman's health was
    put in serious jeopardy. She came close to being unable at 20
    weeks to even have the opportunity to terminate her pregnancy.
    She was deprived of options because of that wait, and you would
    have delayed it further, and perhaps completely. And I think
    that you needed to send a message to the Trump administration
    that you should be on that list.
        Let me move on to other health care issues. You have taken
    the position in Seven-Sky--and I am going to put up a poster--
    that the President's authority--``Under the Constitution, the
    President may decline to enforce a statute that regulates
    private individuals when he [the President] deems''--when he
    deems--``the statute unconstitutional, even if a court has held
    or would hold the statute constitutional.''
        Under the Affordable Care Act, as you know, there are
    protections for millions of Americans who suffer from pre-
    existing conditions. That protection has real-world
    consequences. Pre-existing conditions include Alzheimer's,
    arthritis, congestive heart failure, Crohn's disease,
    hepatitis, lupus, mental disorders. That is just a very partial
    list, including being pregnant. You have answered my colleague,
    Senator Coons, that you would not say whether or not the
    President would have the power to strike down that statute
    unilaterally or decide that he would not enforce it because
    there is a case pending.
        Do you believe that the President can refuse to enforce
    that statute even if the United States Supreme Court upholds
    it?
        Judge Kavanaugh. Senator, a couple things. First of all,
    just to close out the prior discussion, you said delayed
    completely. That is not what I said. In fact, I said it could
    not be delayed past the point of a safe time. I just wanted to
    close the loop on that and make clear the record on that.
        On this, I was referring to the concept of prosecutorial
    discretion, and this is in a broader--which is established by
    the United States v. Richard Nixon case, which says the
    executive branch has the ``exclusive authority and absolute
    discretion whether to prosecute a case.'' That is an exact
    quote from U.S. v. Nixon, if I am remembering correctly, and
    then in Heckler v. Chaney, the Supreme Court says that that
    principle applies to civil enforcement as well. So that is the
    precedent of the Supreme Court that I was referring to and
    explained later in Aiken.
        But why did I have that in there at all? I was--in the
    Affordable Care Act case, I wrote a decision saying that the
    Court should not consider it, at that time, because it was not
    ripe under the Anti-Injunction Act, and that we should wait to
    consider it when----
        Senator Blumenthal. But here is my question to you--the
    enforcement of the Affordable Care Act is a matter of
    prosecutorial discretion, and my question is, even if the
    United States Supreme Court in that Texas case should hold it
    to be constitutional, could President Trump decline to enforce
    it and put at risk the health of literally tens of millions of
    Americans, including 500,000 people in Connecticut who suffer
    from those diseases, including those homeless people who come
    to the shelter where you distribute meals?
        Judge Kavanaugh. So a couple things on that, Senator. The
    concept of prosecutorial discretion, as you know, of course, as
    a former U.S. Attorney, is well rooted in American law. So if a
    U.S. Attorney decides we are going to go after bank fraud and
    not after low-level marijuana, that is classic prosecutorial
    discretion.
        Senator Blumenthal. But we are not talking about that
    discretion. We are talking about the President saying that law,
    the Affordable Care Act, or, for that matter, civil rights
    statutes, which this President unfortunately could decide he is
    not going to enforce, or consumer protection statutes or even
    anticorruption statutes, we are talking about statutes that, as
    you said here, regulate individuals and they protect them,
    simply because he deems them unconstitutional, refused to
    enforce them, not in selected cases, across the board.
        Judge Kavanaugh. A couple things, Senator. First of all,
    for a few of your examples, of course, there are private causes
    of action as well, so----
        Senator Blumenthal. There are private causes of action, but
    the Government is the chief enforcer.
        Judge Kavanaugh. I agree with that. I am not disputing
    that. On prosecutorial discretion, what I said in the
    subsequent Aiken County case, I elaborated on that, but then in
    a subsequent Marquette speech that is published in the
    Marquette Lawyer that you have, I indicated that the limits of
    prosecutorial discretion are uncertain and it would be
    important for academics and others to study that history and
    figure out what the limits are.
        So, for example, in the deferred--in the immigration
    context----
        Senator Blumenthal. Well, my point is there are no limits
    here.
        Judge Kavanaugh. But the Supreme Court, if you look at the
    quote in United States v. Richard Nixon, which I know you have
    read, it says the executive branch has the ``exclusive
    authority and absolute discretion whether to prosecute a
    case.'' Now, Heckler v. Chaney refers back to that, cites that,
    and that is in the civil context. There are some limits
    presumably on prosecutorial discretion, but this came up in the
    immigration context in President Obama's administration. That
    is still something I will not comment on directly, but there
    are always questions about prosecutorial discretion of----
        Senator Blumenthal. Well, let me just point out--and I
    apologize for interrupting you, but my time is limited.
        Judge Kavanaugh. I understand.
        Senator Blumenthal. In Seven-Sky v. Holder, in your dissent
    you said, ``Under the Constitution''--this is in your dissent
    in that case. You cited Justice Scalia in Freytag v.
    Commissioner as your authority.
        Judge Kavanaugh. Yes.
        Senator Blumenthal. ``The President may decline to enforce
    a statute that regulates private individuals when the President
    deems the statute unconstitutional, even if a court has held or
    would hold the statute constitutional.'' I am going to leave
    this topic. I hope we will have an opportunity to return to it
    tomorrow.
        Judge Kavanaugh. Sure.
        Senator Blumenthal. And I want to talk about the Second
    Amendment and your position on gun violence prevention. As you
    know, my State has a tragic history----
        Judge Kavanaugh. Yes.
        Senator Blumenthal [continuing]. And experience, recently
    with this issue. But literally every community in the whole
    country has some experience with gun violence prevention
    because 90 people every day die from it. And I am deeply
    troubled by your position on this issue that history and
    tradition govern here, that any weapon in common use is
    protected. The reason that some weapons are not in common use
    is that they are banned, like machine guns. If our standard is
    going to be whether assault weapons are in common use, we are
    going to have more and more of them, and they are in common
    use, they are commonly used to kill people. That is what they
    were designed to do.
        So I want your explanation as to how possibly you can
    justify requiring that gun violence protection statutes have to
    be longstanding or traditional and that they cannot in any way
    protect people from weapons, assault weapons, that are, as you
    put it, ``in common use,'' because they are in common use only
    because they are not in any way regulated for public safety.
        Chairman Grassley. Judge, you answer as thoroughly as you
    need to answer that question. And then when you are done
    answering that question, I am going to call on Senator Flake.
        Judge Kavanaugh. A few things, Senator. First, at the end
    of my Heller opinion, I pointed out that I grew up in this
    area, and this area has been plagued by--in the 1970s and 1980s
    plagued by gang and gun/drug violence, and was known for a
    while as the ``murder capital of the world.'' So I understand
    and appreciate your initial comment on that.
        Second, where did I get the test? I got it right out of the
    Supreme Court's opinion in Heller, which uses those exact
    phrases and then elaborates on those in the subsequent McDonald
    case. And I know people passionately disagree with the Supreme
    Court's decision in Heller and with the Supreme Court's
    decision in McDonald. But as a lower-court judge, I am
    following all the precedent. It is not a cafeteria where I can
    pick which precedents I want to apply. I have to apply all the
    precedents. I did that. I explained it in painstaking detail
    why I thought the test I was applying was appropriate in that
    case and went through the test.
        I made clear that the Supreme Court Part 3 of Justice
    Scalia's majority opinion in Heller allowed--still allowed a
    lot of gun regulation. Machine guns can be banned. Laws,
    traditional laws, felon in possession, concealed carry were
    identified there, laws prohibiting guns--possession by people
    with mental illness, government buildings, schools, those were
    all pre-identified. And then it is important to point out,
    also, the footnote in Heller says, ``This list is not meant to
    be exhaustive,'' and so I think that is guidance to the lower
    court when applying that test.
        As Chief Justice Roberts said at the oral argument in
    Heller, ``You reason by analogy from those historical
    exceptions in regulations,'' and that is something that I think
    is appropriate, and I said it in my opinion. But, ultimately, I
    had to apply the test to the Supreme Court, and I understand
    people may disagree, (a) with the Supreme Court opinion or (b)
    with how I applied it, but I tried to do it as faithfully as I
    could.
        Chairman Grassley. Senator Flake.
        Senator Flake. Thank you, Mr. Chairman.
        Thank you, Judge. Thank you for your----
        Chairman Grassley. Hey, wait a minute, would you, please?
    Start his time over.
        Judge, you have been attacked for this short footnote that
    you wrote in the Affordable Care Act case about when a
    President may decline to enforce the laws passed by Congress.
    But in a different opinion, you actually ordered the executive
    branch to comply with the law. You wrote, ``It is no
    overstatement to say that our constitutional system of
    separation of powers would be significantly altered if we were
    to allow executive and independent agencies to disregard
    Federal law.''
        Obviously, you do not think the President has a blank check
    to ignore the law.
        Senator Flake.
        Senator Flake. Thanks. Always happy to defer to the Chair.
        I appreciate your endurance here today, Judge, and let me
    just ask, you mentioned your mother as one of your judicial
    heroes. Who else would you put on that list? What people do you
    admire and why?
        Judge Kavanaugh. My mom, as you mentioned, of course, trial
    judge, real-world consequences, real people in the real world,
    and saw her operate her courtroom with firmness and civility
    and was well respected as a prosecutor first, then as a judge,
    and her civility and work ethic are something--and remembering
    that cases have real-world consequences.
        Justice Kennedy, I have mentioned, a model of independence,
    fiercely defended judicial independence throughout his career,
    a model of civility and collegiality. You can look at 30 years
    of his opinions, and what is the harshest thing ever written?
    It is not--you cannot find it. Just a model of civility in his
    judicial opinions. Oral argument, always so courteous to
    Counsel, in his public speeches, someone who always celebrated
    the Constitution and its protection of individual liberty, and
    showed by his example, I think, how to conduct oneself as a
    judge off the Bench.
        When I became a judge, I was sworn in May 30, 2006, in his
    chambers, and he said, ``You are going to go back and you are
    going to''--``Soon you are going to feel lonely. You have been
    doing this job at the White House. It is all energetic. And you
    are going to feel quiet.'' And he said, ``Get out and teach,''
    and he has taught since 1975, I believe, when he became a Ninth
    Circuit judge. And I followed that example, and teaching has
    been an important part of my life. So he taught--he instructed
    that. You know, the legacy of liberty he left for the United
    States is written all through the U.S. reports.
        Justice Scalia, someone I knew, and also a fierce adherent
    to the Constitution and someone who changed statutory
    interpretation, as we have discussed, in terms of his focus on
    the text. But it was rooted in his appreciation for the
    Constitution and the rule of law. And as he often said, but it
    is true, if you look through his jurisprudence, the decisions
    where he ruled in ways that people did not expect, protection
    of the Fourth Amendment, for example, the thermal imaging case,
    Kyllo; the Jones case on GPS tracking; First Amendment, Texas
    v. Johnson. He had in Hamdi, the dissent. So he was a fierce,
    also, protector of individual liberty, even in the national
    security context.
        I look back to Chief Justice Rehnquist and Justice Jackson
    for whom Chief Justice Rehnquist clerked as two people who had
    experience in the executive branch and then came to the Supreme
    Court and I think became models of independence. Justice
    Jackson, of course, with his beautiful prose also in cases like
    Morissette, Korematsu, and Youngstown, Barnett as well.
        Rehnquist, I think such a firm but also affable manner. I
    wrote about Rehnquist--I gave a speech about him and wrote--I
    referred to the fact that ``Brethren'' was this book that came
    out in the late 1970s very critical of--well, the sources were
    very critical of the Supreme Court, not saying the authors
    were, of some of the Justices individually, but Rehnquist is
    referred to by all these terms throughout that emphasized his
    collegiality, and I think that is why he was such a hero.
        And then I will end it with, you know, anytime you look at
    the Constitution and you think about people who have had an
    effect on it and what it means today, you have to identify and
    you should identify Thurgood Marshall because of what he did as
    a Justice, but perhaps even more, he had a huge record as a
    Justice that is very important. And he was a real-world
    consequences person. I pulled up an old oral argument one time
    in a First Amendment case that he argued in the early 1970s,
    and it was about ads on a bus, on the interior of a bus, and I
    guess it was political ads on the interior of a bus, and the
    question was whether they were permissible, and the First
    Amendment right to run these ads on the interior of the bus.
    And the wording was that they would be identified, it would
    look like the city was putting its imprimatur on a political
    candidate. And Thurgood Marshall started the oral argument,
    ``Why? Why? '' You know, ``Why are you banning them? '' And
    then they said, ``Well, people might think that the city is
    endorsing the political candidate.'' And he said, ``Do you
    really think people are that stupid? '' And it just showed
    his--he got the real-world consequences in a way that no one
    else--but, of course, his legacy is towering in terms of what
    he did as a litigator and helped--not singlehandedly, but he
    certainly--he had colleagues, but he helped bring the end of
    Plessy v. Ferguson and achieve the greatest moment in Supreme
    Court history in Brown v. Board. So I always think about
    Thurgood Marshall's legacy as well.
        So that is a much more long-winded answer than you
    expected, Senator, but I appreciate you giving me the time.
        Senator Flake. That is important insight. I appreciate it.
    I had the opportunity to sit next to Anthony Kennedy last
    Saturday for John McCain's funeral, and I think all of us have
    the same opinion of his collegiality, friendliness, and that
    certainly is important. We will talk about that a little later.
        I noted yesterday some concerns, back to the real world
    here, about an administration that does not seem to understand
    or appreciate the separation of powers or the rule of law. I
    worry that the President, the head of our executive branch, may
    be using Executive power to advance personal political
    interests. Now more than ever I think that we have to ensure
    that our institutions are independence and are firm against
    encroaching partisan politicking. There is nowhere more
    important obviously than the judiciary. Alexander Hamilton
    famously wrote in Federalist No. 78 that you have cited many
    times that the judiciary is the least dangerous branch of
    Government based on the understanding that the judicial branch
    lacks what he said was the power of the executive branch and
    the political passions of the legislature.
        I believe that if you are confirmed to the Supreme Court--I
    do not believe that you would erode judicial independence or
    otherwise disrupt the separation of powers between the three
    branches. You have been discussing your reverence for the
    separation of powers with us today, particularly the importance
    of keeping the judiciary the least dangerous branch by making
    sure that it stays apolitical. And I will discuss that more in
    a moment, but specifically, I am a little concerned about the
    executive branch and the powers therein, and I reiterate some
    of the concerns that Senator Sasse just identified. And in
    response to Senator Sasse, you walked us through some of the
    founding documents, the Constitution Federalist Papers, that
    endow the President with positive powers. You have also
    discussed today cases; you mentioned Youngstown, U.S. v. Nixon,
    those that you admire because they involve the judiciary
    standing up to the President and putting limits on Executive
    power. These precedents certainly restrain Presidential power.
        But I am curious. What limits are there, if any, that would
    prevent a President from centralizing the Executive power and
    using it for his own political or personal purposes? What
    protections are there, statutory, constitutional, judicial,
    that are built into the system? Can you talk a little about
    that? You have talked about the positive things that give a
    President or endow the Executive with power. What constraints
    are there?
        Judge Kavanaugh. First, Senator, there are the constraints
    built into the Constitution which--the appropriations power,
    the Senate confirmation power, which is often used, as you
    know, of course, as a way to restrain Executive action or at
    least to prevent the--not only to prevent the appointment of
    people for principal executive officers who might be--the
    Senate might not approve, but also sometimes as ways of
    restraint.
        There are also built into the constitutional--there is the
    ultimate remedies in the Constitution for--there are remedies
    for how judges can be removed, how Members of Congress can be
    removed through the expulsion power, and how Presidents can be
    removed. Those are built in. Those are the ultimate checks that
    are built into the constitutional system for all of us. There
    is no one who is guaranteed a permanent time because of the
    ultimate checks that are in the constitutional system as well.
        There are statutes then beyond the Constitution, and I did
    not mean that to be an exhaustive list, but there are
    innumerable statutes that, of course, regulate Presidential and
    executive branch conduct in all sorts of ways, whether it be
    statutes that regulate war powers, surveillance, detention,
    interrogation, the War Powers Act, statutes that regulate in
    the domestic arena, statutes that regulate the operations of
    Government, Freedom of Information Act, Federal Advisory
    Committee Act, Inspector Generals Act, that all are efforts by
    Congress, as has historically been understood, to make sure the
    executive branch does not operate in a way that Congress
    disapproves of. And there are norms. Norms are important. I
    think norms, historical practices--Madison talks about that in
    Federalist No. 37. I think historical practice is relevant to
    judicial decisionmaking, as we have seen in a lot of judicial
    decisions. But when I worked in the executive branch, one of
    the questions I always asked and I ask as a judge is: How has
    this been done before? And I think that is always--two things I
    always tell students, two things to always ask yourself, what
    does the text of the relevant law say, regulation, code,
    statutes, Constitution? And how has it been done before? Which
    is really a question of precedent or norm within the executive
    branch or norms within Congress. Those are important as well.
        So I think there is constitutional and statutory structures
    as well as custom or norm that all constrain Congress and
    constrain the executive branch and constrain the judiciary as
    well.
        Senator Flake. You discussed with Senator Sasse the danger
    of independence agencies that amass too much power in any
    individual. Would that not be true with the Executive as well?
        Judge Kavanaugh. That was the debate at the Constitutional
    Convention, Senator, whether to have a plural Executive--in
    other words, multi-member Executive--or to have a single
    President. And, ultimately, the Framers at the Convention
    decided to go with--and Wilson and Gouverneur Morris, James
    Wilson and Gouverneur Morris were really the architects of the
    Presidency at the Constitutional Convention. And they
    ultimately convinced the others to go with a single President.
    But at the same time, the fear that you just discussed--or the
    concern, is a better word to put, you just discussed was
    certainly raised by people at the time, and that is why
    Hamilton wrote Federalist No. 69--well, that is why they put
    all the checks into the Constitution and why Hamilton wrote
    Federalist No. 69 to point out for the people who were voting
    on ratification all those differences between the king and a
    monarchy. And so that fear has existed throughout American
    history. I think of an Executive that is unchecked, and it is
    why, for example, the Supreme Court has been willing--Marbury
    is another case. President Jefferson, of course, is trying--is
    the one who loses in Marbury v. Madison. President Truman loses
    in Youngstown. President Nixon loses in United States v.
    Richard Nixon. Hamdi, national security is not a blank check
    for the President. That was President Bush.
        Senator Flake. Let me bring it up to today. You have
    mentioned a couple of times that you live in the real world.
        Judge Kavanaugh. I try, yes. That is important for a judge.
        Senator Flake. And let me bring it to the real world. This
    week, there was a Tweet by the President that said--and I
    mentioned this yesterday--``Two long-running, Obama era,
    investigations of two very popular Republican Congressmen were
    brought to a well publicized charge, just ahead of the Mid-
    Terms, by the Jeff Sessions Justice Department. Two easy wins
    now in doubt because there is not enough time. Good job,
    Jeff.''
        Should a President be able to use his authority to pressure
    executive or independence agencies to carry out directives for
    purely political purposes?
        Judge Kavanaugh. Senator, I understand the question, but I
    think one of the principles of judicial independence that
    judges, sitting judges--and I am a sitting judge--and nominees
    sitting here need to be careful about is commenting on current
    events or political controversies. I do not think we want
    judges commenting on the latest political controversy because
    that would ultimately lead the people to doubt whether we are
    independent or whether we are politicians in robes. And so
    maintaining that strict independence of the judiciary requires
    me, I think, to avoid commenting on any current events.
        Senator Flake. All right. Forget I just said that.
        Judge Kavanaugh. I said I understand, but I----
        Senator Flake. Just answer this question: Should a
    President use his or her authority to pressure executive or
    independent agency officials into carrying out directives for
    purely political purposes?
        Judge Kavanaugh. Senator, I think that hypothetical that
    you are asking is directly analogous to the current events,
    and, therefore, I hesitate to get in. It is also me commenting
    on something that is not a case or an issue or something I have
    written about. I just--I have thought about this principle as
    well and looking at all of the nominee precedent of the Supreme
    Court nominees in the past, and I think about Chief Justice
    Roberts and I think an underappreciated aspect of his Chief
    Justiceship is how he has fervently stood up for the
    independence of the judiciary and tried to keep the judiciary
    out of politics through what he does off the Bench as well as
    on the Bench. And I think that is--he sets the tone for the
    entire American judiciary, and I think that tone of not getting
    us involved in politics means I need to stay not just away from
    the line but three zip codes away from the line of current
    events or politics. And so I respectfully--I understand, but I
    respectfully decline.
        Senator Flake. Well, let me rephrase it a different way. If
    you have an Executive who is abusing his or her authority by
    instructing independent agencies of Government to use--or to
    pursue political ends, are there any remedies other than the
    one that you mentioned, a political remedy involving Congress,
    or is there something short of that? And I understand your
    aversion, as many in this body had--I was not here yet--to the
    independent counsel statute that we did away with. You
    expressed--you are a little more sanguine about a special
    counsel. But what other remedies are there and what other
    constraints are there on a President?
        Judge Kavanaugh. Well, the constraints on the Executive
    generally are important ones. The appropriations power is a
    huge check. That is an enormous check if employed as fully as
    it might be. The confirmation power of executive branch
    officials, the ultimate check, of course, that you referred to
    is always part of the system. And then just to be clear on the
    special counsel system that I spoke approvingly of in the 1999
    law journal article and I have referred to in my PHH opinion
    just last year, the traditional system, that exists. And then I
    have said what I said about the old independent counsel
    statute, but that was a statute that had a lot of parts to it,
    and if a case came before me that had a different statute that
    you had enacted or that statute, I would have an open mind
    about considering the arguments in favor of that, and against
    it, of course. And so those are--you know, that possibility is
    present to the Congress, of course, in general.
        Senator Flake. But if the President could fire an
    independent counsel or a special counsel, is that any restraint
    at all?
        Judge Kavanaugh. Senator, that hypothetical was tested, I
    suppose, in September 1973, if I have my month right, and--I
    might not have my month right, but it might have been a
    different month, but in 1973. And the system held.
        Senator Flake. Thank you. We will move on and maybe get
    back to this tomorrow.
        A conversation you and I had about separation of powers
    leads to a host of other related legal issues, including
    Chevron deference and agency overregulation. In your written
    opinions, you have suggested that you have concerns with
    Chevron deference. I share those concerns, as we spoke about.
    You have explained that Chevron deference can allow executive
    agencies to stretch the meaning of the law beyond what Congress
    intended. I think we have certainly seen that. You have also
    encouraged Congress--it can also encourage Congress to abdicate
    its legislative power by punting its lawmaking responsibilities
    to the other two branches. We spoke at length about that in a
    conversation with Senator Sasse and others about our inability
    here in Congress to actually legislate on important issues. You
    were discussing with another Senator our failure here to
    authorize war. I have had that frustration for years now,
    myself and Senator Tim Kaine, and others trying,
    unsuccessfully, express Congress' opinion and to provide some
    kind of template at least, if nothing else, for the executive
    branch to follow in terms of these long unauthorized wars.
        But that aside, your opinion suggests that a Chevron
    analysis has a two-part test: one, determining if there is
    statutory ambiguity and, if so, determining whether an agency's
    interpretation of the statute is reasonable. So the real
    question, when it comes to Chevron, is not just whether to
    defer to an agency but, rather, how a judge approaches
    statutory ambiguities.
        How do you know when a statute is ambiguous?
        Judge Kavanaugh. Well, that is a huge problem, Senator, and
    I think that is at the heart of the concern I have about how
    certain canons of statutory interpretation have been applied,
    including Chevron, legislative history, constitutional
    avoidance, as well. They depend on a threshold finding of
    ambiguity. And after several years as a judge, I thought about
    why is it that I disagree with a colleague after a particular
    case? What is at the root of that disagreement? Because we are
    both independent judges, and why are we disagreeing?
        It occurred to me in some cases that the disagreement is
    not about what the best meaning of the statute is or what the
    precedent says. The disagreement is about whether something is
    ambiguous. And then I would think about going to the judge as
    umpire vision that I believe in. How can we get neutral
    principles for determining ambiguity? And this is--and it turns
    out it is really hard to get neutral principles for how much
    ambiguity is enough. And there are two problems at the heart of
    that.
        First of all, just to try to reason through this: is 60
    percent ambiguity enough, or 80 percent ambiguity, or 95
    percent ambiguity? Where is your ambiguity trigger, so to
    speak? And then, second of all, when applying whatever trigger
    you come up with, how the heck do you figure out whether a
    particular word or phrase or statutory provision crosses that
    ambiguity threshold? And this is something that Justice Kagan
    and Justice Scalia both have talked about. In the past, Justice
    Kagan actually said at that same speech where she said we are
    all textualists now, she also said, you know, some people just
    find ambiguity more quickly than others do, which I think is a
    true statement, an observation of human nature, but also leaves
    the judge as umpire vision in real trouble in those cases
    because if there is no neutral principles to determine
    ambiguity, then we are going--and this is not a minor deal.
        So if you are in a case about deference to an agency, the
    fate of huge regulations can--so to give you the example, three
    judges could be sitting around after oral argument and all
    three could agree actually the agency's reading of the statute
    is not the best reading of the statute given the words, but two
    judges will say, ``I think it is ambiguous,'' and the third one
    says, ``I do not think it is ambiguous.'' So the two will defer
    to the agency, no, it is not the best reading of the statute,
    that can be a $1 billion decision right there, fate of huge
    regulations rise or fall just on that. And one judge will say,
    ``Well, I think it is not ambiguous.'' ``Well, I think it is.''
    And there is not a great--in my experience sitting in those
    conference rooms, a great neutral principle, and to my mind
    that is a concern if you have, as I do, the idea that judges
    should be umpires and we should have neutral rules of the road.
    So that is something I focused on. I explained that at some
    length in that Harvard article. I know you and I talked about
    that as well.
        Senator Flake. Let us talk about stare decisis, precedent.
    You talked a little about I think what Senator Lee--about 5-to-
    4 decisions, they have the same weight, same precedent as those
    decided unanimously. Kelo, in 2005, was a 5-to-4 decision,
    obviously concerning the Government's ability to seize property
    for economic purposes. Those of us in the West are very
    concerned about issues like this. Arizona, for example, is 85
    percent publicly owned when you take State, Federal, and Tribal
    property. Only about 15 percent of the State is in private
    hands. So decisions that the Federal Government makes, whether
    it is the legislative branch, executive agencies, or the
    judiciary, has an outsized impact on a State like Arizona.
    Judge Gorsuch, coming from the West, was familiar with many of
    these issues. You serving on the D.C. Circuit have addressed
    these issues more than perhaps others.
        Do you want to talk a little about that, about some of the
    Western issues or these issues, and Kelo in particular? That is
    a big concern out West.
        Judge Kavanaugh. So I think Kelo was something that was
    controversial in the East, too, and the Midwest, and the West--
    in terms of that decision.
        Senator Flake. Duly noted.
        Judge Kavanaugh. Yes. But I know it is of special concern
    in the West as well, but it is a precedent of the Supreme
    Court. But to your point, I have had cases involving
    regulations. A couple of examples. One where a critical habitat
    designation based on a fairy shrimp that was found on a
    property, Otay Mesa case, and I wrote in that case that the
    statutory term was occupied, and the fact that you could not
    see it to the naked eye, that the fairy shrimp had been present
    in a tire rut 3 years earlier was not enough to designate a
    huge swath----
        Senator Flake. I think you said it was the size of an ant
    or something.
        Judge Kavanaugh. I did, yes, Senator. So I had that case,
    and I think there I was just applying the statute as I saw it,
    but I was trying to do it in a way that understood the concern
    of landowners.
        I had another case, Carpenters case, it is called. It was
    another designation of land in the West, and the issue involved
    standing of someone who was deprived of their business because
    of the designation. And I found standing because I think it is
    important to understand that when something like that happens,
    there are lots of affected parties. I have talked about this in
    other cases, like my Mingo Logan case. When the Government
    regulation--the policy is not my concern, but in assessing
    standing, for example, or retroactivity, which was another case
    I had, you need to think about the affected parties, so
    businesses, workers, the coal miners in the Mingo Logan case or
    the people in the lumber, the timber industry in the Carpenters
    case. But I am also sympathetic to the fact that Westerners do
    not think people in the East always understand what is going on
    with those designations. I put right in----
        Senator Flake. Not even remotely.
        Judge Kavanaugh. Yes, not even remotely. I grant you that.
    I tried to put out in my opinion something. I said, ``For
    Easterners reading this opinion''--this is the second paragraph
    of the opinion. ``For Easterners reading this opinion, the size
    of this designation is twice the size of the State of New
    Jersey.'' And I said, ``So if you are an Easterner, imagine
    driving up the New Jersey Turnpike and then all the way back
    down it, and you will have some sense of what it would take to
    drive across this designation of land,'' which was just my way
    of saying----
        Senator Flake. Right.
        Judge Kavanaugh. Trying to appreciate the effect of some of
    these things in the West.
        Senator Flake. Getting back to precedent, you know, when
    you are not on the Supreme Court, if you are in one of the
    lower courts, then you always look to the Supreme Court, and
    those precedents are of equal weight, I guess, any decision
    that is made. But when you are on the Supreme Court, precedent
    is only precedent until it is not precedent anymore, until
    there is a decision made.
        My question, I guess, is: A decision like Kelo, decided in
    2005, a 5-to-4 decision, does it have the same weight as a
    Texas v. Johnson decided in 1989 on the flag-burning issue? How
    do you--what weight do you give it, once you are on the high
    court?
        Judge Kavanaugh. Well, I think you start with principles
    that the Supreme Court itself has articulated about precedent,
    and those principles that look at, of course, whether the
    decision is wrong, grievously wrong, whether the decision is
    inconsistent, deeply inconsistent with other legal principles
    that have developed around it.
        You look at the real-world consequences, to your point, the
    workability and real-world consequences. You look also at the
    reliance interests. Those are very important, the Supreme Court
    has said, in looking at precedent.
        But one of the things I will say about Kelo--this is kind
    of an offshoot of your question--is that a lot of States in the
    wake of Kelo have enacted--or their State Supreme Courts have
    interpreted their own Constitutions in a way that prevents
    takings of private property for what appears to be not the
    traditional public uses but going to economic development for
    private parties. And so, again, I think I have cited this
    before, but Judge Sutton on the Sixth Circuit, his book, ``51
    Imperfect Solutions,'' is a great book about how State
    Constitutions and State constitutional law and State statutes
    can enhance protection of individual liberty even beyond what
    the Supreme Court has interpreted the Federal Constitution to
    be.
        That is not a direct answer to your question, but it is
    another way that the people who are affected can--who are upset
    about that kind of land use designation can find protection.
        Senator Flake. Thank you, Mr. Chairman.
        Senator Kennedy [presiding]. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman. Mr. Chairman, I
    have some letters of opposition to Judge Kavanagh's nomination.
    These are letters from Lambda Legal and 63 national, State, and
    local LGBT groups, from Earth Justice, from Muslim advocates,
    from 63 women lawyers and supporters of Whole Woman's Health,
    from Secular Coalition for America, and from Asian-Pacific
    American advocates. I ask unanimous consent to enter these
    letters into the record.
        Senator Kennedy. Without objection.
        [The information appears as submissions for the record.]
        Senator Hirono. Thank you. Judge Kavanaugh, Chief Justice
    John Roberts has recognized that ``the judicial branch is not
    immune'' from the widespread problem of sexual harassment and
    assault, and has taken steps to address this issue. As part of
    my responsibility as a Member of this Committee to ensure the
    fitness of nominees for a lifetime appointment to the Federal
    bench, I ask each nominee two questions. The first question for
    you. Since you became a legal adult, have you ever made
    unwanted requests for sexual favors or committed any verbal or
    physical harassment or assault of a sexual nature?
        Judge Kavanaugh. No.
        Senator Hirono. Have you ever faced discipline or entered
    into a settlement related to this kind of conduct?
        Judge Kavanaugh. No.
        Senator Hirono. I started asking these questions about
    sexual harassment because it is so hard to hold lifetime
    appointees to the Federal bench accountable, and because I did
    not want the #MeToo movement to be swept under the rug. While
    Senator Hatch asked you some questions about this, I have some
    additional questions for you.
        Last December, 15 brave women came forward and shared their
    stories of sexual harassment and assault by former Judge Alex
    Kozinski. Some of them are detailed on the chart behind me:
    very explicit allegations of sexual harassment and assault. We
    know from the reporting that Judge Kozinski's behavior was
    egregious and pervasive. It went on for more than 30 years. It
    affected law clerks, professors, law students, lawyers, and in,
    at least, one case, even another Federal judge. And those are
    just the women who came forward. Judge Kozinki's behavior
    became so notorious that professors began to warn female
    students not to apply for clerkships with him. Judge Kozinski's
    behavior, in this regard, was an open secret.
        A short time after Judge Kozinski's accusers went public,
    the Judge abruptly resigned, which effectively shut down the
    Federal investigation into his misconduct. I do not think this
    was a coincidence. In 2008, in connection with another
    investigation into Judge Kozinski, the L.A. Times wrote a story
    about something called, ``the Easy Rider Gag List,'' an email
    group that the Judge used to send, what the Times reported was,
    quote, ``a steady diet of tasteless humor''' end quote. The
    report describes a list is made up of friends and associates,
    including his law clerks, colleagues on the Federal bench,
    prominent attorneys, and journalists.
        Senator Hatch asked you if you were on this ``Easy Rider
    Gag List'' where Judge Kozinski would send inappropriate
    materials. Your response was that you do not remember anything
    like that. Are you telling us that you may have received a
    steady diet of what people on the list have described as,
    quote, ``a lot of vulgar jokes, very dirty jokes,'' but you do
    not remember it?
        Judge Kavanaugh. No, I do not remember anything like that,
    and I am not----
        Senator Hirono. So, the answer is ``no.'' Have you ever----
        Judge Kavanaugh. Well, if I could elaborate.
        Senator Hirono. I think that is a complete answer. Let me
    go on. Have you otherwise ever received sexually suggestive or
    explicit emails from Judge Kozinski, even if you do not
    remember whether you were on this ``Gag List'' or not?
        Judge Kavanaugh. So, Senator, you start with, ``no woman
    should be subjected to sexual harassment in the workplace,''
    and----
        Senator Hirono. Judge Kavanaugh, you already went through
    all of that, and I will get to your perspective about making
    sure that women in the judiciary do not get sexually harassed.
    I just want to ask you, during and after your clerkship with
    Judge Kozinski, did you ever witness or hear of allegations of
    any inappropriate behavior or conduct that could be described
    as sexual harassment by Judge Kozinski?
        Judge Kavanaugh. No, Senator. And, you know, there were 10
    judges--I worked in Washington, DC. There were 10 judges in the
    courthouse with him in Pasadena, prominent--prominent Federal
    judges in the courthouse with him----
        Senator Hirono. So----
        Judge Kavanaugh. Who worked side by side with him day after
    day while he was Chief Judge in the Ninth Circuit.
        Senator Hirono. To be clear, while this kind of behavior on
    the part of Judge Kozinski was going on for 30 years, it was an
    open secret, you saw nothing, you heard nothing, and you
    obviously said nothing. Judge Kavanaugh, do you believe the
    women who recently came forward to accuse Judge Kozinski of
    this kind of behavior?
        Judge Kavanaugh. I have no reason not to believe them,
    Senator.
        Senator Hirono. So, you know, let me just put this into a
    context, because you have testified that you basically saw no
    evidence of this kind of behavior at all, you never heard of
    it, but you worked closely with him on a number of projects. It
    was not just during the time you were clerking for him. You
    kept in touch with him while you were in the White House. He
    introduced you to the Senate at your 2006 nomination hearing,
    and he called you his good friend. Yesterday, you called each
    of the people who introduced you a friend, and I presume you
    felt that way about Judge Kozinski when he introduced you in
    2006. You joined him for panels at the Federalist Society where
    you patted him on the shoulder and said, ``I learned from the
    master about hiring clerks,'' and I believe I have a photo of
    that--there is Judge Kozinski.
        You told us that you have hired many women clerks, how you
    are a mentor to women, how important you think it is for women
    to have a safe working environment where they feel that they
    can report sexual harassment. I conclude that you consider
    yourself an advocate for women. If a judge was aware that
    another judge was engaging in sexual harassment or sexual
    assault, would the judge have a duty to report it?
        Judge Kavanaugh. If I heard those allegations, Senator, I
    would have done three things immediately. I would have called
    Judge Tom Griffith, who is on our court, who is on the Codes of
    Conduct Committee for the Federal judiciary appointed by Chief
    Justice Roberts. I would have called Chief Judge Garland, who
    is chair of the Executive Committee. I would have called Jim
    Duff, who is head of the Administrative Office of the U.S.
    Courts. If, for any reason, I was not satisfied with that, I
    would have called Chief Justice Roberts directly.
        Senator Hirono. So, you believe that all judges who,
    including yourself, if you ever heard of any allegations about
    these kinds of behaviors, you would report it. You would go
    through whatever processes were set up by the courts.
        Judge Kavanaugh. I would do that and----
        Senator Hirono [continuing]. To prevent this kind of
    behavior and to hold people accountable. And yet, you know,
    someone that you have been close to that you clerked, and I did
    go through the various encounters, more than encounters that
    you had with Judge Kozinski, and yet you heard nothing, saw
    nothing, and obviously you did not see anything. So, let me
    just mention that this is why the #MeToo movement is so
    important because often in these kinds of situations where
    there are power issues involved, and certainly there are
    between judges and clerks, that often, you know, it is an
    environment where people see nothing, hear nothing, say
    nothing. And that is what we have to change.
        Judge Kavanaugh. I agree with you, Senator.
        Senator Hirono. That is great.
        Judge Kavanaugh. I agree completely. There need to be
    better reporting mechanisms. Women who are the victims of
    sexual harassment need to know who they can call, when they can
    call. They need know first that the way----
        Senator Hirono. Judge Kavanaugh, perhaps if all those
    situations or those processes had been in place over the 30
    years that Judge Kozinski was engaging in this kind of
    behavior, maybe he would have stopped, but he did not.
        I have one more question, Judge Kavanaugh. Were you aware
    of the serious allegations of domestic violence against Rob
    Porter before you recommended him for staff secretary to Donald
    Trump?
        Judge Kavanaugh. There is a premise in there that I am not
    sure is accurate----
        Senator Hirono. The premise being that he engaged in
    domestic abuse.
        Judge Kavanaugh. No, no, no, the recommendation premise,
    but I will--but put that aside. No, I was not aware of those
    allegations until they became public, when there was the news
    reports about them.
        Senator Hirono. Let me turn to another set of questions
    that I have for you. In 1999, you joined Robert Bork in writing
    an amicus brief in support of Harold ``Freddy'' Rice, who
    challenged the voting structure for Hawaii's Office of Hawaiian
    Affairs, a State office charged with working for the betterment
    of Native Hawaiians. You argued that Hawaii could not limit
    those who voted for the Office's Trustees, so only made of
    Hawaiians. You not only made this argument in a legal brief,
    but you also published an opinion piece in the Wall Street
    Journal under your own name entitled, ``Are Hawaiians Indians?
    '' In the piece you wrote, ``The Native Hawaiian community was
    not indigenous because,'' as you said, ``after all they came
    from Polynesia.'' It might interest you to know that Hawaii is
    part of Polynesia, so it is not that they came from Polynesia.
    They were part of Polynesia. Hawaii is part of Polynesia.
    Native Hawaiians did not come from Polynesia. Let me repeat
    that. They were a part of Polynesia.
        You also implied that Native Hawaiians could not qualify as
    an Indian Tribe, and, therefore, were not entitled to
    constitutional protections given to indigenous Americans
    because, and I quote you, ``They do not have their own
    government. They do not have their own elected leaders. They do
    not live on reservations or in territorial enclaves. They do
    not even live together in Hawaii.'' Let me tell you why each of
    these assertions are wrong, but it is the basis on which you
    determined that the OHA elections were unconstitutional.
        Judge Kavanaugh. Well, the Supreme Court--the Supreme Court
    agreed, though. The Supreme Court agreed, 7-to-2.
        Senator Hirono. No, they did not agree based on necessarily
    your arguments. Let me go on. To say that there is no system of
    law is an insult to the society that evolved in the Hawaiian
    Islands over centuries, even before the creation of the United
    States. To say they do not have their own elected leaders in a
    historical sense just betrays, in my view, your ignorance of
    Native Hawaiians. They were a self-sustaining, self-governing
    society for a thousand years prior to the so-called discovery
    by Captain Cook. You said, ``They do not live on reservations
    or in territorial enclaves. They do not even live together in
    Hawaii.''
        You know, it is hard to know what to say to this assertion.
    It sounds like you are saying that Native groups in the United
    States derive their rights from having been herded into
    reservations and cheated out of their land, or that they
    surrender their rights when they move outside of these
    artificial boundaries. It is not only factually wrong, but also
    very offensive. Judge Kavanaugh, it is hard to believe that you
    spent any time researching the history of Native Hawaiians.
    Now, I am going to refer to an email that you sent out.
        Judge Kavanaugh. May I respond to that?
        Senator Hirono. I am going to get to my question.
        Judge Kavanaugh. Okay.
        Senator Hirono. You sent out an email on June 4th, 2002,
    and I am going to read in part. ``Any programs targeting Native
    Hawaiians as a group is subject to strict scrutiny and of
    questionable validity under the Constitution.'' Now, you sent
    out this email after the Rice decision had already been made by
    the Supreme Court. When you wrote this email saying that all
    Native Hawaiian programs should be--undergo strict scrutiny
    because they are a constitutional--questionable validity under
    the Constitution, were you looking to Rice v. Cayetano as a
    basis for this view which you expressed in your email?
        Judge Kavanaugh. So, Senator, first of all, I appreciate
    your perspective. The amicus brief I wrote was--the Supreme
    Court agreed with by a 7-to-2 decision written by Justice
    Kennedy in that case, Rice v. Cayetano. And that decision--in
    the case, just so I am clear, it was a State office that denied
    African Americans the ability to vote in that--for that State
    office. Latinos and other people were denied the ability to
    vote for a State office, and the question was whether that was
    permissible under the Constitution. And the Supreme Court, by
    7-to-2----
        Senator Hirono. No, I attended the Supreme Court hearing.
        Judge Kavanaugh. I did, too.
        Senator Hirono. And I believe that one of the reasons they
    kept asking about--trying to figure out whether Native
    Hawaiians constitute Tribes is probably because of the amicus
    that you put in there that raised this issue, so let me go on.
    You know, you did not answer my question as to whether or not
    when you said that ``any program targeting Native Hawaiians as
    a group is subject to strict scrutiny and of questionable
    validity under the Constitution.'' My question to you was, were
    you thinking about the Rice decision, which you continue to
    say, yes, the Supreme Court agreed with you. Were you thinking
    about the Rice decision when you made this view known?
        Judge Kavanaugh. That is an email 16 years ago. I do not
    recall what I was thinking about when I wrote----
        Senator Hirono. It was right after the Rice decision. This
    is a 2002 email. The Rice decision was 2000. Well, let me ask
    you this, then. Do you think Rice v. Cayetano raises
    constitutional questions when Congress--not the State, because
    Rice was a State action case. It had to do with the Fifteenth
    Amendment--not the Fourteenth Amendment--the Fifteenth
    Amendment having to do with voting rights. So, my question to
    you is, do you think Rice v. Cayetano raises constitutional
    questions when Congress passes laws to benefit Native
    Hawaiians?
        Judge Kavanaugh. I think Congress' power with respect to an
    issue like that is substantial. I do not want to pre-commit to
    any particular program, but I understand that Congress has
    substantial power with respect to declaring--recognizing
    Tribes.
        Senator Hirono. But you believe that any of these kinds of
    programs and laws passed by Congress should undergo strict
    scrutiny and raises constitutional questions?
        Judge Kavanaugh. Well, as I--as I sit here today as a
    judge, I would listen to arguments under--16 years ago, and I
    am working in the administration, in the executive branch, and
    putting forth the position there. But if I were a judge, I
    would listen to the arguments. To your question, Congress has
    substantial power with respect to programs like this. I
    appreciate what you have said about Native Hawaiians. The
    specific case was about an election to a State office.
        Senator Hirono. Yes, that is why it is a State action case.
    I am well aware of the basis on which the Supreme Court made
    that decision. So, Judge Kavanaugh, Rice is often cited for the
    proposition that laws that benefit Native Hawaiians are
    unconstitutional because they are race-based. Do you think Rice
    can be cited for that view, knowing, as you have acknowledged,
    that it is a State action, Fifteenth Amendment voting rights
    case? Rice--I know this--Rice is often cited for the
    proposition that all Native Hawaiian programs enacted by
    Congress are--can be challenged as unconstitutional as race-
    based. I am asking you if that is an appropriate citation of
    the Rice decision.
        Judge Kavanaugh. Senator, I think Congress has substantial
    power, of course, in this area that you are discussing, and I
    would want to hear more about how Rice applies. I would want to
    hear the arguments on both sides. I would keep an open mind and
    appreciate your perspective on this question.
        Senator Hirono. You know, when the Supreme Court keeps an
    open mind and listens to the litigants and the advocates, one
    would hope that the advocates will actually proffer facts to
    the Court, and that is not what you did when you filed your
    amicus to the Court. And I think you have a problem here. Your
    view is that Native Hawaiians do not deserve protections as
    indigenous people under the Constitution, and your argument
    raises a serious question about how you would rule on the
    constitutionality of programs benefiting Alaska Natives. And I
    think that my colleagues from Alaska should be deeply troubled
    by your views. And I know that in your amicus brief and in your
    Wall Street article you did not mention one word about Alaska
    Natives. And it could be because there is no Commerce Clause
    reference to Alaska Natives, as there is for American Indian
    Tribes.
        I want to go on to another set of questions because I am
    running out of time. I want to follow up on your discussion
    with Senator Feinstein about Roe and Casey, and your
    conversation with Senator Durbin about Garza, and also raised
    by my colleague, Senator Blumenthal. You talked about the
    importance of precedence. You said you understand the strong
    feelings about abortion. You said you recognized the real-world
    effect of cases, and you do not live in a bubble. But I think
    when you talk about respect for precedent it is misleading
    because there are ways to say you are relying on precedent,
    i.e., Roe v. Wade and its progeny, but still severely limit a
    woman's right to make her own reproductive choices. And that is
    exactly what you did in Garza, because we all recognize that
    even if Roe v. Wade is not overturned, there are going to be
    many cases that will continue to come before all of the courts,
    including the Supreme Court, that will probably be laws enacted
    by States that will limit a woman's right to choose, so
    including things like parental consent, spousal consent, or
    notification, limits on where abortions can be performed, i.e.,
    Whole Woman's.
        So, both Senators Durbin and Blumenthal explained the facts
    in Garza, so I will not go over that. But when the case reached
    you, you took any opportunity you could to prevent that girl
    from getting an abortion. You said you were relying on
    precedent, but you were not. You turned this case into a
    parental consent case, which it was not. Then you looked at the
    facts and ruled against, in my view, all common sense that
    keeping a young woman behind lock and key against her will by
    ORR--Office of Refugee Relocation--insisting that ORR be
    allowed to delay beyond the time an abortion would be--would no
    longer be feasible by finding her sponsors that she did not
    need. And, that you deemed these factual circumstances not an
    undue burden on her constitutional right for an abortion.
        Let me read you a portion of your dissent in this case. You
    say, ``The majority points out in States, such as Texas, the
    minor will have received a judicial bypass. That is true, but
    it is irrelevant to the current situation.'' Why? The current
    situation was all about parental consent and the need to get--
    to get a judicial bypass, which this young woman did. So, if
    there is anything that is irrelevant, it is your argument that
    this was a parental consent case. Then you went on to analyze
    this case on the basis of whether or not keeping her under lock
    and key--you sustained that there would be sponsors found for
    her which could have ended up being an unfeasible timeframe for
    her to get an abortion, and you deemed those not to be undue
    burdens.
        The young woman had already received a State judicial
    bypass, as referenced before. The fact that she did not have,
    you thought, that parental consent, that was not even an
    issue--it was irrelevant. So, this is very disturbing. Is it
    any wonder there are so many people who, even if you are not
    sitting there, in spite of the fact that President Trump said
    his nominees to the Supreme Court will overturn Roe v. Wade.
    Even if Roe is not overturned, there will be, as I mentioned,
    all of these cases that will put barriers--that would put
    barriers before a woman's right to choose.
        So, I find it really a rather unbelievable--and by the way,
    you also mentioned--you know, you said several times in Garza
    you did not join the dissent, which basically says an alien
    minor does not have a constitutional right to an abortion. So,
    does the fact that you did not join this dissent mean that
    undocumented persons do have a constitutional right to an
    abortion?
        Judge Kavanaugh. Well, I decided that case based on the
    precedent of the Supreme Court and the arguments that were
    present in the case. I made clear that I was following as
    carefully as I could the precedent. You mentioned parental
    consent and spousal consent. The Supreme Court has upheld
    parental consent laws, but has rejected spousal consent.
        Senator Hirono. Usually it requires a judicial waiver,
    which was the case in the Texas case. So you cannot just
    require parental consent, as in this case, where her parents
    were beating her up. How can you expect parental consent in a
    situation like that?
        Judge Kavanaugh. That would be a situation for the bypass.
        Senator Hirono. Yes.
        Judge Kavanaugh. This was an analogy for a woman who is a
    minor, that is critical, who was in an immigration facility by
    herself in the United States and had----
        Senator Hirono. She had already gotten a judicial bypass.
    There was no issue of parental consent, and in this case you
    would have substituted a foster family for parental consent.
    That is not even an issue, but I do have a question. Since you
    mentioned several times that you did not join the dissent, and
    the crux of the dissent was that there was no constitutional
    right for an alien minor to have an abortion, I want to ask
    you, did you join or did you not join that dissent because you
    disagreed with that, that, in fact, alien minors do have a
    right to an abortion in our country?
        Judge Kavanaugh. Well, as a general proposition--first of
    all, the Government did not argue in that case that aliens lack
    a constitutional right generally to obtain an abortion.
        Senator Hirono. Yes, even they did not argue because
    probably they figured that is a decided issue, but maybe you do
    not think so. Do you think that that is an open question as to
    whether or not alien minors, or, in fact, aliens in our country
    have a right to--a constitutional right to an abortion? Do you
    think that is an open case?
        Judge Kavanaugh. The Supreme Court has recognized that
    persons in the United States have constitutional rights.
        Senator Hirono. Okay. So, I hope that is why you did not
    join the dissent. Moving on to another set of questions
    relating to your dissents. I think you can learn a lot about a
    judge by looking at his or her dissents, and that is why judges
    go out of their way to voice their disagreement with the
    majority and show what their views are. And you have the
    dissent rate among active D.C. Circuit judges, 5.1 dissents per
    year.
        I am going to talk about several studies that analyze your
    decision. The first study by Professor Elliott Ash and
    Professor Daniel Chen shows that compared to other circuit
    court judges elevated to the Supreme Court since the 1980s, you
    not only have the highest rate of dissents, you also have the
    highest rate of partisan dissents. So, I think I have a chart
    on that. Well, maybe not. Suffice to say there is such a study,
    and I ask unanimous consent to have the study by Professors Ash
    and Chen be entered into the record.
        [The information appears as a submission for the record.]
        Senator Hirono. The second study by people--thank you, I am
    on a roll here, Mr. Chairman.
        [Laughter.]
        Senator Hirono. The second study by People for the American
    Way shows that you consistently sided against workers or
    immigrants and only once favored consumers in your dissents.
    Mr. Chairman, I ask unanimous consent to have the People for
    the American Way study entered into the record.
        Senator Kennedy. Without objection.
        [The information appears as a submission for the record.]
        Senator Hirono. A third study by Public Citizen shows that
    in cases where there was disagreement among the judges, you
    consistently sided against helping people who wanted to protect
    our clean air and water. Mr. Chairman, I ask unanimous consent
    to have the Public Citizen study entered into the record as
    well.
        Senator Kennedy. Without objection.
        [The information appears as a submission for the record.]
        Senator Hirono. A fourth study, a detailed study by
    Professors Cope and Fischman, found that you are, and I quote
    their study, ``no judicial moderate,'' and that, ``It is hard
    to find a Federal judge more conservative than Brett
    Kavanaugh.'' Mr. Chairman, I ask unanimous consent to have the
    study of Professors Cope and Fischman entered into the record
    as well.
        Senator Kennedy. Without objection.
        [The information appears as a submission for the record.]
        Senator Hirono. Judge Kavanaugh, why do you rarely dissent
    on behalf of consumers, workers, or the powerless? And please,
    do not talk to me about all the times that you were with the
    majority or where you joined other majorities?
        Judge Kavanaugh. Well, Senator, I have ruled for workers
    many times. I have ruled for environmental interests many times
    in big cases that involve clean air regulation, particulate
    matter regulation, affirmative defense for accidental
    emissions, the California Clean Air law over a dissent by a
    fellow judge.
        Senator Hirono. So, Judge Kavanaugh, I cited--how many
    studies did I enter into the record? At least four studies that
    indicate that there is a pattern to your dissents, and your
    pattern is that you do not favor basically regular people.
        Judge Kavanaugh. Well, I wrote a--one of my most important
    dissents, Senator, was in United States v. Burwell. That was a
    criminal case, an en banc case for a convicted drug
    distributor. The question was whether he had been sentenced to
    a 30-year mandatory minimum permissibly, and I joined by Judge
    Tatel, who is an appointee of President Clinton, ruled that the
    jury instructions were flawed. I was in dissent for him because
    mens rea requirement had been omitted from the jury
    instructions, and I wrote a very opinion lengthy about that.
    That is someone--that is one of my most important dissents, and
    that was on behalf of a criminal defendant.
        Senator Hirono. Judge Kavanaugh, the thing about patterns
    that are exceptions to the pattern. So, all of these studies
    that I cite to, we are not talking about the exceptions to the
    pattern. We are talking about the existence of a pattern. You
    know, it kind of--it bothers me--you know, I would expect a
    judge to follow the law. I fact, I think you started off saying
    that you are a--how did you describe yourself in terms of
    following the law? You said several times----
        Judge Kavanaugh. Independent and pro-law.
        Senator Hirono. Pro-law.
        Judge Kavanaugh. Another important decision is a case, I
    think I wrote the leading opinion or one of the leading
    opinions, on battered women's syndrome, called United States v.
    Nwoye over a dissent of another judge where I reversed a
    conviction of a woman on the ground that she had not been
    able----
        Senator Hirono. Judge Kavanaugh, I hate to continue to
    interrupt you, but, you know, 30 minutes goes by awfully fast,
    and there are always exceptions to the pattern. So, yes, you
    call yourself--you describe yourself as a pro-law judge. And,
    you say, you consider yourself to be someone who follows
    precedent and the law, but over and over again your colleagues
    and the majority criticize you for not following the law or
    Supreme Court precedent. Where Congress is clear, you miss the
    plain language. Where the Supreme Court clearly states rules,
    you ignore them.
        Let me cite you to some examples where your colleagues
    actually took the time to criticize your dissents. So, in a
    2008 case, Agri Processor v. NLRB, the majority said the
    dissent--your dissent--``creates his own rule instead of
    following Supreme Court rules.'' They said that your dissent
    ``abandons the text of the applicable laws all together.'' Or,
    in 2011, the majority in a case called, Heller II, held that
    Washington, DC, could ban semi-automatic weapons, and the
    majority wrote an entire appendix--an entire appendix--to
    explain why your dissent was wrong and how you misread the
    Supreme Court.
        Mr. Chairman, I ask unanimous consent to have the 10-page
    appendix in Heller II entered into the record.
        Senator Kennedy. Without objection.
        [The information appears as a submission for the record.]
        Senator Hirono. In 2017, in U.S. v. Anthem, the majority
    sharply criticized your dissent. They said, ``Rather than
    engage with the record, much less adhere to our standard, the
    dissent offers a series of bald conclusions and
    mischaracterizes the Court's opinion.'' They said that you, the
    dissenting colleague, ``applies the law as he wishes it were,
    not as it currently is.'' This does not sound like such a pro-
    law judge to me. Now, why do your colleagues go out of their
    way so often----
        Senator Kennedy. Senator, if you could begin to wrap up,
    please, ma'am.
        Senator Hirono. Why do your colleagues go out of their way
    so often to point out that you are not following the law or
    relevant Supreme Court cases?
        Judge Kavanaugh. Senator, my--I stand by my record. I have
    been in the majority the vast majority of the time, 95--90 to
    95 percent of the time. I have written opinions joined by
    colleagues of all stripes. I think there have been studies that
    have shown the affiliation of the judges who join me in
    majority opinions when there has been a dissent. I stand by my
    record. I am proud of my record. I have explained thoroughly my
    decisions in each case. I appreciate your perspective, and I
    understand the cases you have raised, but my opinions speaks
    for themselves, and I am very proud of them.
        Senator Kennedy. Senator Crapo.
        Senator Hirono. And I think all these studies speak for
    themselves also. Thank you, Mr. Chairman.
        Senator Kennedy. Thank you, Senator.
        Senator Crapo.
        Senator Crapo. Thank you very much, Mr. Chairman. And,
    Judge Kavanaugh, you can relax for just a short moment because
    I am going to take a few minutes at the beginning and introduce
    some documents for the record.
        First, Mr. Chairman, I would like to introduce--or, ask
    unanimous consent to enter an op-ed from the San Bernardino Sun
    editorial board stating that Brett Kavanaugh's nomination might
    be the calm before the storm. The editorial board says that
    ``Judge Kavanaugh is impeccably credentialed, conventionally
    conservative, and less likely than other short-listed judges to
    overturn landmark culture war case law. In addition to his
    qualifications and nationwide respect, Judge Kavanaugh brings a
    reassuring image of normality and judicial cohesion.'' I ask
    unanimous consent to introduce this document into the record.
        Senator Kennedy. Without objection.
        [The information appears as a submission for the record.]
        Senator Crapo. Second, Mr. Chairman, the San Diego Union
    Tribune, ``Why Supreme Court Nominee, Brett Kavanaugh, May Be
    More Independent Than You Expect.'' This op-ed goes forward to
    say that--the editorial board is strongly inclined to support
    Judge Kavanaugh's confirmation, has endorsed nominees from both
    Republican and Democrats in the past. The board advocates for
    the deference to the President in picking Justices ``so long as
    the nominee has the requisite credentials,'' and it applauds
    ``Judge Kavanaugh as straight out of Supreme Court central
    casting.'' I ask unanimous consent to put this document in the
    record.
        Senator Kennedy. Without objection.
        [The information appears as a submission for the record.]
        Senator Crapo. Third, a document from the Harvard Black Law
    Students Association. This is a letter that exhibits Judge
    Kavanaugh's commitment to fostering diversity in the legal
    profession. ``Last year, Judge Kavanaugh reached out to the
    Harvard Law School chapter of the Black Law Students
    Association to express his interest in organizing a clerkship
    event for their members. Also on the panel with him was Judge
    Paul Watford, African-American Judge on the Ninth Circuit Court
    of Appeals.''
        The Black Law Student Association described that event.
    ``Judge Kavanaugh explained that one of his priorities is to
    encourage more students of color to apply for judicial
    clerkships. Several recent reports have indicated that minority
    law students are significantly underrepresented in Federal
    clerkships. During the event, Judge Kavanaugh provided his
    insight and advice on how students should navigate the entire
    process.'' They continued, ``The judge not only graciously
    offered his time for that panel, but also has continued to
    mentor numerous Harvard students whom he has taught or worked
    in a number of capacities.'' Again, I submit this document for
    the record.
        Senator Kennedy. Without objection.
        [The information appears as a submission for the record.]
        Senator Crapo. Fourth, a Georgetown Prep letter. Judge
    Kavanaugh's former Georgetown Prep classmates. These men grew
    up with Judge Kavanaugh. They have known him for 35 years. They
    know him as man of high character and intellect before he
    became a judge, and in high school he was the team captain and
    a multi-sport athlete. Years later, despite his great
    achievements, he remains the same grounded and approachable
    person they knew from class sports and student body activities.
    Their letter goes on with shining accolades. I would like to
    put this letter into the record, Mr. Chairman.
        Senator Kennedy. Without objection.
        [The information appears as a submission for the record.]
        Senator Crapo. And then finally for documents for the
    record, Governor Matthew Mead of Wyoming has sent a letter
    which states that ``Judge Kavanaugh embodies the qualities we
    need in an independent, thoughtful judiciary. He will be an
    effective and fair member of the United States Supreme Court.''
    I ask to submit this letter to the record.
        Senator Kennedy. Without objection.
        [The information appears as a submission for the record.]
        Senator Crapo. Well, thank you very much, Mr. Chairman,
    and, Judge Kavanaugh, I would like to now turn to some
    questions. Before I get into the questions I had intended to
    ask, though, I wanted to get into the discussion--go back and
    try to bring some clarity to the discussion that was held
    earlier in some of the questioning with regard to the
    independent counsel versus the special counsel circumstances
    and laws and statutes that we have had in the United States.
        My colleagues have asked you a lot about the old
    independent counsel statute. I think it is important that we
    walk through some of the differences between that statute,
    which is now no longer law, and the new special counsel
    regulation. And I am going to mention three important
    differences, and then I am going to just ask you, Judge
    Kavanaugh, if you would like to give any clarity to this
    situation and the issues that were raised with you earlier.
        First, the process for appointing a special counsel, which
    is the current situation. The decision to appoint a special
    counsel and the choice of whom to appoint is solely within the
    discretion of the Attorney General. The old independent counsel
    had to be appointed and selected by a panel of three D.C.
    Circuit judges. Second, the scope of the investigation. The
    scope of the current special counsel inquiry is determined
    solely by the Attorney General. The scope of the independent
    counsel's jurisdiction, when it was the law, was essentially
    boundless, no limits. Third, is the process for removing a
    special counsel. The Attorney General can remove the special
    counsel for good cause. The independent counsel could only have
    been removed by a three-judge panel. I think those are
    important differences related to the conversations you had
    earlier.
        And, Judge Kavanaugh, I would just, with that
    clarification, like to ask you if you would like to give any
    more comment or clarification to the discussions that were
    raised with you earlier.
        Judge Kavanaugh. Thank you, Senator. I appreciate the
    distinctions, which I think are accurate, and it is important
    to understand, as you underscored, the old independent counsel
    statute had many parts to it that combined to make it such a
    departure from the traditional special counsel system, all of
    which were part of the analysis that, I think, Justice Scalia
    engaged in in his dissent, and that the Congress looked at when
    it decided that that statute had been a mistake, and you
    overwhelmingly decided not to reauthorize it in 1999.
        Senator Crapo. Well, thank you. I just--I felt like you did
    not get an opportunity to make that clarification and that the
    record needed to be clear for the American people.
        Judge Kavanaugh. Thank you, Senator.
        Senator Crapo. Before we move on from that topic, I just
    want to state that Eric Holder has noted that the fundamental--
    noted the fundamental structural flaws with the old statute.
    Senator Durbin, as has been said, called that law ``unchecked,
    unbridled, unrestrained, and unaccountable.'' And, as we have
    heard, Justice Kagan has praised Justice Scalia's dissent
    calling that law into question. So, I just did want the record
    to be clarified somewhat in that context.
        Judge Kavanaugh. Thank you, Senator.
        Senator Crapo. Now, what I want to do during the rest of my
    questioning, in a number of different ways, is to get into your
    judicial record. I will start with this, however, by going back
    to what this set of hearings began with yesterday, which was an
    attack on the documentation that has been produced by you and
    others for your record. I will state again there is no nominee
    for the Supreme Court who has ever been asked a more robust
    questionnaire by this Committee than you, and you provided, I
    believe, around 17,000 pages of documents in response to that
    questionnaire, which was more than any other nominee has been
    asked.
        Second, you provided over 440,000 other documents that--or
    pages, I believe it is, of documents that in and of itself is
    more than the entire number of documents or pages of documents
    that were provided by the last previous five nominees to the
    Supreme Court. You have also got a record--a judicial record,
    which is acknowledged by Senators constantly as the most
    important part of the documentation for a nominee to the
    Supreme Court of over 10,000 pages of your decisions. And
    unfortunately, we have not seen a lot of focus on that yet in
    the questioning that you have received in this hearing, so I
    want to try to get into that.
        Before I do, however, I want to note, everyone has heard
    this many times, but I am not sure that the--that the normal
    American really understands. You are a judge of the D.C.
    Circuit. It has been said in this room a number of times that
    that is often called the second most powerful court in the
    Nation. It is a circuit court. there are a number of circuit
    courts. What is different about the D.C. Circuit Court from,
    say, the Ninth Circuit Court in which I sit in Idaho for the
    Ninth Circuit? What is different between all of the other
    circuit courts and the D.C. Circuit Court?
        Judge Kavanaugh. Thank you, Senator. All the courts of
    appeals are important and have important dockets and important
    caseloads, and the judges on all those courts do important
    work. The D.C. Circuit does get more regulatory cases because
    we are--the D.C. Circuit is in the Nation's capital, the seat
    of Government, and, therefore, more of the administrative law
    regulatory cases come. So, EPA cases, for example, or NLRB
    cases--EPA, Environmental Protection Agency, NLRB, National
    Labor Relations Board, Securities and Exchange Commission. We
    will get more of those cases involving agencies of the
    Government here in DC as a percentage of our docket than you
    would get in other courts, and that includes some of the
    separation of powers controversies that traditionally arise
    of--relating to national security cases. We have all the
    Guantanamo-related cases in our court.
        So, there are cases related to Government operations,
    Government--separation of powers, administrative law, the
    agencies that are a bigger percentage of our docket. But I do
    want to underscore all the courts of appeals of this country do
    important work, and all the judges have important dockets, and
    they are different, distinctive characteristics or characters
    of each of those courts in terms of--for example, the Ninth
    Circuit has a good deal of immigration law. The Fifth Circuit
    has a good deal of that. The Eleventh Circuit, of course, has a
    very--all the Circuits have important dockets. So, I just
    wanted to not--I want to underscore that D.C. has a lot more
    separation of powers, but I do not want to--I have a lot of
    friends on the other courts of appeals, Senator.
        [Laughter.]
        Judge Kavanaugh. I do not want to--I do not want to
    diminish the work that they do because it is very important
    work, and what they do as well.
        Senator Crapo. Well, I appreciate your answer, and believe
    me, those of us who live in the Ninth Circuit understand the
    power of the Ninth Circuit Court of Appeals. And sometimes we
    chafe under its rulings, but we are very aware of the
    incredible power. The point being, though, that the D.C.
    Circuit is distinctly different, as you indicated, in that it
    gets a much higher level of caseload dealing with the operation
    of executive agencies and with operations of Government, the
    kinds of things that we have been talking about extensively
    here, these types of issues. And I just think it is important
    for that to be brought out.
        Judge Kavanaugh. Thank you.
        Senator Crapo. With regard to the--to the D.C. Circuit on
    which you sit, you have spent how many years as a judge on that
    Circuit?
        Judge Kavanaugh. Twelve years and 3 months.
        Senator Crapo. And how many decisions? Do you know the
    number of decisions you have participated in?
        Judge Kavanaugh. I think I have handled well over 2,000
    cases, including all the cases counted up together.
        Senator Crapo. And how many of those were you the author of
    the opinion?
        Judge Kavanaugh. I have written majority opinions,
    published majority opinions in, I believe, 307 cases is the
    current number.
        Senator Crapo. And there has been some discussion even with
    the last questioning that you received about what the norm is,
    what the pattern with your decisionmaking. I will note before I
    ask you this question that the current active judges on the
    D.C. Circuit are made up of seven nominees from Democrat
    Presidents and four nominees from Republican Presidents.
        So, the current makeup of the active judges on the D.C.
    Circuit is more Democrat than Republican in terms of who
    nominated them. But in--I guess I am going to lead you a little
    bit with this question, but in this several thousand cases that
    you have been involved in deciding with this group of judges,
    what percentage did you agree with? In other words, in what
    percentage were you in the majority?
        Judge Kavanaugh. It has to be in the nineties, I would
    believe.
        Senator Crapo. I heard yesterday from the Chairman it was
    97.
        Judge Kavanaugh. Yes, I believe that sounds correct.
        Senator Crapo. So, if there is a pattern here, it is that
    you are right there with the majority of your colleagues on the
    court on most cases, and I do not mean just 51 percent. It is,
    like, 90-plus percent, probably 97 percent if I remember from
    yesterday correctly.
        Judge Kavanaugh. Yes, that sounds about right, Senator,
    appreciate it. We are judges. We do not wear a partisan label
    as judges, and I worked--tried to work well under the law with
    my--all my colleagues.
        Senator Crapo. So, those who want to try to create the
    impression that you are an outlier have to use that last 3
    percent--in fact, I think it is 2.7 percent in which you are
    actually in the dissent or not--maybe you are a member of a
    partial majority. But they have to go to that very small number
    of cases and then try to figure out a way in there to make it
    look like you have disagreement with norms in the judiciary. I
    just think it is important for us to note when people start
    talking about let us look for patterns, the pattern is that you
    are working with your colleagues on that court in a united way,
    and that there seems to be a pretty high level--a pattern of--a
    high level of consensus in the rulings in which you
    participate.
        In terms of the decisions that you have written, the 307
    decisions that you have written, how many of those do you
    recall--have you analyzed it--how many of those were majority--
    decisions for a majority?
        Judge Kavanaugh. The vast majority of those are majority
    opinions.
        Senator Crapo. So, it was a small number that would have
    been dissenting opinions.
        Judge Kavanaugh. Dissents and also some concurrences.
        Senator Crapo. And some concurrences.
        Judge Kavanaugh. Yes.
        Senator Crapo. Again, I do not know that you would have
    these statistics, but I assume some number of those cases were
    appealed to the Supreme Court. Did the Supreme Court--when your
    cases were brought to the Supreme Court, the ones that you
    wrote, were they overturned regularly or were they sustained
    mostly? Do you know the numbers on that?
        Judge Kavanaugh. I believe there are 13 cases where the
    Supreme Court has agreed with the analysis that I had--or the
    decision I had made either in a dissent or in a majority
    opinion for the D.C. Circuit.
        Senator Crapo. And how about reversals where one case where
    there was a reversal? Excuse me. So, 13-to-1. Again, if you are
    looking at a pattern, it appears to me that you are, again, in
    the mainstream of the American judiciary. With regard to the--
    to the question of how the Supreme Court has treated your
    cases, I seem to recall that they actually adopted your line of
    reasoning in a number of cases. Is that correct?
        Judge Kavanaugh. That is correct, Senator. I do not know if
    you have a--I will let you----
        Senator Crapo. I do not have the number on that.
        Judge Kavanaugh. Yes. No, of the 13, that is correct where
    they either cited or quoted or otherwise agreed with the
    reasoning or decision I made in a concurrence or dissent. And I
    am happy to talk about those, but----
        Senator Crapo. Well, let me--let me get--ask you this
    question, and you can use it there----
        Judge Kavanaugh. Of course, I am happy to talk about them.
        Senator Crapo. What I was going to ask you next is before I
    go into some of the cases that I am aware of that you
    participated in that I think are notable, are there any--of the
    cases that you have participated in as a judge, particularly
    those where you have written the opinion, but any cases you
    would like to note. Like I said, we have not really gotten into
    your judicial record much here. I would like you to have an
    opportunity to talk about your judicial record. Are there some
    that you would like to discuss with us before I go on to some
    that I have on my papers?
        Judge Kavanaugh. Well, I will let you ask a few, and if
    there are any others I want to go to----
        Senator Crapo. Well, I will probably run out of time before
    I am done with mine, but----
        Judge Kavanaugh. I will try to be succinct.
        Senator Crapo. Well, the first one is, back to an issue
    that you have been criticized for is, equal treatment of women.
    One of the cases I am aware you participated in is the United
    States v. Nwoye----
        Judge Kavanaugh. Yes.
        Senator Crapo [continuing]. Where you defended the rights
    of vulnerable women and reversed the district court on grounds
    that a female criminal defendant was prejudiced by her lawyer's
    failure to introduce evidence of her suffering from battered
    women's syndrome. Would you discuss that case a little bit?
        Judge Kavanaugh. Yes. There had been a criminal conviction
    of a woman for extortion, and she claimed duress defense. She
    claimed that she was a battered woman, that she had been
    repeatedly beaten by her boyfriend. The district court had
    ruled against the woman on the claim that she--her Counsel was
    ineffective by not presenting the battered woman's defense. It
    came up to our court, and I wrote a lengthy opinion explaining
    why it was ineffective assistance of Counsel not to present the
    battered woman's defense over a dissent from another judge, I
    should add.
        And I explained the point there that the jurors needed to
    hear the evidence from the expert about the battered woman's
    defense because otherwise the jury might not believe the claim
    she was making because they might think, well, why did she not
    walk away, or why did she not do something else. And the expert
    testimony would explain the--what happens when you are beaten
    repeatedly, and would explain that the jurors would not--would
    benefit from having that expert understanding, that sometimes
    you cannot walk away. That is the whole point when you are in a
    relationship where you are beaten repeatedly.
        Senator Crapo. Well, I appreciate that.
        Judge Kavanaugh. And, I therefore, reversed the conviction
    in that case that Nwoye had received.
        Senator Crapo. And the ACLU said your opinion in Nwoye
    ``demonstrated a sympathetic and nuanced understanding of
    intimate partner violence and its effects.'' I am going to skip
    over to another case, Adams v. Rice, because we are running low
    on time. What about Artis v. Bernanke, in which you voted to
    reverse the dismissal of a Title VII complaint by an African-
    American female group of secretaries alleging race
    discrimination by the Federal Reserve Board? Can you tell me
    about that case?
        Judge Kavanaugh. That is a--that is a discrimination case
    where the, as we analyzed it, the evidence presented was
    sufficient to raise a claim of race discrimination based on the
    treatment that the African-American secretaries had received in
    that case. And that was our ruling in that case.
        Senator Crapo. Well, thank you, and I have got pages more
    of cases on this issue, but only 10 minutes left in our time.
    So, I am going to shift to another issue, again, looking at
    cases that you have decided. Race and diversity. Let us talk
    about Ayissi-Etoh v. Fannie Mae. In that case, an African-
    American employee was fired from his job at Fannie Mae. He
    brought an employment discrimination claim alleging his
    supervisor had used a despicable racial slur and created a
    hostile work environment. Not only did you join Judge Merrick
    Garland and Judge Thomas Griffith in the court's per curium
    opinion, but you also wrote a separate concurrence. And in your
    concurrence, you wrote that the severity of this racial slur--
    ``Even a single use of the `N' word by a supervisor is
    sufficient by itself to create a hostile work environment.''
    And I could go on, but I would rather give you a chance to just
    describe that case a little bit.
        Judge Kavanaugh. Well, that case was a powerful case. The
    plaintiff argued it pro se in front of our court, which is
    unusual. The situation was that he had been called the ``N''
    word by a supervisor. The question was whether the single
    utterance of the ``N'' word was--constituted a racially hostile
    work environment under the Supreme Court's precedent, which
    says ``severe or pervasive.'' So, the question really was, is a
    single utterance of that word severe under the--under the
    precedent. I wrote a separate opinion to make clear that it
    was, that that word--that no other word in the English language
    so instantly or powerfully calls to mind this country's long
    and brutal struggle against racism, which I have emphasized in
    many cases as a--and the long march for racial equality in the
    United States is not over.
        When you look back to the--I cited some of the history of
    the country, and the original sin of the Constitution was its
    tolerance of slavery, Fugitive Slave Clause, the Importation
    Clause, which allowed the slave trade from 1788 to 1888--I
    mean, to 1808, which during that 20-year period, 200,000
    additional slaves were imported into the United States. The
    history that corrected in part on paper in the Thirteenth,
    Fourteenth, and Fifteenth Amendments, but then, of course, a
    century of backtracking from the promise of the Fourteenth
    Amendment, Jim Crow and racial discrimination, leading up to
    Brown v. Board of Education. Of course, again, in the Civil
    Rights Act and the Voting Rights Act of 1965, among the most
    important pieces of legislation ever enacted by Congress in
    terms of changing America.
        But still, there is still work to be done after centuries
    of discrimination, racial--slavery, racial oppression, racial
    discrimination. And this case, to my mind, was one case with
    one person arguing one claim of one incident, but to me the
    whole history of the country was presented on race relations,
    and racial discrimination was represented in that one case. And
    I tried to capture that as best I could in the opinion I wrote
    in that case.
        Senator Crapo. Thank you, Judge. Let us move on to Ortiz-
    Diaz v. the Department of Housing and Urban Development. In
    that case you joined an opinion holding that ``denying a
    lateral job transfer with the same pay and benefits may be an
    adverse employment action when the employee alleges he sought
    to transfer away from a biased supervisor.'' And in that case,
    you wrote a concurrence in which you said that ``The court
    sitting en banc should establish a clear principle that all
    discriminatory transfers and discriminatory denials of
    requested transfers are actionable under Title VII.'' And you
    went on to make it clear that ``denying an employee's requested
    transfer because of the employee's race plainly constitutes
    discrimination.'' And I will let you go further on that if you
    would.
        Judge Kavanaugh. Well, the question was if you are
    transferred laterally and you get the same pay and benefits, is
    that really a change. In oral argument in that case--if anyone
    is interested, I encourage them to listen to the oral argument
    in that case where I said something I explained later in the
    opinion. Look, in the real world, a transfer, even if you get
    the same pay and benefits, may hugely affect your later job
    opportunities, your career track, and to think that
    discriminatory transfers were somehow exempt from the civil
    rights law merely because you have the same pay and benefits
    was blinking reality. And so, that is what I said in the
    opinion.
        Our case law at that point basically said some transfers
    can be actionable, others not, and what I wrote was I do not
    see all discriminatory transfers are not unlawful under the
    Civil Rights Act.
        Senator Crapo. Well, I think it is important for America to
    know that your attitude is that strong on this. And we already
    went over the Artis v. Bernanke case when we were talking about
    women's rights issues. But this, again, is a group of African-
    American secretaries who were alleging discrimination, and you
    ruled in their favor.
        Again, I have a number of more cases on this, but I got a
    different question, again, still on race and diversity. I
    recall the Black Law Students Association letter from Harvard
    that we talked--that I introduced the letter on previously. But
    I also note here that your commitment to promoting civil rights
    extends back to your personal law school days when you wrote
    one of your first pieces of legal scholarship, your Law School
    Note, which was titled ``Defense Presence and Participation of
    Procedural Minimum for Batson v. Kentucky Hearings.'' Now, what
    that means you can explain.
        Judge Kavanaugh. Yes.
        Senator Crapo. But essentially, it was an article about
    this topic that you chose when you were in law school. And I
    guess my question is, explain the topic, but why did you choose
    this topic in law school?
        Judge Kavanaugh. Well, because I was interested in trial
    procedure at that time, but I was also a product of a city
    where, as I described yesterday and described what my mom did
    in terms of teaching at McKinley Tech where race relations and
    race discrimination were an issue that was of concern to me.
    And so, I wrote after the 1986 Batson opinion, which prohibited
    race discrimination and preemptory challenge in jury selection.
    I worried or wrote, well, what is to prevent backtracking from
    that decision by prosecutors who will be able to assert
    seemingly race neutral reasons, but still have the effect of
    excluding African Americans from juries.
        And so, I wrote a Law Review article, published, explaining
    that we needed good procedures to detect even subtle
    discrimination in the jury selection process to ensure that the
    Batson v. Kentucky decision was not evaded, and so that, you
    know, the legacy of all-White juries convicting African-
    American defendants is, of course, a painful part of our
    criminal justice legacy. And one of the things I wanted to make
    sure when the Batson decision came out was that that was not
    circumvented procedurally.
        Senator Crapo. Well, thank you, Judge Kavanaugh. I just
    want to commend on this. And as I said at the outset, it seems
    to me that an awful lot of the time in this hearing has been
    sent--been spent trying to create criticisms of you in areas
    like women's rights or race relations and what have you, when
    in reality your record is strong and deep in terms of
    protecting women's rights and protecting those who are in
    unfavored positions, and protecting against racial
    discrimination. And I hope that we can get a strong focus on
    your true record, because whether it is these issues, whether
    it is the independent counsel versus special counsel issues, or
    whether it is just the balance of your decisionmaking and
    whether you are somehow out of the judicial norms in terms of
    your approach to decisions that you have entered into as a
    circuit judge. The record, your record, reveals the truth, and
    the attacks that have been made on you today are absolutely
    unfounded. And I just hope that we can get a much deeper look
    at your true, honest record as we move forward.
        Now, I have only got a minute and 12 seconds left. The most
    important issue to me in your nomination is whether you will be
    an activist Justice or whether you will follow the law as it is
    written. I know what your answer is, but I would like to hear
    you, in the last minute that I have, tell me again what kind of
    a judge--what kind of a Justice will you be on the Supreme
    Court if you are confirmed?
        Judge Kavanaugh. Senator, I appreciate that and I
    appreciate your comments. Be an independent judge who follows
    the law, Constitution as written informed by history and
    tradition and precedent, follow the statutes that you pass,
    that Congress passes as written informed by the Canons of
    Construction. I will remember Hamilton's admonition in
    Federalist 78 that the judiciary exercises not will, but
    judgment, and Hamilton's admonition in Federalist 83 that the
    rules of legal interpretation are rules of common sense. And I
    will give it my all, as I have tried to do for the last 12
    years as a judge on the D.C. Circuit.
        Senator Crapo. Thank you very much. I commend you for that
    answer and your approach to it.
        Judge Kavanaugh. Thank you, Senator.
        Senator Kennedy. Thank you, Senator. Judge, we are
    scheduled to take a 30-minute break. If you need all of it,
    just say so. If you do, I am not suggesting you should not take
    it.
        Judge Kavanaugh. Twenty-five?
        [Laughter.]
        Senator Kennedy. Twenty-five. We will be back at--I have
    got 20 of 8. We will be back at five after. If you need a few
    additional minutes take them. When we come back, Senator Booker
    will begin.
        Judge Kavanaugh. Thank you, Senator.
        [Whereupon, at 7:40 p.m., the Committee was recessed.]
        [Whereupon, at 8:07 p.m., the Committee reconvened.]
        Senator Kennedy. Judge, are you ready?
        Judge Kavanaugh. I am ready.
        Senator Kennedy. Good. Got a little rest?
        Judge Kavanaugh. Not much.
        Senator Kennedy. Not much, huh?
        Senator Booker.
        Senator Booker. Thank you. Thank you, Mr. Chairman.
        Judge, in a 1999 interview with the Christian Science
    Monitor about the Rice case, you discussed with Senator Hirono
    a little bit, but you said, and I quote, ``This case is one
    more step along the way in which I see as an inevitable
    conclusion within the next 10 to 20 years when the Court says
    we are all one race in the eyes of Government.''
        It has been about 20 years now. We are about 6 months away.
    Do you think that you were wrong at that point, that racial
    discrimination in America would be over by 2019?
        Judge Kavanaugh. I think that was, Senator, an aspirational
    comment and one that, to your point, of course, I have said in
    my decisions, as you and I have discussed, that the march for
    racial equality is not finished, and we still have a lot of
    work to do as a country and as a people on that. So----
        Senator Booker. I appreciate that. I really do. But I want
    to know what you were thinking in 1999 that would make you make
    such a bold aspirational comment that, hey, in 10 years, the
    Court could view this--us all as one race. What was going on in
    the 1990s that led you to have that belief?
        Judge Kavanaugh. Hope.
        Senator Booker. Okay. Because you and I know--you and I are
    both aware of where the trends were going in the 1990s. This
    was a period where the drug war was in full blare, where the
    prison population exploded. Since 1980, we have been up 800
    percent in the Federal prison population.
        The massive increases in racial disparities of
    incarcerations. Blacks constitute roughly 13 percent of drug
    users but were 46 percent of those that were being jailed for
    drug offenses. Even our schools in the 1990s were becoming more
    segregated.
        And so your brief in the Rice case invoked Justice Scalia's
    argument that we should be ``one race''. And this, let me go on
    with the Scalia quote because he said that Government can never
    have--never have a compelling interest in implementing race-
    conscious programs that seek to address this Nation's wretched
    history of racial discrimination. He said, ``never.''
        He said that race-conscious programs, I am going to quote
    him now, are ``racial entitlement.'' Now do you think that
    someone who wants to remedy the fact that they could not get a
    loan from the Fair Housing Administration because of the color
    of their skin is racial entitlement, or are they seeking racial
    justice? Do you think someone, a person who tried--tries to
    remedy the fact that they were denied the chance to go to
    college under the GI bill because of the color of their skin is
    seeking racial entitlement, or are they seeking racial justice?
        So to be specific with Scalia, do you agree with Justice
    Scalia, who you reference in your brief, that it is never
    permissible for the Government to use race to try to remediate
    past discrimination to try to achieve justice?
        Judge Kavanaugh. Senator, that was a brief for a client,
    first of all. So I am not--I was not saying something in my own
    voice particularly there. So I am writing a brief for a client.
        Senator Booker. But if I can correct you, sir? You said
    this is a brief for a client, but you seem to invoke Scalia's
    one race theory quite often. You invoked Justice Scalia's one
    race theory to a reporter. You again mentioned it in the Wall
    Street Journal op-ed you wrote around the same time, and you
    cited his opinion, yes, in this brief.
        Are you saying that you do not share Justice Scalia's
    beliefs about this idea that people who are seeking to address
    past--past discrimination, past harms, that they are seeking
    racial entitlement?
        Judge Kavanaugh. I think, first of all, the Supreme Court
    precedent allows race-conscious programs in certain
    circumstance. So the precedent on the Supreme Court, as you
    know, Senator, is different. I was writing a brief, trying to
    cite all the principles from the different cases that would
    support the brief.
        But to your point, when you are trying to remedy past
    discrimination, as a general proposition, you are seeking
    racial equality and seeking to remedy both past discrimination
    and the lingering effects.
        Senator Booker. So you disagree with Scalia that it is--
    that he says it is never permissible for the Government to use
    race to try to remediate past discrimination to try to achieve
    justice? You disagree with Scalia?
        Judge Kavanaugh. The Supreme Court law----
        Senator Booker. I know what the precedent is. I know what
    the law is. I am asking what you believe. Do you agree with
    Scalia that, again, that it is never permissible for Government
    to use race to try to remediate past discrimination to try to
    achieve justice, that that is racial entitlement?
        Judge Kavanaugh. That position has never been adopted by
    the Supreme Court.
        Senator Booker. I am asking what you believe, sir, not the
    Supreme Court.
        Judge Kavanaugh. Okay. The term I used was that what you
    are seeking is equality. Equal, and what----
        Senator Booker. And right. So if you are seeking equality,
    I appreciate it, grant that. Is it never permissible for
    Government to use race to try to remediate past discrimination?
        Judge Kavanaugh. There are a couple of things that the
    Supreme Court has pointed out in its case law.
        Senator Booker. And again, I know the Supreme Court case
    law. Maybe I can approach this in a different way.
        Judge Kavanaugh. Okay.
        Senator Booker. The aftermath of Katrina. In a case brought
    by plaintiffs in New Orleans who challenged the way Government
    provided grants to homeowners as having a discriminatory impact
    on African Americans, you joined the minority in denying them
    relief.
        If the findings had shown that the grant program
    systematically disfavored African Americans, would a Government
    effort that uses race to remedy that disparity be
    unconstitutional? In other words, do you believe that all such
    efforts that use--the Government using those efforts amount to
    what Scalia called, ``a racial entitlement''? I am trying to
    figure out if you agree with that point that Scalia is making.
        Judge Kavanaugh. Senator, first of all, I approach
    questions like you are asking with a recognition of two things.
    One, the history of our country and, two, the real world today.
        Senator Booker. Yes.
        Judge Kavanaugh. And I try, as best I can, to understand
    both the history of our country on that issue and the real
    world today. So I am coming at it from that perspective.
        You are asking a question, I think, about specific remedies
    for discrimination, and there is a lot--I am a judge, as you
    know, and so I have to follow precedent. And the precedent
    allows remedies in certain circumstances----
        Senator Booker. And again, sir, I have heard you use that
    with a lot of colleagues, and I know what precedents are,
    especially dealing with a lot of very important Supreme Court
    issues. I am asking about your opinions because your opinions
    matter, what you have stated matters.
        Let me give you an example. In April in 2003, you wrote
    regarding a program designed to benefit Native-American small
    businesses by saying the desire to remedy societal
    discrimination is not a compelling interest.
        Judge Kavanaugh. That is what the Supreme Court has said
    and----
        Senator Booker. Hold on--the Supreme Court said that the
    desire to remedy societal discrimination is not a compelling
    interest?
        Judge Kavanaugh. The Supreme Court has in--let us go to
    Bakke, for example.
        Senator Booker. I am going to get to Bakke.
        [Laughter.]
        Judge Kavanaugh. Okay.
        Senator Booker. Just answer this question. Do you still
    believe, this is what you said, that race can never be used to
    remediate clearly proven discrimination? If it is clearly
    proven discrimination, I am just using an absolute, do you
    still believe that it can never be used?
        Judge Kavanaugh. Well, the Supreme Court has said it can be
    to remedy----
        Senator Booker. I know what the Supreme Court, but what do
    you believe, sir?
        Judge Kavanaugh. Well, I----
        Senator Booker. I know the history. You have recited it
    numerous times.
        Judge Kavanaugh. I would say, look, I have trouble
    departing from the Supreme Court precedent and saying----
        Senator Booker. But you do not. You opined about it in
    emails. You have opined about it in Wall Street Journal
    articles. I have heard you opine about these things in
    ``race.'' You just cannot say right now what you believe?
        Judge Kavanaugh. Well, a couple of things, Senator, just to
    back up. Lawyer for client in the email you are reading. As
    well, lawyer for----
        Senator Booker. Christian Science Monitor article, Wall
    Street Journal, your comments to a reporter. Let me approach it
    this way, because you are not answering the question, but let
    me see if I can approach it in a different way now, getting to
    some of the things you were talking about.
        The Supreme Court has said for decades--this gets us to
    Bakke. The Supreme Court said for decades that institutions of
    higher education have a compelling interest in student body
    diversity and that race can be used as a factor--not the only
    factor, but a factor--in admissions if it is done so in a way
    that is narrowly tailored to serve that interest.
        You said the Court said this in Bakke, and I know these
    cases. Said it in Grutter in 2003. Fisher, most recently in
    2006. The simple question here is do you believe these cases
    were rightly decided?
        Judge Kavanaugh. Senator, they are important precedents of
    the Supreme Court, and as Justice----
        Senator Booker. I did not ask you if they were precedents.
    I have heard you go through this before. Do you, sir--if you
    cannot answer it, just say, ``Cory, I cannot answer this.'' Do
    you believe that those cases--you say Marbury v. Madison was
    rightly decided. You said that. You said Brown v. Board of
    Education rightly decided.
        And by the way, desegregation cases could come before the
    Supreme Court. Do you believe that these cases, ``yes'' or
    ``no,'' do you personally believe they were rightly decided?
        Judge Kavanaugh. Senator, I am following the precedent of
    the--set by the eight Justices currently sitting on the Supreme
    Court. To put it in the terms of Justice Kagan, who was asked a
    lot of these same questions, it would be inappropriate to give
    a thumbs up or thumbs down on----
        Senator Booker. Yes, but, sir, there is a distinction
    between you and Kagan, you and Ginsburg on these issues
    because----
        Judge Kavanaugh. Or Roberts, Alito, Gorsuch, Kagan,
    Breyer----
        Senator Booker. And I am going to tell you the distinction
    between that excuse you are using with many of my colleagues
    and the distinction here is, none of those nominees had voiced
    personal opinions that Government should refuse to defend these
    kinds of programs.
        And let me give you an example. Let me give you an example.
    You wrote in an email about Adarand v. Mineta, a case that
    involved benefits to minority-owned businesses. You wrote that
    the Government should file a brief saying that the program is
    unconstitutional.
        And let there be no confusion, sir. You went on to say, you
    went on to write that, ``In fact, this is my personal
    opinion.'' And so you said that then. My question is, do you
    still think a diverse student body is a compelling interest?
        You opined on it then. You wrote it then. What do you
    believe now?
        Judge Kavanaugh. A couple of things there, Senator. First
    of all, the Adarand case is in the context of contracting. The
    Bakke case is----
        Senator Booker. So you think that those cases, using race
    to remedy past discrimination, is unconstitutional? That is
    what you wrote then.
        Judge Kavanaugh. In light of the precedent of the Supreme
    Court representing a client in that case, and I go through--I
    think the email you are referring to, I go through--actually,
    we should not--the SG should make a recommendation first that
    this should not be a White House-dictated answer. And the
    Solicitor General is ordinarily--I think if you are referring
    to the email that I am thinking of.
        But in any event, I think, as you know, and I just want to
    reiterate, there is precedent in the higher education context,
    in the contracting context, that are somewhat distinct. And
    those precedents have been applied by judges. And in my record
    on race discrimination cases, I am happy to talk about my
    cases, the Ayissi-Etoh, the----
        Senator Booker. But you are not happy to talk to me about
    the opinions you have expressed in the past. Do you still hold
    those opinions now?
        Judge Kavanaugh. Well, that is what I wrote then as a
    lawyer for a client.
        Senator Booker. But you said that, again, ``That is, in
    fact, my personal opinion.''
        Judge Kavanaugh. That is before the case is decided. In
    subsequent----
        Senator Booker. So you expressed a personal opinion on this
    issue then. Do you still hold that same opinion now that it is
    unconstitutional?
        Judge Kavanaugh. I think you are--you are taking, I
    believe, respectfully, ``personal opinion,'' out of context
    there. Personal opinion about what the Government position, so
    personal recommendation. Because I said, the distinction there
    is, I said the Solicitor General should first make a
    recommendation, and then the White House should respond, or the
    President.
        As to ``personal opinion,'' it was not my personal opinion,
    ``Kavanaugh,'' it was what the Government's position--
    recommendation would be, based on President Bush's stated
    policy----
        Senator Booker. Okay, sir. It seems that you were pretty
    clear there what your personal opinion was.
        Judge Kavanaugh. Well, I----
        Senator Booker. Let me approach it again----
        Judge Kavanaugh. I do not want to--I do not want to----
        Senator Booker. Sir, we do not have to go back and forth. I
    want to ask you a simple, direct question. Do you think having
    a diverse student body is a compelling Government interest? Do
    you believe that? Do you think having a diverse--it is not a
    complicated question.
        Do you believe having a diverse student body is a
    compelling Government interest?
        Judge Kavanaugh. The Supreme Court has said so, and my
    efforts to promote diversity, I am very proud of.
        Senator Booker. But I know what the law is now----
        Judge Kavanaugh. No----
        Senator Booker [continuing]. I am worried about what the
    law is going to be, sir, when you get on the Court and have the
    ability to change those precedents. But let me--I will go back
    to your words. I just want to ask you about your words and
    maybe give you a chance to explain something else because you
    have not answered my question, and I understand that you are
    going to stick to that.
        You have also written that, ``an effort designed to benefit
    minority-owned businesses, an effort to try to give them a fair
    shake because they had been historically excluded,'' and these
    are your words now, ``use a lot of legalisms and disguises to
    mask what is, in reality, a naked racial set-aside.'' That is
    what you said. That is how you referred to it.
        Judge Kavanaugh. What are you reading from, Senator?
        Senator Booker. Sir, I am reading from an email dated
    August 8th. These are your words. But I do not need to know----
        Judge Kavanaugh. Can I get a copy of it?
        Senator Booker. You certainly can, but let us ask you what
    you believe now. I will leave aside then. Okay? You said it--
    you wrote it, but my question is, what are your views right
    now?
        Do you believe that Government efforts to promote racial
    diversity are ``a naked racial set-aside''? Those are loaded
    words. Do you believe that now, sir?
        Judge Kavanaugh. The Government efforts to promote
    diversity in the higher education context are constitutional,
    and I have made clear my own personal efforts to promote----
        Senator Booker. But you refer to it in the past, sir, you
    refer to minority-owned businesses trying to get a fair shake
    after historically being excluded, you call that--which is very
    powerful.
        Judge Kavanaugh. I cannot--I do not have the email,
    Senator. So I am a little----
        Senator Booker. Have you ever used the term, ``naked racial
    set-asides''? You remember ever using that term?
        Judge Kavanaugh. That would--if you are saying there is an
    email, but I would like to see an email if I am getting
    questioned about an email.
        Senator Booker. Okay. I am going to ask my staff to provide
    you the email while I move on.
        Judge Kavanaugh. I have promoted diversity in law clerk
    hiring and made a big difference in that.
        Senator Booker. Sir, you told me about the diversity in
    promoting law clerk hiring, and I am so grateful for it. You
    told me a lot of things about the diversity that you personally
    have practiced--practice in your own life. I really, really
    appreciate that.
        I am not asking you about the five Black clerks that you
    have. That is good. I am seeking--you are seeking a position on
    the highest court in the land that is going to affect millions
    of people. You have expressed opinions about these subjects to
    the media, to the press, in speeches, in past emails. But you
    are not willing to say if you still hold those positions that
    you held before.
        And I want to just move on to specifically something that
    you have expressed opinions in some of your cases as well, sir,
    and that is the issue of racial profiling. You once discussed
    the use of racial profiling after 9/11 with your colleagues in
    the Bush White House.
        Judge Kavanaugh. Can I see the email?
        Senator Booker. What is that, sir?
        Judge Kavanaugh. Can I see the email?
        Senator Booker. Yes. I will get you the email, but there
    was----
        Judge Kavanaugh. But I cannot answer if I do not----
        Senator Booker. I am going to ask you about your views now,
    sir, and I will provide the email. But I am more interested in
    your views right now before you may be confirmed as a Supreme
    Court Justice.
        There was a debate going back and forth, and one of your
    colleagues said that there was a school of thought in the
    administration that if the use of race renders security
    measures effective, if using race renders security measures
    effective, then perhaps we should be using it in the interest
    of safety, now and in the long term. And that such actions,
    your colleague said, may be legal under such cases as
    Korematsu.
        Judge Kavanaugh. It sounds like you are quoting someone
    else, not me.
        Senator Booker. I am quoting somebody else.
        Judge Kavanaugh. Well, it sounds like----
        Senator Booker. Sir, sir. I am not going to stick you with
    that. I know you have already said Korematsu----
        Judge Kavanaugh. But do not attribute----
        Senator Booker. I am not attributing it to you. Sir, please
    do not accuse me of that. I am not. I said that was your
    colleague. I clearly said that was your colleague.
        You did not respond. You did not respond in the email by
    denouncing racial profiling or expressing outrage at the idea
    of relying on a case as odious as Korematsu.
        Senator Tillis. Mr. Chair, point of order.
        Senator Booker. Can I ask for my time to be paused, Mr.
    Chair, while you hear this point?
        Senator Kennedy. Please do. Pause Senator Booker's----
        Senator Tillis. Mr. Chair, just as a courtesy to the
    witness, we just saw an example there where I even believed
    that the words that were being repeated were words in an email
    authored by Judge Kavanaugh. I think it would be helpful if we
    could suspend for long enough to have the documents available
    to the Judge so that it can be answered in proper context.
        Is that an appropriate request?
        Senator Kennedy. Do you have any objections?
        Senator Booker. I do have an objection. If my colleague has
    an issue with that agenda, I think he should bring it up after
    my time. I would like to get back to my questioning.
        Senator Kennedy. Okay. Let us proceed. Do not take time
    away from Senator Booker.
        Senator Booker. Thank you very much.
        Sir, your response to that colleague's email was that you
    generally favored race neutral security measures, but you
    thought that there was, and I am quoting you now, ``interim
    question of whether the Government should use racial profiling
    before a supposedly race neutral system could be developed
    sometime in the future.''
        So it seems that you are okay with using race to single out
    some Americans for extra security measures because they look
    different, but you are not okay with using race to help promote
    diversity and equal opportunity and correct for past racial,
    documented racial inequality?
        Judge Kavanaugh. Sounds like I rejected the racial
    profiling idea. What is the date of the email, Senator?
        Senator Booker. The date of the email is January 17, 2002.
    And so, have you ever suggested or expressed an openness to,
    even in a temporary circumstance, like this email seems to
    indicate, in an interim question of using racial profiling?
    Have you ever suggested that, sir?
        Judge Kavanaugh. I would like to see the email.
        Senator Booker. I will provide the email, sir, to you.
        Judge Kavanaugh. But that sounds, from what you read, like
    I rejected the concept, but I will look at the email.
        Senator Booker. It seemed to me that you were open to the
    concept, sir, clearly. This is critically important because
    right now in our Nation, there are law enforcement practices,
    and I think you are aware, that overwhelmingly target African
    Americans and other people of color. Yet I have read opinions,
    such as yours in the United States v. Washington, upheld a
    search, and I quote, ``in the neighborhoods in Southeast
    Washington, DC,'' that you called crime plagued. In Wesby v.
    District of Columbia, where you would have protected police
    from liability when they made warrantless arrests at a house
    that was ``in east of the Anacostia River.'' You and I both
    know that those are predominantly Black areas.
        Judge Kavanaugh. Yes.
        Senator Booker. Predominantly African-American communities.
        Judge Kavanaugh. Yes.
        Senator Booker. I understand there is case law that says
    police can justify some actions by saying that they were in
    areas that were high crime. But you know how some of these
    opinions using this type of racially coded language can further
    the disparate treatment of people of color with the police.
        And so the way I see it, and I will give you a chance to
    respond, is that you are willing to consider using racial
    profiling to accept police practices, like heavy policing of
    African-American neighborhoods, but you are hostile to the use
    of race when it is used to promote diversity or remediate past
    proven discrimination.
        Judge Kavanaugh. Can I get 60 seconds?
        Senator Booker. Sir, go ahead.
        Judge Kavanaugh. Okay. On the Wesby case, there was a
    house--there was a call to the police. It was not the police
    patrolling the neighborhood. On the Wesby case, the Supreme
    Court reversed the majority decision that had been written by
    other people that I dissented from. They reversed it 9-to-0
    this past term. So what I wrote in Wesby, I was cited, and the
    Supreme Court agreed with the approach that I had suggested, 9-
    to-0.
        On the general concept, you and I have discussed this in
    our meeting. I am very aware of the reality and perception of
    targeted policing or police activity in minority neighborhoods
    and--or I try, as best I can, to be aware and understand that.
    And you and I talked about that. And the Wesby case, in my
    view, had nothing to do with that issue.
        Senator Booker. So, sir? Sir, I tried to give you some time
    there, but this is what I am hearing right now, sir. And you
    know, and I appreciate your rhetoric on these matters. But
    again, you are going to be a judge on the Supreme Court, if you
    are confirmed, and have a power to make massive differences in
    our country. And these are real issues.
        And so I asked you, was the Fisher case, I just asked if it
    was rightly decided. You refused to answer. I asked you again
    whether you believe diversity is a compelling interest. You did
    not answer that, sir.
        That is not good enough for a nominee to the highest court,
    particularly one who has expressed, and I will provide you with
    the emails as well as other quotes for the record as well,
    opposition to affirmative action and efforts to address
    systemic provable discrimination, such as--and yet you also
    have an openness to racial profiling. And again, I will provide
    that email.
        The cases I raise are about addressing documented systemic
    structural inequality in our country. This is about the fact
    that children in this country still encounter a different
    experience of America based upon the color of their skin and
    not the content of their character.
        They are more likely to drink dirty water and breathe dirty
    air and less likely to have access to equal educational
    opportunities. They are more likely to be stopped by the
    police. They are more likely to be shot by the police and
    become unfairly entrapped in our broken criminal justice
    system.
        I, like you, you said you are an optimist. I am a prisoner
    of hope. But I think even I have a troubling understanding in
    your eyes how America could be just months away or a few years
    away from becoming one race in the eyes of the law, as Scalia
    you have quoted numerous times.
        We are a good country with great people. And we are great
    people because people of all races in America have worked
    together. Black folks, White folks, all folks have worked
    together to make progress. But you said it yourself. We have so
    much work still to do.
        The Supreme Court, see, plays a vital role in that work,
    just as it did generations past with cases like Brown. And so,
    Judge, our communities--you have answered my question. I want
    to move really quick in the remaining time I have to voting
    rights, which is the crown jewel of the civil rights movement.
        It is designed to prevent States from putting up barriers
    for the rights of African Americans to vote. It is in the 21st
    century voter ID laws, which we are seeing more and more, many
    people consider them the modern-day equivalent of poll taxes.
    These laws are being enacted despite the fact that in-person
    voter fraud is incredibly rare. You are more likely to be
    struck by lightning in America than to find a person committing
    in-person voter fraud.
        You wrote an opinion in the South Carolina voter ID law
    that you said you were proud of that decision in my office, and
    I heard you say it here. I am taking you at your word that you
    are proud of this decision.
        But you were aware at trial that the author of the South
    Carolina voter ID law admitted that he received an email from a
    supporter of the bill that said African Americans--he said--
    that said if African Americans were offered $100 reward for
    obtaining a photo ID to vote, it would be, and I quote, ``like
    a swarm of bees going after watermelon.''
        In response to that racist email, the author of the voter
    ID wrote, and I quote him directly, ``Amen, Ed. Thank you for
    your support.''
        You were also aware that, based on the evidence in that
    case, that minority voters in South Carolina were 20 percent
    more likely than White registered voters to have a valid photo
    ID. So how could you have concluded that the voter ID law would
    not have a disparate impact on minority voters and poor voters
    in general?
        If a registered voter did not have a voter ID, is it not
    true that their only option was to write out a sworn statement
    that could expose them to criminal penalties? And is it not
    true that even then, they could only vote on a provisional
    ballot? Is that true?
        Judge Kavanaugh. So the decision was unanimous, joined by
    Judge Kollar-Kotelly, who is an appointee of President
    Clinton's, and Judge Bates, a President Bush appointee. But it
    was a unanimous decision where we blocked--we blocked
    implementation of the South Carolina voter ID law for the
    2012----
        Senator Booker. But you are telling me things I know. Can
    you just get to your feelings on this? Could you not see----
        Judge Kavanaugh. Yes.
        Senator Booker [continuing]. That this was going to provide
    an impediment and disparate impact on African Americans? Could
    you not see the problems that this would create?
        Judge Kavanaugh. That is why we said that the reasonable
    impediment provision could not just be the form that they had
    prepared, but there had--we essentially said what would have to
    occur.
        Senator Booker. And you said you were proud of the
    reasonable impediment provision. That is where we got--that is
    the point we had to stop, when we talked in my office. Could I
    just ask you, because this is how I see the reasonable
    impediment provision.
        South Carolina tried to enact this law that would not
    disenfranchise minority voters. When the people who enacted
    this law realized that they had to make changes to it, remember
    this?
        Judge Kavanaugh. Yes.
        Senator Booker. They enacted, sort of created a second
    class of voters, those without an ID. They had to go to a
    separate line, fill out a form under the threat of criminal
    prosecution. Wait for an attorney or a poll worker to witness
    that. And then, after all that, they had to cast a provisional
    ballot that may not have counted at all.
        Now this is a lot of a process. And you said to me, and I
    appreciate you saying this. You said what looks good on paper
    may fall apart in practice. And you told me, hey, Cory, I was
    keeping an eye on this to see what was going on.
        Judge Kavanaugh. I think I said ``Senator,'' but yes,
    otherwise----
        Senator Booker. I am sorry, Judge. I am sorry. I feel
    comfortable with you.
        [Laughter.]
        Senator Booker. Can I just show you what was up, in South
    Carolina polling places?
        [Showing sign.]
        Senator Booker. You can see this sign. Here is a picture.
    This is the sign that was in the polling places in South
    Carolina after the passage of their voter ID law. I mean, look
    at this sign, sir. This is what people without a photo ID would
    have seen.
        This is confusing and intimidating. It does not show the--
    what you call the reasonable impediment option that they had.
    It just shows this very thing. Do you see how this poster
    board, you know, might not be really much--I do not even know
    if you can see any reasonable provision aspect on this.
        Does it not matter that the average voter seeing this
    poster could be intimidated by this process?
        Judge Kavanaugh. That is why I said in the last paragraph
    of the opinion what looks good on paper may fall apart in
    practice. And what we did in the decision was we said--to your
    concern, I was concerned about the same thing you are asking
    about here when I was questioning the lawyers at oral argument.
    And we said the proposed reasonable impediment form was not
    good enough and that there had to be a catch-all box where you
    could put in any reason.
        And then we have listed all the reasons----
        Senator Booker. Well, sir, I appreciate you saying all
    that, but this is the result. And let me--but let me go with
    something different from a person--you and I are nearly the
    same generation. I want to talk to you about somebody from a
    different generation that we all think is the greatest
    generation.
        They did try to get a photo ID under the law that you were
    part of establishing. That was hell. And this was a 92-year-old
    South Carolinian named Larry Butler, a military veteran and a
    pastor of the Lord. He voted in the 2010 election, but in his
    attempt to get a photo ID, he had to chase down paperwork from
    his high school records, then go to get his birth certificate,
    then go to get court records.
        He went to the DMV, to the Official Vital Records Office,
    and the court. And after all that, actually, he still was
    having trouble. He still could not get a valid photo ID.
        According to a study by the Harvard Law School, the cost of
    his filing efforts were 36 bucks. That is how much all this
    process cost him. Now I am not accounting for his time. If he
    was working, it would have been a lot more.
        And so I just want to ask you, because many people call
    this the modern-day poll tax, that we are going back. Do you
    know what the infamous poll tax was in South Carolina in 1895?
    Do you know how much it was?
        Judge Kavanaugh. The exact amount?
        Senator Booker. Yes.
        Judge Kavanaugh. I do not.
        Senator Booker. I did not think so. I will tell you, sir.
    It was one dollar. That was the poll tax that you and I think
    is despicable and disgusting. It was one dollar then, which is
    roughly $30 today. Less than what it cost the veteran, Pastor
    Larry Butler, that is less than what he incurred trying to get
    to vote after the 2011 law. And if it was not for him holding a
    press conference with the Governor intervening and others
    giving him a special dispensation.
        And so here is this great generation, where Black folks and
    White folks in this country joined together, they fought and
    they bled, they died. Goodman, Chaney, and Schwerner, dying for
    voting rights. They grew up at a time when the States like
    South Carolina routinely placed these burdens on the right to
    vote and made it impossible and even dangerous to try to cast
    these votes.
        I do not know if you see that this is not that much
    different in terms of the cost to this person of trying to
    ultimately pay what is in effect a poll tax.
        Now my time is about to run out, and I want to say you can
    answer up to this because I have only got a minute and 30
    seconds. So let me just conclude, and then I know they will ask
    you this. But this, this is not complicated to me, sir.
        Costs like this create structural barriers that
    systematically disenfranchise African Americans, people of
    color, and actually poor people of all colors. I am concerned
    that a person who believes that we are all one race, like
    Scalia says, in the eyes of Government, that could happen
    months from now, a couple of years from now. A person who
    believes that efforts to promote racial justice are, your
    words, naked racial set-asides, they will be blind to the
    reality of someone like Mr. Butler and the experiences of poor
    folks all around this country.
        You refused to answer a lot of my questions about your
    views of the race and the law, talking about what Supreme Court
    precedent is. We are at a time when States are enacting these
    laws all over our country, designed to disenfranchise voters.
    As one Federal court said about a North Carolina law, targeting
    them with almost surgical precision to disenfranchise them.
        And now we do not even have the benefit of the Voting
    Rights Act provision designed to curtail discriminatory laws
    before they go into effect. Your answers do not provide me
    comfort--as a Justice of our Nation's highest court--that you
    will fairly take into account the barriers that continue to
    disenfranchise minority voters like Mr. Butler today.
        Sir, I am optimist. I am prisoner of hope like you. But we
    have a long way to go. We have work to do, Black folks and
    White folks honoring the history of a united America, fighting
    to make us more just. The Supreme Court has a vital role in
    that, and nothing you have said here today gives me comfort--
    gives me comfort that should you get on the Supreme Court that
    you will drive forward and see that we have that work to do and
    make the kind of decisions that will make a difference for
    people like Mr. Butler, people living east of the Anacostia
    River, north of the river, south of the river, all over this
    Nation.
        Thank you, sir.
        Judge Kavanaugh. Can I take a minute to respond?
        Senator Kennedy. Sure. And then I am going to recognize
    Senator Lee.
        Judge Kavanaugh. Senator, a couple of things, on that. I
    pointed out in the South Carolina opinion, I wrote the majority
    opinion on it, that we see, on an all too common basis, that
    racism still exists in the United States of America. The long
    march for racial equality is not over.
        I cited, I think you have seen, after an African-American
    hockey player scored the winning goal, a burst of racial
    commentary about him. I think that was just one of many
    examples I could have cited in that case.
        Senator Booker. Racial commentary? Can you be more
    specific?
        Judge Kavanaugh. Racist. Racist.
        Senator Booker. Racist commentary.
        Judge Kavanaugh. I actually said racist. So racist comments
    is what I should have said online. And that was just one
    example I pointed to say the reality, just one example.
        I made clear that the reasonable impediment provision had
    to be rewritten. I was all over the real world effects during
    the trial that you are raising here, I was all over that--so
    were the other judges--of how is this really going to work in
    practice? We drilled down and drilled down and drilled down and
    caused the rewriting of the reasonable impediment provision to
    make sure.
        I talked about the fact, for example, that African
    Americans in South Carolina at that time did not have as many
    cars on the same percentage. And so to get--to your point about
    getting the photo IDs, I made clear that I understood that.
        We blocked implementation for 2012 because we were worried,
    to your point about the form, that it would not be enough time
    to get all this in place and to educate people.
        It was a unanimous decision. Again, neither side, the Obama
    Justice Department did not appeal our decision to the Supreme
    Court. I believe, I assume that is because they thought our
    decision appropriately accommodated the interests of the
    parties in that case to ensure that African Americans in South
    Carolina were able to vote on the same basis as before.
        In talking about my life and record, you were talking about
    that, going back to growing up, but the law journal note that I
    wrote on race discrimination talked about something that I know
    you have been talking about a lot, which was bias in the
    criminal justice system. And I said at the end of that law
    journal note that both racial equality and the appearance of
    racial equality were critical to the fairness of the racial
    justice system.
        I provided specific mechanisms for rooting out race
    discrimination in the jury selection process and talked about
    what you have talked about, implicit bias or subconscious
    racism. I specifically talked about that in that decision.
        I have been a, I think, a leader. So there is 2010
    testimony before the Congress about the lack of minority law
    clerk hiring at the Supreme Court, and Justice Thomas and
    Justice Breyer were testifying before the Appropriations
    Committee, and they were asked about minority law clerks and
    the lack of them at the Supreme Court. And they said, in
    essence, well, we are hiring from the lower courts. And I
    remember reading that and thinking, well, I need to do
    something about that. I am the lower court. I am one of them.
        And so after that, I thought what can I do? And I did not
    just sit there. I went and thought what can I do? And I started
    on my own going to the Yale Black Law Students Association
    every year, starting in 2012. I think I am the only judge who
    has done something like that, or certainly one of the few. And
    I just cold-called them, cold-emailed them and said I would
    like to come speak about minority law clerk hiring because I am
    told there is a problem there.
        And I showed up the first time wondering how it would go,
    and I explained and I got a good crowd from the Black Law
    Students Association. I said we need more law clerks. There is
    a problem. And let me tell you how to do it, and here is why
    you should clerk, and here is how you clerk, and here is how
    you--here are the classes you should take, and here are the
    things you need.
        And at the end of that meeting, I gave them my phone number
    and email and said call me anytime, email me anytime if you
    want help. And then it was a big success. I got a lot of emails
    after that. I helped students get clerkships with other judges.
    One of them recently finished the Supreme Court, emailed me,
    thanking me for starting him on that road.
        And then it was a success, and I have gone back almost
    every year there. And as you know, we are graduates of the same
    law school--that is, a lot of people clerk from there, so it is
    a good place to go. And I have continued to encourage African-
    American law clerks. But it is not just encouragement. I have
    given them help and advice and been a source of counsel, I have
    tried to be.
        And why is that? Because I saw a problem to the extent of
    the kind you are talking about. And it is one small thing, I
    suppose. But those are the future people who are going to be
    sitting around here and sitting here, I think. Those are the
    pool.
        And I have tried to be very proactive on that, including my
    own clerk hiring where the old networks that prevented women
    and African Americans and minorities from getting law
    clerkships. I have been very aggressive about trying to break
    down those barriers and be very proactive on that, recognizing
    that part of this is professors who have research assistants.
        And so I have done, you know, my cases like the Ayissi-Etoh
    case and the Ortiz-Diaz case, and I think the South Carolina
    case I understand your concern about, but I am proud of what we
    did in that case. So I think if you look at my--your broader
    question about my life and my record, I understand what you are
    asking about a few comments in those Hawaii--the Hawaii case.
    But if you look at the sweep of it, I hope it gives you
    confidence that I have at least done my best to try to
    understand the real world and tried through my actual decisions
    to understand the real world and apply the law fairly.
        And through my other role as a judge and hiring law clerks
    to be very proactive in trying to advance equality for African
    Americans.
        Senator Kennedy. Senator Lee.
        Senator Booker. Sir?
        Senator Kennedy. Senator Lee.
        Senator Lee. Mr. Chairman, thank you.
        I think it is important. The rules of fairness and the
    Rules of the Committee require us to treat our witnesses with
    respect, with certain minimum standards of respect such that
    you cannot cross-examine somebody about a document that they
    cannot see.
        Now in this circumstance, the document that was referred to
    by my distinguished friend and colleague from New Jersey,
    Senator Booker, was designated as ``committee confidential.''
    Now there are ways we can deal with this. We can deal with this
    either in a closed session so that he can see the document to
    which you are referring, or we can also go about different
    procedures to make it public.
        We have already done this in this very set of hearings with
    Senator Leahy and with Senator Klobuchar, who identified some
    documents that were identified as ``committee confidential.''
        The one thing we cannot do is refer to a document, cross-
    examine him about that document, but not even let him see it
    because he cannot see it. We would not do that in a courtroom,
    and we cannot do that in our Committee. Our rules do not allow
    it. So I would just suggest that we go through the proper
    procedure to either deal with this in a closed session or
    ideally go through the process that Senator Leahy and Senator
    Klobuchar went through in order to allow us to address this in
    open Committee.
        Senator Booker. Mr. Chairman, may I respond?
        Senator Kennedy. The objection is duly noted.
        Senator Booker. Mr. Chairman?
        Senator Kennedy. Thirty seconds, Senator.
        Senator Booker. I really respect my colleague from Utah,
    and I appreciate that. I am not the first colleague that has
    referenced committee confidential emails, not the ones you said
    is the exception, they were referenced before. And that is why
    this system is rigged is because we have been asking, I have
    letters here, sir, that we have asked for.
        Now the one email specifically entitled, ``Racial
    profiling'' that somehow--I mean, literally, the email was
    entitled, ``Racial profiling''--that somehow was designated as
    something that the public could not see. This was not personal
    information. This was not personal information.
        There is no national security issue whatsoever. The fact
    that we are not allowing these emails out, as we have asked, as
    I have asked, joined the letter with my colleagues asking. And
    that is why I am saying the system is rigged.
        More than that, Senator, you have this system where there
    are whole areas--whole areas that was cleared where----
        Senator Kennedy. Senator, if you could begin to wrap up?
        Senator Booker. I will wrap up. Thank you, sir, for the
    generosity. Where there is whole areas where we are not allowed
    to let these out. And so I see you are outlining a process, but
    I am saying that process is unfair. It is unnecessary. It is
    unjust, and it is unprecedented on this Committee.
        Senator Kennedy. Gentlemen, I am trying to be fair to
    everybody. I know Senator Lee wants to respond. With respect,
    if he would do that briefly, I would like to continue on.
        Senator Lee. Senator Booker, I will go with you hand in
    hand literally to work with Committee leadership staff to get
    that going. I agree with you. There is no reason why it should
    not be something that we can discuss in public.
        I do not know why it was marked ``committee confidential.''
    I was not in charge of that. Regardless, we do have to follow
    procedure so that he can have access to it so that he knows how
    to respond. I will work with you on that.
        Senator Kennedy. Thank you, gentlemen.
        Senator Whitehouse. Now that the hearing is half over.
        Senator Kennedy. I am next. So, and I do not have any
    emails.
        [Laughter.]
        Senator Kennedy. I want to start, I have watched you for
    the last couple of days, Judge, and I want to compliment you on
    your demeanor. And I mean that. I know you are on your best
    behavior, but--but I appreciate your humility.
        We both know some Federal judges who can pretty much strut
    sitting down, and I appreciate your attitude and your demeanor,
    and I mean that.
        Judge Kavanaugh. Thank you very much, Senator.
        Senator Kennedy. I just want to ask you a few questions
    about--about the law. I am not going to ask you to violate the
    canon of judicial ethics. I am not asking you to go thumbs up
    or thumbs down. I am truly not.
        I may have to interrupt you a few times just to move us
    along. I am not trying to be rude. I want you to understand
    that.
        Judge Kavanaugh. Yes, sir.
        Senator Kennedy. You know, you have been nominated for the
    most powerful unelected position in the most powerful country
    in all of human history. Congratulations, but you understand
    also where we are coming from. There is no margin for error.
        Judge Kavanaugh. Yes, sir.
        Senator Kennedy. We have got to get this right. Yesterday--
    gentlemen, take it outside, would you?
        Yesterday, I talked a little bit about the fact that judges
    have limits on their power, and I do not know if I said it this
    way, but I said I think it is inappropriate for a Federal judge
    to try to rewrite the Constitution every other Thursday to
    advance an agenda that either he or his/her supporters cannot
    get by the voters.
        Do you agree with that?
        Judge Kavanaugh. Yes, of course, Senator. The judges
    interpret the law. They do not make the law, and that is
    obviously something that is repeated a lot. I know it is
    cliche, but it actually matters. If you keep that in mind, it
    matters.
        Senator Kennedy. Judges also have another duty, though. I
    did not get to talk about it yesterday. Federal judges and
    State court judges have an obligation to protect inalienable
    rights, even if the majority wants to take them away. That is
    why they call them ``inalienable.''
        And I said this when Judge Gorsuch was here, if you think
    about in many cases, the Bill of Rights is really not there for
    the high school quarterback or the prom queen. The Bill of
    Rights is there for the person who kind of sees the world
    differently but has the right to do that.
        And I think that is important for a judge. Can we agree on
    that?
        Judge Kavanaugh. Absolutely, Senator. I think the Bill of
    Rights is--protects all of us, but that includes and it is most
    relevant for free speech of the unpopular----
        Senator Kennedy. Right.
        Judge Kavanaugh. Or the unpopular criminal defendant.
        Senator Kennedy. Even if the majority says----
        Judge Kavanaugh. Yes.
        Senator Kennedy [continuing]. We are the majority. Because
    we both know that sometimes the majority just means that most
    of the fools are on the same side.
        [Laughter.]
        Senator Kennedy. I mean, just because you are in the
    majority does not mean you are right. Correct?
        Judge Kavanaugh. Just because you are in the majority does
    not mean you are right is absolutely a correct proposition.
        Senator Kennedy. Right. That is why we have a Bill of
    Rights.
        Judge Kavanaugh. Yes.
        Senator Kennedy. All right. I want to talk about--now that
    is the easy part. I want to talk about how we go about making
    these decisions, and there is a tension there, and that has to
    do with the language. If I talked about--and you have talked
    about it a little bit. But if I talked about the Holy Trinity
    doctrine, you would know what I am talking about, I am sure?
        Judge Kavanaugh. Yes.
        Senator Kennedy. Yes. Now the Supreme Court has rejected
    the Holy Trinity doctrine. Okay?
        Judge Kavanaugh. Right. Yes.
        Senator Kennedy. You talked about we are now textualists
    and are originalists, and you called originalism constitutional
    textualism, I think.
        Judge Kavanaugh. Yes, original public meaning, originalism,
    constitutional textualism. I think those describe the same
    thing.
        Senator Kennedy. Okay. You start with the language, let us
    take a statute, with the language in the statute.
        Judge Kavanaugh. Yes, sir.
        Senator Kennedy. And the first question you ask as a
    textualist, is it ambiguous or unambiguous? Correct?
        Judge Kavanaugh. If there is a canon of construction that
    is there that depends on a finding of ambiguity, that would be
    the question. Otherwise, other than that, you would just say
    what is the best meaning?
        Senator Kennedy. Yes, you read the statute.
        Judge Kavanaugh. Yes, read the statute.
        Senator Kennedy. You say does it make sense? It either
    makes sense or it does not. How do you determine that? How
    ambiguous--you alluded to this. But how ambiguous does it have
    to be? Does it have to be 100 percent ambiguous? Does it have
    to be 51 percent ambiguous?
        Is there really any principled way to compare clarity to
    ambiguity, or do some judges use it as an excuse to get to
    those canons of interpretation about which they have already
    read in the brief to do what they want to do, did you know?
        Judge Kavanaugh. Yes. I have said many times in my cases
    and talks to students that judges should not be snatching
    ambiguity from clarity. So that is one thing. I think that goes
    right to your question. But to your broader question is that is
    one of my concerns about a few canons of construction that
    depend on an initial finding of ambiguity, which sounds great
    in theory, which is, oh, if it is ambiguous, go to that canon
    or this canon or this canon.
        But in practice over 12 years, what I have found--and I
    have written about this--is that there is not a good way to
    find neutral principles on which two or, in my case, three
    judges can agree on how ambiguous is ambiguity. And that is
    hard to even talk about. I find it ambiguous. I do not think it
    is ambiguous.
        That has, in my view, frustrated the goal that I have of a
    judge as umpire, the even-handed application of neutral
    principles in the rule of law, and ultimately that has
    concerned me because some of these cases where that has come up
    are big deal cases. Yet it is dependent on this initial
    determination that when you unpack it and you actually sit in
    the judicial conference room like I do, it turns out to be very
    hard to apply in an even-handed way.
        So that has been the concern I have identified.
        Senator Kennedy. Original of the article. You advocate the
    best reading of the statute.
        Judge Kavanaugh. Yes.
        Senator Kennedy. Okay. Let us talk about that, and I want
    to talk about it, not in terms of the statute, but the Second
    Amendment and talk about the Heller case. You defined
    originalism as constitutional textualism, and you--the way to
    interpret the Constitution is to ask yourself--tell me if I get
    this wrong now. What would--how would a reasonable person at
    that time have understood the Constitution? The public
    knowledge.
        Judge Kavanaugh. The original public meaning. I always want
    to add----
        Senator Kennedy. Public meaning.
        Judge Kavanaugh. Of course, precedent is a huge part of
    what we do in constitutional law.
        Senator Kennedy. Sure.
        Judge Kavanaugh. But if you are looking at the words, the
    original public meaning, you look at what the words mean,
    sometimes the meanings change. Oftentimes, it has not. But to
    your point, I agree.
        Senator Kennedy. And there is almost an objective test.
        Judge Kavanaugh. You are trying to make it as objective as
    possible, absolutely. It is--it is an objective test. I mean,
    sometimes there is different evidence about what the meaning of
    the word was, I think.
        Senator Kennedy. Sure. But you are not looking at intent.
        Judge Kavanaugh. Correct. You are not looking at the
    subjective intent other than to the extent that helps show
    the----
        Senator Kennedy. Right. We have thrown that out?
        Judge Kavanaugh. Yes.
        Senator Kennedy. Okay. If you look at the Heller case--and
    I am talking about the DC v. Heller by the U.S. Supreme Court--
    it was not a balancing case. You made that point clear at the
    court of appeals level. It was a text history and tradition
    case. And Justice Scalia wrote the majority opinion. Justice
    Stevens dissented, and they both took an originalist approach.
        And I went back and looked. Scalia, this is what he relied
    on. He relied on founding era dictionaries, founding era
    treatises. He looked at English laws, American colonial laws,
    British and American historical documents, colonial era State
    constitutions. He looked at post-enactment commentary on the
    Second Amendment.
        And Justice Stevens, also using an originalist approach,
    looked at the same documents, and then he added he relied on
    linguistic professors, an 18th century treatise on synonymous
    words, and a different edition of the colonial era dictionary
    that Justice Scalia used. Pretty impressive.
        Here is my question. Does the originalist approach not just
    require a judge to be an historian, and an untrained historian
    at that?
        Judge Kavanaugh. I do not think----
        Senator Kennedy. I mean, would we not be better off hiring
    a trained historian to go back and look at all of this, this
    commentary?
        Judge Kavanaugh. Well, the Heller case was one of the rare
    cases where the Supreme Court was deciding the meaning of a
    constitutional provision without the benefit of much, if any,
    relevant precedent. On most of the constitutional provisions,
    there has been a body of cases over time interpreting the
    provision, and you do not have to do the kind of excavation
    that Justice Scalia and Justice Stevens did in that case
    because it has been done before.
        The reason I think why the Second Amendment posed a
    challenge in that case in terms of figuring it out is, the
    prefatory clause in the Second Amendment, which the question
    was did that define the scope of the right indicated
    afterwards, the right of the people to keep and bear arms shall
    not be infringed. Or did the prefatory clause merely state a
    purpose via for which the right was ratified, and therefore,
    you read the right as written. The right to keep and bear arms
    shall not be infringed.
        And to figure out what the prefatory clause meant, you had
    to figure out as a general proposition how legal documents at
    the time used prefatory clauses and what the purposes of those
    were, and that required a lot of historical excavation by the
    two Justices who had the competing positions.
        Senator Kennedy. Okay. Fair enough. Somebody commented
    yesterday, maybe it was you, Judge, they talked about how our
    judiciary was one of the crowning jewels of our Government and
    the fact that it separates us from other countries.
        I think one of the reasons so many of our neighbors in the
    world want to come here is because of our independent
    judiciary. They know their person and their property will be
    protected. I think that singles us out. You know, you never
    read about somebody trying to sneak into China. They want to
    come to America.
        But there have also been studies, I think Senator Booker
    talked about this. Maybe it was Senator Whitehouse. People
    have--in America, many of them think the United States Supreme
    Court is a little Congress that is political, and that is
    unfortunate because that means we lose confidence in an
    independent judiciary. I am not saying it is true, but
    perception is important in government.
        Do you think having cameras in the courtroom would help?
        Judge Kavanaugh. Senator, that is an issue that I have
    thought about, and let me just give you a little perspective on
    our court. We have gone to same-time audio in our court. We
    started with release of tapes much later, then release of tapes
    later in the week, then release of tapes later in the day, and
    now we are same-time audio in our court. And I think that has
    been a--that has worked at the court of appeals level for us.
        I know nominees who sat in this chair in the past have
    expressed the desire for cameras in the courtroom only to get
    to the Supreme Court and really change their positions fairly
    rapidly. So that gives me some humility about making confident
    assertions about that, and, of course, joining a Team of Nine
    means thinking about that, if I were fortunate enough to do so,
    and hearing the perspectives of why did they change their
    position? What is their view?
        Senator Kennedy. Yes.
        Judge Kavanaugh. I will say one thing about that that I do
    think is important. Oral arguments are a time for the judges to
    ask testing questions of both sides, and there is a perception
    sometimes, and you see it in the media that the oral argument,
    Judge X is leaning this way at oral argument.
        I really cannot stand that kind of commentary about oral
    argument because I, at least, have always approached oral
    argument as the time to ask tough questions of both sides. And
    I do sometimes wonder whether people would get the wrong
    impression of oral argument.
        Now I have always thought, too, though, the announcement of
    the Supreme Court decisions, when they issue the opinions, that
    is a different point in time. When if there----
        Senator Kennedy. What did you say Justice Marshall said?
    People are not fools. You have to trust in people sometimes,
    Judge.
        Judge Kavanaugh. And as to the decisions, right, that is
    when the Court is announcing its decision, and that is the
    decision of the Court. Oral argument, lawyers--people are
    asking tough questions of both sides, and sometimes you would
    think, oh, Judge X thinks this because of the oral argument
    question.
        Senator Kennedy. I understand.
        Judge Kavanaugh. But the decisions, I think that is--let us
    put it this way. If I were starting--I think I will stop there.
        [Laughter.]
        Senator Kennedy. Well, I get your point, and there are good
    arguments on both sides. But I do think that the American
    people have lost confidence in the institution of the Supreme
    Court and Congress and the Presidency, and it is ironic, given
    my generation, that the only institution that the American
    people I think have a lot of confidence in right now is the
    military, which was not true in my era.
        Judge Kavanaugh. Yes. Well, that shows----
        Senator Kennedy. But you know, you have got to trust the
    people, and too many up here on the beltway do not.
        Judge Kavanaugh. I agree with your general point.
        Senator Kennedy. You know, they do not--the people do not
    read Aristotle every day, but they get it. They will figure it
    out.
        All right. Let me ask you a couple more. You are an
    originalist?
        Judge Kavanaugh. Yes. I pay attention to the text, the
    original public meaning. But informed, I always want to make
    sure I say precedent. If you are in a constitutional case,
    precedent is critically important, and that is part of the text
    of the Constitution, too.
        Senator Kennedy. Right. But you may--and the focus of
    primarily of an originalist is an understanding of the
    Constitution by the people, an objective test, at the time it
    was written and ratified?
        Judge Kavanaugh. The meaning, as opposed to the intent, and
    then informed----
        Senator Kennedy. Right.
        Judge Kavanaugh. I always have to add precedent.
        Senator Kennedy. I get it. I am not trying to trick you.
        Judge Kavanaugh. No, I understand. I just----
        Senator Kennedy. I could not trick you.
        Judge Kavanaugh. I just want to be clear in case someone
    takes something out of context.
        Senator Kennedy. All right. Are you willing to overturn
    precedent that you think conflicts with the original public
    understanding of the document?
        Judge Kavanaugh. The Supreme Court's rules on precedent,
    the precedent on precedent, sets forth a series of conditions
    that you look for before you consider what you would overrule--
    --
        Senator Kennedy. I know that, but I am just asking if you
    come upon a case and you say, you know, I am on the Supreme
    Court now, and I have looked at this. And that is not--under
    originalism, that is not what the public understanding was.
        Judge Kavanaugh. So the first inquiry is, is the prior
    decision wrong, actually grievously wrong? And if you thought
    it was grievously wrong, that would be you would go on to the--
    because of that or for some other reason, you would go on to
    the next steps of the stare decisis inquiry. But that is how
    that would work, if I understand the question correctly.
        Senator Kennedy. Okay. All right. Can we agree that there
    were State constitutions that preceded the Federal
    Constitution?
        Judge Kavanaugh. They did, and the Framers at Philadelphia
    drew on a lot of the experience of State constitutions.
        Senator Kennedy. Yes, they drew from State constitutions.
        Judge Kavanaugh. They sure did.
        Senator Kennedy. And can we agree that every State now has
    a State constitution?
        Judge Kavanaugh. Yes, yes. And they protect a lot--a lot of
    rights.
        Senator Kennedy. Yes. In fact, they before the Federal
    Constitution was extended to the States in the Fourteenth
    Amendment, the only protection you had from the State
    government was the State constitution?
        Judge Kavanaugh. That is correct, other than the rights
    articulated in Article I, Section 10 of the original
    Constitution.
        Senator Kennedy. Right.
        Judge Kavanaugh. Yes. Ex post facto and----
        Senator Kennedy. Can we agree that your right under the
    U.S. Constitution, let us take the Bill of Rights, but you know
    what I mean. I mean the whole document.
        Judge Kavanaugh. Yes.
        Senator Kennedy. Let us take the First Amendment. Can we
    agree that the First Amendment in the United States
    Constitution sets the floor that the State counterpart, the
    State First Amendment counterpart can actually give you a
    greater First Amendment right?
        Judge Kavanaugh. Correct. And I think that is--I have
    mentioned a couple of times Judge Sutton's book, and Justice
    Brennan wrote an article in the 1970s about State
    constitutional law doing exactly what you said and encouraging
    State litigants and State courts and State court judges to
    think about exactly what you are saying.
        Senator Kennedy. And in fact, some States have.
        Judge Kavanaugh. Yes.
        Senator Kennedy. Like California, for example. Their first
    amendment, they do not have a State action requirement. Am I
    correct in that?
        Judge Kavanaugh. I will admit I have not looked at the
    California constitution recently, but I will take your
    understanding of it, Senator.
        Senator Kennedy. Well, they do not. In a private shopping
    center, so long as it is a common area, somebody can go in
    there and protest, and you have a First Amendment right under
    the State constitution.
        Judge Kavanaugh. And the only question in that case would
    be if it conflicts with another provision of the Federal
    Constitution.
        Senator Kennedy. And that is my question.
        Judge Kavanaugh. Okay.
        Senator Kennedy. That is my question. What happens when a
    State interprets its own first amendment, which it can insulate
    from review by you guys or by you soon-to-be guys on the
    Supreme Court under the adequate and independent State ground
    document, but it conflicts with your Fifth Amendment property
    right?
        Judge Kavanaugh. Well, Article VI of the Constitution makes
    clear that the Federal Constitution is the supreme law of the
    land, and that trumps not only State legislation, but also
    State constitutional decisions. So in that instance, the
    property right protected, if it were determined that what you
    are talking about violated the property right in the U.S.
    Constitution, that would control.
        Senator Kennedy. Except that is not what the United States
    Supreme Court said in the Pruneyard case.
        Judge Kavanaugh. Well, there was a----
        Senator Kennedy. Is it?
        Judge Kavanaugh. It was a balance--I think because they
    interpreted the property right not to be protected.
        Senator Kennedy. Protected.
        Judge Kavanaugh. But it----
        Senator Kennedy. But California won.
        Judge Kavanaugh. Yes, but the point being--and I think I
    have the premise, I hope I did in what I said to you. If you
    concluded that it violated the property protection in the U.S.
    Constitution, then the U.S. Constitution would control. In that
    case, the Supreme Court concluded that it did not violate the
    property protection of the U.S. Constitution.
        Senator Kennedy. Right. That is--I am not going to outsmart
    you. You are right.
        All right. You have got this--you have got this First
    Amendment speech right, free speech right on steroids in
    California, and there is no State action requirement. In Golden
    Gateway, Pruneyard, you know----
        Judge Kavanaugh. Yes.
        Senator Kennedy [continuing]. They all said it applies to a
    private entity like a shopping center. I know that Justice
    Kennedy--I do not have the language here--but he has talked
    about how the internet is the new public arena. Okay?
        If you have--and other States have adopted this approach,
    same as California, this enhanced First Amendment right with no
    State action requirement. I think New Jersey has, and there are
    some other cases. How then can Twitter in California censor any
    messages if you are living in California, and you have a First
    Amendment right, and it is not limited by the State action
    doctrine?
        Judge Kavanaugh. Senator, that sounds like a hypothetical I
    am not prepared to give you a full answer on, other than I will
    give you a broader conception of----
        Senator Kennedy. Well, it is coming.
        Judge Kavanaugh. Right. So I think one of the things with
    these proceedings for judges and Supreme Court Justice nominee
    hearings are backward looking in terms of our cases, the cases
    I have done and the cases the Supreme Court has decided. But
    one of the interesting things that I think about is, what is
    the future? What are the big issues coming down the pike?
        Senator Kennedy. Well, that is one of them.
        Judge Kavanaugh. And so speech, how technology affects our
    conception of speech, how technology affects Fourth Amendment
    rights and our conception of search and seizure and privacy. I
    think on the war powers front, which I was discussing with
    Senator Sasse and Senator Flake earlier, cyber war, and how
    does the war powers framework fit in with cyberattacks?
        And I think those are three things, all technology rooted,
    that someone sitting in this seat 10 years from now are going
    to be, I think, critical issues, and I think we also think,
    again backward looking, but what are the future crisis moments?
    Because there will be crisis moments for the Supreme Court, and
    usually those are unpredictable.
        When Justices Ginsburg and Breyer went through, you would
    not have predicted September 11th, for example, or even thought
    to ask them questions about----
        Senator Kennedy. I am going to stop you, Judge. I am going
    to run out of time.
        Judge Kavanaugh. Thank you, sir.
        Senator Kennedy. I want to talk about Chevron deference
    just for a second. Here is my understanding of Chevron, the
    deference. First of all, the statute has got to be ambiguous.
    And if it is ambiguous, according to our Supreme Court, we have
    got to adopt the agency interpretation, even if it is not the
    most reasonable interpretation.
        Judge Kavanaugh. That is right.
        Senator Kennedy. It has just got to be half-way reasonable.
        Judge Kavanaugh. They say reasonable, but even your point
    was it is not the most reasonable.
        Senator Kennedy. It is not the most reasonable, okay? Here
    is what I do not understand. You look at the APA. This is what
    the APA says, I am going to quote, ``The reviewing court''--not
    the agency--``The reviewing court shall decide all relevant
    questions of the law, interpret constitutional and statutory
    provisions, and determine the meaning or applicability of the
    terms of an agency action.''
        There it is, big as Dallas. Now that is just the Court. How
    come we have to defer to a Federal agency under 5 U.S.C.
    Section 706?
        Judge Kavanaugh. Senator, in my article that I wrote in the
    Harvard Law Review on this, I pointed out that statutory
    provision and did say that Chevron was intentioned--I think I
    used something stronger--with that statutory provision. But
    Chevron concluded what it concluded, and it has been applied
    over time.
        Now I have pointed out some problems with it in terms of
    its practical application, the ambiguity trigger. And you are
    pointing out a problem at the core, which is where did it come
    from to begin with, given what the APA----
        Senator Kennedy. Well, not only that, Judge, but I mean, I
    know you know this. But it encourages misbehavior. And let us
    suppose Senator Whitehouse or Senator Lee, they run for
    President. You know, they are not going to go out and run on
    their good looks, though they are good-looking guys and all
    that. But they are going to run on policy.
        And then they get elected, and they need us in Congress.
    And a lot of times they cannot get their bills passed.
        Judge Kavanaugh. That is right.
        Senator Kennedy. So you know what they do.
        Judge Kavanaugh. Yes.
        Senator Kennedy. They go to one of their agencies, and they
    say I am going to take my policy, square peg, and put it in a
    round hole of a statute. And all we have got to do is find a
    judge to say that the statute is ambiguous, and then we can do
    anything we want to do. And that is not right, is it?
        Judge Kavanaugh. Senator, that is a problem I have
    identified in the real world application of certain broad
    conceptions of deference and that it is a judicially
    orchestrated shift of power from the legislative branch to the
    executive branch. And the phenomenon that you have described I
    think is exactly right.
        Presidents run for office. I have seen this with the
    President I work for, President----
        Senator Kennedy. They all do it.
        Judge Kavanaugh. And you get--and if you cannot get
    legislation through, then you try to see existing statutory
    authorities where you can achieve to the extent possible your
    policy ends, and then you push the envelope on the theory of,
    well, there is ambiguity in the old statute. And then sometimes
    courts will uphold it, and that is----
        Senator Kennedy. Yes, but your hands are tied when it comes
    in front of you if a President does that. And all Presidents
    have done it. I am not blaming them. I mean, they all do it.
        But your hands are tied if the statute is ambiguous, and
    even if the agency interpretation is not the most reasonable,
    it can be the tenth most reasonable, and you have got to go
    with it.
        Judge Kavanaugh. So two things on that. One is, if the
    statute is ambiguous, as we have discussed, turns out to be a
    much more difficult inquiry. And Footnote 9 of Chevron does say
    use all the tools of statutory interpretation before you get to
    that.
        Senator Kennedy. Right.
        Judge Kavanaugh. And that is something I have cited that,
    you know, dozens and dozens of times, that footnote, to make
    sure that you are not jumping too quick to deferring to the
    agency's interpretation.
        The other thing is the major questions, major rules----
        Senator Kennedy. Could you tell me quickly? I have got 2
    minutes.
        Judge Kavanaugh. Yes. That means if it is of major economic
    or social significance, you should not defer to the agency
    because that is a big deal for Congress and----
        Senator Kennedy. I want to ask your opinion about universal
    injunctions. I do not know how many Federal judges, district
    judges we have. Seven hundred? Anybody know? Seven hundred.
        As I understand a nationwide injunction, sometimes they
    call it universal, it means that a Federal--a single Federal
    district judge can enjoin or freeze a law or a regulation. Let
    us suppose we have 700 Federal district court judges. One of
    them can enjoin a law or a regulation----
        [Disturbance in the hearing room.]
        Senator Kennedy. Thank you, ma'am. I just got an extra 20
    seconds under the rules.
        [Laughter.]
        Senator Kennedy. Anybody else want to go? I will get up to
    40. I am giving myself an extra 20 seconds. Where was I? Oh,
    yes, the nationwide injunctions.
        One Federal judge can enjoin a law or a regulation for the
    entire country, even if every other judge in the country says I
    do not agree. Now what is the legal basis for that? It has got
    to either be a statute or the Constitution.
        Judge Kavanaugh. Senator, that is an issue that is being
    contested currently in courts around the country, I think, and
    is an issue of debate. And therefore, I think I better say
    nothing about it. I apologize for that, but it is an issue of
    current debate.
        Senator Kennedy. All right.
        Judge Kavanaugh. I apologize.
        Senator Kennedy. That is okay. I have got 9 seconds. No, I
    have got 29 seconds.
        All right. This is not meant to be a trick question. This
    question is not about Title IX, and it is not about sexual
    assault, because I know you cannot answer that. But it is
    really a--well, I am not going to ask that. I am going to
    strike it.
        State action. Is a private security guard a State actor?
        Judge Kavanaugh. Well, as stated, your question stated that
    way, the answer would be ``no.'' But I think sometimes the
    cases, when you are--if you are----
        Senator Kennedy. Okay, I am going to take the ``no.''
        Judge Kavanaugh. There are questions of contracting, and if
    you are a State contractor and this and that. There are lots of
    factors.
        Senator Kennedy. Well, here is my question because I do not
    want to abuse this. I have always wondered this. If a city
    privatizes its entire police force, they are private police
    officers. Do they have to comply with the Constitution?
        Judge Kavanaugh. That is why I pointed out the contracting
    issue that I mentioned. Some of the Supreme Court case law
    would say you look at the contracting issue, and I think that
    is an interesting question that is hard to answer in the
    abstract without looking at the particular arrangement of a
    particular city or locality and figuring out how much the State
    is involved.
        Senator Kennedy. Okay. Thanks, Judge.
        Judge Kavanaugh. Thank you.
        Senator Kennedy. Senator Harris.
        Senator Harris. Thank you.
        Judge, have you ever discussed Special Counsel Mueller or
    his investigation with anyone?
        Judge Kavanaugh. Well, it is in the news every day. I----
        Senator Harris. Have you discussed it with anyone?
        Judge Kavanaugh. With other judges I know.
        Senator Harris. Have you discussed Mueller or his
    investigation with anyone at Kasowitz Benson & Torres, the law
    firm founded by Marc Kasowitz, President Trump's personal
    lawyer? Be sure about your answer, sir.
        Judge Kavanaugh. Well, I am not remembering, but if you
    have something you want to----
        Senator Harris. Are you certain you have not had a
    conversation----
        Judge Kavanaugh. I said----
        Senator Harris [continuing]. With anyone at that law firm?
        Judge Kavanaugh. Kasowitz Benson----
        Senator Harris. Kasowitz Benson----
        Judge Kavanaugh. Yes.
        Senator Harris [continuing]. And Torres, which is the law
    firm founded by Marc Kasowitz----
        Judge Kavanaugh. Yes.
        Senator Harris [continuing]. Who is President Trump's
    personal lawyer. Have you had any conversation about Robert
    Mueller or his investigation with anyone at that firm? ``Yes''
    or ``no''?
        Judge Kavanaugh. Well, is there a person you are talking
    about?
        Senator Harris. I am asking you a very direct question, a
    yes or a no.
        Judge Kavanaugh. Okay. I need to know the--I am not sure I
    know everyone who works at that law firm.
        Senator Harris. I do not think you need to. I think you
    need to know who you talked with. Who did you talk to?
        Judge Kavanaugh. I do not think I--I am not remembering,
    but I am happy to be refreshed or if you want to tell me who
    you are thinking of that works----
        Senator Harris. Sir, are you saying that with all that you
    remember--you have an impeccable memory. You have been speaking
    for almost 8 hours, I think more, with this Committee about all
    sorts of things you remember.
        Judge Kavanaugh. Yes.
        Senator Harris. How can you not remember whether or not you
    had a conversation about Robert Mueller or his investigation
    with anyone at that law firm?
        Judge Kavanaugh. I do not----
        Senator Harris. This investigation has only been going on
    for so long, sir, so----
        Judge Kavanaugh. Right. I am not sure I----
        Senator Harris [continuing]. Please answer the question.
        Judge Kavanaugh. I am just trying to think, do I know
    anyone who works at that firm. I might know----
        Senator Harris. Have you had--that is not my question. My
    question is have you had a conversation with anyone at that
    firm about that investigation? It is a really specific
    question.
        Judge Kavanaugh. I would like to know the person you are
    thinking of because what if there is----
        Senator Harris. I think you are thinking of someone and you
    do not want to tell us. Who did you have a conversation with--
    --
        Judge Kavanaugh. I am not going to----
        Senator Lee. Mr. Chairman, I would like to raise an
    objection here. This town is full of law firms. Law firms are
    full of people.
        Senator Harris. First of all, I would like you to----
        Senator Lee. Hold on.
        Senator Harris [continuing]. Pause the clock.
        Senator Lee. He----
        Senator Harris. Thank you.
        Senator Tillis [presiding]. The clock is paused.
        Senator Harris. Thank you.
        Senator Lee. Pause the clock. Let me raise my objection.
        Senator Tillis. The Senator is recognized.
        Senator Lee. This town is full of law firms. Law firms are
    full of people. Law firms have a lot of names. There are a lot
    of people who work at a lot of law firms.
        [Disturbance in the hearing room.]
        Senator Tillis. Senator Lee.
        Senator Lee. On that point, law firms abound in this town,
    and there are a lot of them. They are constantly metastasizing.
    They break off. They form new firms. They are like rabbits.
    They spawn new firms. There is no possible way we can expect
    this witness to know who populates an entire firm----
        [Disturbance in the hearing room.]
        Senator Lee [continuing]. That he is not even----
        [Disturbance in the hearing room.]
        Senator Lee. My point of order, Mr. Chairman, is simply
    this. If there are names, if there is a list of names he can be
    given of the lawyers to whom she is referring, I think that is
    fine, but I think it is unfair to suggest that an entire law
    firm should be imputed into the witness' memory when he does
    not know who works at the law firm.
        Senator Whitehouse. Mr. Chairman? Mr. Chairman?
        Senator Tillis. Senator Whitehouse----
        Senator Whitehouse. We have a----
        Senator Tillis [continuing]. Are you making a point of
    order?
        Senator Whitehouse. Well----
        Senator Tillis. Senator Whitehouse, the----
        Senator Whitehouse [continuing]. I am trying to figure out
    what the rules are here because we had a very, very long
    discussion about whether or not points of order were in order
    because this is a hearing. And we were told that all of our
    points of order----
        Senator Tillis. Senator Whitehouse, there----
        Senator Whitehouse [continuing]. About all the documents--
    --
        Senator Tillis [continuing]. Has never been a time in the 2
    days where someone has made an inquiry of the Chair where the
    Chair has not recognized the Member for a point of inquiry or
    point of order----
        Senator Whitehouse. And I have been recognized----
        Senator Tillis [continuing]. And that was one of them.
        Senator Whitehouse [continuing]. Now, and I appreciate
    that. But my point is that if the rule is that nobody on our
    side can make a point of order, then it ought not to be
    appropriate for Senator Lee to start making points of order----
        Senator Tillis. Well, the----
        Senator Whitehouse [continuing]. After all of ours were
    summarily----
        Senator Tillis. Senator----
        Senator Whitehouse [continuing]. Silenced on the basis that
    we were in a hearing and not in an executive session. If we
    have moved out of hearing and into executive session, then I am
    more than happy to make motions----
        Senator Tillis. Senator Whitehouse----
        Senator Whitehouse [continuing]. To adjourn.
        Senator Tillis [continuing]. The mere fact that you are
    speaking right now means that you have been allowed to make a
    point of order. The matter that you were talking about
    yesterday was a motion that the Chair said was out of order
    because it was an adjournment motion that would have required
    us to be in executive session. Anyone who wants to make an
    inquiry of the Chair may do so, but we will limit it to that
    before we go back to Senator Harris.
        Senator Whitehouse. Very good. That is the right result.
        Senator Harris. Sir, please answer the question.
        Judge Kavanaugh. I do not know everyone who works at that
    law firm, Senator.
        Senator Harris. And have you had any discussion with anyone
    ever about Bob Mueller and/or his investigation?
        Judge Kavanaugh. So you said Bob Mueller--or, so have I----
        Senator Harris. Or----
        Judge Kavanaugh. Ever had a discussion about Bob Mueller? I
    used to work in the administration with Bob Mueller.
        Senator Harris. What about his investigation? Have you had
    a conversation with anyone about his investigation?
        Judge Kavanaugh. I am sure I have talked to fellow judges.
        Senator Harris. Anyone aside from fellow judges?
        Judge Kavanaugh. About Bob Mueller?
        Senator Harris. About his investigation, sir. I will ask
    again.
        Judge Kavanaugh. But----
        Senator Harris. I asked the question just a minute ago. I
    am surprised you forgot. Have you had this conversation with
    anyone about the investigation that Bob Mueller is conducting
    regarding Russia interference with our election or any other
    matter?
        Judge Kavanaugh. The fact that it is ongoing, it is a topic
    in the news every day, I talk to fellow judges about it. It is,
    you know, in the courthouse in the District of Columbia so I--
    --
        Senator Harris. And----
        Judge Kavanaugh. Guess----
        Senator Harris [continuing]. And I will ask it one last
    time.
        Judge Kavanaugh. The answer to that is, ``yes.'' So the
    answer is ``yes.''
        Senator Harris. Okay. And did you talk with anyone at
    Kasowitz Benson & Torres?
        Judge Kavanaugh. You asked me that. I need to know who
    works there.
        Senator Harris. I think you can answer the question without
    me giving you a list of all employees of that law firm.
        Judge Kavanaugh. Well, actually, I cannot. I----
        Senator Harris. Why not?
        Judge Kavanaugh. Because I do not know who works there.
        Senator Harris. So that is the only way you would know who
    you spoke with? I want to understand your response to my
    question because it is a very direct one. Did you speak with
    anyone at that law firm about the Mueller investigation? It is
    a very direct question.
        Judge Kavanaugh. Right. I would be surprised but I do not
    know everyone who works at that law firm, so I just want to be
    careful because your question was and/or, so I want to be very
    literal.
        Senator Harris. That is fine. I will ask a more direct
    question if that is helpful to you. Did you speak with anyone
    at that law firm about Bob Mueller's investigation?
        Judge Kavanaugh. I am not remembering anything like that,
    but I want to know a roster of people and I want to know more.
        Senator Harris. So you are not denying that you have
    spoken----
        Judge Kavanaugh. Well, I said I do not remember anything
    like that.
        Senator Harris. Okay. I will move on.
        Judge Kavanaugh. Okay.
        Senator Harris. Clearly, you are not going to answer the
    question. When you and I met, we talked about race relations in
    this country, and there has been a lot of talk among my
    colleagues with you about the subject. And when you and I met,
    I brought up the incident in Charlottesville where, as you
    know, there was a rally by White supremacists that left a young
    woman dead. You will recall that the President who nominated
    you described the incident by saying, quote, ``I think there is
    blame on both sides.'' So I think this will be a simple
    question for you. Do you, sir, believe there was blame on both
    sides?
        Judge Kavanaugh. Senator, we did talk, and I enjoyed our
    meeting and to talk about the history of this country. And we
    talked about that at some length and talked about
    discrimination. I appreciated your opening statement yesterday
    where you talked about your experience. One of the principles I
    have articulated throughout this hearing is the independence of
    the judiciary.
        Senator Harris. And, sir, I would appreciate it if you
    would answer the question.
        Judge Kavanaugh. I am, Senator. So one of the principles I
    have talked about throughout this hearing is the independence
    of the judiciary. And one of the things judges do, following
    the lead of the Chief Justice, and what all the judges do is
    stay out of current events, stay out of commenting on current
    events because it risks confusion about what our role is. We
    are judges who decides cases in controversy. We are not
    pundits, so we do not comment on current events. We stay out of
    political controversy.
        Senator Harris. Judge, with all due respect, I only have
    limited time.
        Judge Kavanaugh. But it is----
        Senator Harris. Are you saying that it is too difficult a
    question or it is a question you cannot answer, which is
    whether you agree with the statement that there was blame on
    both sides? We can move on, but are you saying you cannot
    answer that pretty simple question?
        Judge Kavanaugh. I am saying that the principle of the
    independence of the judiciary means that I cannot insert myself
    into politics in either of two ways: commenting on political
    events or, in my view, commenting on things said by
    politicians, a Governor, a Senator, or a Congressperson, a
    President. I am not here to assess comments made in the
    political arena because the risk is, I will be drawn into the
    political arena, and the Justices and judges of the United----
        Senator Harris. Sir--and I appreciate your point, but there
    was such a robust conversation that happened, especially with
    my colleagues on the other side and you about race. So on the
    subject of race, I raise this question. But we can move on.
        Have you ever heard the term, quote, ``racial spoils
    system''?
        Judge Kavanaugh. Yes, and that is a term that sometimes is
    used to--yes, I have heard that term.
        Senator Harris. You twice wrote the term in The Wall Street
    Journal opinion piece describing the Cayetano case that you
    discussed previously with Senator Hirono. And I will tell you,
    the racial spoils system, that term stood out to me, so I
    actually decided to look it up in the dictionary, the term
    spoils, and in the dictionary, spoils is defined as, quote,
    ``goods stolen or taken forcibly from a person or a place.''
    Can you tell me what the term racial spoils system means to
    you?
        Judge Kavanaugh. Senator, first of all, the Supreme Court
    affirmed the position that I had articulated in the amicus
    brief 7-to-2 in Rice v. Cayetano, an opinion written by Justice
    Kennedy.
        Second of all, the State voting restriction at issue in
    Hawaii was a State office, State office for the Native
    Hawaiian, and it----
        Senator Harris. Judge, that is not what I asked you.
        Judge Kavanaugh. But it----
        Senator Harris. If you can define the term as you used it,
    what does it mean to you?
        Judge Kavanaugh. But you raised the case, and the State
    voting restriction in that case denied Hawaiians, residents of
    Hawaii the ability to vote on the basis of their race. So if
    you were Latino or African-American, you could not vote in the
    election.
        Senator Harris. And I heard your response to that earlier,
    and I appreciate the point that you made then. My question is,
    you used this term----
        Judge Kavanaugh. Right.
        Senator Harris [continuing]. Twice, and I am asking what
    does the term mean to you?
        Judge Kavanaugh. I am not sure what I was referring to
    then, to be entirely frank, so I would have to see the context
    of it. But what I do know is that the Supreme Court, by a 7-to-
    2 margin, agreed with the position articulated in the amicus
    brief and that the voting restriction there was for a State
    office and denied people the ability to vote on account of
    their race. So it was----
        Senator Harris. Sir, I appreciate that, but you have been
    very forthcoming about the amount of work and preparation that
    you put into everything you do. You have certainly led me to
    believe that you are very thoughtful about the use of your
    words and your knowledge that words matter, especially words
    coming from someone like you or anyone of us. So I would like
    to know what you meant when you used that term, but we can move
    on. But I will say this: Are you aware that the term is
    commonly used by White supremacists?
        Judge Kavanaugh. Senator, when I wrote that, that was 20
    years ago in the context of a voting restriction that denied
    African Americans and Latinos the ability to vote in Hawaii. I
    was representing a client when I articulated that. And the
    answer to your question is no.
        Senator Harris. Okay. Well, unfortunately, it has been, and
    it is something that you should know. You should know that the
    same year you wrote your op-ed, a magazine published a cover
    story, a magazine that is described as being a White
    supremacist magazine, published a cover story about what it
    called, quote, ``the racial spoils system,'' of, quote,
    ``affirmative action, the double standard in crime, sensitivity
    toward Black deficiencies, and everything else.''
        The same year a self-proclaimed Eurocentrist wrote, quote,
    ``While Blacks are generally regarded as the recognized expert
    in the game of racial shakedown, it is American Indians who may
    actually be the real geniuses at obtaining `racial spoils'.''
    So we can move on, but my concern is that this is a loaded
    term, and it would be important to know that someone who may
    very well and very possibly serve on the United States Supreme
    Court would be aware that the use of certain terms will have a
    profound meaning because they are loaded and associated with a
    certain perspective and sometimes a certain political agenda.
        Judge Kavanaugh. Well, I take your point. I would point out
    that Hawaii was denying Latinos and African Americans the
    ability to vote in a State election at the time, but I take
    your point and I appreciate it.
        Senator Harris. Thank you. In Griswold and Eisenstadt, the
    Supreme Court said that States could not prohibit either
    married or unmarried people from using contraceptives. Do you
    believe Griswold and Eisenstadt were correctly decided?
        Judge Kavanaugh. So those cases followed from the Supreme
    Court's recognition of unenumerated rights in the Pierce and
    Meyer cases earlier. And so what those cases held is that there
    is a right of privacy----
        Senator Harris. And do you agree, do you personally agree,
    these cases, those two cases were correctly decided? So I am
    asking not what the Court held but what you believe.
        Judge Kavanaugh. Right. So to just go back to Pierce and
    Meyer, those cases recognized a right of privacy, the ability,
    one might say family autonomy or privacy is the term under the
    Liberty Clause of the Due Process Clause of the Fourteenth
    Amendment.
        Senator Harris. And with due respect, then, Judge, I am
    asking do you agree that those cases were rightly decided----
        Judge Kavanaugh. So I think----
        Senator Harris [continuing]. And correctly decided?
        Judge Kavanaugh. So in Griswold, I think that Justice
    White's concurrence is a persuasive application because that
    specifically rooted the Griswold result in the Pierce and Meyer
    decisions. I thought that was a persuasive opinion and no----
        Senator Harris. Do you believe that it is correctly
    decided?
        Judge Kavanaugh. Quarrel with that. That is a----
        Senator Harris. Do you believe it was correctly decided?
    Words matter. Again, words matter.
        Judge Kavanaugh. Yes.
        Senator Harris. Do you believe it was correctly decided?
        Judge Kavanaugh. I think, given the Pierce and Meyer
    opinions, like I said, Justice White's concurrence in Griswold
    was a persuasive application of Pierce and Meyer. I have no
    quarrel with it. I----
        Senator Harris. So there is a term that actually both Chief
    Justice Roberts and Justice Alito used, I believe, and affirmed
    in their confirmation hearings that these cases were correct.
    And so I am asking you the same question. Are you willing in
    this confirmation hearing to agree that those cases were
    correctly decided?
        Judge Kavanaugh. Well, given the precedent of Pierce and
    Meyer, I agree with Justice Alito and Chief Justice Roberts,
    what they said.
        Senator Harris. That it was correctly decided.
        Judge Kavanaugh. That is what they said so----
        Senator Harris. Do you believe the right to privacy
    protects a woman's choice to terminate a pregnancy?
        Judge Kavanaugh. That is a question that, of course,
    implicates Roe v. Wade, and, following the lead of the nominees
    for the Supreme Court, all eight sitting Justices of the
    Supreme Court have recognized two principles that are
    important: One, we should not talk about, in this position,
    cases or issues that are likely to come before the Supreme
    Court or could come before the Supreme Court; and second, I
    think Justice Kagan provided the best articulating of
    commenting on precedent. She said we should not give a thumbs
    up or thumbs down.
        Senator Harris. No, I appreciate that. And I----
        Judge Kavanaugh. And then----
        Senator Harris [continuing]. Did hear you make reference to
    that perspective earlier. But you also, I am sure, know that
    Justice Ginsberg, at her confirmation hearing, said on this
    topic of Roe, quote, ``This is something central to a woman's
    life, to her dignity. It is a decision she must make for
    herself, and when Government controls that decision for her,
    she is being treated as less than a fully adult human
    responsible for her own choices.'' Do you agree with the
    statement that Justice Ginsberg made?
        Judge Kavanaugh. So Justice Ginsberg, I think there, was
    talking about something she had previously written about Roe v.
    Wade. The other seven Justices currently on the Supreme Court
    have been asked about that and have respectfully declined to
    answer about that or many other precedents, whether it was
    Justice Marshall about Miranda or about Heller----
        Senator Harris. And we discussed that earlier.
        Judge Kavanaugh. Or Citizens United. And it is rooted--I
    just want to underscore. It is rooted in judicial
    independence----
        Senator Harris. No, I appreciate that, but--I am glad you
    mentioned that Justice Ginsberg had written about it before,
    because you also have written about Roe when you praised
    Justice Rehnquist's Roe dissent. So in that way you and Justice
    Ginsberg are actually quite similar, that you both have
    previously written about Roe. So my question is, do you agree
    with her statement or, in the alternative, can you respond to
    the question of whether you believe a right to privacy protects
    a woman's choice to terminate her pregnancy?
        Judge Kavanaugh. So I have not articulated a position on
    that. And consistent with the principle articulated, the
    nominee precedent that I feel duty-bound to follow as a matter
    of judicial independence, none of the seven other Justices when
    they were nominees have talked about that, nor about Heller,
    nor about Citizens United, nor about Lopez v. United States,
    Thurgood Marshall about Miranda. Justice Brennan asked about
    his----
        Senator Harris. And, respectfully, Judge, as it relates to
    this hearing, you are not answering that question, and we can
    move on.
        Can you think of any laws that give Government the power to
    make decisions about the male body?
        Judge Kavanaugh. I am happy to answer a more specific
    question but----
        Senator Harris. Male versus female.
        Judge Kavanaugh. There are medical procedures----
        Senator Harris. That the Government has the power to make a
    decision about a man's body?
        Judge Kavanaugh. I thought you were asking about medical
    procedures----
        Senator Harris. No.
        Judge Kavanaugh. That are unique to men.
        Senator Harris. I will repeat the question. Can you think
    of any laws that give the Government the power to make
    decisions about the male body?
        Judge Kavanaugh. I am not thinking of any right now,
    Senator.
        Senator Harris. When referring to cases as settled law, you
    have described them as precedent and, quote, ``precedent on
    precedent.'' You have mentioned that a number of times----
        Judge Kavanaugh. Yes.
        Senator Harris [continuing]. Today, and through the course
    of the hearing. As a factual matter, can five Supreme Court
    Justices overturn any precedent at any time if a case comes
    before them on that issue.
        Judge Kavanaugh. Start with the system of precedent that is
    rooted in the Constitution.
        Senator Harris. I know, but just as a factual matter, five
    Justices, if in agreement, can overturn any precedent. Would
    you not agree?
        Judge Kavanaugh. Senator, there is a reason why the Supreme
    Court does not do that.
        Senator Harris. But do you agree that it can do that?
        Judge Kavanaugh. Well, it has overruled precedent at
    various times in our history, the most prominent example being
    Brown v. Board of Education, the Erie case, which overruled
    Swift v. Tyson. There are tons----
        Senator Harris. So we both agree the Court has done it and
    can do it.
        Judge Kavanaugh. There are times, but there is a series of
    conditions, important conditions that, if faithfully applied,
    make it rare. And the system of precedence rooted in the
    Constitution, it is not a matter of policy to be discarded at
    whim.
        Senator Harris. But there is nothing, you and I agree, that
    prevents the Court from doing it, meaning that it is not
    prohibited.
        Judge Kavanaugh. The----
        Senator Harris. The Court is--if I may finish.
        Judge Kavanaugh. Yes.
        Senator Harris. The Court is not prohibited from overruling
    or overturning precedent. No matter what the steps are that the
    Court must take, the Court may overrule precedent.
        And so my question also is, then do you believe that this
    can happen no matter how long the precedent has been on the
    books? For example, there is no statute of limitations during
    which, after that statute of limitations has passed, the Court
    may not touch precedent. Would you agree?
        Judge Kavanaugh. Well, for example, the Supreme Court this
    past year said that Korematsu had been overturned in the court
    of history. That, of course, was the case that allowed the
    internment during World War II----
        Senator Harris. Yes. Yes, I am familiar with----
        Judge Kavanaugh. Of Japanese Americans. And the Supreme
    Court this past term--that was a 1942 or 3 decision and the
    Supreme----
        Senator Harris. But you would agree there is no statute of
    limitations? The Court can go back as far as it wanted if it
    believed it was warranted? There is nothing that prevents the
    Court from reaching back many years?
        Judge Kavanaugh. What I would say is, there are a series of
    conditions that the Supreme Court must meet----
        Senator Harris. I agree.
        Judge Kavanaugh. And the age of a precedent, as, I think,
    the Supreme Court itself has articulated many times, does
    ordinarily add to the force of the precedent and make it an
    even rarer circumstance where the Court would disturb an old--
    --
        Senator Harris. Thank you.
        Judge Kavanaugh. Precedent.
        Senator Harris. Thank you. I have a couple of questions for
    you about voter suppression. Our history, as you know, is
    littered with shameful attempts to deny voting rights,
    especially for communities of color and particularly the
    African-American community in this country. For 50 years, the
    Voting Rights Act has protected against racial discrimination
    in voting. I know you had this conversation prior to this with
    my colleague, Senator Booker. Under the Act, it states that a
    record of discriminatory voting practices had to obtain Federal
    permission in order to change their voting laws. I know you are
    familiar with that. But then came the Court's decision in
    Shelby and by a 5-to-4 vote, the Court gutted the Act,
    effectively ending Federal approval requirement.
        The majority believed that the requirement had outlived its
    usefulness. As you know, that was part of the ruling,
    essentially saying that the threat of race-related voter
    suppression had diminished.
        So my question is, are you aware that within weeks of the
    Supreme Court's ruling, Republican legislators in North
    Carolina rushed through a laundry list of new voting
    restrictions, restrictions that disproportionately
    disenfranchised racial minorities? And it is just a ``yes'' or
    ``no'' question--are you aware of that?
        Judge Kavanaugh. I recall reading about efforts in the
    aftermath, but one thing I would point out is I believe the
    Supreme Court's concern in that case was with the formula that
    was used for which States were covered by the preclearance
    requirement. I do not believe the Court said that Congress was
    proscribed from going back and redoing the formula. So on the
    ``outlived its usefulness,'' I believe what the Court said--I
    am just describing it, not saying whether I agree or disagree--
    was saying the formula had not been updated to reflect current
    conditions but was not saying that preclearance was precluded
    if Congress went back and adjusted the formula and studied
    current conditions.
        Senator Harris. Are you aware, as it relates again to that
    North Carolina action, that the Federal court of appeals later
    held that these restrictions intentionally discriminated
    against African-American voters, targeting them, quote--and
    these are the words of the Court--``with almost surgical
    precision.'' Are you aware of that ruling?
        Judge Kavanaugh. When was that decision, Senator?
        Senator Harris. That was--I believe that was in--it was
    shortly after----
        Judge Kavanaugh. Okay.
        Senator Harris [continuing]. A few years ago, 2016.
        Judge Kavanaugh. I am aware that there has been a lot of
    voter ID litigation in other voting-related, election-related
    litigation in North Carolina----
        Senator Harris. Yes.
        Judge Kavanaugh. In particular, over the last several
    years, and so, I am generally aware of all the litigation in
    North Carolina.
        Senator Harris. And are you aware that Republicans in
    Texas, Alabama, Mississippi, Georgia, and Florida have also
    implemented new voting restrictions since Shelby, again,
    disproportionately disenfranchising minority voters?
        Judge Kavanaugh. Well, I know there is--I am not aware of
    the specifics of all that, but I do follow election law blogs
    and election law updates to keep generally aware of
    developments in the election law area. It is an area----
        Senator Harris. Would you not agree, then, reading about
    this on the blogs, that it is troubling? In fact, compounding
    those with the recent proposal to close more than two-thirds of
    polling places in Randolph County, Georgia, where more than 60
    percent of the residents are Black. Would you not agree that
    that is troubling?
        Judge Kavanaugh. I am not aware of that specific, but as I
    had the South Carolina voter ID case, what I tried to make
    clear through the trial in that case and the opinion, which was
    unanimous, that the reality of racial discrimination in America
    exists.
        Senator Harris. Yes.
        Judge Kavanaugh. The long march for racial equality is not
    over and that courts must scrutinize efforts to look for
    discriminatory intent, or discriminatory effects can always be
    evidence of an intent, and uncertain laws, the effects
    themselves can be problematic.
        Senator Harris. And do you believe that the Court in Shelby
    underestimated, then, the danger that was presented in terms of
    States' willingness to restrict the right to vote?
        Judge Kavanaugh. Well, I do not want to comment on the--I
    think that is getting to the correctness or incorrectness of
    Shelby, in particular. I just want to underscore, at least as I
    recall the opinion, it did say Congress itself could adjust the
    formula for preclearance, and I do not think Congress has done
    so, but that is----
        Senator Harris. And clearly unwilling to do it, so there
    will have to be some recourse, do you not agree, for those
    voters in these various States if Congress is unwilling to act,
    to give them due process in terms of equal access to the polls
    so that they can vote? Otherwise, we are looking at widespread
    disenfranchisement. Would you not agree, if Congress does not
    act?
        Judge Kavanaugh. So Shelby dealt with the preclearance
    requirement. There is still, of course, Section 2 of the Voting
    Rights Act----
        Senator Harris. Right.
        Judge Kavanaugh. Which allows litigation brought by
    plaintiffs to challenge voting restrictions that are enacted
    with discriminatory intent or discriminatory effects----
        Senator Harris. All right.
        Judge Kavanaugh. As well.
        Senator Harris. Do you believe that Section 2 is
    constitutional?
        Judge Kavanaugh. I think that is asking me a hypothetical
    about any statute----
        Senator Harris. Well, because you referred to it, I would
    like to know----
        Judge Kavanaugh. Well----
        Senator Harris. I would assume that you think it is
    constitutional if you think it is a tool.
        Judge Kavanaugh. Well, I think as a general matter--I do
    not want to pre-commit on any statute that you would identify.
    If there is some challenge raised, I will, of course, listen to
    the arguments. But Section 2 is an important tool for the
    voting rights enforcement. The Voting Rights Act of 1965 is one
    of the most consequential and effective statutes ever passed by
    Congress, and, you know, I have said that. And the history is,
    of course, well-known, but the voting rates before the 1965 act
    were abysmal because of the discriminatory restrictions that
    were in place. And the immediate effects of the Voting Rights
    Act of 1965 were enormous and are very important for people to
    understand.
        Senator Harris. I agree. And in fact, to that point, in his
    confirmation hearing in 2005, Chief Justice Roberts, when asked
    about Section 2 and whether it was constitutional said, quote,
    ``I have no basis for viewing it as constitutionally suspect,
    and I do not.'' Do you agree with Chief Justice Roberts that
    the law is not constitutionally suspect, or do you have a
    different view?
        Judge Kavanaugh. I do not have any basis for viewing it
    that way either. I was just--if you ask me about any statute, I
    want to be careful because I do not know what arguments could
    come up, and I always want to make sure I have preserved the
    judicial independence and have not pre-committed. But I agree I
    have no basis for doing that.
        Senator Harris. And then after the President nominated you
    to the Supreme Court, you had a chance before now--it was the
    only chance actually before now--to introduce yourself to the
    American people. You stood in the East Room of the White House
    and you thanked the President for your nomination. And then
    immediately you said, quote, ``No President has ever consulted
    more widely or talked with more people from more backgrounds to
    seek input about a Supreme Court nomination.'' Now, by my
    count, there have been 163 nominations to the Supreme Court, so
    unless you have personal knowledge about every one of these
    nominations before yours, including who those Presidents
    consulted with and who they talked to, and I cannot imagine
    that you have that personal knowledge. My question is did
    someone tell you to say that?
        Judge Kavanaugh. No one told me to say that. Those were my
    own words. They were based on my--I did look into it a little
    bit in terms of thinking about what was possible before cell
    phones and before phones and then thinking about the history.
    And I know some of the history of Supreme Court nominations,
    and I also know in that 12-day period, I do know that President
    Trump talked to an enormous number of people. I think President
    Clinton, when I look back on it--that is why I said no one--
    President Clinton, as I recall, had a consultation process that
    was very wide as well, but that was my analysis of the
    situation. Those were my words, entirely my words, and I
    thought it was important to point out the--because I was--as I
    said yesterday, I was deeply impressed by the thoroughness of
    the process during the 12 days, and I said as much yesterday
    and I said as much in the East Room. The 12-day process was--at
    least it seemed to me--quite a thorough process.
        Senator Harris. Thank you. And then I am going to follow up
    with some questions for the record for you on the first
    question I asked.
        Judge Kavanaugh. Okay.
        [The information appears as a submission for the record.]
        Senator Harris. Thank you. Thank you.
        Senator Tillis. Judge Kavanaugh, we started this about
    12\1/2\ hours ago. I am amazed that you are able to continue to
    respond and compose yourself in the way that you have. I want
    to cover a couple of things, and I am going to try and keep my
    comments limited so that we can get you, hopefully, with a
    decent night's sleep.
        A few minutes ago, you were asked some questions about
    emails or an email chain that you were involved in, and you did
    not get an opportunity to see them. You have not seen them
    before. I had not either. As a matter of fact, when I heard
    them read, I thought at least in one case they were being
    presented as your words, and then come to find out, because you
    astutely asked a question, you found out they were actually
    somebody else's words. So I did look into reading them. There
    is a reason why you do not have them, and that is because they
    are clearly marked ``committee confidential.''
        Senator Lee brought up the point when the gentleman from
    New Jersey was speaking that we would work hard to try and look
    and see if we could get those documents cleared, but I also
    point out that those documents were made available to everybody
    on this Committee, any staff who supports the Senator on this
    Committee, on August the 22nd. And the last confirmation
    process with Neil Gorsuch, Senator Feinstein availed herself of
    that courtesy to be able to look at documents and have them
    cleared. In this confirmation hearing, Senator Klobuchar did
    the same thing.
        The reason why it is very important for Members of this
    Committee to honor the confidentiality requirements is because
    we become stewards of documents that were provided under the
    Presidential Records Act. Now, we are going to go back and try
    and clear these documents. I would encourage all my colleagues
    that if you have not taken the time in the weeks that these
    documents were available to go through a process that Chairman
    Grassley has honored, please do so before you disclose such
    information before this hearing. So we will see whether or not
    that information is made available. And I will assume that
    Senator Lee will work alongside Senator Booker to see if that
    is possible.
        I also want to go back to Kozinski for a minute, and you
    can actually take a break and drink some water because I do not
    really expect you to respond to any of this. I am going to get
    to a couple of questions. You were asked about Judge Kozinski.
    I think you were a clerk for him about 27 years ago. But you
    were not allowed to answer those questions. And I am not going
    to ask you about any of them right now, but I really want to
    kind of lay the groundwork for maybe where we can go with
    questions tomorrow. It has given me some food for thought on
    maybe where I will go down that line if others do.
        You know, it is one thing for the people in the back to
    speak over you and make it difficult to hear, but I find it
    particularly insulting when Members here ask you questions of
    what I consider an incendiary nature and really never give you
    a chance to respond.
        So here is a question I want--well, maybe I will ask you
    this. Are you Judge Kozinski?
        Judge Kavanaugh. No.
        Senator Tillis. Okay. Because all of this was about
    somebody's else behavior for whom you clerked 27 years ago. You
    do not even have to answer that. So some of my colleagues are
    arguing, because you clerked with him and you knew him, that
    you knew everybody about him. Now, this is what is interesting
    to me. It turns out you are not the only judge that we have
    considered who clerked for Judge Kozinski. President Obama
    nominated and the Democrats voted to confirm Paul Watford on
    the Ninth Circuit. He clerked for Judge Kozinski. And actually,
    when the Ranking Member introduced him, she highlighted that
    fact. And, as a matter of fact, Judge Watford, I believe,
    worked with Judge Kozinski on the Ninth Circuit Court for about
    5 years. I think that is right, about five and a half years.
        So I do not want you to respond to this either, but if we
    are going to ask somebody who clerked for a judge 27 years ago
    why did you not know everything about that judge, then I think
    perhaps I would like to get copies of letters from Members of
    the Senate here who should be sending letters to Judge Watford
    and asking him the same question.
        And now let us go a little bit further because I think we
    have got a double standard going on here. We had a Member in
    the U.S. Senate faced with a number of allegations for sexual
    harassment by women. When those allegations surfaced, it even
    included photographs in terms of the behavior in question. And
    when reporters asked Members about their thoughts on that and
    whether or not the Member should resign, they said that is not
    a distraction that we should be dealing with here in the
    Senate.
        So I feel like tomorrow, if we go down this path, then we
    should be prepared to make sure that we fully explore the
    double standard and perhaps the questions that we should have
    for other people who worked with Judge Kozinski.
        Now, I want to get to Rice v. Cayetano, and I want you to
    go back very quickly, and the thing that you have said multiple
    times I think is very important because we have had a number of
    discussions here about Voting Rights Act and denying various
    people the right to vote. And this particular case, this case
    was about potentially denying people in the State of Hawaii the
    right to vote based on their ethnicity, Latinos, African
    Americans, Asian Americans. Can you tell me a little bit more
    about that? And be brief. I am going to try and be brief just
    so I can yield back some of my time.
        Judge Kavanaugh. Yes. It was the Office of Hawaiian
    Affairs, and it was a State office, however, and they
    restricted voting for that office and denied voting to people
    who were residents and citizens of Hawaii but who were not of
    the correct race, and therefore, African Americans and Latinos
    and, as you say, Asian Americans, Whites in Hawaii were barred
    from voting for that office. And the Supreme Court held that
    that was a straightforward violation of the Fourteenth and
    Fifteenth Amendments to the U.S. Constitution.
        Senator Tillis. And I believe you said by a 7-to-2----
        Judge Kavanaugh. By a 7-to-2 majority in an opinion written
    by Justice Kennedy.
        Senator Tillis. Okay.
        Now, I actually have to get to one fun thing that you may
    have to do some damage repair on. Yesterday, when you
    introduced Margaret and Liza, you told me that Liza, you end
    every night--she gives you a hug. You said she gives the best
    hugs in the world. Today, you mentioned to Senator Graham that
    Margaret came down and gave you a second hug.
        Judge Kavanaugh. She did.
        Senator Tillis. So I was wondering if those competitive
    instincts are at play where she is trying to make up with
    quantity over quality.
        Judge Kavanaugh. It is possible. As I think I said----
        Senator Tillis. I am sure it was an act of love, but it
    could have been competitive, too.
        Judge Kavanaugh. Margaret is 13 now, and when you are 13,
    the hugs are fewer and far between, but----
        Senator Tillis. That is right.
        Judge Kavanaugh. She came down last night and it was very
    nice. She gave me a special extra hug.
        Senator Tillis. In the next couple of minutes I want to
    talk about--you know, we had people here talk about you being
    an advocate for big business, an advocate for the rich, that
    you would be somebody who would be beholding to your boss or at
    least the person who nominated you.
        So I want to go back through in just a couple of minutes
    and talk about a few things that have been discussed but I
    think they bear repeating, and I think that they--and the first
    one we need to add a little bit of context. I was in the White
    House when the President announced your nomination, and I
    believe in your comments you mentioned that the first date that
    you had with your wife Ashley was on September the 10th. Is
    that right?
        Judge Kavanaugh. That is correct----
        Senator Tillis. September the 10th----
        Judge Kavanaugh. September the 10th, 2001.
        Senator Tillis [continuing]. 2001.
        Judge Kavanaugh. Yes, and I----
        Senator Tillis. And we know what happened the next day.
        Judge Kavanaugh. Yes.
        Senator Tillis. And all the terrible events that you had to
    deal with, including your President that you have said every
    day came in the office and said this can never happen again.
    And that was the culture for the whole time you were in the
    office.
        So then you moved forward a few years later and you are on
    the Circuit and you do Hamdan v. United States. Now, you had
    personally experienced an evacuation of the building that you
    thought could potentially be at risk. You worked with the
    President, who was personally very much invested in trying to
    protect the American people. And then you had this case. And in
    this particular case, tell me what you did.
        Judge Kavanaugh. The case involved Salim Hamdan, who had
    been an associate of Osama bin Laden's, and the case came to us
    through a military commission conviction. And the question was
    whether it violated ex post facto principles, and what that
    means was were you being convicted of something that was not a
    law in place at the time you committed the act.
        Senator Tillis. I read your opinion, and basically you said
    that----
        Judge Kavanaugh. I said it was a violation.
        Senator Tillis. Right.
        Judge Kavanaugh. Yes. So we reversed the conviction of
    Hamdan. In that case, I wrote the majority opinion in that
    case.
        Senator Tillis. Incidentally, I mentioned yesterday there
    was probably a couple of cases that I did not like the way you
    ruled--that is one of them--but you did it for the right
    reasons. There is another one, EMILY's List v. FEC. Tell me a
    little bit about that one. We all know who EMILY's List is.
    They proudly support promoting abortion rights and pro-choice
    Democratic women candidates. I went on their website today to
    confirm that that is still out there. Tell me what you did on
    that case.
        Judge Kavanaugh. They were challenging FEC--Federal
    Election Commission--registrations that prohibited how much
    money they could raise and how they could raise it, and I wrote
    the majority opinion invalidating those restrictions. And I
    wrote the opinion ruling for EMILY's List in that case.
        Senator Tillis. Another one, it is another one that I find
    interesting, did not like it but understand why you did it,
    Republican National Committee v. FEC.
        Judge Kavanaugh. In that case, the Republican National
    Committee was challenging some restrictions on fundraising,
    donations to, contributions to the Republican Party and
    Republican Party committees in the wake of--well, in the wake
    of Citizens United, they were arguing that certain other
    aspects of McConnell v. FEC were no longer good law. I wrote
    the opinion rejecting that challenge and ruling for the Federal
    Election Commission against the Republican National Committee
    in that case.
        Senator Tillis. I want to go back to another one. It
    involved another boss, actually a boss, a prior boss who was
    sitting right down there as the introducers yesterday, and that
    was Adams v. Rice. Tell me about that case.
        Judge Kavanaugh. That was a discrimination case involving
    someone who had had breast cancer in the past and was
    discriminated against in her job on that basis and joined an
    opinion ruling that that was unlawful discrimination and ruled
    against the Government in that case. In that case, the
    Secretary of State, in her official capacity, but the
    Government in that case, ruled against them.
        Senator Tillis. And some have said that you are not for the
    employees, you are also big for the big corporations. Tell me a
    little bit about Stephens v. U.S. Airways.
        Judge Kavanaugh. That was a case where I wrote in favor of
    a group of retired airline pilots who were in a dispute about
    their retirement compensation with U.S. Airways, and I wrote an
    opinion favoring the pilots in the litigation against U.S.
    Airways.
        Senator Tillis. And, you know, if we go a little bit
    further, I think you already covered U.S. v. Nixon, so I will
    not cover it there, but I think maybe one or two that I will
    ask you about. Tell me a little bit about your environmental
    cases, the American Trucking case.
        Judge Kavanaugh. That was a case involving a California air
    quality regulation, and the argument by industry was that that
    regulation was impermissible under the Federal environmental
    statutes and Federal environmental law and, in essence--I am
    simplifying for effect here--but in essence preempted or
    impermissible. And I wrote the majority opinion rejecting the
    industry's challenge in that case, which allowed the California
    law to stay in effect. There was a dissenting opinion in that
    case that would have cast doubt on or validated the California
    regulation. I wrote the majority opinion sustaining it.
        Senator Tillis. There were other people--and, you know, I
    know that there were some in the crowd that expressed a concern
    about this, but there were some people here who have suggested
    that somehow you are unfriendly to the LGBTQ community. If my
    information is correct, back as early as 2003, you participated
    in a meeting with some 200 members of the Log Cabin Republicans
    to solicit their input and feedback. And I was just kind of
    curious if you have any recollection of that meeting and really
    what prompted you to go there.
        Judge Kavanaugh. So as a member of the administration
    working in the White House Counsel's Office on judicial
    nominations in particular but other issues as well, we would
    have outreach to groups, and one of the groups was the Log
    Cabin Republicans. And I went and spoke to them as a
    representative of the Bush White House to talk, as I recall,
    about judicial nominations. And I cannot remember all the
    specifics. I might have talked about some of the other Bush
    administration initiatives and received feedback on that. And I
    do recall that.
        Senator Tillis. Well, I am glad you did that. I also think
    it is interesting again because some people have not
    necessarily given you a chance to answer the question but have
    suggested you would be unfriendly to the LGBTQ community. The
    Human Rights Campaign ultimately put a statement out that said
    that in fact you have never been involved in any substantive
    legislation involving LGBTQ issues. Is that correct?
        Judge Kavanaugh. I do not believe I have had any cases
    involving----
        Senator Tillis. Lawrence v. Texas, Romer v. Evans, United
    States v. Windsor, Obergefell v. Hodges, Bowers v. Hardwick,
    and they made it very clear that you have not been involved in
    any of that.
        Judge Kavanaugh. Those cases were not through our court,
    and I am not remembering any specific cases as a judge that I
    have had involving those issues.
        Senator Tillis. Well, I would hope that if it comes up
    tomorrow, that perhaps they have found some evidence that you
    have, because we have not.
        So I am going to try and do what I did yesterday and be the
    Member who spoke the least, but I am going to do something a
    little bit different because I found out that I can. I am not
    going to yield back my time. I am going to potentially reserve
    it for use tomorrow. But since I am at the end of the dais, I
    will probably be going last, and I probably will not.
        So I just want to again thank you for being here. I want to
    particularly thank the people that have been sitting in the
    chairs. You have got the most uncomfortable position in the
    Chamber, but you have got a far more comfortable chair than all
    the people sitting behind you, and I am sure they are ready to
    get up, but we appreciate you being here.
        And I do also--I have got some wrap-up comments. I actually
    want to thank the Members on both sides of the aisle because,
    consistent with my old Speaker self, I have been keeping a
    running total on exactly just how many people went over and how
    much time, and they did an extraordinary job, given the
    complexity of the issue.
        And, Senator Whitehouse, I will add that, technically
    speaking, you yielded back time, about 3 seconds. You may want
    to bring that in tomorrow.
        [Laughter.]
        Senator Whitehouse. I will use it wisely.
        [Laughter.]
        Senator Tillis. But I think it was a sea-change difference
    in terms of what we saw here at the dais, and I think it is the
    right way to run these Committees.
        So, Judge Kavanaugh, I want to thank you. I want to thank
    you for your patience; I want to thank you for your stamina.
    And the good news is you are more than halfway done. These were
    30-minute rounds. Tomorrow will be 20-minute rounds, and I
    suspect that the Chair will also ask Members to try and stay
    within their time limits.
        So we will be back here tomorrow morning at 9:30.
        For the information of all the Members, we will stand in
    recess and reconvene tomorrow at 9:30 for the 20-minute rounds.
    Thank you.
        Judge Kavanaugh. Thank you, Senator.
        [Whereupon, at 10:07 p.m., the Committee was recessed.]
        [Additional material submitted for the record for Day 2
    follows Day 5 of the hearing.]

                              CONTINUATION OF THE
                          CONFIRMATION HEARING ON THE
                     NOMINATION OF HON. BRETT M. KAVANAUGH
                       TO BE AN ASSOCIATE JUSTICE OF THE
                       SUPREME COURT OF THE UNITED STATES

                                  ----------

                          THURSDAY, SEPTEMBER 6, 2018

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:33 a.m., in
    Room SH-216, Hart Senate Office Building, Hon. Charles E.
    Grassley, Chairman of the Committee, presiding.
        Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
    Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
    Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
    Booker, and Harris.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Chairman Grassley. Well, Judge, I see you got here without
    my walking you in.
        [Laughter.]
        Judge Kavanaugh. Good morning.
        Chairman Grassley. Good morning, and welcome back, of
    course, and that is to all the people that are here for 3 days
    as well as the people that might be here just for a few
    minutes. Everybody is welcome. Your testimony yesterday over a
    nearly 30-hour day made very clear that you have a strong
    command of the law, and even Ranking Member Feinstein said that
    you were forthcoming in your answers to questions. Your 12
    years of exceptional judicial service, and that obviously
    includes your 307 opinions that you wrote and hundreds more
    that you joined in, make you very well qualified to receive a
    promotion from the second highest court in the land to the
    highest court in the land, and we will have the American Bar
    Association in tomorrow that will say particularly the same
    thing.
        I am particularly impressed with your lifetime of public
    service that tells something about you, but also more so than
    your 12 years, what you have done as an outstanding professor.
    You have talked a great deal about being a coach for your
    daughters. You have talked a great deal about volunteering for
    meal service. I have only done that once in my life, so--and I
    should do it more, but you do it regularly, so you are to be
    complimented, and, most importantly, being a father.
        And, of course, I have enjoyed conversation with your wife
    and two daughters, and my wife was here yesterday, and she was
    talking about that all night, talking to your wife I mean.
        Judge Kavanaugh. Thank you.
        Chairman Grassley. And I heard some of my colleagues on
    the--I have had some of my colleagues, as I get into some of
    the business of this Committee, complain again yesterday about
    publicly releasing committee confidential documents. But anyone
    who did not get documents released to use during the hearing, I
    have to say, as I have tried to cooperate and make everything
    available to everybody that they wanted, they only have
    themselves to blame if they did not get the documents they
    wanted.
        This is what I did a long time ago, sent a letter to each
    Member of this Committee on August 22nd, and a short quote from
    that is, ``I invite all Members of the Committee to submit to
    me by noon, August the 28th, a list of document control numbers
    specifically identifying committee confidential documents, or
    documents publicly released with redactions, that a Member
    wishes to use in the hearing.'' And I said I would work with
    the former and current President to secure their public
    release, and that meant working with lawyers in the Department
    of Justice on redaction and all that stuff.
        Senator Klobuchar was the only Senator who requested the
    release of specific documents, and we secured their release.
    And as she told me yesterday, she gets an A for cooperation.
    She does get an A for her cooperation. Every Senator who
    complained about this process needs then to only look to
    Senator Klobuchar as an example to see that my process was fair
    and would have resulted in public release of documents before
    the hearing if they had only asked me.
        But then yesterday, and I think we have accommodated these
    Senators, but Senator Leahy, Coons, Blumenthal, and Booker
    asked that I obtain the public release of certain confidential
    documents, and I have attempted to do so despite the untimely
    request. These Senators could have made the same request last
    week, but maybe that would have deprived them of more talk that
    they have been able to express about my hiding of documents.
        With respect to Senator Booker's question to Judge
    Kavanaugh, my friend my New Jersey asked the nominee to answer
    some questions regarding an email exchange from over 15 years
    ago without showing the nominee the email in question. And then
    you know what happened? The Senator from New Jersey blamed it
    on the fact that the email was labeled ``committee
    confidential.'' Well, there was nothing preventing any Senator
    from asking me before the hearing to get this document publicly
    released. In fact, the request was made to release these
    documents for the first time last night after the Senator asked
    the question of the nominee. We did not get some requests until
    after midnight.
        And we have--we, quite frankly, had to have quite an
    argument with people in the Department of Justice to get these
    released and all the redactions that have to be done. What
    Senator would want to release their emails with all the emails
    and everything without redaction of phone numbers, Social
    Security numbers, addresses, and Social Security numbers? That
    all has to be done under law to reduce this. But I think that
    we have the Department of Justice cooperating with that, so
    before this day is over, Members will have the documents that
    they need to ask the questions that they want to ask.
        Now, before I ask my questions, and one Senator wants to
    make a 30-second comment. I am willing to turn to that, but let
    me say, each of our 21 Senators on the Committee get to ask
    questions for the 20-minute round. Every couple of hours we
    will take a break, and that would include a lunch break. And,
    Judge, if you need a break at any time, have your staff inform
    my staff. And, as is the standard practice for every judicial
    nominee, the FBI conducts a background investigation and
    provides to the Senate a background report. Moreover, like with
    prior nominees, including Justices Kagan and Gorsuch, there are
    a number of Presidential records that are restricted by Federal
    law from public release because they contain sensitive
    information, including highly confidential advice delivered to
    the President, and personal identifying information such as
    full names, date of birth, and Social Security numbers.
        So, at the end of the questions today, we will move, as we
    have before, into a closed session with the nominee where we
    will review the FBI report and any committee confidential
    records that any Member would like to discuss. This is standard
    practice that we do for all Supreme Court nominees, and every
    Member is invited to participate.
        Now I would like to call on Senator Hirono.
        Senator Hirono. Thank you very much, Mr. Chairman. I wanted
    to set the record straight on a matter that was brought up late
    last night with regard to me and my questioning of Judge
    Kavanaugh and his relationship to Judge Kozinski, and whether I
    would ask Judge Watford the same questions. I would like to
    quote from my response to the Washington Times on September
    4th, 2018. And that quote is, and this is from me, ``If
    President Trump would be so enlightened as to withdraw Judge
    Kavanaugh's nomination and nominate Judge Watford to the
    Supreme Court, I would certainly ask Judge Watford about his
    relationship with Judge Kozinski.'' Thank you very much, Mr.
    Chairman.
        Senator Booker. Mr. Chairman.
        Chairman Grassley. Senator Booker, before you speak, I hope
    that you are not going to say that we have not gotten the
    document you want and all that sort of thing because we
    worked--my staff was here until 3 trying to accommodate
    everybody that asked for documents. Would you proceed, please?
        Senator Booker. I appreciate that, sir. And, sir, the very
    section of the process that you read points out the absurdity
    of the process, and that is what is deeply frustrating to me
    and deeply disappointing. The process you read, you invite
    Committee Members ``to submit to me by noon, on August 28th, a
    list of document control numbers specifically identifying the
    committee confidential documents or documents publicly released
    with redactions that the Members wish to use in the hearing, so
    long as it is a reasonable request,'' so no guarantee that we
    will be able to use them, but to submit the ones we want to ask
    questions about. And then you will go back to President Trump,
    go back to President Bush for review.
        Now, I see that plainly--sir, if I could just finish my
    point. We were--we had a number of those documents released to
    us the night before, and to think that we could somehow ask you
    about the documents, reveal to you what questions we wanted to
    ask, and then it is not even your determination. It goes back
    to Bill Burck, who is then making a determination about
    documents. Now, the specific document that I brought up is a
    great illustration of the absurdity of the process.
        I brought up a document entitled, ``Racial Profiling.'' And
    by the way, I asked the candidate about his views today about
    that issue. It is a controversial issue, and that document
    actually does reveal his thinking about that issue at the time.
    And the fact that there is nothing in that document that is
    personal information, there is nothing national security
    related, the fact that it was labeled as ``committee
    confidential'' exposes that this process, sir, is a bit of a
    sham; that we are now--this has never been before. We are
    holding back not only--not only holding back documents labeled
    ``committed confidential,'' but not even giving us the time to
    review those documents.
        In addition to that, this is just the tip of the iceberg of
    all the documents that will continue to be released, I assume,
    up until the time that we have a vote on the Senate floor and
    beyond that. I am sure you can understand, sir, how it puts all
    of us in a very difficult situation when it is not you. It is
    somebody--you have to then go back to a person named Bill Burck
    to decide if some document, who is an associate--who is an
    associate and colleague of the nominee to figure out which
    documents are going to be released.
        And by the way, if all these documents were things, as you
    characterized them, they were personal information, if these
    were things that were delicate information. But as I read
    these, the documents we got the night before the hearing,
    including the ones we got before the hearing, I find it--I am
    actually flabbergasted that so many of these things are not
    controversial whatsoever, but bring up pertinent issues that we
    should have a time to digest and to ask the candidate about.
        Chairman Grassley. Okay.
        Senator Cornyn. Mr. Chairman?
        Chairman Grassley. I think--can I--I will call on you, but
    I think I ought to respond to the Senator. I would like to
    respond at least on two points, one, the word ``sham.'' Senator
    Leahy, Chairman of the Committee, accepted documents, committee
    confidential. During Gorsuch's nomination, we accepted
    committee documents--committee confidential. At that particular
    time, Senator Feinstein asked for 19 documents as we are
    getting documents for you now in the same way.
        So, you read from my letter and you called it a sham. Was
    it a sham when we did it for Gorsuch? Was it a sham when
    Senator Leahy did it? And the reason we did it is so that we
    could get documents so you could review them almost from, I
    think, August the 5th or some time--maybe it was August the
    10th--so you could start on it very early. And then do not
    forget that documents become committee confidential, and then
    do not forget on a regular rolling basis, they are not
    committee confidential and then put on our website so that 300
    million people can view them if they want to.
        And then the second point about the lawyer for President
    Bush, all of our conversations last night were with the
    Department of Justice. Now, I hope you understand that these
    people in the Department of Justice are people that are there
    for years under both Republican and Democrat administrations.
    They are supposed to be non-political. I hope they are non-
    political. They are civil servants. We ought to respect their
    judgment as they try to take care of the privacy of people by
    redacting late into the night Social Security numbers, phone
    numbers, cell numbers, and all those sorts of things.
        Senator--and then we also have Senator Whitehouse, but I
    want to go and let him comment.
        Senator Blumenthal. Senator Grassley, may I be recognized
    after Senator Whitehouse?
        Chairman Grassley. Yes.
        Senator Cornyn. Mr. Chairman, thank you. I was disappointed
    to see last night that some of our colleagues are unwilling or
    unable to conduct themselves in this hearing with regular order
    and in accordance with the Rules of the Committee and the Rules
    of the Senate. I know last night some of our colleagues even
    tried to cross-examine the nominee about documents, but refused
    to let him even read them.
        Members of the Senate and Members of Congress generally are
    privy to sensitive information, including classified
    information on occasion, and we are expected to protect that
    information for all of the obvious reasons. And it is
    inappropriate to raise these in an open session before the
    Committee. And I think our colleagues understand that, but
    nevertheless decided to go ahead anyway. So, I just think it is
    important that we remind one another that there are clear rules
    about the discussion of confidential material, and that there
    can be consequences to the violations of those rules. And this
    idea that somehow President Bush, when his lawyer and the
    President decide that information represents legal advice or
    other protected information that was given to the President
    during the time he was President of the United States, and that
    somehow he is unable to make a claim of privilege, or that once
    the claim is made in consultation with his private lawyer that
    that would be not respected by the Senate is outrageous.
        And so, I just--I thought we were doing pretty well
    yesterday, but things went of the rails, it looks like, last
    night. And I hope we will return to a hearing process that
    respects the Rules of the Senate and that treats each other and
    particularly the nominee with the civility that he and this
    process is entitled to. And I would encourage our colleagues to
    avoid the temptation to either violate the Senate Rules or to
    treat the witness unfairly by cross examining him about a
    document and refusing to show it to him, and violating the
    confidentiality of some of these documents as requested by
    President Bush in consultation with his private lawyer.
        Senator Booker. Sir, maybe I respond because it was a
    direct--it was directly invoking--may I respond, sir? No Senate
    rule accounts for Bill Burck's partisan review of the
    documents. No Senate rule and no history of the Senate accounts
    for what is going on right now. There was a--that was following
    this archive's--this partisan operative following his
    involvement in this process that I think, in my opinion,
    undermine the process. And the idea that we could somehow go
    through your lengthy process and these documents are--many of
    these documents were dumped on us at the last minute.
        But Senator Cornyn actually made a very good point. I
    knowingly violated the rules that were put forth, and I am told
    that the committee confidential rules have knowing
    consequences. And so, sir, I come from a long line, as all of
    us do as Americans, to understand what that kind of civil
    disobedience is, and I understand the consequences. So, I am
    right now before you--before you process is finished, I am
    going to release the email about racial profiling, and I
    understand that that--the penalty comes with potential ousting
    from the Senate. And if Senator Cornyn believes that I have
    violated Senate Rules, I openly invite and accept the
    consequences of my team releasing that email right now.
        And I am releasing it to expose, number one, that the
    emails that are being withheld from the public have nothing to
    do with national security, nothing to jeopardize the sanctity
    of those ideals that I hold dear. Instead, what I am releasing
    this document right now to show, sir, is that we have a process
    here for a person--the highest office in the land for a
    lifetime appointment. We are rushing through this before me and
    my colleagues can even read and digest the information. And I
    want----
        Chairman Grassley. Can I ask you--can I ask you--can I ask
    you how long you are going to say the same thing three or four
    times?
        Senator Booker. No, sir, I am saying--I am saying----
        Chairman Grassley. How long do you want to take?
        Senator Booker. I am saying I am knowingly violating the
    rules.
        Chairman Grassley. Okay.
        Senator Booker. Senator Cornyn called me out for it.
        Chairman Grassley. How many times--how many times are you
    going to tell us?
        Senator Booker. Sir, I am saying right now that I am
    releasing--I am releasing committee confidential documents.
        Senator Cornyn. Mr. Chairman----
        Senator Kennedy. Mr. Chairman.
        Senator Cornyn [continuing]. Since the Senator invoked my
    name, can I insist on an opportunity to respond?
        Chairman Grassley. Yes.
        Senator Cornyn. I did not mention his name----
        Chairman Grassley. Okay.
        Senator Cornyn [continuing]. But he mentioned my name, and
    he is right. Running for President is no excuse for violating
    the Rules of the Senate or of confidentiality of the documents
    that we--that we are privy to. This is no different from the
    Senator to release classified information that is deemed
    classified by the executive branch because you happen to
    disagree with the classification decision. That is
    irresponsible and outrageous, and I hope that the Senator will
    reconsider his decision because no Senator deserves to sit on
    this Committee or serve in the Senate, in my view, if they
    decide to be a law unto themselves and willingly flout the
    Rules of the Senate and the determination of confidentiality
    and classification. That is irresponsible and conduct
    unbecoming a Senator.
        Chairman Grassley. Since----
        Senator Kennedy. Mr. Chairman----
        Chairman Grassley. Well, just a minute----
        [Voice off microphone.] Mr. Chairman.
        Chairman Grassley. I have got something I want to say. I
    think we ought to be thinking about this is the last--I got
    three Senators are asking for--Senator Kennedy, Senator
    Whitehouse, and the Senator from Connecticut.
        Senator Hirono. And, Mr. Chairman, I would like to also be
    recognized.
        Chairman Grassley. So, here is--this is the last day, so
    here is something you got to think. We will be here until
    midnight if you want to be here, but I have been told that the
    Senate Minority Leader or somebody in the Democrat Party
    invoked the 2-hour rule. So, if the 2-hour rule is invoked,
    that is--nobody on this Committee, Republican or Democrat, is
    going to have an opportunity to do what they want to do today
    because this is the last day he is going to be here. And so, I
    hope you do not invoke the 2-hour rule. So, if you want to talk
    now before I start to ask my questions, I will do it.
        Senator Whitehouse was the next one, and then Senator
    Kennedy.
        Senator Whitehouse. Thank you, Mr. Chairman.
        Senator Hirono. Mr. Chairman, I would also like to be
    recognized because I am in a similar situation as my colleague
    here.
        Chairman Grassley. Senator Whitehouse. I think--I think he
    asked before you did.
        Senator Durbin. He did.
        Senator Whitehouse. Mr. Chairman, you recognized for 30
    seconds, and I will take 30 seconds. Lest silence imply
    consent, speaking for myself, I want to make it absolutely
    clear that I do not accept the process of this committee
    confidential routine that we went through. I do not accept its
    legitimacy. I do not accept its validity. Because I do not
    accept its legitimacy or validity, I do not accept that I am
    under any obligation.
        I have not made a big fight about this. I have just gone
    ahead with my questioning. But, again, lest silence imply
    consent, I think that that rule is as ineffectual as if the
    Chair had unilaterally repealed the law of gravity. It simply
    is not so. I have not agreed to this rule. I have not voted on
    this rule. This rule does not exist in our Committee or Senate
    rules, and I will leave it at that.
        Chairman Grassley. Did you----
        Senator Whitehouse. Just me speaking. I am not willing to
    concede that there is any legitimacy to this entire committee
    confidential process in this hearing.
        Chairman Grassley. Was it just----
        Senator Whitehouse. And nothing sensitive, nothing
    personal, nothing classified, and nothing confidential has been
    released.
        Chairman Grassley. Did you object to it when it was
    previously used under other Supreme Court nominees?
        Senator Whitehouse. It was developed then through a
    bipartisan process in which----
        Chairman Grassley. Okay.
        Senator Feinstein. That is correct. That is correct.
        Senator Whitehouse [continuing]. We had reached an
    agreement by unanimous consent effectively, not by decree.
        Senator Feinstein. No, there was agreement between----
        Chairman Grassley. Okay.
        Senator Feinstein [continuing]. The Chairman and me.
        Senator Whitehouse. Precisely, and that did not exist this
    time. And now you have documents that are not personal, not
    classified, not confidential, not sensitive that are
    nevertheless covered under this----
        Chairman Grassley. Senator Kennedy.
        Senator Kennedy. Mr. Chairman, I was in the Chair last
    night when this issue came up. I made the call when I--I want
    to explain why I made it. Senator Tillis my colleague, raised
    the point. I allowed Senator Booker to continue. Sometimes
    patience ceases to be a virtue, but I did not think in these
    hearings following the Chairman's example that that was
    appropriate.
        Senator Booker examined Judge Kavanaugh about the racial
    disparities in this country. I gave Judge Kavanaugh, I think
    I--it was 6 minutes and 39 seconds to respond uninterrupted.
    So, I was trying to be, and we will continue that, was trying
    to be fair to both sides following the example of our Chairman.
        Chairman Grassley. Senator Blumenthal.
        Senator Blumenthal. Thank you, Mr. Chairman. There has been
    a lot of commentary over the last couple of days about how we
    are in uncharted and unprecedented territory here, that the
    process has broken down, reflecting what is happening in our
    Nation generally, and particularly in the last couple of days
    with the publication of a new book and an op-ed that indicate
    very serious chaos and breakdown in other parts of Government.
    And I am hoping that we can come together as a Committee, and
    if there are any rules, do what we have done in the past, which
    is adopt them on a bipartisan basis. That has been the way that
    ``committee confidential'' designation----
        It is not classification. There are no classified documents
    here. It is a designation. It is an arbitrary and seemingly
    capricious designation designed to spare people embarrassment
    possibly, but all these documents belong to the people of the
    United States. They are covered by the Presidential Records
    Act, and eventually they will come out. So, shame on my
    colleagues if they conceal them now and deny us the benefit of
    questioning this nominee who comes before us for the last time
    today. He comes before us for the last time today. This is our
    last opportunity, up or down, whether he is confirmed or not,
    to question him.
        And like any trial lawyer, documents have to be assessed as
    the trial goes on, as this witness responds to our questions.
    We cannot give the Chairman a list of what documents are
    relevant before we hear his answers and our colleagues'
    questions. So, not only from the standpoint of there being no
    basis for the rules, but also to deny the fairness and
    effectiveness of the process, that is the reason that we are
    making this protest and we are here under protest.
        That is the reason why I asked to adjourn so that we could
    consider fairly all of these documents. I appreciate that
    Senator Grassley has decided to release the documents that I
    would have used yesterday. He has released the documents that
    Senator Booker, commendably, would have released even if not
    reclassified or re-designated. But I want to reserve the
    right--I hereby reserve the right to release documents before
    any confirmation vote so that my colleagues can see what the
    truth is.
        We are literally trying to get at the truth here, and
    between now and any vote on confirmation, there is the right,
    in my view, on the part of every Member of this Committee to
    release documents that she or he believes are appropriate. And
    to delegate this decision to an unappointed, and unconfirmed,
    and largely unknown figure, Bill Burck, who used to used to
    work for the nominee, is the height of irresponsibility. Thank
    you.
        Senator Lee. I want to start by pointing out that when this
    part of the discussion started last night, I was concerned that
    as with any witness in any courtroom or any proceeding before
    this Committee, I want to make sure than when a witness is
    questioned about a particular document, the witness has access
    to that document. It is not fair to the witness. The witness
    who has over the course of his career been involved in the
    creation, the authorship, the review of not just hundreds of
    thousands, but many millions of documents in his lifetime. It
    is not fair to this witness or any other witness in any other
    proceeding anywhere to not give the witness a copy and allow
    him to respond to it while he is being questioned about it.
        So, that is why I offered to Senator Booker--and Senator
    Booker and I had a helpful conversation with the very helpful
    Committee staff last night, and they have agreed in the
    meantime to release this same document that was now the subject
    of it. So, the process worked. It works. We do have the ability
    to make these things available, to make them public so that we
    can be fair to Senator Booker, we can be fair to the witness,
    to the nominee.
        I do want to point out since the charge has been made that
    this process is somehow rigged, that it is charged, that it is
    unfair, that it is arbitrary and that it is capricious, I
    completely disagree. We are not dealing in a lawless
    environment here. We are dealing here with the Presidential
    Records Act. We have got documents that are the subject of
    privileges, privileges that have to be asserted.
        Now, Bill Burck is the designee for that Presidential
    administration, and has the prerogative of asserting
    privileges. But through an accommodation with the Senate, with
    the Senate Judiciary Committee to allow us to gain access to
    other documents to which we would never otherwise be able to
    have access, they have agreed to hand those over with the
    understanding that we have this committee confidential process,
    and that there are means by which we can clear documents like
    this one that we would otherwise not be able to clear. It
    worked here. It has been cleared, and I think we should move
    forward. Thank you.
        Senator Hirono. Mr. Chairman.
        Chairman Grassley. Senator Durbin or Senator Feinstein,
    whichever one wants to go first.
        Senator Durbin. No, I would defer to Senator Feinstein.
        Senator Feinstein. Well, I will accept it. Thank you. It is
    my understanding that by agreement with private lawyer, Bill
    Burck, the Chairman has designated 190,000 pages of Kavanaugh's
    records ``committee confidential.'' And by doing this,
    Republicans argue Members cannot use these documents at the
    hearing or release them to the public. Unlike the Intelligence
    Committee, and I have been a Member for about 2 decades, the
    Judiciary Committee does not have any standing rules on how and
    when documents are designated ``committee confidential.''
    Previously, the Judiciary Committee has made material
    confidential only through bipartisan agreement. That has not
    been done in this case, so this is without precedent.
        Republicans claim that Chairman Leahy accepted documents on
    a committee confidential basis during the Kagan administration.
    It is my understanding that those documents were processed
    through the National Archives, not private partisan lawyers,
    and Republicans agreed. Ninety-nine percent of Elena Kagan's
    White House records were publicly available and could be used
    freely by any Member. By contrast, the Committee has only 7
    percent of Brett Kavanaugh's White House records, and only 4
    percent of those are available to the public. No Senate or
    Committee rule grants the Chairman unilateral authority to
    designate documents ``committee confidential.'' So, I have no
    idea how that stamp, ``committee confidential,'' got on these
    documents.
        I sent a letter on August 10th, 2018 objecting to the
    blanket designation of documents as ``committee confidential.''
    I offered to work with the Chair. He refused. Judiciary
    Democrats sent the Chairman a letter on August 28th restating
    the objection to the Chair's designation of the documents as
    ``committee confidential'' and requesting public release. As I
    have looked at the documents that are committee confidential,
    they do not affect any of the usual standards that would deny
    Committee confidentiality, and, Mr. Chairman, I think that is a
    problem.
        I think we are entitled to all records, and I think the
    public is entitled to all records that are appropriate and do
    not put forward personal information or information that
    otherwise should not be disclosed. So, I do think we have a
    problem, and I think for the future we ought to settle that
    problem with some kind of a written agreement between the two
    sides, whether that is an agreement between the two sides of
    the entire Committee or between the Chairman and the Ranking
    Member, I think does not matter much. But I think the fact is
    that we should agree on who determines something is ``committee
    confidential,'' what the criteria are for it, and the release
    to the public, and particularly in the event of a Supreme Court
    hearing.
        Chairman Grassley. Senator Durbin.
        Senator Durbin. Thank you, Mr. Chairman. And like my
    colleague, Senator Whitehouse, I do not want my silence to be
    interpreted as consent to the process that we have faced before
    this Senate Judiciary Committee. It is unlike any process I
    have ever seen. This designation of ``committee confidential''
    should be put in historic context. There will be an opportunity
    for us later this afternoon to meet in confidential and secret,
    private session to discuss this nominee. That is not unusual.
    It is done for virtually every nominee. Some of the meetings
    literally last a matter of a minute or two and we say there is
    nothing to talking and we are leaving.
        But it has happened in the past, but whenever we dealt with
    ``committee confidential,'' it was something that was very
    specific and usually personal to a nominee, and it was done by
    bipartisan agreement that we would protect the nominee from
    assertions or comments that may not have any truth to them
    whatsoever, but the Committee should take into consideration.
    That is a far cry from what we have faced with this nominee.
        I cannot understand, and I said this in my opening
    statement here, the authority that we have given to a man named
    Bill Burck, a former assistant to the nominee; that we have
    said to Mr. Burck, you will decide what America gets to see
    about Brett Kavanaugh. You will make the decision as to which
    documents we will be allowed to discuss openly and publicly and
    which documents we cannot. Who is this man? By what authority
    could he possibly be denying to the American people information
    about a man who is seeking a lifetime appointment to the
    highest court in the land?
        The National Archives is usually the starting point of this
    process. I put in the record yesterday a statement from the
    National Archives disavowing this whole process, saying this is
    not the way we have done in the past. We usually initiate this,
    please give us a few weeks to do it in an orderly way. But the
    decision was made by the White House and the administration not
    to go down that path, not to take the same course we have on
    previous nominees, but instead to allow this gentleman, Bill
    Burck, a private attorney, the authority to decide what the
    American people can see about the background of Brett Kavanaugh
    in other capacities.
        Who is Bill Burck? All that I know of him is that he was
    once an assistant to the nominee. I am told that he is not only
    the attorney for George W. Bush, but also for the White House
    Counsel, Mr. McGahn, Mr. Preibus, the former chief of staff to
    the President of the United States, and Steve Bannon, a man
    whom I could not characterize in a few words, but he is his
    personal attorney.
        And in this situation, he is now the litmus test. He is the
    filter to decide what the American people will see about this
    nominee, and that is why we bring this issue before you. Lest
    you think we are carping on a trifle here, we are talking about
    whether the American people have the right to know, and we now
    know that less than 10 percent of the documents reflecting the
    public career of Mr. Kavanaugh have been made available to this
    Committee.
        And I just want to say to my colleagues, particularly my
    colleague from New Jersey, I completely agree with you. I
    concur with what you are doing, and let us jump into this pit
    together. I hope my other colleagues will join me. So, if there
    is going to be some retribution against the Senator from New
    Jersey, count me in. I want to be part of this process. I want
    to understand how Bill Burck, this private attorney, has the
    right to say, as one of my colleagues mentioned, this should be
    considered a classified document, a top secret document, a
    document that relates to the national security of the United
    States.
        By what right, by what authority can Mr. Burck possibly
    designate a document as ``committee confidential''? He has no
    authority to do that. He only has authority because he has the
    consent and the cooperation of the Republican Majority on this
    Committee. That is the only thing that brings us to this
    moment.
        And let me just say in closing one last thing. I am sorry
    that one of my colleagues has characterized all of us on the
    Democratic side on the first day of this hearing as
    contemptuous. I have never heard that said before in a full
    Committee meeting, but it has been said. And I am particularly
    sorry that he singled out one of our colleagues on this side
    and accused him of conduct unbecoming a United States Senator.
    I think statements like that are personal. They are
    disparaging. They question the motive of a colleague, something
    that we should do our very best to avoid in the United States
    Senate if we are ever going to restore the reputation of this
    body.
        Senator Cornyn. Mr. Chairman?
        Senator Hirono. Mr. Chairman?
        Senator Cornyn. May I make just a brief point? Mr.
    Chairman, I am looking at a Wall Street Journal article back
    during the Elena Kagan nomination. It says, ``Document
    production from Elena Kagan's years in the Clinton White House
    Counsel's Office was supervised by Bruce Lindsay, whose White
    House tenure overlapped with Ms. Kagan.'' Bill Clinton
    designated Mr. Lindsay to supervise records from his Presidency
    in cooperation with the National Archives Records
    Administration under the Presidential Records Act. So,
    President Bush, by choosing Mr. Burck, is doing exactly what
    President Clinton did in choosing Bruce Lindsay for that same
    purpose.
        Chairman Grassley. Senator Klobuchar.
        Senator Klobuchar. Senator Hirono was first.
        Senator Hirono. I thank my colleague. Count me in, too. Mr.
    Chairman, I, too, referred to a so-called ``committee
    confidential'' document, deemed such by one Bill Burck, and we
    all know who he is at this point. And had the nominee asked me
    for a copy of that so-called ``committee confidential''
    document, I would have been happy to release to him or give it
    to him. I am releasing that document to the press, and I would
    defy anyone reading this document to be able to conclude that
    this should be deemed confidential in any way, shape, or form.
    Thank you.
        Senator Klobuchar. Mr. Chairman, I know you have mentioned
    a number of times that I went through the process. I do want to
    point out, however, that I also was on numerous letters asking
    for all these documents to be released, and that my colleagues
    have repeatedly asked for documents to be released. And I go
    back to what happened on the first morning of this hearing, and
    that is that we pointed out that when there are 42,000
    documents that are dumped on us in one night, there is
    absolutely no way people are going to be able to adequately
    review them. And as they review them, they are going to find
    documents that they want to be made public, that they want to
    ask the nominee about.
        So, the whole point of this is because this hearing was
    ramrodded through and we were not given, say, maybe the month
    it would take to look at these documents, we are where we are.
    So, my remedy for this, in addition to making it clear that I
    join my colleagues that we support what Senator Booker is doing
    here, is that you must somehow expedite the review of every
    single document, and we must have some kind of rules in place
    to get them out. I understand you would want to take out Social
    Security numbers and things like that. That is normal. But we
    simply cannot hide these documents from the American public. It
    is the highest court of the land.
        And I was looking back. Everyone was citing people--the
    Founders of this country, and I found a quote that really works
    here by Madison: ``A popular government without popular
    information, or the means of acquiring it, is but a prologue to
    a farce or a tragedy.'' That is what we are talking about here.
    By ramrodding this through for political reasons, by denying us
    the access to the documents, we are denying the public the
    right to see what is out there, and it is just now how we do
    things in my State, and it is not how we have done things in
    this Committee.
        Senator Coons. Mr. Chairman.
        Chairman Grassley. I am going to call on Senator Lee, and
    then you, but before that, a couple things she just reminded me
    of in her comments. Number one was to take care of all the
    people that did not act promptly, like you did, Senator
    Klobuchar. That is why we extended it and gave the courtesy of
    doing whatever anybody else wants from now, and those are--can
    either be brought. Now those that you have got can be brought
    up right now to him, and the things that you--that are not
    cleared that you want to bring up with the Judge, you can bring
    up in the closed session today.
        And the other thing is when you talk about getting all the
    documents, I do not know who might work for Members of this
    Committee, sometimes want to be on the Supreme Court. For
    instance, would you--we did not ask for all the documents that
    Kagan had and emails or whatever communications she would have
    had when she worked with Senator Kennedy. Would you--would you
    want to be exposed to that sort of thing? If you want
    everything to be made public or all the emails that you have,
    whether--I think they are protected for 50 years for a United
    States Senator. So, you are talking about the public right to
    know, do you want to give up your emails right now, make them
    public? I do not think you do.
        Senator Lee.
        Senator Lee. First of all, Mr. Chairman, I want to say I am
    deeply sympathetic to the frustration people feel when they do
    not have access to documents they want. As a United States
    Senator, I have faced this on a number of occasions. There have
    been times when we have been called upon to vote on legislation
    literally at the midnight hour, sometimes much later than that,
    that we have not seen until moments before it was voted on.
    There have been other times, and I kid you not, when I have
    been asked to vote on a piece of legislation that has an annex
    to it, and I have been told that I cannot see the annex to the
    legislation because it is classified and it is classified in a
    way that I do not have access to because of a Committee
    assignment that I do not have.
        It is incredibly frustrating. In those circumstances, we
    look for a demon. There are demons in those circumstances. They
    are too numerous to name here. In this circumstance, there is a
    demon, but that demon is a law of our own creation, and it is
    called the Presidential Records Act. That is the demon that you
    are after here. That is the only reason we have got this issue.
        Now, the custodian of those documents holds and exercises a
    privilege on behalf of the Bush administration. These are
    documents we would otherwise not have access to because they
    are privileged. Pursuant to an agreement with the Senate as an
    accommodation to the Senate, the custodian of those records has
    agreed, notwithstanding the privileged nature of those
    documents, to hand them over to us with an understanding that
    when there is a need that arises with respect to one or more of
    those documents to make them public, we can as a Committee go
    through a process to do that. That is exactly what has
    happened. It is what has worked, and it is what has worked here
    today.
        So, if you are frustrated with the process, then let us
    review the Presidential Records Act, but we are just doing what
    the law allows us here to do. These documents are not ours.
    They belong to someone else. It is not written into the
    Constitution. It is not written on stone tablets anywhere that
    we are entitled to documents that do not belong to us. It is
    significant that William Howard Taft did not release his
    Presidential papers. It is significant that Robert Jackson,
    having served as Attorney General, did not release all the
    papers he had as Attorney General. Why? Well, I assume it had a
    lot to do with the fact that they did not belong to us as a
    Senate.
        If we want to be able to have a process not just with this
    administration, but in every Presidential administration,
    Democratic, Republican, or of other stripe in the future, we
    need to respect the process and respect the privilege that is
    accorded to documents that do not belong to us. That is all we
    are asking, and the process is working. Let us move forward.
        Senator Feinstein. Mr. Chairman?
        Chairman Grassley. Yes.
        Senator Feinstein. On behalf of this side, I would like to
    just say a couple of things. There is no process for the
    ``committee confidential.'' It used to be that both sides had
    to concur, the Chair and the Ranking Member, but now this is--
    this is just simply not the case. To some extent with this kind
    of thing, ``committee confidential'' becomes a kind of a crock,
    and it should not.
        I think we need to sit down. I think we need to have a rule
    on how ``committee confidential'' is determined, on what it
    means, and who makes that decision. For all I know, some
    Republican staffer could have made the decision, and I just do
    not know. Documents appear. Our side had nothing whatsoever to
    do with the designation of ``committee confidential.'' So, it
    becomes a way, if there is no rule, for the Majority to
    essentially put all information through a strainer. Should we
    let this go out, be public, or should we not? And I do not
    think that is what this Committee is about.
        Senator Booker. Mr. Chairman?
        Chairman Grassley. Well, you know--you know, in the absence
    of a majority of a Committee opposed, the Chairman acts on
    behalf of the Committee, and Chairman Leahy accepted documents
    on a committee confidential basis during Justice Kagan's
    nomination. And there is no indication that the Ranking Member
    agreed to that at that particular time.
        Senator Coons.
        Senator Coons. Thank you, Mr. Chairman. Just two quick
    points if I could. First, the question has been raised whose
    documents are these. These are the American people's documents.
    The Presidential Records Act gives us a right to obtain them
    for a Supreme Court nomination after the review of the
    professionals at the National Archives, and Bill Burck is not a
    professional at the National Archives. The Archives has said
    that this is not their process.
        Equally importantly, because some will now make dire
    predictions about the appropriateness of the release of any
    these documents, Bill Burck himself in his letter to us of
    August 31st said, and I quote, ``The Presidential Records Act
    exemption, one which protects against the disclosure of
    classified information, did not apply to any documents our team
    reviewed.''
        I agree with Senator Booker. This confirmation is too
    important for us to conceal documents that may reveal the
    nominee's views, and I think we should not be proceeding under
    these grounds.
        Senator Booker. Mr. Chairman, may I be recognized, sir?
        Chairman Grassley. I hope you do not say the same thing
    again.
        Senator Booker. Sir, I will not. And first of all, I will
    say something that I have not said, which is I appreciate the
    patience of Job that you are showing here. And I just also want
    to say, too, the representations from Senator Kennedy and
    Senator Lee were right on point, right on correctly. They stood
    strong last night, challenged me, but they not only were
    collegial, but they looked to find a fair way to deal with this
    process, and I want to express my appreciation.
        I want to clarify something that I said before. There is no
    Senate rule that accounts for this process, period. This is not
    a Senate rule. I did not violate a Senate rule.
        [Disturbance in the hearing room.]
        Senator Booker. I will pause. I will pause. There is no
    Senate rule that I violated because there is no Senate rule
    that accounts for this process. And I say to a Chairman that I
    respect, that I believe has been fair and good to me, I will
    say that I did willingly violate the Chair's rule on the
    committee confidential process. I take full responsibility for
    violating that, sir, and I violate it because I sincerely
    believe that the public deserves to know this nominee's record,
    in this particular case, his record on issues of race and the
    law. And I could not understand, and I violated this rule
    knowingly, why these issues should be withheld from the public.
        Now, I appreciate the comments of my colleagues. This is
    about the closest I will probably ever have in my life to an
    ``I Am Spartacus'' moment.
        [Laughter.]
        Senator Booker. My colleagues, numerous of them, said that
    they, too, accept the responsibility. There are very serious
    charges that were made against me by my colleague from Texas. I
    do not know if they were political bluster or sincere feelings.
    If what he said was sincere, there actually are Senate rules
    governing the behavior of Senators. If he feels that I, and now
    my fellow colleagues who are with me, have violated those
    rules, if he is not a tempest in a teapot, but sincerely
    believes that, then bring the charges. Go through the Senate
    process to take on somebody that you said is unbecoming to be a
    Senator.
        Let us go through that process because I think the public
    should understand that at a moment that somebody is up for a
    lifetime appointment, that this issue--does the public have a
    right to know. This is not about the Presidential Records Act.
    This is not a violation of the Presidential Records Act, not a
    violation of Senate rules, sir.
        But if somebody is going to land those charges, I hope that
    they will follow through with me and Senator Durbin, Senator
    Coons, Senator Whitehouse, Senator Hirono, Senator Blumenthal,
    now Senator Feinstein. I hope that they will bring charges
    against us, and I am ready to accept the full responsibility
    for what I have done, the consequences for what I have done,
    and I stand by the public's right to have access to this
    document and know this nominee's views on issues that are so
    profoundly important, like race and the law, torture and other
    issues. Thank you.
        Senator Cornyn. Mr. Chairman, may I read the Senate Rule
    29.5, the Standing Rules of the Senate, for the benefit of all
    Senators. ``Any Senator, officer, or employee of the Senate who
    shall disclose the secret or confidential business or
    proceedings of the Senate, including the business and
    proceedings of the Committees, Subcommittees, and Offices of
    the Senate, shall be liable, if a Senator, to suffer expulsion
    from the body, and if an officer or employee, to dismissal from
    the service of the Senate and the punishment or contempt.''
        Senator Booker. Bring it. Bring it.
        Senator Coons. Bring it on.
        Senator Cornyn. So, I would correct the Senator's
    statement, there is no rule. There is clearly a rule that
    applies----
        Senator Booker. If it applies, Chairman, bring the charges.
        Senator Blumenthal. Mr. Chairman, all of us are ready to
    face that rule on the bogus designation of ``committee
    confidential.'' Just because there is a Senate rule does not
    mean it can be misapplied, or misconstrued, or misused. And I
    think even the threat raised by one of my colleagues here is
    unfortunate, and that is a kind way of putting it, with all due
    respect.
        And I would just make one other point. We are dealing here
    with a lifetime appointment. Nothing we do here is more serious
    than confirming a Justice on the United States Supreme Court.
    Let the American people appreciate that we are here in the most
    solemn responsibility we have under the Constitution. We need
    the full truth. Just as this nominee has sworn to give it us,
    we are entitled to it from our colleagues.
        And the question is, what are they concealing by this
    procedure? What are they afraid the American people will see?
    What are they afraid we would be asking of this nominee if we
    had all of those documents that have been denied us in this
    sham and charade.
        Chairman Grassley. Senator Lee, then Senator Tillis.
        Senator Lee. To Senator Booker's point, the document you
    are talking about has now been approved through the Committee
    processes. It has been made available to the public. The
    process worked, and I pledge to work with each and every one of
    you. If you have got a document as to which a privilege has
    been asserted such that it is not public yet, I will work with
    you to try to make it public. Let us do it. I think we can do
    this. It is not that difficult, and we have done it several
    times, at least three times now. We can do it more.
        The privilege thing is real, though, and this is not our
    privilege we are dealing with. This is the privilege that
    belongs to somebody else. The privileged nature of documents
    has been around for a long time, since the early days of the
    republic. The records, the notes of the Constitutional
    Convention were ordered sealed for 30 years after the
    Constitutional Convention occurred in 1787. I am not sure all
    the reasons why, but those who participated in it decided that
    that was going to be the rule, sealed 30 years. Those documents
    did not belong to anyone else. They belonged to those who
    attended that Convention and participated in it.
        Now, there were at least two from that list, Oliver
    Ellsworth and James Wilson, I believe, who were subsequently
    nominated to serve on the United States Supreme Court. No one
    demanded, to my knowledge, and no one could have gotten,
    notwithstanding the 30-year seal agreement, the notes to the
    Constitutional Convention, even though those certainly would
    have been probative as to how those people might have served on
    the Supreme Court.
        Yet no one was accusing the U.S. Senate back then of being
    a rubber stamp for the Washington administration or anyone
    else. In fact, in 1795, the United States Senate disapproved of
    at least one of President Washington's Supreme Court nominees.
    This was no rubber stamp, and yet they respected the fact that
    they did not own every document, that other people might own
    them. We do not own these, and so we have to go through the
    process, a process ordained by a law that we passed and that
    only we have the power to change. Let us follow that law. We
    can follow the law and respect the process, and respect the
    rights of each of our colleagues and the rights of the American
    people to review documents that might be relevant here. But let
    us go through the appropriate process to do it.
        Senator Feinstein. Mr. Chairman----
        Chairman Grassley. I think I ought to be fair to the
    Republicans.
        Senator Feinstein. I think you should, too.
        Chairman Grassley. Okay. Go ahead, Senator Tillis.
        Senator Tillis. Thank you, Mr. Chair. You know, Mr.
    Chairman, it took nearly 17 years to get my college degree. I
    went to five different institutions. I am pretty sure none of
    them have been elevated to the Ivy League.
        Chairman Grassley. You finally found one that was right.
        Senator Tillis. That is right. I do not ever plan on
    running for President in 2020 or any point in the future. I
    want to make--I want to make one comment and then one request.
    The comment is, I hope everybody will record a transcript of
    what is going on right now. Senator Lee explains things, I
    think, in eloquent legal terms, but let us talk about the
    consequences of making this an untrusted body to receive
    documents under the Presidential Records Act. You may rue the
    day that you do that because you will probably get fewer
    documents in the future.
        Now, what I would like to do is ask all of our Members, is
    perhaps we can actually demonstrate to the American people that
    we are prepared to expose our own records. I would like to
    suggest for the purpose of the SCOTUS nomination that all of us
    waive any right to the Speech and Debate Clause, and that we
    allow all of our email records related to this SCOTUS
    nomination to be made public on an immediate basis. I for one
    am ready to sign up for it now. I hope all my other Members
    would do the same thing, because in the interest of
    transparency, certainly it would make sense for every one of
    us, regardless of what we want to do in the future, to expose
    that information to the American people.
        Chairman Grassley. Are you done? I will start with my
    questioning. By the way, we are going to have to protect--so
    everybody gets an opportunity to look at the FBI and anything
    else you want to ask, at 1 we are going to have to go into
    executive session and get that done before--if the Senate does
    close down at 2. I mean, if they do not give us permission to
    meet after 2, we have got to get that out of the way. So, we
    will do that at 1.
        Senator Feinstein. May I just put a document in the record?
        Senator Kennedy. Mr. Chairman, would you yield to a
    question?
        Mr. Chairman, would you yield to a question about
    procedure?
        Chairman Grassley. I used the wrong word--``closed.'' We
    are talking about ``closed'' instead of ``executive'' session.
    So----
        Senator Kennedy. Would you yield to a question about
    procedure, Mr. Chairman?
        Chairman Grassley. Go ahead.
        Senator Kennedy. Could you explain to me why we are having
    to truncate the hearing today?
        Chairman Grassley. Well, I am not sure we do have to
    truncate it, but just in case--well, it would be because the
    Minority may object to the unanimous consent request the Leader
    would make for this Committee to continue to work while the
    Senate is in session.
        Senator Kennedy. Well, let me be sure I understand. Senator
    Schumer is saying that we have to shut down while the Senate is
    in session. Do we not generally waive that rule?
        Chairman Grassley. Yes, generally it is waived, but if it
    is objected to, we cannot meet. So, that means that we want to
    make sure that we get the executive--or the closed session out
    of the way.
        Senator Kennedy. May I ask why Senator Schumer is doing
    that?
        Senator Durbin. Has he done it?
        Chairman Grassley. I do not know.
        Senator Kennedy. We have a nominee to the Supreme Court of
    the United States. We have all talked about transparency. What
    is his basis for doing that?
        Chairman Grassley. You will have to ask him. I do not know.
        Senator Feinstein. Mr.----
        Chairman Grassley. Yes, you go----
        Senator Feinstein [continuing]. If I may, I would just like
    to put a document in the record. The Committee was told that
    President Trump has decided to withhold 102 pages of
    Kavanaugh's White House Counsel records.
        [Voices off microphone.] A hundred and two thousand pages.
        Senator Feinstein. A hundred and two thousand? What did I
    say?
        Senator Durbin. You were close.
        Senator Feinstein. Thank you, 102,000 pages of Kavanaugh's
    White House Counsel records, and asserted a new claim of
    constitutional privilege. And, of course, that has not been
    done before. I am told there is no such privilege. There is an
    executive privilege, which is outlined in the Presidential
    Records Act and requires the President to notify Congress and
    the Archivist, which was not done here. There is a little bit
    more to it, but I would just like to put this in the record.
        Chairman Grassley. Without objection----
        Senator Feinstein. Thank you.
        Chairman Grassley [continuing]. That will be put in the
    record, yes.
        [The information appears as a submission for the record.]
        Chairman Grassley. Judge Kavanaugh, we heard a lot
    yesterday about your record of independence and impartiality,
    and you have done more than talk about your independence and
    you have done more than talk about your independence and
    impartiality. You have demonstrated the judicial values of the
    bench. By my account, you ruled against executive branch
    agencies 23 times between May 2006--January 2009.
        Of course, President Bush was nominated--who nominated you
    to the bench, was the head of the executive branch. You had no
    problems ruling against the President who appointed you, if
    that is what the law required, and I have no doubt that you
    would do the same on the Supreme Court, if that is what the law
    requires. You have demonstrated your impartiality.
        Some of my colleagues tried to depict you as hostile to the
    little guy and always willing to rule for the powerful, but
    your record shows that you rule for the party that has the law
    on their side. So that makes you out to be not a pro-plaintiff
    judge or pro-defendant judge, but to be a pro-law judge.
        So let me ask you about a few of your cases that I think
    demonstrate that you will vindicate the rights of those who are
    less powerful in our society. After all, our aspirations as
    Americans is equal justice under law.
        [Disturbance in the hearing room.]
        Chairman Grassley. So I will ask you on each one of them,
    but just so you know the three cases I am thinking about is
    Rossello, Essex Insurance, and United Food and Commercial
    Workers. So in the first one, a case in which you ruled for the
    woman wrongfully denied Social Security benefits, tell us your
    approach to that case.
        Judge Kavanaugh. This case, Mr. Chairman, was a case in
    which the Social Security Administration had denied benefits--
    --
        [Disturbance in the hearing room.]
        Judge Kavanaugh. Was a case where the Social Security
    Administration had denied benefits to a woman who had a history
    of mental illness, and they had done so because at one point in
    time, she had been employed for a brief period of time with a
    family member, but it had been subsidized. And this was, in my
    view, the height of arbitrary agency decisionmaking.
        The case had gone on for 15 years, was kind of a hall of
    mirrors for the woman, and we wrote an opinion, I wrote an
    opinion reversing the denial of benefits for the woman and also
    making clear to the Social Security Administration that any
    further delay would not be tolerated and that these kinds of
    delays in denying benefits to people with mental illness were
    unacceptable.
        Chairman Grassley. Let us go to the Essex Insurance Company
    case.
        [Disturbance in the hearing room.]
        Chairman Grassley. Essex Insurance?
        Judge Kavanaugh. In the Essex case, it was a case of a
    child's family and an insurance company, and the child had been
    the victim of sexual abuse, and the--on three occasions, and
    the insurance company was trying to give--pay out simply
    $100,000 for the total number of--for the abuse. And the
    insurance policy said $100,000 for each occurrence, in essence.
        And we ruled that the insurance company had to pay $100,000
    for each occurrence, each incident of the abuse, and,
    therefore, a total of $300,000. So in that case, we ruled and I
    wrote for a victim of abuse against an insurance company that
    was seeking to squeeze the benefits that were paid under a
    policy that was owed to the plaintiff in the case.
        Chairman Grassley. Okay. Then the last one would be United
    Food and Commercial Workers.
        Judge Kavanaugh. And that is a case, a union case against
    Walmart, and the case came from the NLRB, and the question was
    whether Walmart had engaged in unfair labor practices against a
    union in that case. And in that case, we ruled for the union
    against Walmart in that case on the ground that the factual
    record supported the conclusion that the company had engaged in
    unfair labor practices and, therefore, violated the rights of
    the union members.
        Chairman Grassley. Now to something that I believe I have
    discussed with every nominee to the Supreme Court probably for
    the last 15 years. It is not about a case or your approach to
    the law, and it is something that Senator Kennedy talked to you
    about yesterday. It is not a very popular subject with some of
    the current and former Justices. I think I make Chief Justice
    Roberts uncomfortable when I raise the issue with him when I
    speak for a short period of time at the Judicial Conference.
        And then there was a former--when Justice Souter was on the
    Supreme Court, he made a famous quip about television cameras,
    that they would have to roll over his dead body. I can respect
    that view. I just think it is plain wrong.
        I, and many of my colleagues on this Committee, believe
    that allowing cameras in the Federal courthouse would open the
    courts to the public and bring about a better understanding of
    the Court and its work. You may be aware of that for a number
    of years, I have sponsored a bill, the Sunshine in the
    Courtroom Act, which gives judges the discretion to allow media
    coverage of Federal court proceedings.
        Would you keep an open mind on cameras in the courtroom? Or
    if you have strongly held views on it, do not be afraid to tell
    me.
        Judge Kavanaugh. Mr. Chairman, I appreciate your
    longstanding interest in the issue and transparency for the
    courts, of course. I will tell you what we have done on my
    court briefly and then tell you some general thoughts going
    forward, if I were to be confirmed.
        On our court, we have gone from audio release at some date
    much later. Then we went to audio release same week. Then we
    went to audio release same day. And now we are allowing audio
    to go out live with the oral arguments, and that process has
    been one in which the judges have learned, experienced, and
    become comfortable with the additional transparency that has
    become in the same-time audio over time, and that process has
    worked well in our court.
        On the Supreme Court, I think the best approach for me is
    to listen to the views of people like yourself, Mr. Chairman,
    and others I know who are interested in that to learn, if I
    were to be confirmed, from the experience there and to see what
    the experience there is like, to listen to the Justices
    currently on the Supreme Court. As I have said, be part of a
    Team of Nine, well, I would want to learn from the other
    Justices what they think about this. Because several of them,
    as you know well, Mr. Chairman, when they were in my seat,
    expressed support for the idea of cameras for oral arguments,
    and then, when they were there for a few years, switched their
    position after experiencing it. So I would want to talk to
    them, why that position.
        And as I said to Senator Kennedy last night, too, I would
    want to think about the difference between oral argument and
    the actual announcements of the decisions. I think those are
    two distinct things. There has not been much focus on the
    possibility of live audio, for example, of the decision
    announcements or video of the decision announcements.
        And I think that is a distinct issue from oral arguments,
    and I would be interested in thinking about that and talking to
    my colleagues, if I were to be confirmed. I will have an open
    mind on it, and I do think when you attend oral argument at the
    Supreme Court, as I have many times, or you attend the
    announcement of decisions, it is extraordinarily impressive to
    walk into that building and the majesty of that building.
        The building itself conveys the stability and majesty of
    the law, and to go into the courtroom and to see the Justices
    working together, as they do, to try to resolve cases is
    extraordinarily impressive. It makes you confident, I believe,
    in the impartial rule of law and in each member of the Supreme
    Court to see them in action.
        And so I do understand your point of view on this, and I
    would certainly keep an open mind on it and listen to you and
    listen to the other Justices on the Court, of course.
        Chairman Grassley. Senator Feinstein.
        Senator Feinstein. Thank you, Mr. Chairman.
        I am going to go back to Roe because most of us look at you
    as the deciding vote, and I asked yesterday if your views on
    Roe have changed since you were in the White House. You said
    something to the effect that you did not know what I meant, and
    we have an email that was previously marked ``confidential''
    but is now public, and shows that you asked about making edits
    to an op-ed that read the following, and I quote:
        ``First of all, it is widely understood, accepted by legal
    scholars across the board, that Roe v. Wade and its progeny are
    the settled law of the land,'' end quote. You responded by
    saying, and I quote, ``I am not sure that all legal scholars
    refer to Roe as the settled law of the land at the Supreme
    Court level since Court can always overrule its precedent, and
    three current Justices on the Court would do so.''
        This has been viewed as you saying that you do not think
    Roe is settled. I recognize the word said is what legal
    scholars refer to. So, please, once again tell us why you
    believe Roe is settled law, and if you could, do you believe it
    is correctly settled?
        Judge Kavanaugh. So thank you, Senator Feinstein.
        In that draft letter, it was referring to the views of
    legal scholars, and I think my comment in the email is that
    might be overstating the position of legal scholars, and so it
    was not a technically accurate description in the letter of
    what legal scholars thought. At that time, I believe Chief
    Justice Rehnquist and Justice Scalia were still on the Court at
    that time.
        But the broader point was simply that I think it was
    overstating something about legal scholars. And I am always
    concerned with accuracy, and I thought that was not quite
    accurate description of legal, all legal scholars because it
    referred to ``all.''
        To your point, your broader point, Roe v. Wade is an
    important precedent of the Supreme Court. It has been
    reaffirmed many times. It was reaffirmed in Planned Parenthood
    v. Casey in 1992 when the Court specifically considered whether
    to reaffirm it or whether to overturn it. In that case, in
    great detail, the three Justice opinion of Justice Kennedy,
    Justice Souter, and Justice O'Connor went through all the
    factors, the stare decisis factors, analyzed those, and decided
    to reaffirm Roe.
        That makes Casey precedent on precedent. It has been relied
    on. Casey itself has been cited as authority in subsequent
    cases such as Glucksberg and other cases. So that precedent on
    precedent is quite important as you think about stare decisis
    in this context.
        A similar analogy, the United States v. Dickerson case in
    2000, where the Court considered whether to overturn Miranda v.
    Arizona or to reaffirm it. And in that case, the Court, through
    Chief Justice Rehnquist, specifically reaffirmed Miranda
    despite the fact that Chief Justice Rehnquist had been a critic
    of Miranda in his early days and had written some opinions
    quite critical of it.
        It became that--so that Dickerson case is similarly
    precedent on precedent, which is important going forward as you
    think about the stare decisis calculation for a case like
    Miranda.
        So that is why both of those cases, Planned Parenthood v.
    Casey and Dickerson, are cases where I would refer to them as
    precedent on precedent.
        Senator Feinstein. So you believe it is correctly settled,
    but is it correct law in your view?
        Judge Kavanaugh. Senator, there is on that case or on
    Dickerson, or on cases like Citizens United or Heller or United
    States v. Lopez or Kelo, just the whole body of modern Supreme
    Court case law, I have to follow what the nominees who have
    been in this seat before have done.
        Senator Feinstein. Judge, a ``yes'' or a ``no'' will do.
        Judge Kavanaugh. Well, just if I can briefly explain,
    Senator?
        Senator Feinstein. Yes, you can.
        Judge Kavanaugh. Briefly. I will try to be brief. But
    this--when you are in this seat, I am not just sitting here for
    myself. I am sitting here as a representative of the judiciary
    and the obligation to preserve the independence of the
    judiciary, which I know you care deeply about. And so one of
    the things I have done is studied very carefully what nominees
    have done in the past, what I have referred to as ``nominee
    precedent.''
        And Justice Ginsburg, but really all the Justices have not
    given hints or forecasts or previews. And Justice Kagan, I
    think, captured it well, as she often does, with in talking
    about questions like the one you are asking, you cannot give a
    thumbs up or thumbs down and maintain the independence of the
    judiciary. So I need to follow that nominee precedent here.
        Senator Lee. Mr. Chairman, could I ask that the email at
    issue be made part of the record?
        Senator Feinstein. Pardon me?
        Senator Lee. I would like to ask that the email at issue be
    made part of the record.
        Senator Feinstein. We will be happy to do that. Thank you.
        During your time in the Bush White House, the
    administration actively took steps to limit women's
    reproductive choices. This included re-imposing the global gag
    rule to prevent foreign organizations from spending their own
    money on reproductive health and trying to prevent the FDA from
    making Plan B contraception available over the counter.
        During your service at the White House, 2001 to 2006, did
    you work on any issues related to women's reproductive health
    or choice?
        Judge Kavanaugh. President Bush was a pro-life President,
    and so his policy was pro-life. And those who worked for him,
    therefore, had to assist him, of course, in pursuing those
    policies, whether they were regulatory. There was partial birth
    legislation that was passed as well, and some of those things
    might have crossed my desk. I cannot remember specifics.
        But he--I think this came up in Justice Kagan's when she
    worked for President Clinton. He had a different view than
    President Bush on that issue, and she had some work for
    President Clinton. I consider myself working for President
    Bush, was there to assist him.
        Senator Feinstein. Let me go to torture. During the time
    you worked in the White House, the Office of Legal Counsel
    concluded that harsh interrogation techniques were legal, even
    though Congress had passed a law in 1994 banning torture.
        The Office of Legal Counsel took a sweeping view of
    Presidential power and concluded that the President could
    override the statute. In response, in 2005, the Congress
    adopted an amendment championed by our colleague Senator
    McCain--I was the cosponsor--that stated that only
    interrogation techniques that can be used are those authorized
    in the Army Field Manual.
        Was the Office of Legal Counsel correct when it concluded
    that the President could ignore the torture ban?
        Judge Kavanaugh. So the Office of Legal Counsel, Senator,
    subsequently withdrew those memos, as you know. And as I have
    made clear in some of my writings--the review of Judge David
    Barron's book, some of my opinions as well--the President does
    not have the authority to disregard statutes passed by Congress
    regulating the war effort, except in certain very narrowly
    described circumstances that are historically rooted. The
    common example being command of troops in battle.
        So as a general proposition, the President has to comply
    with the law. The President is subject to the law, including in
    the national security context.
        That is the lesson, I think, of the Youngstown Steel case,
    of Justice Jackson's categories. Category 3, as I have said
    repeatedly in my writings, which is where Congress has
    prohibited the President from doing something, is critically
    important. That is essential to the rule of law. As Justice
    Jackson said, that is the equilibrium of the country is at
    stake in Category 3, and I have written about that quite
    frequently.
        Senator Feinstein. Got it. Thank you.
        Today, we have a President who said he could authorize
    worse than waterboarding. How would you feel about that?
        Judge Kavanaugh. Senator, I am not going to comment on and
    do not think I can sitting here on current events.
        Senator Feinstein. Well, but you know what the law is. You
    have made that clear.
        Judge Kavanaugh. I know what the law is, Senator, and I
    know your----
        Senator Feinstein. So I ask specifically how do you feel
    about that?
        Judge Kavanaugh. I feel that I should follow the law as a
    judge. I know what the law is, and I know your leadership on
    this issue, both with the report you did, which was the
    thorough documentation of things that happened, as well as
    recommendations for the future. And I know your leadership with
    Senator McCain on the 2005 Act as well. And I know what the law
    is, and I have written about the--how the separation of powers
    works when Congress passes laws of the kind that you have.
        Senator Feinstein. One last question on this. In December
    of 2005, President Bush issued a signing statement regarding
    the Detainee Treatment Act of 2005, reserving the President's
    right to disregard that the law's ban on torture--disregard the
    law's ban on torture if it interfered with his constitutional
    authorities as President.
        What was your involvement, if any, with this signing
    statement?
        Judge Kavanaugh. While I was staff secretary, any issue
    that reached the President's desk, with the exception of a few
    covert matters, would have crossed my desk on the way to the
    President's desk. I would not have in the ordinary course
    provided the policy advice or the legal advice, but it would
    have crossed my desk. So in that case, the signing statement--
    the drafts of it, that process--would have crossed my desk at
    some point.
        Senator Feinstein. Okay. In a 2013 panel discussion, as--
    well, you did nothing about it, though. It crossed your desk,
    and that was that.
        Judge Kavanaugh. Well, there was debate, as I think I have
    mentioned, about that. The Counsel to the President, Ms. Miers
    at the time, was the ultimate adviser on that matter for the
    President and, thus, would have been the one who primarily
    dealt with that with the President.
        It was important as in the job I had there not to supplant
    the policy or legal advisers. That was not my job. My job was
    to make sure the President had the benefit of the views of his
    policy and legal advisers.
        Senator Feinstein. One more Bush era question on this. In a
    2000 panel discussion at NYU Law School regarding Bush
    administration anti-terrorism policies, you said the Bush
    administration went ``right up to that legal line to defend the
    security of the United States,'' implying that Bush policies
    did not cross the legal line. Do you mean to suggest that Bush
    administration's post 9/11 programs, including the CIA torture
    program, were legal?
        Judge Kavanaugh. No, Senator, that is not what I was
    suggesting there, and let me try to provide you an explanation.
    President Bush's view, as I think he had said publicly, was in
    trying to keep America safe, he was going to do everything he
    could within the law. He relied on his lawyers to provide him
    the boundaries of what the law is, and then he would go up to
    that line as he thought effective as a matter of policy.
        It was up to the lawyers, therefore, to make sure that they
    were giving sound advice and not--and having the backbone. And
    this is something that your legislation reinforces. Lawyers
    need to have backbone, even in pressurized moments, to say no,
    and I have talked about that many times.
        One of the most important responsibilities of an executive
    branch lawyer in the passions of the moment, where the pressure
    is on, where the President wants to do something perhaps, is to
    go into the Oval Office and say, ``No, you should not do
    this.'' And that is something that I have written about, talked
    about, and experienced in my time with President Bush, and I
    have encouraged young lawyers to have that backbone and
    fortitude to say no. That is about the most important thing.
        Senator Feinstein. Thank you.
        A quick change of subject. You sat on a case where a
    trainer, Dawn Brancheau, was killed while interacting with a
    killer whale during a live performance. Following her death,
    the Occupational Safety and Health Administration found that
    SeaWorld had violated work force safety laws. The majority
    agreed with the agency that SeaWorld had violated the law.
        According to what I know, you disagreed. In your dissent,
    you argued that the agency lacked the authority to regulate
    employers to protect participants in sporting events or
    entertainment shows.
        However, the statute as enacted applies to each employer,
    and it defined ``employer'' as anyone engaged in business
    affecting commerce who has employees. Where in text of the law
    did Congress exempt employers of animal trainers?
        Judge Kavanaugh. Thank you for the question, Senator.
        The first point I want to make is that was not a case that
    involved potential compensation to the family. That was handled
    through the State tort system or through insurance or through a
    settlement with the--SeaWorld and the family. So the case
    before us had nothing to do with compensation to the family. It
    had to do with a separate regulation of SeaWorld.
        The issue, Senator, was precedent. I follow--as a judge, I
    follow precedent. The precedent of the Labor Department, as I
    read it, was that the Labor Department under the statute would
    not regulate what it called the intrinsic qualities of a sports
    or entertainment show.
        So lots of sports and entertainment shows have serious
    dangers, whether it is football or the balance beam in
    gymnastics or the high wire act at the circus or the lion tamer
    show. And the SeaWorld show was of--as I saw it, of a piece
    under those with that precedent that said the Labor Department
    would not regulate, for example, whether baseball helmets had
    to have ear flaps or whether to prohibit the punt return or to
    make the balance beam have nets.
        And this seemed to be covered by that precedent, as I saw
    it. The Labor Department in the oral arguments tried to
    distinguish, for example, the dangers of football from the
    dangers of the SeaWorld show, and I did not, as I explained in
    the opinion, find that distinction persuasive.
        But I did make clear two things, Senator. One is Congress
    could, of course, regulate the intrinsic--Congress could make
    the decision to regulate the intrinsic qualities of sports and
    entertainment shows, or the Labor Department could change its
    precedent. And I made clear that, of course, State tort law--as
    the NFL has experienced with the concussion issue, State tort
    law always exists as a way to ensure or help ensure safety in
    things like the SeaWorld show.
        Senator Feinstein. Thank you.
        A question, if I may, about independent agencies. Congress
    has established several independent agencies. We believe they
    are essential to enforcing our laws and safeguarding consumers.
    Congress requires the President to have good cause to remove
    the heads of these agencies to insulate them from political
    interference.
        You have objected to this limit on the President's power
    and struck down the for-cause requirement in a case involving
    the Consumer Financial Protection Bureau. The D.C. Circuit
    disagreed and overturned your decision.
        If the President can fire the heads of independent agencies
    for any reason, what is to prevent political interference in
    these independent agencies?
        Judge Kavanaugh. Senator, I have followed the Humphrey's
    Executor precedent. I have referred to it as entrenched. That
    is the precedent that allows independent agencies and protects
    them from at-will firing, the for-cause restriction. So as a
    general matter, I have affirmed the--or I have followed the
    precedent of Humphrey's Executor.
        The example you are talking about, the Congress established
    a new independent agency that did not follow the traditional
    model of independent agencies----
        Senator Feinstein. Yes.
        Judge Kavanaugh. Of having multiple members. That is all I
    thought was problematic there, and I did not invalidate or did
    not say the agency should stop operating. I said the agency can
    continue performing its important functions on behalf of
    consumers. But either it had to be restructured as a multi-
    member agency, or the President had to be able to remove the
    single head at will.
        Senator Feinstein. The limited set of documents we have
    received indicates that you were heavily involved in the Bush
    White House's response to congressional investigations after
    the Enron scandal. Is that accurate?
        Judge Kavanaugh. That is accurate. We had a document
    request from Senator Lieberman's Committee, and I was one of
    the lawyers that had to help gather the documents from people
    within the White House and then had to negotiate documents--I
    had to negotiate documents with Senator Lieberman's staff.
        Senator Feinstein. Right. So you know that Enron was one of
    the greatest corporate scandals in American history. And I can
    tell you as a Senator from California, not only did many of my
    constituents lose everything financially when Enron collapsed
    under the weight of its accounting fraud, but the fraud and
    market manipulation contributed to an energy crisis in
    California.
        White House emails show that you were asked to review a set
    of draft talking points for Press Secretary Ari Fleischer that
    addressed the role of Enron's market manipulation in the
    California energy crisis. Essentially, the talking points said
    if there was any misconduct by Enron, it was up to the Federal
    Energy Regulatory Commission to investigate and punish the
    company.
        I am not going to ask you if you remember the specific
    document, but was that your view that FERC was the regulatory
    body that was supposed to stop this sort of misconduct?
        Judge Kavanaugh. I am not recalling the specifics of that,
    Senator. My role, as a general matter, was to help gather
    documents in response to Senator Lieberman's Committee's
    request, as I recall. And I know FERC would have a role
    necessarily in something like that, but I do not know if I
    thought primary or I do not think that was my area of
    expertise. So I am just not recalling it specifically, Senator.
        Senator Feinstein. Yes.
        [Disturbance in the hearing room.]
        Senator Feinstein. Thank you, Mr. Chairman. Thank you.
        Chairman Grassley. Senator Hatch.
        Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
    the way you have conducted these hearings in spite of these
    type of irresponsible outbursts and so forth that it is hard to
    believe.
        Now, Judge Kavanaugh, I would first like to commend you for
    how you have conducted yourself these last 2 days. You have
    displayed the level-headedness and decency that so many of your
    friends tell us actually exist and I would say your friends and
    former colleagues have described in their letters to this
    Committee. I wish you could say the same about everyone who has
    attended this hearing or conveyed it--or covered it on social
    media, but I cannot.
        I am deeply concerned about the theatrics we have seen
    these last 2 days. I have been on this Committee for 42 years,
    longer than any other person except Senator Leahy. I am the
    former Chairman. Never have I seen the constant interruptions
    we have witnessed at this hearing.
        Confirmation hearings are supposed to be an opportunity for
    the American people to hear from the nominee. Unfortunately, it
    seems that some on the political left have decided to try to
    turn this hearing into a circus. Now I worry about the
    precedent this is setting for future confirmations, but that is
    not the worst.
        The worst of it are the attacks against people who are not
    even up for confirmation who just happen to be here in the room
    to support the nominee. It is bad enough that Supreme Court
    nominations have turned into all-out war against the nominee.
    Have we really reached the point where anyone who supports or
    even sits behind a nominee must also be destroyed? Has our
    tribalism really reached that low?
        To those who have been unfairly caught up in the mob
    mentality of the last 2 days, I just want to say you are right
    to be here supporting someone you believe in. Do not let the
    fact that there are a lot of, frankly, sick people out there
    cause you to lose faith in our political process. We need good,
    decent people to step forward to contribute even when it is
    ugly, particularly when it is ugly.
        Just now to my questions. Let me ask you this. As I did
    yesterday, I would like to ask you to keep your answers to my
    questions concise so we can get through as many of them as we
    can.
        Late last night, one of my colleagues asked you a series of
    open-ended questions about any conversations you have had with
    anyone at a 350-person law firm about Special Counsel Bob
    Mueller or his investigation. You said you do not remember
    having had any such conversations.
        My colleague did not clarify why my colleague was asking
    the questions and did not allow you to complete your answers. I
    want to give you a chance to respond if you would like to.
        Judge Kavanaugh. Sure, Senator. I do not recall any
    conversations of that kind with anyone at that law firm. I did
    not know everyone who might work at that law firm, but I do not
    recall any conversations of that kind.
        I have not had any inappropriate conversations about that
    investigation with anyone. I have never given anyone any hints,
    forecasts, previews, winks, nothing about my view as a judge or
    how I would rule as a judge on that or anything related to
    that. So I thank you for the opportunity to clarify and
    reassure you on that.
        Senator Hatch. Well, thank you.
        With all of the accusations and insinuations and innuendo
    being hurled around yesterday, there is something I have to
    come clean about. I am on the Board of Visitors of the
    Federalist Society. It is true. For those who are not familiar
    with the Federalist Society, it generally holds debates and
    puts together panels on legal issues, covering all sides of
    these issues--the liberal, the conservative, et cetera. It is a
    very responsible organization.
        The American Constitution Society, the Democrat
    organization, does much the same thing, and I respect them,
    except it focuses on liberal or progressive lawyers. So this is
    familiar to my Democratic colleagues on this Committee.
        They have been involved with ACS'--with the ACS from
    keynoting the annual conference to being an honorary host
    committee chair, to speaking on panels, to writing blog entries
    for the organization. I even heard the nasty rumor that one of
    them spoke at a Federalist Society event. Can you believe that?
        You have already said that when it came to your nomination,
    you spoke with the President, the Vice President, and the White
    House Counsel Don McGahn, not the Federalist Society. So I do
    not need to ask you about that. My question for you is this.
    What has your experience with the Federalist Society been?
        Judge Kavanaugh. Senator, thank you.
        The Federalist Society, as you noted, holds debates at law
    schools----
        Senator Hatch. On both sides.
        Judge Kavanaugh. On both sides. The typical program of a
    Federalist Society event at a law school will have two speakers
    and a moderator--that is typical--with the two speakers
    presenting different views on an issue. It could be, for
    example, Fourth Amendment privacy, where you have someone who
    has got different view on national security-related Fourth
    Amendment issues or on free speech issues or all sorts of legal
    issues. They try to have debates where both sides are presented
    at the law school events that I have been to.
        At the conventions, they will always have panels of four or
    five with a moderator, where they will have a spectrum of views
    represented on a different topic. They are very enriching in
    terms of your knowledge of the law, and they are also
    enriching, I believe, in terms of providing different
    perspectives on the law. And they have--they welcome people and
    actually insist on having people from all different
    perspectives at the event.
        So it is very beneficial to the law. I think the programs
    they have at the law schools, they are very educational. They
    provide some of the best debates that are held with the law
    schools, I believe.
        And so I think the organization itself, which itself does
    not lobby and does not file amicus briefs or anything like
    that, does a very valuable service at law schools and the legal
    community as a whole for bringing together different views on
    important legal issues. And I applaud them for their efforts to
    bring speakers to campus and provide legal debates on campus
    and in lawyers' conventions.
        Senator Hatch. You have described it quite well.
        Earlier this year, I attended oral argument in Microsoft v.
    United States, also known as the Microsoft Ireland case.
    Naturally, I was very interested in that. At issue in the case
    was the meaning of the Stored Communications Act and whether a
    warrant for data stored overseas, but accessible in the United
    States, falls within the Act's confines.
        I had introduced legislation known as the CLOUD Act to
    resolve this issue. Following oral argument, Congress passed
    the CLOUD Act, thus mooting the case before the Court.
        Now the specific question at issue in the Microsoft Ireland
    case has been resolved by my legislation, but the case also
    raised a broader question that I would like to ask you. When
    the Stored Communications Act was passed in 1986, no one
    imagined a world where data could be stored overseas but
    accessible instantaneously in the United States. It was clear
    that the act covered data stored in the United States, but it
    was less clear that it extended to data stored abroad using new
    technologies that were not available in 1986.
        How do we interpret our laws in light of changing
    technology? How do we determine whether the authors and
    enactors of legislation would have intended the legislation to
    cover new technologies and unforeseen situations?
        Judge Kavanaugh. Senator, I think there, as elsewhere, the
    job of a judge is to focus on the words written in the statute
    passed by Congress. Sometimes Congress will write a statute
    where the words are very precise, and it is quite clear it
    covers only something that might be in existence at the time.
    Sometimes Congress will write broader, more capacious words, as
    does the Constitution at times, that can apply to new
    technologies.
        For example, the Fourth Amendment, of course, in the
    Constitution applies to things that were not known at the
    founding, including cars and communication devices that were
    not known at the founding. So, too, with statutes. It depends
    on how broadly or narrowly you have written it.
        And your question raises a broader point, which is the
    issue of privacy and liberty on the one hand versus security,
    law enforcement on the other is an enormous issue going forward
    for the Congress, in the first instance, I believe, and also
    for the Federal courts, including the Supreme Court, going
    forward. The Carpenter case this past term is a good example of
    that, written by Chief Justice Roberts.
        As I look ahead over the next 10 to 20 years, that balance
    of Fourth Amendment liberty and privacy versus security and law
    enforcement is an enormous issue.
        Senator Hatch. Well, I appreciate your elucidation on that.
    On the domestic front, there has been debate for some time now
    in Congress about whether our laws should be updated to require
    a warrant for the content of electronic communications,
    regardless of how old those communications are.
        As you may know, the Electronic Communications Privacy Act
    currently distinguishes between communications that are less
    than 180 days old and those that are more than 180 days old,
    requiring a warrant for the former, but not the latter. Can you
    speak generally to the importance of warrant requirements and
    why they are an important bulwark against the Government
    overreach?
        Judge Kavanaugh. The warrant requirement helps ensure, as a
    general matter, that the executive branch is not unilaterally
    able to invade someone's privacy, someone's liberty without
    judicial oversight. That ensures that there is probable cause
    or whatever the standard might be in a statutory situation to
    get someone's records or information or otherwise invade their
    liberty or privacy.
        So that judicial oversight is part of the checks and
    balances of the Constitution, and Congress has written that
    also into several statutes, as you know, Senator.
        Senator Hatch. Well, I want to return to the email Senator
    Feinstein was asking you about. You were asked for your
    comments on an op-ed that was going to be published by a group
    of pro-choice women in support of a circuit court nominee. You
    said, ``I am not sure that all legal scholars refer to Roe as
    the settled law of the land at the Supreme Court level since
    Court can always overrule its precedent.''
        You then added, ``The point there is in the inferior court
    point.'' Were you giving your opinion on Roe there, or were you
    talking about what law scholars might say?
        Judge Kavanaugh. I was talking about what legal scholars
    might say, and I thought the op-ed should be accurate about
    what, in describing legal scholars.
        Senator Hatch. Okay. So we have got that cleared up.
        You have been critical of the practice of judges sentencing
    defendants based on uncharged or acquitted conduct. With regard
    to acquitted conduct in particular, I agree that the notion
    that a judge can sentence a defendant to a long prison term for
    a crime that a jury acquitted the defendant of flies in the
    face of the right to a jury trial.
        You have written that you believe, ``It likely will take
    some combination of Congress and the Sentencing Commission to
    systematically change Federal sentencing to preclude use of an
    acquitted or uncharged conduct.''
        Why do you take issue with the use of acquitted conduct at
    sentencing, and why do you believe this is an issue that will
    likely require intervention by Congress to resolve?
        Judge Kavanaugh. The opinions I have written on this, and I
    have written several, say, in essence, the following, Senator.
    When a criminal defendant, for example, let us say is charged
    with 10 counts, let us suppose, and is acquitted on 9 and
    convicted on 1, and then the criminal defendant is sentenced as
    if he or she had been convicted of all 10 because the judge
    just says, well, I think, you know you did X or that Y, and
    under my discretion--which you now have under the Supreme
    Court's case law for sentencing--I am just going to sentence
    you the same anyway.
        Defendants and the public, the families of the defendants
    understandably say that seems unfair. I thought the point of
    the jury trial was to determine whether I was guilty or not
    guilty on all those charges. And if I am getting sentenced
    exactly as if I were guilty on all the charges, that seems a
    violation of due process.
        So I have written about the fairness and perceived fairness
    of the use of acquitted conduct at sentencing. Judge Millett on
    my court and I have both written about it several times and
    made clear our concern about the use of acquitted conduct and
    how it affects the sentencing system.
        Why I have said Congress might need to look at it, although
    I have also pointed out individual district judges can look at
    it, is because under the current system, sentencing judges have
    wide discretion in picking sentences. So it is hard for an
    Appeals Court to say that you have infringed your discretion,
    given some of the case law of the Supreme Court which grants
    that discretion.
        But I do not like the practice, and I have made the clear
    in my opinions. So I am just repeating my opinions here because
    of the unfairness and perceived unfairness of it.
        Senator Hatch. Okay. This Committee has been chasing an
    elusive deal on criminal justice reform for quite some time
    now. One particular focus of mine in this area has been mens
    rea reform. Without adequate mens rea protections, that is,
    without the requirement that a person knows his conduct was
    wrong or unlawful, everyday citizens can be held criminally
    liable for a conduct that no reasonable person would know was
    wrong.
        Critics of my legislative efforts to bring clarity to mens
    rea requirements claim the effort is a ploy to get corporations
    and white-collar defendants off the hook. But stronger mens rea
    requirements protect the liberty of all defendants in the
    criminal justice system, the vast majority of whom are not
    corporations or white-collar defendants.
        You have written about the importance of mens rea
    requirements, including in cases involving unsympathetic
    defendants like an armed robber or a convicted murderer. Why,
    in your view, are mens rea requirements so important?
        Judge Kavanaugh. Mens rea requirements are important
    because, Senator, under the Due Process Clause and the
    predecents of the Supreme Court, it is not right to convict
    someone based on a fact they did not know. It is just an
    elemental point of due process.
        Justice Jackson described this principle in his famous
    Morissette decision that he wrote. It is elementary as the--he
    said, as the school child's ``I did not mean to. I did not
    know.'' And if someone truly did not know a fact that they--
    that is relevant to their conviction, to nonetheless convict
    them is contrary to due process.
        I have seen cases where a mandatory minimum sentence was
    elevated from 10 years to 30 years, a 30-year mandatory minimum
    based on a fact that the defendant did not know. I dissented in
    that case, in an en banc case joined by Judge Tatel, who was an
    appointee of President Clinton to our court, saying that--and I
    wrote a very lengthy dissent about the history of mens rea and
    just how much of a violation of due process I thought had
    occurred in that case. That was not a sympathetic defendant,
    given what he had been convicted of, but I thought it was a
    complete violation of due process and principles of mens rea
    that were longstanding from Morissette to give him a 30-year
    mandatory minimum for a fact he did not know.
        I have also wrote--or joined an opinion and wrote a
    separate opinion reversing a murder conviction of someone where
    the jury instructions were unclear about the mental state of
    the murderer. It was a question of manslaughter versus second-
    degree murder. That would have had a huge difference in the
    defendant's sentence, and I wrote an opinion saying this was
    not an especially sympathetic case, given the facts, but the
    jury instructions were flawed on the issue of the mental state.
    And my exact line was, ``I am unwilling to sweep that under the
    rug.'' And that is how I felt about that case. There was a
    dissent in that case, but I was in the majority reversing the
    murder conviction in that case.
        No matter who you are, in my court, if you have the right
    argument on the law, I am going to rule in your favor. And mens
    rea is foundational to due process. I have written that
    repeatedly, and I share your concern about mens rea reform,
    Senator Hatch.
        Senator Hatch. Well, thank you.
        I have one last question. Some people seem to think that
    religious people should not work in Government because they
    swear allegiance to their church, not their country
    necessarily. I have faithfully served this country for over 40
    years, and I am a--I believe I am a religious person.
        Now religion is also a big part of your life. You went to
    Catholic school. Your children go to Catholic school. And you
    regularly attend church and serve at a church-supported soup
    kitchen. I know that religious faith is a personal subject, but
    I would like to hear from you how you--how your private beliefs
    affect your public decisions. Can you be devout in your faith
    and still uphold the law?
        Judge Kavanaugh. Senator, my religious beliefs have no
    relevance to my judging. I judge based on the Constitution and
    laws of the United States. I take an oath to do that. For 12
    years, I have lived up to that oath.
        At the same time, of course, as you point out, I am
    religious, and I am a Catholic. And I grew up attending
    Catholic schools. And the Constitution of the United States
    foresaw that religious people or people who are not religious
    are all equally American.
        As I have said in one of my opinions, the Newdow opinion,
    no matter what religion you are or no religion at all, we are
    all equally American, and the Constitution of the United States
    also says in Article VI, no religious test shall ever be
    required as a qualification to any office or public trust under
    the United States.
        That was an important provision to have in the founding
    Constitution to ensure that there was not discrimination
    against people who had a religion or who people who did not
    have a religion. It is a foundation of our country. We are all
    equally American.
        Senator Hatch. Thank you. Thank you, Mr. Chairman.
        Chairman Grassley. Senator Leahy.
        Senator Leahy. Thank you, Mr. Chairman.
        And as I mentioned to you earlier, I have a number of
    letters that I ask consent to be placed in the record, as well
    as emails that were declassified, I think some at 3 this
    morning, that they be placed in the record.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as submissions for the record.]
        Senator Leahy. Thank you.
        And I know there was a claim this morning, the Committee
    was following my precedent, Judge Kavanaugh. Not so. For
    Justice Kagan, we had 99 percent of her documents for her time
    at the White House, and, of course, we do not have--we have
    less than 10 percent of yours. And there were 860 documents
    designated as ``committee confidential'' by the nonpartisan
    National Archives that was discussed with both the Democrats
    and Republicans on the Committee. Nobody objected to that.
        But let us go to follow up on our questions yesterday. Now
    we discussed the fact that while you worked on nominations in
    the Bush White House, you received stolen material from a
    Republican Senate staffer named Manny Miranda. I thought it was
    a digital Watergate. He stole 4,670 computer files from six
    Democratic Senators.
        And he was doing this in an effort to confirm some of
    President George W. Bush's most controversial judicial
    nominees. They were some of the most contentious fights of the
    day, and this Republican stole 4,670 computer files.
        Now in 2004 and 2006, you testified, and a number of
    Senators, both Republicans and Democrats, asked you, and you
    said you had never received any stolen materials. That does not
    appear to be accurate.
        You also testified that you knew nothing about the scandal
    until it was public, and if you had suspected anything
    untoward, you would have reported it. You also testified to
    Senator Hatch that you never received any document that even
    appeared to you to have been drafted or prepared by Democratic
    staff.
        Now I also asked you yesterday whether Mr. Miranda asked to
    meet privately offsite to hand you documents related to
    Senators Biden and Feinstein. I also asked about him sending
    you ``intel'' with extraordinarily detailed specifics about
    what I was going to ask a highly controversial nominee just
    days later, something I never said publicly. I also asked about
    your receiving a draft, a nonpublic letter of mine, before any
    mention of it was made public.
        You testified you did not recall anything specific, but you
    thought that sharing information between staffs was common. So
    let me ask you this. Has anyone told you what any Democratic
    Senators have been advised to do by our staff at this hearing?
        Judge Kavanaugh. I think there has been a lot of----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. There has been a lot of discussion about
    what individual Senators might be interested in, and when I
    met----
        [Disturbance in the hearing room.]
        Senator Leahy. I really want to hear what you have to say,
    Judge, not what protestors have to say. Please, go ahead.
        Have you ever been advised--have you been told what any
    Democratic Senator has been advised to do by our staff at this
    hearing?
        Judge Kavanaugh. Right. So when I met individually with the
    65 Senators, including almost every Member of the Committee, a
    lot of the Senators, a lot of you in the meetings told me
    issues you were interested in. I think your staff was probably
    talking to----
        Senator Leahy. But has anybody said to you, for example,
    Senator Leahy's staff is asking him to do this at the hearing
    tomorrow?
        Judge Kavanaugh. Well, I think you yourself told me what
    you were going to ask. So I----
        Senator Leahy. No, I tried to give you a good heads-up, and
    I appreciate the meeting. But has anybody else told you this is
    what Leahy's staff is asking him to ask at the hearing
    tomorrow?
        Judge Kavanaugh. Again, I think this might be a different
    kind of process because you all were very transparent when I
    met with you. I am looking around and saying here is what I am
    focused on and here is what I am going to ask you at the
    hearing, and it has turned out you were telling--you were
    accurately telling me your concerns for that----
        Senator Leahy. And you are saying that is normal, but did
    anybody hand you anything marked ``Highly confidential'' about
    any one of these Senators?
        Judge Kavanaugh. For this? No. I am not remembering
    anything like that, but you all did talk about the issues. In
    other words, there are no surprises. Well, there are not no
    surprises. But you know, you gave me basic concerns and issues
    you wanted to raise.
        Senator Leahy. I want to make sure we are clear on this.
    Nobody handed you something marked, ``Highly confidential,''
    but that is the material you received from Manny Miranda. For
    example, on July 18, 2002, days before an extremely
    controversial hearing for Fifth Circuit nominee Priscilla Owen,
    Mr. Miranda sent you an email with the subject line, ``Highly
    confidential,'' and informed you that Senator Biden's staff was
    asking him not to attend the meeting that day.
        On March 18, 2003, Mr. Miranda sent you several pages of
    talking points that were stolen verbatim, stolen verbatim from
    Democratic files. The talking points revealed arguments
    Democrats were making on another controversial nominee, Miguel
    Estrada. The subject line of the email stated it was not for
    distribution, meaning Mr. Miranda was asking you not to share
    the information.
        This has now been, as of 3 this morning, made public. So
    yesterday, when I asked you about these specific events, you
    said you did not have any recollection. So I am not going to
    ask if you remember receiving this email, I am going to ask you
    this.
        Why would you ever be asked to keep secret Democratic
    talking points if they were legitimately obtained?
        Judge Kavanaugh. I am looking at these, Senator, and it
    says, for example, it looks like--it looks like that Biden's
    staff is asking him not to attend the hearing. I do not know
    why that----
        Senator Leahy. But look how you received it.
        Judge Kavanaugh. I know. Highly--I do not know why that is
    even confidential because it----
        Senator Leahy. Whether it is or not, would you consider
    that somewhat unusual to be receiving from a Republican staff
    member something marked, ``Highly confidential,'' telling him
    what he has found out that a Democrat is going to do?
        Judge Kavanaugh. Well, as I explained yesterday, Senator,
    my understanding of this process is that the staffs do talk
    with one another, that they are not camps with no
    communication, and that was my experience when I worked in the
    White House. And so this, it looks like Biden's staff is asking
    him not to attend the hearing would have been pretty standard
    kind of information that would be----
        Senator Leahy. Well, not really. You read this. I would be
    amazed if somebody handed me a memo saying this is a
    confidential memo that Senator Grassley's staff has prepared
    for him. I know I would not read it. I would be on the phone
    immediately to Senator Grassley to say I am bringing something
    over that just arrived to me for you to take a look at it.
        But you received on July 28, 2002, an email from Manny
    Miranda that said my staff distributed a confidential letter to
    Democratic counsels, not to Republicans. Now Mr. Miranda said I
    received that letter in the strictest confidence. You were
    asked explicitly by Mr. Miranda to take no action on the email
    without his, his further instructions. You never asked him how
    he obtained the letter sent in strict confidence to me.
        And then July 30, 2002, you received an email from Miranda
    saying that he had 100 percent info that I was convening a
    meeting about a controversial nominee, and then further, on
    August 13, 2002, email he obviously had taken from my internal
    emails what I was going to do.
        Did any of this raise a red flag in your mind?
        Judge Kavanaugh. It did not, Senator, because it all seemed
    consistent with the usual kinds of discussions that happen. And
    sometimes, people do say things of here is what my boss is
    thinking, but do not share it around. I mean, I must have had,
    you know, so many conversations in the course of my life like
    that where someone is saying like that about something, in
    other words, trying to give you a heads up on something. And
    that just seems standard Senate staff--so nothing--the direct
    answer to your question is, for example, it looks like Biden's
    staff is asking him not to attend the hearing. That would not
    have raised anything at all for me other than someone was----
        Senator Leahy. Not even where he came from? On June 5,
    2003, you received an email from a Republican Senate staffer
    with subject line ``spying.'' That is not overly subtle. This
    staffer appears in over 1,000 documents we received together
    with both you and Mr. Miranda. She says, she ``has a mole for
    us,'' and so forth. None of this raised a red flag with you?
        Judge Kavanaugh. It did not, Senator. Again, people have
    friends across the aisle who they talk to. At least this was my
    experience back then. Maybe it has changed. And there was a lot
    of bipartisanship on the Committee. There was a lot of
    bipartisanship among the staffs. There were a lot of
    friendships and relationships where people would talk to, oh, I
    have got a friend on Senator Kennedy's--Ted Kennedy's staff or
    I have a friend on Senator Hatch's staff or I have a friend on
    Senator Spector's staff. That kind of conversation and
    information-sharing was common, so it did not raise the----
        Senator Leahy. Well----
        Judge Kavanaugh. Flags.
        Senator Leahy [continuing]. Judge, I was born at night but
    not last night, and if I had something that somebody said we
    have stolen this or do not tell anybody we have this, I think
    that would raise some red flags. Now, we only have a fraction
    of your record, and I do thank the Chairman for opening these
    up at 3 this morning. But as you know, the President asserted
    executive privilege, the first time we have had to face this up
    here on a nominee from either Republicans or Democrats, of
    102,000 pages of material, 102,000 from just your time in the
    White House. That includes all judicial nominations.
        Can you confirm for me today that that 102,000 pages, there
    are no emails from Mr. Miranda marked, ``Highly confidential,''
    or ``Do not share,'' or ``Take no action on this,'' describing
    what he has found out the Democrats are thinking?
        Judge Kavanaugh. Senator, I am not involved in the
    documents process, so I do not know what is in them.
        Senator Leahy. Well, that is convenient. But we do not know
    what is in them either because we have never had so much
    withheld before. We do not know what is in all the documents.
    They are still being gone through by the archives because this
    is being rushed through, and we do not get a chance to see
    them. That is not fair to us, and, frankly, Judge, it is not
    fair to you. You have probably been told you have the votes to
    be confirmed so you do not have to care, but I care. I care
    about the integrity of the Supreme Court. I care about who is
    on there. I think you should care what is in that, just as we
    should care what is in it.
        There are even more documents than I had time to discuss
    today. I find it impossible to reconcile what you are regularly
    being told, your testimony that you received nothing stolen and
    no reason to suspect anything was stolen when, frankly, as we
    now know, Republican staffer Manny Miranda stole things. And
    some of the things he stole went directly to you.
        Let me ask you another one. You testified in 2004 that,
    aside from participating in a mock court argument, you did not
    work on the nomination of Judge William Pryor. Now, he was a
    controversial nominee, called Roe v. Wade, the ``worst
    abomination'' in the history of constitutional law. He argued
    that constitutional right to same-sex intimacy would logically
    extend to activities like necrophilia, bestiality, pedophilia.
    You said you did not work on his nomination personally, but you
    did participate in the Pryor working group, did you not?
        Judge Kavanaugh. We all were met--just so you know the
    process, there was something called the White House--I think,
    Judicial Selection Committee, and Judge Gonzales, the Counsel
    to the President, chaired that committee. And that started
    immediately after President Bush came into office in 2001. And
    so we would meet with memos, and individual members of the
    staff would be assigned to different regions----
        Senator Leahy. Did you interview William Pryor?
        Judge Kavanaugh. I do not believe so. It is possible, but I
    do not believe so. But if I did, it would have been part of the
    general process where people came in.
        Senator Leahy. I put in the record Exhibit C, which said
    you did interview him. Did you?
        Judge Kavanaugh. It is possible. We interviewed hundreds of
    nominees----
        Senator Leahy. I understand.
        Judge Kavanaugh. As I said, Senator, and we met every week
    for several years to go over nominees. And we worked closely
    with the home-State Senators. And I had various States for
    district court. I had Illinois. I had California I worked on
    with Senator Feinstein and Senator Boxer's staff; Maryland,
    Senator Sarbanes and Senator Mikulski. But then we would sit in
    sometimes on interviews of other people who came in, and then
    we would meet and go over the memos. Then, we would meet with
    the President. We met every week with the President before
    September 11. After September 11, those meetings became less
    frequent because----
        Senator Leahy. You had recommended him internally for the
    Eleventh Circuit seat, had you not?
        Judge Kavanaugh. Well, I have no reason that I would not
    have recommended him because he was a highly qualified Attorney
    General of Alabama, and Senator Sessions, of course, knew him
    well and he was well-respected and----
        Senator Leahy. The only reason I ask was that one of the
    emails that we have up here says, ``Brett, at your request''--
    at your request--``I asked Matt to speak with Pryor about his
    interest.''
        Judge Kavanaugh. Well----
        Senator Leahy. I am not asking these questions to get you
    in a bind, Judge. I am asking them because it is so easy on
    these hearings to say I do not remember, and oftentimes, that
    is the case, but you mentioned Mr. Gonzales. He had difficult
    remembering when he came here. He had one hearing where--so
    that he would not have that problem, I gave him I think 35, 45
    of the questions ahead of time. On every one of them, he said I
    do not remember, I do not recall, and then every question
    asked--almost every question asked by both Republicans and
    Democrats he said I do not remember, I do not remember. Shortly
    after that, he went to private practice.
        I think it is so difficult that you do not remember the
    things done by somebody who I think on both sides of the aisle
    we would agree is one of the most egregious breaches of
    Committee confidentiality when Manny Miranda stole material
    from here, stole it to send it to you and others at the White
    House. And you have no recollection of that?
        Judge Kavanaugh. I obviously recall the emails--or have
    seen the emails, but your question, your larger question was
    did that raise a red flag, and I have answered that, ``no.''
        Senator Leahy. Well, when you were in the White House, was
    part of your job to coach President Bush's judicial nominees
    how to answer Democrats' questions about Roe v. Wade?
        Judge Kavanaugh. Part of our job would have been to prepare
    nominees more generally, and it was common for Senators to ask
    that question then, as it is now, and so I assume that we would
    have been involved in going through mock sessions. I know we
    were involved in going through mock sessions, which is very
    standard for Democratic----
        Senator Leahy. Well, you have been going through some mock
    sessions with at least one Republican Senator from this
    Committee, and other Republican Senators, and I am not saying
    that as a ``gotcha'' thing. You have every right to do that.
    You did advise her exactly how she should respond to that,
    according to one of the emails.
        And my last question: Do you agree that a plastic firearm
    created with a 3-D printer so that--it would not have been in
    the minds of our Founding Fathers in the 18th century, would
    you agree that that could be regulated or banned without
    raising any Second Amendment questions?
        Judge Kavanaugh. I think there might be litigation coming
    on that, Senator, so consistent with judicial independence
    principles, I should not comment on a potential case like that
    so--thank you.
        Senator Leahy. I had actually written out here your answer
    ahead of time, and I just wrote it so that you did not see what
    I wrote.
        Thank you very much, Mr. Chairman.
        Chairman Grassley. Senator Graham.
        Senator Graham. Thank you, Mr. Chairman.
        I would like to introduce into the record an op-ed from the
    L.A. Times editorial board entitled ``Can the Supreme Court
    Confirmation Process Ever Be Repaired?''; a bipartisan letter
    from 23 of Judge Kavanaugh's classmates at Yale; a letter
    signed by hundreds of Yale students, alumni, and faculty; a
    letter from Georgia's Secretary of State Brian Kemp; an op-ed
    in The Clarion-Ledger by Mississippi Governor Phil Bryant. So I
    would ask that that be allowed. Just say----
        Chairman Grassley. Without objection----
        Senator Graham [continuing]. Without objection.
        Chairman Grassley [continuing]. So ordered.
        [The information appears as submissions for the record.]
        Senator Graham. That is good. Okay. All right. Thank you,
    Judge. There are several things I want to go over with you.
    One, I want to compliment Senator Leahy in this regard, that he
    worked with Senator Grassley to get what had been previously
    committee confidential released to the public, and sort of,
    that is the way it works around here. You do not always get
    what you want, but you try to work with your colleagues, and
    many times, you can succeed.
        From the public's point of view, it has got to work this
    way. You just cannot do everything you want in a legislative
    body. There are rules, and it is frustrating to be told no on
    something you are passionate about. But I am often asked--
    people wonder, are these hearings turning into a circus? And I
    want to defend circuses.
        [Laughter.]
        Senator Graham. Circuses are entertaining and you can take
    your children to them.
        [Laughter.]
        Senator Graham. This hearing is neither entertaining, nor
    appropriate for young people.
        Now, some of my colleagues, who I respect greatly, are
    trying to make a point. I do not know what that point is. But I
    do know this, if you want to be President, which I can
    understand that, it is hard. And what you do will be the
    example others will follow.
        Back to the subject matter, the Morrison case, was that
    about separation of powers?
        Judge Kavanaugh. That was a separation of powers case.
        Senator Graham. Okay. It was about a congressional statute
    and the authority of the executive branch and how they
    interacted, is that correct?
        Judge Kavanaugh. That is correct, and a very specific
    statutory scheme that was unprecedented, had the judiciary
    involved in appointing the counsel.
        Senator Graham. And apparently, Kagan and Scalia agreed----
        Judge Kavanaugh. Yes.
        Senator Graham. Kagan agreed with Scalia's dissent.
        Judge Kavanaugh. She has called it one of the greatest ever
    written, and she has added it gets better every year.
        Senator Graham. Well, I do not want to get in the habit of
    saying listen to Elena Kagan, but I will here because she is a
    fine person.
        The situation we have before us about Mr. Mueller, that is
    not a separation of powers issue, is it? Are these not
    different facts, that Mr. Mueller was appointed through
    Department of Justice regulations.
        Judge Kavanaugh. Senator, I do not want to talk
    specifically about current events, but I will just refer back
    to what I have written previously about Special Counsel----
        Senator Graham. I am not asking you----
        Judge Kavanaugh. Generally are----
        Senator Graham [continuing]. How to decide a case. I am
    just asking you, do you read the paper, do you watch
    television? The special counsel statute in question does not
    exist anymore, does it?
        Judge Kavanaugh. The independent counsel statute----
        Senator Graham. Yes, independent counsel statute----
        Judge Kavanaugh. Does not exist anymore----
        Senator Graham. Okay.
        Judge Kavanaugh. Since 1999.
        Senator Graham. Okay.
        Judge Kavanaugh. The traditional special counsel system I
    have written about is the ordinary way that outside
    investigations----
        Senator Graham. But is that an executive branch function?
        Judge Kavanaugh. That is ordinarily appointed by the
    Attorney General and is----
        Senator Graham. Who is a member of what?
        Judge Kavanaugh. The executive branch.
        Senator Graham. So last time I checked, that is not a
    separation of powers issue.
        Judge Kavanaugh. That, traditionally, as I have written,
    has been an executive branch----
        Senator Graham. Okay.
        Judge Kavanaugh. Now, the question is if someone is
    appointed as special counsel by Department of Justice
    regulations, who has authority over implementing those
    regulations and overseeing those regulations, all I can say is
    that that is different legally and factually than the Morrison
    situation where you had a statute.
        Let us talk a little bit about the law regarding the
    President. Clinton v. Jones tells us--see if I am correct--that
    you can be President of the United States, you can still be
    sued for conduct before you were a President, and when you
    invoke executive privilege, the Court has said no, wait a
    minute, you have to show up at a deposition because it happened
    before you were President. Is that correct?
        Judge Kavanaugh. Yes, in a civil suit was the Clinton v.
    Jones case----
        Senator Graham. Yes.
        Judge Kavanaugh. Involving allegations that--or a suit that
    involved activity before President Clinton became President.
        Senator Graham. So it is pretty well understood through
    Supreme Court precedent that if you are the President of the
    United States and you engaged in conduct that allowed you to be
    sued before you got to be President, you cannot avoid your day
    in court on the civil side.
        The Nixon holding said what?
        Judge Kavanaugh. The Nixon holding said that in the context
    of the specific regulations there, that a criminal trial
    subpoena to the President for information--in that case the
    tapes--could be enforced, notwithstanding the executive
    privilege that was recognized in that case as rooted in Article
    II of the Constitution.
        Senator Graham. So that is the law of the land as of this
    moment?
        Judge Kavanaugh. United States v. Nixon is the law of the
    land.
        Senator Graham. Okay. Now, whether or not a President can
    be indicted while in office has been a discussion that has gone
    on for a very long time. Is that true in the legal world?
        Judge Kavanaugh. That is correct. The Department of Justice
    for the last 45 years has taken the consistent position through
    Republican and Democratic administrations that a sitting
    President may not be indicted while in office. The most
    thorough opinion on that is written by Randy Moss, who was head
    of President Clinton's Office of Legal Counsel in 2000. He is
    now a district judge, appointed by President Obama on the
    district court in DC.
        Senator Graham. And I think you have written on this topic
    as well, have you not?
        Judge Kavanaugh. I have not written on the
    constitutionality.
        Senator Graham. You are talking about whether or not it
    would be wise to do this.
        Judge Kavanaugh. I have made my thoughts known for Congress
    to examine----
        Senator Graham. Right.
        Judge Kavanaugh. Because in the wake of September 11, I
    thought one of the things Congress could look at is how to
    make----
        Senator Graham. Yes.
        Judge Kavanaugh. The Presidency more effective.
        Senator Graham. I just want my Democratic colleagues--to
    remind you that when President Clinton was being investigated,
    you took the position that he is not above the law, but in
    terms of indicting a sitting President, it would be better for
    the country to wait. And the person who echoed that the most or
    at least effectively I thought, from his point of view, was Joe
    Biden. So there is nothing new here, folks. When it is a
    Democratic President, they adopt the positions that they are
    arguing against now, but that is nothing new in politics. I am
    sure we do the same thing.
        So this man, Judge Kavanaugh, is not doing anything wrong
    by talking about this issue the way he talks about it. What we
    are doing wrong is blending concepts to justify a vote that is
    going to be inevitable. You do not have to play these games to
    vote ``no.'' Just say you do not agree with his philosophy. You
    do not think he is qualified. But the thing that I hate the
    most is to take concepts and turn them around upside down to
    make people believe there is something wrong with you. There is
    nothing wrong with you. The fault lies on our side. Most
    Americans after this hearing will have a dimmer view of the
    Senate. Rightly so.
        I do not want anybody to believe that you stole anything.
    Did you steal anything from anybody while you were working at
    the White House Counsel's.
        Judge Kavanaugh. No.
        Senator Graham. Did you know that anybody stole anything,
    or did you encourage them to steal anything?
        Judge Kavanaugh. No.
        Senator Graham. Did you use anything knowingly that was
    stolen?
        Judge Kavanaugh. No.
        Senator Graham. So you can talk about Mr. Miranda, and he
    deserves all the scorn you can heap on him, but I do not want
    the public to believe that you did anything wrong because I do
    not believe you did. So it is okay to vote ``no,'' but it is
    not okay to take legal concepts and flip them upside down and
    act like we are doing something wrong on the Republican side
    when you had the exact same position when it was your turn.
        Roe v. Wade, you have heard of that case, right?
        Judge Kavanaugh. I have, Senator.
        Senator Graham. Okay. Now, there are a lot of people like
    it, lot of people do not. It is an emotional debate in the
    country. Is there anything in the Constitution about a right to
    abortion? Is anything written in the document?
        Judge Kavanaugh. Senator, the Supreme Court has recognized
    the right to abortion since the 1973 Roe v. Wade case. It has
    reaffirmed it many times.
        Senator Graham. But my question is did they find a phrase
    in the Constitution that said, that the State cannot interfere
    with a woman's right to choose until medical viability occurs?
    Is that in the Constitution?
        Judge Kavanaugh. The Supreme Court applying the Liberty----
        Senator Graham. It is a pretty simple, ``No, it is not,
    Senator Graham.''
        Judge Kavanaugh. Well, I want to just be----
        Senator Graham. Those words.
        Judge Kavanaugh. I want to be very careful because this
    is----
        Senator Graham. Okay.
        Judge Kavanaugh. A topic on which----
        Senator Graham. No, if you will just follow me, I will let
    you talk but the point is, will you tell me, ``yes'' or ``no,''
    is there anything in the document itself talking about limiting
    the State's ability to protect the unborn before viability? Is
    there any phrase in the Constitution about abortion?
        Judge Kavanaugh. The Supreme Court has found that under the
    Liberty Clause--but you are right that specific words----
        Senator Graham. Well, is there anything in the Liberty
    Clause talking about abortion?
        Judge Kavanaugh. The Liberty Clause refers to liberty but--
    --
        Senator Graham. Okay. Well, the last time I checked----
        Judge Kavanaugh. Does not have specific----
        Senator Graham [continuing]. Liberty----
        Judge Kavanaugh. Yes.
        Senator Graham [continuing]. Did not equate to abortion.
    The Supreme Court said it did. But here is the point: What are
    the limits on this concept? You have five, six, seven, eight,
    or nine judges. What are the limits on the ability of the Court
    to find a penumbra of rights that apply to a particular
    situation? What are the checks and balances of people in your
    business, if you can find five people who agree with you, to
    confer a right, whether the public likes it or not, based on
    this concept of a penumbra of rights? What are the outer limits
    to this?
        Judge Kavanaugh. The Supreme Court, in the Glucksberg case,
    which is in the late 1990s--and Justice Kagan talked about this
    at her hearing--is the test that the Supreme Court uses to find
    unenumerated rights under the Liberty Clause of the Due Process
    Clause of the Fourteenth Amendment, and that refers to rights
    rooted in the history and tradition of the country so as to
    prevent----
        Senator Graham. So let me ask you this. Is there any right
    rooted in the history and traditions of the country where
    legislative bodies could not intercede on behalf of the unborn
    before medical viability? Is that part of our history?
        Judge Kavanaugh. The Supreme Court precedent has recognized
    the right to abortion. I am----
        Senator Graham. But I am just saying what part of the
    history of--I do not think our Founding Fathers--people
    mentioned our Founding Fathers. I do not remember that being
    part of American history, so how did the Court determine that
    it was?
        Judge Kavanaugh. The Court applied the precedent that
    existed and found in 1973 that under the Liberty Clause----
        Senator Graham. Yes, but before 1973--I mean, when you talk
    about the history of the United States, the Court has found
    that part of our history is for the legislative bodies not to
    have a say about protecting the unborn until medical viability.
    I do not--I have not--whether you agree with that or not, I do
    not think that is part of our history. So, fill in the blank.
    What are the limits of people in your business applying that
    concept to almost anything that you think to be liberty?
        Judge Kavanaugh. And that is the concern that some have
    expressed about the concept of unenumerated rights.
        Senator Graham. Well, here is the concern I have. You got
    one word that has opened up the ability for five people to tell
    everybody elected in the country you cannot go there, that this
    is an ``off limits'' in the democratic process. Whether you
    agree with Roe v. Wade or not, just think what could happen,
    down the road, if five people determine the word liberty means
    ``X.'' The only real check and balance is a constitutional
    amendment to change the ruling. Do you agree with that?
        Judge Kavanaugh. Senator, I am not going to comment on
    potential constitutional amendments or what----
        Senator Graham. But--okay. If we pass a statute tomorrow in
    Congress saying that the Congress can regulate abortions before
    medical viability, would that not fly in the face of Roe v.
    Wade?
        Judge Kavanaugh. So the Supreme Court has said that a woman
    has a constitutional right to----
        Senator Graham. Does that not trump a statute?
        Judge Kavanaugh. The Supreme Court precedent----
        Senator Graham. So all of us could vote because five people
    have said liberty means right to--the State has no interest
    here, compelling interest before medical viability, that we
    could pass all the laws we want, it does not matter because
    they fall. The only way we can change that is a constitutional
    amendment process that requires two-thirds of the House, two-
    thirds of the Senate, and three-fourths of the State. Is that a
    pretty correct legal analysis?
        Judge Kavanaugh. When the Supreme Court has issued a
    constitutional ruling----
        Senator Graham. Then you can always change it by
    constitutional amendment?
        Judge Kavanaugh. That is the----
        Senator Graham. So here is the point: Whether you agree
    with Roe v. Wade or not, the reason some legal scholars object
    to this concept is it is breathtakingly unlimited. Whatever
    five people believe at any given time in history in terms of
    the word liberty, they can rewrite our history and come up with
    a new history. And I think the best way for democracies to make
    history, is to have the Court interpret the Constitution, be a
    check and balance on us, but not take one word and create a
    concept that is breathtaking in terms of its application to
    restrict the legislative process.
        Now, whether you agree with me or not, I think there is a
    genuine debate. And you would agree with me if it was something
    you liked or you were supporting that got shut out, or you
    opposed you could not do. So I hope that one day the Court will
    sit down and think long and hard about the path they have
    charted, and not just about abortion, whether or not it is
    right for people in your business on any given day based on any
    given case of controversy to say that the word liberty, looking
    at the history of the country and the penumbra of rights, means
    ``X,'' and it shuts out all of us who have gone to the ballot
    box and gone through the test of being elected. All I ask is
    that you think about it.
        Also, I want to ask you about something else to think
    about. You said you were in the White House on 9/11. Is that
    correct?
        Judge Kavanaugh. That is correct, Senator.
        Senator Graham. Did you believe America was under attack?
        Judge Kavanaugh. Yes. It was under attack.
        Senator Graham. Right. Do you believe that if the
    terrorists could strike any city in the world and they had--
    like you get one shot at the world, based on your time in the
    White House, do you believe they would pick an American city
    probably over any other city?
        Judge Kavanaugh. Well, it certainly seemed that New York
    and Washington, DC, were the two targets.
        Senator Graham. The only reason I mention that, to my good
    friends--and they are--who believe that America is not part of
    the battlefield, it sure was on 9/11. The law. If an American
    citizen goes to Afghanistan and takes up the fight against our
    forces and they are captured in Afghanistan, the current law is
    you can be held as an enemy combatant in spite of your
    citizenship. Is that correct? Is that the Hamdi decision?
        Judge Kavanaugh. That is what the Supreme Court said in the
    Hamdi decision with----
        Senator Graham. Okay.
        Judge Kavanaugh. Appropriate due process findings.
        Senator Graham. Absolutely, appropriate due process
    findings. Here is what I want people in your business to think
    about. Are you aware of the fact that the radical Islamic
    groups are trying to recruit Americans to their cause, that
    they are over the internet trying to get Americans to take up
    jihad?
        Judge Kavanaugh. Yes.
        Senator Graham. The likelihood of an American citizen
    joining their cause is real because it has happened in the
    past. The likelihood of it happening in the future I think is
    highly likely. If an American citizen attacking the embassy in
    Kabul can be held as an American citizen, here is the question:
    Can an American citizen, collaborating with other terrorists
    who are not American citizens, be held as an enemy combatant
    for attacking the capital? And if they cannot, you are
    incentivizing the enemy to find an American citizen because
    they have a privilege that no other terrorist would have.
        So you said something that was very compelling to me, that
    you apply the law and you have to understand how it affects
    people, right?
        Judge Kavanaugh. Yes, sir.
        Senator Graham. I hope you will understand that this war is
    not over, that the war is coming back to our shores. It is just
    a matter of time before they hit us again because we have to be
    right all the time and they have to be right one time. I hope
    we do not create a process where if you can come to America,
    you get a special deal. It makes us harder for us to deal with
    you and find out what you know. We treat you as a common
    criminal versus the warrior you have become. That is just my
    parting thought to you. And you will decide the way you think
    is best for the country.
        Is there anything you want to say about this process that
    would help us make it better? Because you are going to get
    confirmed. I worry about the people coming after you. Every
    time we have one of these hearings, it gets worse and worse and
    worse. You have sat there patiently for a couple of days. My
    colleagues have asked you tough questions, sometimes unfair
    questions. Your time is about over. You are going to make it.
    And you would probably be smart not to answer at all, but I am
    going to give you a chance to tell us what could we do better,
    if anything?
        Judge Kavanaugh. Senator, I am just going to thank all the
    Senators on the Committee and all the Senators I met with who
    are not on the Committee for their time and their care. And, as
    I said, each Senator is committed to the public service and the
    public good in my opinion, and I appreciate all the time of the
    Senators. And I am on the sunrise side of the mountain and an
    optimist about the future, Senator.
        Chairman Grassley. Before we break, I want to bring up some
    information because I was wondering how long it would take the
    National Archives to get the material that we needed because
    you have heard several times that the Archives, that is their
    responsibility. The National Archives has 13 archivists who
    handle George W. Bush's Presidential records. They can only
    review about 1,000 pages per week. We could not have gotten
    these documents for 37 weeks if we did not get President Bush's
    team to expedite the review process for the benefit of all
    Members of the Committee. We received all the documents we
    would have received from the archivists, just at a faster time.
        We will now take 15 minutes and resume at 12:22.
        [Whereupon the Committee was recessed and reconvened.]
        Chairman Grassley. Tell me when you are ready, Judge.
        Judge Kavanaugh. I am ready.
        Chairman Grassley. Senator Durbin.
        Senator Durbin. Thanks, Mr. Chairman.
        Let me say at the outset, Mr. Chairman, thank you for the
    way you have presided over this Committee. It has been a
    challenge for the last several days, but you and I have been
    through battles in the past, both as allies and as enemies, and
    you have always shown fairness, and I appreciate the fairness
    you have shown during the course of this hearing.
        I also want to say a word about the protesters who have
    interrupted the hearing from time to time. As I said at the
    outset, this is one of the costs of democracy, and it is one
    which the Senate Judiciary Committee, which has been
    constructed for the purpose of guarding our Constitution,
    should value even when it is inconvenient. I could go into a
    long riff here but I will not, in the interests of time. I do
    not know who organized these protests or why they did it, but
    thank goodness in the United States of America, where we
    venerate free speech, these things can happen.
        I want to thank the men and women of the Capitol Police and
    those who have been in charge of our security during this
    period of time, as well.
        I would like to also ask for two things to be entered into
    the record. First is, statements in opposition to the Kavanaugh
    nomination from several groups.
        Senator Cornyn [presiding]. Without objection.
        Senator Durbin. Thank you very much.
        [The information appears as submissions for the record.]
        Senator Durbin. And second, Senator Grassley closed the
    earlier, last session with some comment. I will have to read it
    in its entirety to understand, but I think he said, or someone
    said it would take 37 weeks for the National Archives to go
    through Judge Kavanaugh's record.
        I would like to enter into the record a letter from August
    2nd, 2018, from Gary Stern, General Counsel to the National
    Archives, which concludes with the following statement: ``By
    the end of October 2018, we would have completed the remaining
    600,000 pages that we should be considering and unfortunately
    cannot.''
        So I would ask consent to enter that letter into the
    official record.
        Senator Cornyn. Without objection.
        Senator Durbin. Thank you very much.
        [The information appears as a submission for the record.]
        Senator Durbin. Judge Kavanaugh, I remember when I got the
    results from my bar exam I thought to myself, well, that will
    be the last time I will ever have to sit down and take an exam.
    So at the end of this day, this may be your last formal exam in
    terms of your legal career, and I am sure there is a sense of
    expectation, hopefulness, and relief in that.
        I want to thank your wife for being here and for bringing
    those beautiful daughters. I hope someday they will understand
    what happened to their father in a few days here, but thank you
    so much for being part of this hearing.
        Judge, when I started this, I said this is not just about
    filling a key vacancy on the Supreme Court, a deciding vote on
    the Court, a vote which may decide life and death issues on
    important cases. It is more than the question of release of
    documents. It really goes to the heart of where we are in
    America at this moment. You have been nominated to be a Justice
    on the United States Supreme Court by President Donald Trump.
    We have to take your nomination in the context of this moment
    in history.
        We are at a moment where the President has shown contempt
    for the Federal judiciary unlike any President we can recall.
    He has shown disrespect for the rule of law over and over
    again. He has repeatedly ridiculed the Attorney General of the
    United States, whom he chose. He has called for blatant
    partisanship in the prosecution of our laws. He is a President
    who is the subject of an active criminal investigation, an
    investigation which he has apparently sought to obstruct
    repeatedly. He is a President who has been characterized in
    this hearing publicly, on the record, as an unindicted co-
    conspirator. And in the last 2 days, during the course of this
    hearing, there have been two incredible events, the release of
    a book and an article in The New York Times which remind us
    again what a serious moment we face in the history of the
    United States.
        And that is why your nomination is different than any
    other. I cannot recall any that have ever been brought before
    us in this context. I cannot recall so many people across the
    United States following this as carefully--perhaps Clarence
    Thomas. At that time, everybody in America was tuned in.
        But it is in the context of the Trump Presidency that we
    ask you these questions, in anticipation that you may face
    issues involving this President which no other Supreme Court
    has been asked to face.
        And that is why I want to address your view of the power of
    this President, the authority of this President, because it is
    an important contemporary question which, of course, has
    application for beyond his Presidency.
        You have quoted me several times--thank you--yesterday
    regarding the independent counsel statute. As our Republican
    colleagues are fond of reminding us, judges are not
    legislators. So, to state the obvious, my opposition or any
    legislator's opposition to reauthorizing a statute is very
    different from a judge's opinion on whether a statute is
    unconstitutional.
        To get to the heart of the matter, the reason why we
    continue to return to the Morrison v. Olson decision is because
    of its significance in light of the Trump Presidency. The
    reason we are so interested in your view that that case was
    wrongly decided has little to do with the statute that was in
    question. It has everything to do with your views on the power
    of the Executive and what that would mean for this President
    and future Presidents if you join the Supreme Court.
        Justice Scalia's Morrison v. Olson sole dissent embraces
    the so-called unitary executive theory which grants sweeping
    powers to the President of the United States. Scalia said, and
    I quote, ``We should say here that the President's
    constitutionally assigned duties include complete control over
    investigation and prosecution of violation of law, and that the
    inexorable command of Article II is clear and definite. The
    executive power must be vested in the President of the United
    States.''
        In this age of President Donald Trump, this expansive view
    of Presidential power takes on added significance. Earlier this
    year the Senate Judiciary Committee reported a bipartisan bill
    to protect the independence of the special counsel, Bob
    Mueller. Several Republican Senators who are here today cited
    Scalia's dissent to justify their opposition to a bill
    protecting the special counsel, with one even saying, and I
    quote, ``Many of us think we are bound by Scalia's dissent.''
    At the time, I joked and said, instead of dealing with stare
    decisis, we are dealing with Scalia decisis.
        Given your views on Morrison v. Olson, we are obviously
    worried that you will feel bound by this dissent by Antonin
    Scalia if President Trump decides to attempt to fire the
    special counsel, Bob Mueller.
        It does not stop there. You cited Scalia's dissent in the
    case involving the Consumer Financial Protection Bureau, where
    you gutted that agency; and in the 2011 Seven-Sky case, you
    dissented from a decision upholding the Affordable Care Act and
    made a breathtaking claim of Presidential power which has been
    repeated over and over again, and you said, ``Under the
    Constitution, the President may decline to enforce a statute
    that regulates private individuals when the President deems the
    statute unconstitutional, even if a court has held or would
    hold the statute constitutional.'' Your words.
        Of course, the unitary executive theory was the basis for
    President Bush's December 30th, 2005, signing statement
    claiming the authority to override the McCain Torture
    Amendment. Yesterday, I asked you what comments you made on the
    signing statement as President Bush's staff secretary. Senator
    Feinstein asked a similar question this morning. What you told
    me was, ``I can't recall what I said. I do recall there was a
    good deal of internal debate about that signing statement, as
    you can imagine. I do remember it would be controversial
    internally.'' It is hard to imagine you cannot remember that
    controversial issue.
        Given our concerns about your views on Executive power, it
    is important for you at this moment, please, to clarify for us
    the power of the Presidency in this age of Donald Trump.
        Judge Kavanaugh. Senator, thank you. First, thank you for
    your comments about my wife and daughters. My daughters will
    return this afternoon for a return engagement so they will
    experience democracy once again in action, and I appreciate
    that.
        On Morrison v. Olson, a couple of things at the outset.
    First, that case did not involve the special counsel system. I
    have written repeatedly that the traditional special counsel
    system, which we have now and have had historically, is a
    distinct system appointed by the Attorney General. Morrison has
    nothing to do with that. That dealt with the old independent
    counsel statute, as you said, which expired in 1999 under
    overwhelming consensus that that statute was inappropriate,
    unrestrained, unaccountable, as you said.
        Second, Morrison, Justice Scalia's dissent, that does not
    affect the precedent of Humphrey's Executor. Humphrey's
    Executor is the Supreme Court precedent that allows independent
    agencies to exist. Those independent regulatory agencies
    continue to exist, of course. So both on the independent agency
    side, those are unaffected; on the special counsel side, that
    is unaffected.
        You mentioned the CFPB case. My decision in that case would
    have allowed that agency to continue operating and performing
    its important functions for American consumers. The only
    correction would have been in the structure, because it was a
    novel structure that was unlike every other independent agency
    that had been created previously.
        As to the concept of prosecutorial discretion that is
    referred to in the 2011 case, that is a traditional concept of
    prosecutorial discretion that is recognized in the executive
    branch. The limits of it are uncertain. That has arisen in the
    immigration context with President Obama. There are debates
    about what the limits are. Those are not finally determined.
    But the basic concept of prosecutorial discretion is all I was
    referring to there.
        I have made clear in my writings that a court order that
    requires a President to do something, or prohibits a President
    from doing something under the Constitution or laws of the
    United States is the final word in our system, our separation
    of powers system. That is Cooper v. Aaron. That is Marbury v.
    Madison. That is United States v. Richard Nixon. That is an
    important principle.
        And finally, I would say that the question of who controls
    the Executive power within the executive branch, the vertical
    question--you have the President at the top, you have
    independent agencies which exist consistent with precedent--is
    distinct from the question of what is the scope of the
    Executive power vis-a-vis Congress.
        On that latter question, the scope of Executive power vis-
    a-vis Congress, I have made clear in the context of national
    security, the Youngstown framework; in the context of
    administrative law, my cases questioning unilateral executive
    rewriting of the law; in the criminal law where I have reversed
    convictions; that I am one not afraid at all, through my record
    of 12 years, to invalidate Executive power when it violates the
    law.
        Senator Durbin. Judge, let me ask you this, because you
    have referred to the Youngstown case in the context of a war
    and a decision by a President that was immensely unpopular.
        Judge Kavanaugh. Yes.
        Senator Durbin. Or it might have been popular, I should
    say, and the decision of the Supreme Court, which could have
    been very unpopular at that moment in history.
        What I am trying to ask you is, in historic context, do you
    understand where we are as a Nation now, when books are being
    written about how democracy dies, when fear of authoritarian
    rule and the expansion of the executive branch is rampant in
    this country, with illustrations that are found around the
    world, why we are asking you over and over again to give us
    some reassurance about your commitment to the democratic
    institutions of this country in the face of a President who
    seems prepared to cast them aside, whether it is voter
    suppression, the role of the media? Case after case, we hear
    this President willing to walk away from the rule of law in
    this country. That is the historic context which this is in,
    not a particular case but a particular moment in history.
        Judge Kavanaugh. Sir, my 12-year record shows, and my
    statements to the Committee show, and all my teaching and
    articles show----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. Show my commitment to the independence of
    the judiciary as the crown jewel of our constitutional
    republic. My citing of Justice Kennedy, for whom I worked, who
    left us a legacy of liberty but also a legacy of adherence to
    the rule of law in the United States of America, no one is
    above the law in the United States. That is a foundational
    principle that I have talked about, coming from Federalist 69,
    coming from the structure of the Constitution. We are all equal
    before the law in the United States of America.
        And I have made clear my deep faith in the judiciary. The
    judiciary has been the final guarantor of the rule of law. As I
    said in my opening, the Supreme Court is the last line of
    defense for the separation of powers and for the rights and
    liberties guaranteed by the Constitution and laws of the United
    States.
        Senator Durbin. You see, that is why the unitary theory of
    the executive is so worrisome. What you have said is what I
    want to hear from a co-equal and very important branch of our
    Government. But what you have said in relation to Morrison
    suggests the President has the last word.
        Judge Kavanaugh. I have not said that, Senator, and I will
    reiterate something I said a minute ago, coming from Cooper v.
    Aaron, coming from Marbury. When a court order requires a
    President to do something or prohibits a President from doing
    something under the Constitution or laws of the United States,
    under our constitutional system, that is the final word.
        Senator Durbin. Let me ask you one last time a question you
    knew I would ask about your testimony in 2006. I am just
    struggling with the fact that when I ask you about this issue
    of detention, interrogation, and torture, you gave such a
    simple declarative answer to me and said that I was not
    involved and am not involved in the questions about the rules
    governing detention of combatants.
        We have found at least three specific examples where you
    were, three: your discussions about the access to counsel for
    detainees; your involvement in the Hamdi and Padilla cases, and
    your involvement with President Bush's signing statement on the
    McCain Torture Amendment.
        Judge Kavanaugh, you say that words matter. You claim to be
    a textualist when you interpret other people's words, but you
    do not want to be held accountable for the plain meaning of
    your own words. Why is it so difficult for you to acknowledge
    your response to the question and acknowledge that at least
    your answer was misleading, if not wrong?
        Judge Kavanaugh. Senator, you had a concern at the time of
    the 2006 hearing, which was understandable, whether I had been
    involved in crafting the detention policies, the interrogation
    policies that were so controversial, that the legal memos had
    been written in the Department of Justice that were very
    controversial. As you know, and as the Committee knew then, two
    judicial nominees to the courts of appeals had been involved in
    working on some of the memos related to that program. Senator
    Feinstein led the Intelligence Committee investigation of that
    matter, produced a massive report, a large, unclassified
    report, and apparently an even larger classified report. The
    Justice Department Office of Professional Responsibility
    produced a long report about all the lawyers who were involved.
    I was not involved in crafting those policies.
        Senator Durbin. Do you deny being involved in the three
    specific areas involving detention and interrogation which I
    have just read to you? Do you say that you had nothing to do
    with the Hamdi and Padilla cases, that you were not involved in
    the conversation about access to counsel for detainees, that
    you were not involved in President Bush's decision on the
    signing statement on the McCain Torture Amendment? Are you
    saying that none of those things occurred?
        Judge Kavanaugh. Senator, what I have made clear is I
    understood your question then, and I still understand it now,
    and I understood my answer then, and I still understand it now
    to be about those legal memos. I was not read into that
    program. I was not involved. My name does not appear in Senator
    Feinstein's report, which is----
        Senator Durbin. That is not the question I asked. Do you
    deny the three specific instances where you were involved in
    questions involving detention and interrogation?
        Judge Kavanaugh. That was the question that I saw that you
    asked at the time of that hearing, and my answer was then and
    is now, as Senator Feinstein's report shows, and as the
    Professional Responsibility report shows, I was not read into
    that program.
        Senator Durbin. That was not--I did not ask you about that
    program. I asked you about the three specific instances.
        Judge Kavanaugh. The current question----
        Senator Durbin. You keep answering, oh, I was not--
    Feinstein is my defense, she came to my rescue. She was talking
    about something else. I have asked you about three specific
    instances where we have written proof and sworn testimony from
    you now that you were involved in these three things, and all
    of them relate to detention and interrogation, which you gave
    me your assurance you were not involved in.
        Judge Kavanaugh. Senator, I am going to distinguish two
    things. One is what you were asking me in 2006, and my
    testimony then was accurate and was the truth. What you are
    asking me now is, for example, on the signing statement, as we
    discussed in your office, I made clear that, of course, as
    staff secretary, everything that went to the President for a 3-
    year period, with a few covert exceptions, would have crossed
    my desk on the way from the counsel's office or the policy
    advisor or wherever it was going, and would have made its way
    to the President's desk, and that includes that signing
    statement. So----
        Senator Durbin. Well, let me just close. I do not think the
    staff secretary to the United States President is a file clerk.
    What you have explained to us over and over again, this was a
    formative moment in your public career. You were giving
    constitutional issue advice, as well as making substantive
    changes in drafts that were headed for the President's desk,
    and one of them involved John McCain's Torture Amendment. And
    that, to me, is involved directly on detention and
    interrogation. And I think, unfortunately, your answer does not
    reflect that.
        Chairman Grassley [presiding]. If you want to speak to
    that, then we will go to Senator Lee.
        Judge Kavanaugh. I just wanted to close, Mr. Chairman, by
    thanking Senator Durbin. And in response to his questions about
    the judiciary, the role of the judiciary, he gave me a book
    when we met, a biography of Frank Johnson. And that Friday
    night, after a lot of Senate meetings and a lot of practice
    sessions, I went home, read the whole thing, and I appreciate
    it. It is a good model of judicial independence. It is a great
    story about someone who was a judge in the south in the civil
    rights era who stood firm for the rule of law, and so a good
    model, and I thank Senator Durbin for giving me the book.
        Senator Durbin. Well, I thank you.
        Chairman Grassley. Senator.
        Senator Durbin. If I could just say one word, thank you,
    Judge Kavanaugh. That night, obviously, the Nationals were not
    playing.
        Judge Kavanaugh. Yes.
        [Laughter.]
        Chairman Grassley. Senator Lee.
        Senator Lee. Thank you, Mr. Chairman.
        Thank you again, Judge Kavanaugh, for your willingness to
    answer our questions.
        I want to follow up a little bit on this last line of
    questioning from Senator Durbin. Senator Durbin and I actually,
    notwithstanding the fact that we come from different parts of
    the country, have different political ideologies, come from
    different political parties, we share many views in common, and
    this is one area, indefinite detention, where he and I are
    concerned about the Government not overreaching. Only, as I
    look at this, I think this cuts in your favor, not against you.
    Tell me if I am missing something.
        In the first place, what you were asked about was whether
    or not you were involved in crafting the policies that would
    govern detention of enemy combatants. Is that right?
        Judge Kavanaugh. That is correct.
        Senator Lee. And that was a classified program, classified
    at a very high level, presumably compartmentalized such that
    you would have had to have been read into that program in order
    to participate in that process. Is that right?
        Judge Kavanaugh. I believe that is correct. Read in, I was
    not necessarily using the formal sense of that, but what I
    meant is I was not part of that program.
        Senator Lee. Okay, but that is a binary issue. You were
    either involved in the development of that policy or you were
    not.
        Judge Kavanaugh. That is correct.
        Senator Lee. And you were not.
        Judge Kavanaugh. That is correct.
        Senator Lee. And Tim Flannigan, who was I believe at the
    time the White House Counsel----
        Judge Kavanaugh. He was the Deputy Counsel.
        Senator Lee [continuing]. The Deputy Counsel, has confirmed
    that you were not involved in that.
        Judge Kavanaugh. That is correct.
        Senator Lee. We have your word and the word of the then-
    Deputy White House Counsel.
        Then there is a separate issue, I guess one could argue a
    related issue, but a separate----
        [Disturbance in the hearing room.]
        Senator Lee. I assume that will not be counted against me
    there.
        Chairman Grassley. Yes, it will. It will be counted.
        Senator Lee. Oh, okay. Well, then I will have to speak more
    quickly.
        When we talk about being read into, that is a colloquial
    term that we sometimes refer to. It is government-speak that
    talks about being cleared to discuss certain classified
    matters. In any event, you were not brought into the
    development of this policy.
        Judge Kavanaugh. That is correct.
        Senator Lee. Second, there was a separate, arguably related
    but a distinct issue involving a meeting where you were asked
    for your opinion about how Justice Kennedy might react to
    certain legal arguments that people in the administration were
    pushing. Is that right?
        Judge Kavanaugh. That is correct.
        Senator Lee. And you answered that question.
        Judge Kavanaugh. I said that indefinite detention of an
    American citizen without access to a lawyer, which at the time
    was what was happening in that particular case, would never fly
    with Justice Kennedy.
        Senator Lee. And I happen to agree with you on that, and it
    seems like a fairly unremarkable proposition to me.
        I do not think anyone disputes that that argument had
    problems with it, that that argument would not fly with Justice
    Kennedy, and I therefore have difficulty seeing how this cuts
    against you. As someone who believes in civil liberties and who
    shares many of the same concerns that have been discussed by
    many of my Democratic colleagues, I think the advice you
    offered here was accurate. I think it was good advice. It
    certainly is not inconsistent with the statement you provided,
    which was that you were not involved in the development of the
    policy governing the program.
        Sometimes as lawyers we are called upon to offer litigation
    strategy. Sometimes we are called upon to handle litigation.
    Other times as lawyers, particularly in the Government, we
    might be called upon to develop a policy. Here, you were
    involved in neither handling the litigation directly nor in
    developing the policy. You went to a meeting, somebody asked
    that question, you gave them your answer.
        Judge Kavanaugh. That is correct, and it was about
    something entirely separate from that policy or the legal
    memos.
        Senator Lee. Separate and distinct from that policy. It was
    about a litigating position that dealt sort of in the same
    universe but not with that policy.
        Judge Kavanaugh. That is correct.
        Senator Lee. I therefore have great difficulty in seeing
    that you did anything but the right thing and that you answered
    this question in any way other than with the truth, the whole
    truth, and nothing but the truth.
        Let me turn next, while we are talking about colleagues
    with whom I often agree and with whom I often work across the
    aisle, Senator Booker is a good friend of mine. He is a
    colleague. He and I work together on a lot of issues. He raised
    an issue last night that I wanted to touch on with you.
        He raised an issue related to some emails. I was concerned
    at the time that you did not have the emails in front of you,
    and I think that is very important for any witness in any
    proceeding to be given access to the documents, documents that
    in this case were prepared some 18 years ago. You as a lawyer
    have no doubt been involved in the creation of many hundreds of
    thousands, possibly millions of documents. So to ask you to
    recall from memory something you wrote 18 years ago is going to
    be difficult.
        In any event, these emails deal with an issue involving
    some questions surrounding a Supreme Court case called Adarand
    Constructors v. Mineta. So let us refer to a document, Document
    00289596. As I understand it, you were being asked in this
    instance to provide some advice on what might happen if a
    particular argument were presented to the Supreme Court on the
    merits. You looked at some Department of Transportation
    contracting regulations, and as I understand it--correct me if
    I am wrong--if I have understood it correctly, the Government
    was considering making a series of arguments before the Supreme
    Court, and you did what a lawyer should do when advancing an
    argument to the Court, you counted to five. You identified five
    Supreme Court Justices who you believed would not accept the
    Government's argument in defense of those DOT regulations. Is
    that right?
        Judge Kavanaugh. That is correct, under the precedent that
    existed at the time. The Croson precedent I think was the most
    relevant precedent.
        Senator Lee. And yet at the time, the Supreme Court of the
    United States had already granted review of the case, granted
    certiorari, meaning that the Supreme Court, unlike most
    appellate courts, is in charge, with very, very few exceptions
    remaining today, of its own docket. It decides which of the
    10,000 or so cases that want to go to the Supreme Court each
    year will in fact be reviewed by the Court. The Court had
    already granted certiorari, granted a review in that case. Is
    that right?
        Judge Kavanaugh. That is correct, I believe.
        Senator Lee. So, as I read these emails, I read your
    argument as saying, okay, number one, you cannot count to five
    here because I am identifying--I am Brett Kavanaugh and have
    identified that there are grave doubts as to whether Chief
    Justice Rehnquist, Justice Scalia, Justice Thomas, Justice
    Kennedy, or Justice O'Connor can embrace these arguments in
    defense of these Department of Transportation regulations. But
    the Court has already granted certiorari, so what to do?
        As I understand the emails--and correct me if I am wrong--
    you recommended a course of action that would allow the
    Government to make its case, but to make its case in a way that
    would allow the Court to decide that perhaps it should not have
    granted review in the case. Am I correct so far?
        Judge Kavanaugh. That is correct, Senator.
        Senator Lee. And what is that called when the Court decides
    that it should not have granted a case?
        Judge Kavanaugh. Dismissing as improvidently granted, or
    colloquially known as digged.
        Senator Lee. As a dig.
        Judge Kavanaugh. Yes.
        Senator Lee. So you came up with a strategy for the purpose
    of encouraging the Court to dig a case that it had previously
    granted because you believed the Government was going to lose
    and the regulations at issue were going to be invalidated, and
    you did not want the Government to have to endure that. Did
    they accept your arguments?
        Judge Kavanaugh. The Supreme Court did, yes.
        Senator Lee. So the Government, the Bush administration,
    the Solicitor General's Office followed your advice and wrote
    the arguments as you had prescribed, thus prompting a dig. And
    as a result, the regulations stood. Is that not right?
        Judge Kavanaugh. I believe that is so, Senator.
        Senator Lee. They stood where they otherwise would have
    fallen.
        Judge Kavanaugh. That is right.
        Senator Lee. Okay. So, here again, I have a hard time
    seeing this as anything other than something that helps you,
    that helps you not just with Republicans but that helps you
    with Democrats. You saw a problem with an argument the
    Government was making, you identified that problem, you offered
    a remedy, that remedy was embraced by the Solicitor General's
    Office and the Department of Justice, and the Court did exactly
    as you wanted it to do, and as a result the regulation stood.
    The regulation that Senator Booker is concerned about, was
    wanting to make sure was not under attack unfairly was, in
    fact, preserved. I have a hard time seeing why that should not
    want to make him vote more for you. In fact, I think Senator
    Booker really should vote for you. I will have that
    conversation with him later.
        Okay. One additional response to last night's round of
    questions. Last night, at the end of a grueling day, my friend
    and colleague, Senator Harris from California, asked you
    whether you had ever spoken to anyone at the law firm of
    Kasowitz, Benson and Torres about the Mueller investigation.
    She even implored you to be sure about your answer, which I
    suppose is good advice in any context, but it can perhaps sound
    somewhat ominous.
        The issue with this question is that Kasowitz, if I
    understand it correctly, is a law firm that includes 350
    lawyers in nine U.S. cities. I am guessing that not even Mr.
    Kasowitz himself, who started the firm, can even name every
    single attorney. Could you name every attorney that works at
    that firm?
        Judge Kavanaugh. No.
        Senator Lee. As you sit here, can you rule out the
    possibility that you may have close friends, former law clerks,
    former law school classmates who might work or who might have
    worked at that firm at some point?
        Judge Kavanaugh. I do not know who works at that firm other
    than a few people I am aware of just from the public. I gather
    Senator Lieberman works at the firm. I did not know that last
    night.
        Senator Lee. That is correct. I did not, either, but I
    found that out last night. Can you name the nine cities where
    this firm has offices?
        Judge Kavanaugh. No.
        Senator Lee. So my colleague's question may be a very
    direct question, but it is something that I think in this
    circumstance is unfair, if you cannot identify the people that
    she has in mind, or you do not even know who works there.
        So let me ask you something that may get at her underlying
    concern but in a way that I think is fair, because I think each
    of my colleagues, when they have concerns, when they have
    questions, they deserve to be able to have their concerns
    addressed. So let me ask you in a way that I think is fair.
        Have you made any promises or any guarantees to anyone
    about how you would vote on any case that might come before you
    if you are confirmed to the Supreme Court of the United States?
        Judge Kavanaugh. No.
        Senator Lee. Have you had any improper conversation with
    anyone about the Mueller investigation?
        Judge Kavanaugh. No.
        Senator Lee. Let's talk a little bit about Executive power.
    Is the President of the United States absolutely immune from
    any and all legal action, whether civil or criminal?
        Senator Lee. Senator, the foundation of our Constitution
    was that, as Hamilton explained in Federalist 69, the
    Presidency would not be a monarchy, and it specified all the
    ways that under the Constitution the President is not above the
    law, no one is above the law in the United States of America.
    The President is subject to the law. The Supreme Court
    precedent in cases such as Clinton v. Jones, United States v.
    Richard Nixon establishes those principles. Cases like
    Youngstown established it in the official capacity, and Marbury
    v. Madison in official capacity.
        So the President has authority under the Constitution, the
    Executive power under the Constitution. The President, as
    established by the Framers of the Constitution, is not above
    the law. No one is above the law in the United States of
    America.
        Senator Lee. As a practical matter, who investigates the
    President?
        Judge Kavanaugh. As a practical matter, traditionally, as I
    have written about in the Georgetown Law Journal article and
    written about elsewhere, when there is an allegation of
    wrongdoing by someone in the executive branch as to whom there
    might be a conflict of interest if an ordinary Justice
    Department process took place, there has been traditionally the
    appointment by the Attorney General of a special counsel. That
    has gone back for 100 years or so of that kind of outside
    counsel appointed. Of course, we saw that in Watergate, but we
    have seen it lots of other times where special counsels have
    been appointed for particular matters where there is otherwise
    a conflict of interest or perceived conflict of interest of
    some kind.
        Senator Lee. Now, I have had colleagues who have worried
    about your view that Morrison was wrongly decided. Your view,
    just to be clear, is that Morrison applies only in a special
    context no longer relevant here. Is that right?
        Judge Kavanaugh. That is correct.
        Senator Lee. What context is that?
        Judge Kavanaugh. That is the context of the old independent
    counsel statute, which is distinct from the special counsel
    system. The old independent counsel statute had a lot of
    features to it, and that statute was viewed by the Congress
    when it reconsidered it in 1999 as being unrestrained,
    unaccountable, impermissible, and the statute was not renewed,
    and the Morrison case was thus a one-off case, as I see it,
    about a one-off statute that no longer exists.
        Senator Lee. And that is why you can talk about it.
        Judge Kavanaugh. That is why Justice Kagan can talk about
    it, and that is why I also have talked about it.
        Senator Lee. These are the vestigial remains of a once-
    existing but no longer--it is a dinosaur in legal terms.
        What about your opinion in PHH? Now, PHH is really limited
    to independent agencies, right?
        Judge Kavanaugh. That is right. The governing precedent on
    independent agencies--so think the Federal Energy Regulatory
    Commission or the Federal Communications Commission or the
    Securities and Exchange Commission, a whole range of
    independent agencies governed by Humphrey's Executor, the 1935
    precedent of the Supreme Court which established that those are
    permissible. They have ordinarily, traditionally been multi-
    member bodies, and that was a problem I thought in the Consumer
    Financial Protection Bureau case, that it was only a single-
    director independent agency, but the remedy would still have
    allowed that agency to continue operating and performing its
    consumer functions and protecting consumers from improper
    behavior.
        Senator Lee. What is the biggest single difference between
    the independent counsel statute, which is now a dinosaur, and
    the special counsel regulations, which are still in effect?
        Judge Kavanaugh. Well, there are a whole host of
    differences. The appointment mechanism was different, the
    removal mechanism was different, the jurisdictional mechanism
    was different, how Justice Department policies applied was
    different. There were so many different features of that old
    independent counsel statute that combined to convince Congress
    that that statute was a mistake, worse than a mistake really,
    and also showed why the statute was inconsistent with our
    constitutional traditions.
        Senator Lee. And the reason for that is because when you
    create an entity within the Federal Government, within the
    executive branch, it is not accountable to anyone. It sounds
    appetizing. It sounds appealing to some at the outset to say,
    well, we are insulating it from political forces, but what that
    really means is it is not accountable to anyone. It is not
    accountable to anyone who is, in turn, elected. Was that not
    really the problem Justice Scalia was pointing out in Morrison?
        Judge Kavanaugh. That is what he pointed out. It is what
    Senator Durbin and many others on this Committee and elsewhere
    pointed out after experience with the statute for some years,
    and then seeing how it operated in practice. I think there was
    overwhelming bipartisan agreement that the statute did not
    operate in a good way and that the flaws in the statute's
    operation stemmed from some of these features of its design
    that you just discussed, which distinguished it from the
    traditional special counsel system that we had had, and then
    starting in 1999 have had since 1999 to the present.
        Senator Lee. What were we dealing with in Watergate, a
    special counsel or an independent counsel?
        Judge Kavanaugh. It was the traditional special counsel at
    the time. We have had historically the kind that we now have
    and have had since 1999, the traditional special counsel
    system.
        Senator Lee. So he was appointed by regulation, not by
    statute. Nixon fired him, and Nixon fired Archibald Cox, and we
    all know how that turned out. I am not going to ask you to
    respond to this but it seems to me that this remains an
    effective tool. It is not as though the absence of the
    independent counsel statute renders the President completely
    immune, because that simply is not the case.
        You have never taken a position on the immunity question,
    on the question of whether the President is immune from
    prosecution.
        Judge Kavanaugh. Well, just to be technically accurate, the
    question is deferral, not immunity. So the constitutionality of
    indicting a sitting President, I have never taken any position
    on that. The Justice Department for 45 years has taken the
    position that a sitting President may not be indicted while in
    office, and that is the Justice Department's longstanding
    position under Presidents of both parties. But I have not taken
    a position on the constitutionality of that.
        Senator Lee. And among academics and practitioners of every
    ideological stripe that I know of, that is where the dispute
    is, not whether there is absolute immunity so much as the
    timing of it.
        Judge Kavanaugh. It is all about the timing. It is not an
    immunity question. Correct, Senator.
        Senator Lee. There are people on both ends of the
    ideological spectrum who take different positions on that.
        Chairman Grassley. Let me--we are going to----
        [Disturbance in the hearing room.]
        Chairman Grassley. Before I give the schedule, because we
    are soon going to break for lunch, I have had another request
    for documents. So I would like to give you an update on that.
        After two deadlines that only Senator Klobuchar honored, my
    staff stayed up all night pushing the Department of Justice and
    the former President to make public every committee
    confidential document the Minority has requested, including a
    request after midnight. Senator Leahy made a request today, and
    we have pushed the Department of Justice and the former
    President----
        [Disturbance in the hearing room.]
        Chairman Grassley [continuing]. To honor this request. They
    have agreed----
        [Disturbance in the hearing room.]
        Chairman Grassley [continuing]. And will be producing the
    documents imminently. And so, like with Justice Gorsuch's
    confirmation, the process that I set up works when it is
    followed.
        We will now take a 30-minute lunch break.
        Senator Cornyn. Mr. Chairman, may I ask a brief question
    about that?
        [Disturbance in the hearing room.]
        Chairman Grassley. Yes.
        [Disturbance in the hearing room.]
        Senator Whitehouse. I have a question about that, too.
        [Disturbance in the hearing room.]
        Senator Cornyn. I could not hear everything you said, so I
    just want to clarify. It is my understanding that every
    document requested by any Senator that had previously been
    designated as ``committee confidential'' has now been vetted
    and made available to that Senator, or will be shortly.
        Chairman Grassley. Yes, including what Senator Leahy asked
    for today.
        Before I read the schedule--oh, I am sorry. I did not mean
    to interrupt.
        Senator Cornyn. No, I was just going to make the point that
    there is nothing that a Senator has requested that has not been
    made available to them and then been properly vetted with the
    Department of Justice and now is available to the public.
        Chairman Grassley. And before I make the announcement----
        Senator Whitehouse. On the schedule, Mr. Chairman?
        Chairman Grassley. Yes, you will be--go ahead.
        Senator Whitehouse. I think I am the lead-off batter when
    we return?
        Chairman Grassley. Yes, yes.
        Senator Whitehouse. I am told that we have a vote that is
    scheduled to begin at 1:45. They often do not begin exactly at
    1:45. Could you please build in time so we can vote and come
    back here?
        Chairman Grassley. Well, do not go yet. We are going to
    accommodate you from this respect. We are going to take a 30-
    minute lunch break. It might be longer than that, so be alert,
    Judge.
        There are two votes, but I am hoping you will vote first,
    come back, do your questioning, and then go back and vote on
    the second one, and I should probably come back with you unless
    I get some other Republican to come back, and I will do the
    same thing. Then we will proceed that way through the two
    votes.
        Adjourned.
        [Whereupon the Committee was recessed and reconvened.]
        Senator Tillis [presiding]. The Committee will come to
    order.
        Senator Whitehouse.
        Senator Whitehouse. Welcome back, Judge Kavanaugh. Let me
    know when you are good.
        Judge Kavanaugh. I am ready. Thank you.
        Senator Whitehouse. Thank you. Judge Kavanaugh, journalists
    go to jail to protect sources, unless and until the source
    releases the journalist from their obligation of
    confidentiality. Will you now release from that obligation any
    journalist that you spoke with during and about the Starr
    investigation?
        Judge Kavanaugh. I am not sure I am understanding the
    question.
        Senator Whitehouse. There were journalists you spoke with
    during and about the Starr investigation. They are not
    disclosing what you spoke with them about because you are an
    undisclosed source. If you say do not worry, that is over, say
    whatever happened, then they are freed of that obligation, and
    we can find out about what you said to the journalists during
    and about the Starr investigation. Will you do that?
        Judge Kavanaugh. Senator, I spoke to reporters at that time
    at the direction and authorization----
        Senator Whitehouse. I know, but that is not what--that is
    the basis of my question. If you had not done that, I would not
    be asking this. You do not tell me that. The question is, will
    you release those reporters from whatever source
    confidentiality protection they feel you are owed? It is up to
    you to do that.
        Judge Kavanaugh. I spoke to reporters at the direction and
    authorization of Judge----
        Senator Whitehouse. You have just recited the exact same
    words that you answered me with beforehand. Will you release
    them----
        Judge Kavanaugh. Because that is relevant to the answer to
    the question if I could continue?
        Senator Whitehouse. What I would really get is an answer to
    the actual question I asked rather than a disquisition on the
    general topic area that I asked. This is a very simple thing.
    You either will or will not, or if you wish, this is--you are
    welcome to say, look, I would like to take that under
    advisement and I will get back to you after some reflection and
    consultation.
        But our situation right now is that reporters may very well
    have information about what you told them during the Starr
    Clinton investigation that they are unwilling to divulge now
    because you were a confidential source. Can you release them
    from that by simply saying here publicly, look, anybody I
    talked to, say what I said. It is not a problem. I do not need
    confidentiality any longer.
        Judge Kavanaugh. Right. Senator, and if I could just 30
    seconds on this, if that is okay.
        Senator Whitehouse. If it is 30 responsive seconds, I am
    all for that. Go for it.
        Judge Kavanaugh. Okay. I spoke to the reporters at the
    direction and authorization of Judge Starr, and, therefore,
    Judge Starr would be the one who would be part of that process.
    I was not acting on my own, so.
        Senator Whitehouse. No. No. Nope, that is not the way that
    reporters look at it. They look at it as you were the source.
    You were the one to whom they owe the obligation of
    confidentiality. Starr's name has not come up.
        Judge Kavanaugh. But I was in turn acting as part of that
    office, and, therefore, I guess the answer----
        Senator Whitehouse. But it is yours to divulge.
        Judge Kavanaugh. The answer to your question is because I
    cannot do that or do not think I should do that as a matter of
    appropriateness given that I was working for someone else who
    was running the office. I talked, of course, on the record and
    publicly----
        Senator Whitehouse. Okay, that answers it. You are
    unwilling to do it. I will move on. You have said today you
    have never taken a position on the constitutionality of
    indicting the President. Let me ask you, has there ever been
    any statutory law on Presidential immunity from an indictment
    or from due process of law?
        Judge Kavanaugh. There has been Justice Department law.
        Senator Whitehouse. Statutory law is the question. Has
    there ever been a statute that limited the--or protected the
    President against indictment or due process of law?
        Judge Kavanaugh. This has been Justice Department law, but
    not--I do not believe there has been statutory law.
        Senator Whitehouse. The Justice Department is not a
    lawmaking body, is it?
        Judge Kavanaugh. Oh, I think it does--I guess, the term all
    encompasses regulations, so, yes.
        Senator Whitehouse. Directive to the Department's own
    employees, correct? The OLC opinion is what you are talking
    about.
        Judge Kavanaugh. Well, that is encompassed, as I think
    about it, within the concept of law.
        Senator Whitehouse. Well, if you are going to the general
    concept of law perhaps, but there is no law law that Congress
    has ever passed that protects a President from either
    indictment or due process of law, correct?
        Judge Kavanaugh. Congress has never passed something. The
    Justice Department----
        Senator Whitehouse. Has an opinion about it. I understand
    that.
        Judge Kavanaugh. Which is binding on everyone----
        Senator Whitehouse. On the Justice Department.
        Judge Kavanaugh. Mm-hmm.
        Senator Whitehouse. So, if, as a matter of law, a sitting
    President cannot be indicted, that must be constitutional law
    since there is no statutory law as a proposition of logic. Is
    that not correct?
        Judge Kavanaugh. That is not correct as I see it because if
    the Justice Department has law that binds that Justice
    Department, that is another source of law as well.
        Senator Whitehouse. Okay. So, let us go back to Georgetown
    Law Journal, 1998, and a conference you attended. And you spoke
    at it, and the panel that you were on was asked the question
    who on the panel believes as a matter of law that a sitting
    President cannot be indicted during the term of his office, and
    your hand shot up, and I think you have probably seen the film
    clip of that because it has been posted already. Did you mean
    as a matter of law the OLC guidance when you said that?
        Judge Kavanaugh. I know that right before the passage you
    read, I said there is a lurking constitutional question.
        Senator Whitehouse. Bingo.
        Judge Kavanaugh. The fact that I said that suggests that I
    did not have a position on the constitutional issue.
        Senator Whitehouse. Although you shot your hand up when you
    said--when the question as a matter of law a sitting President
    cannot be indicted came up. And it seems to me there are really
    only two kinds of law, unless you are really stretching the
    envelope here. One is laws that Congress passes, and the other
    is laws that are founded in the Constitution. An internal
    policy directive within the Department of Justice, I think it
    is a real stretch to call that law.
        Judge Kavanaugh. I appreciate that, Senator, but it has
    been a longstanding Justice Department position.
        Senator Whitehouse. Policy, yes.
        Judge Kavanaugh. And right before----
        Senator Whitehouse. And is that what you meant when you put
    your hand up, do you know?
        Judge Kavanaugh. That was 20 years ago, I do not know. I do
    know right before I said that that I said----
        Senator Whitehouse. Here is why it is important, is because
    you have been telling us, ``I have never taken a position to
    say this was a constitutional principle. I have never taken a
    position on the Constitution on that question. I did not take a
    position on constitutionality period. I have never taken a
    position on constitutionality of indictment.'' Those were all
    things you have said during the course of this hearing, and it
    looks to me like that is a bit of a conversion.
        Judge Kavanaugh. Well, right before that, though, Senator,
    to be fair to me, I did say there is a lurking constitutional
    question, which implies----
        Senator Whitehouse. Yes, and----
        Judge Kavanaugh. And I----
        Senator Whitehouse. And then you were asked to answer that
    question by putting your hand up, and you put your hand up
    saying, ``I.''
        Judge Kavanaugh. The question was----
        Senator Whitehouse. So, it seems to me you answered your
    question by putting that hand up the way you did.
        Judge Kavanaugh. But the question was not the Constitution.
    The question was law, and there was Justice Department position
    had been----
        Senator Whitehouse. So, that is what I am saying you are
    saying is you are saying that what you meant was the OLC policy
    position when you answered a question about law.
        Judge Kavanaugh. What I said is--I do not know what I was
    thinking in a panel 20 years ago, but I do know having looked
    at it that the question was about law, that the Justice
    Department position has been consistent for 45 years.
        Senator Whitehouse. As a matter of constitutional law,
    right? The Justice Department position reflects a view of
    constitutional law.
        Judge Kavanaugh. But it is an interpretation binding on
    everyone in the Justice Department, as I understand it, and----
        Senator Whitehouse. Because they are employees of the
    Department of Justice in the same way that you cannot steal the
    computer or you cannot, you know, bring a pet into your office,
    whatever other rules there might be.
        Judge Kavanaugh. Well, I think internal regulations are
    still law.
        Senator Whitehouse. Okay. As long as it is your position
    that that was what you meant by a matter of law.
        Judge Kavanaugh. Well, just to be clear, I said I do not
    know what I meant----
        Senator Whitehouse. You answered the question.
        Judge Kavanaugh. But when I look at it now, that is what
    I--that is what I think.
        Senator Whitehouse. So, let us go on to recusal, and let
    me--there is a case that is somewhat on point on all of this.
    It is the Caperton case out of West Virginia. And as you will
    recall, it was a civil case, right?
        Judge Kavanaugh. Yes.
        Senator Whitehouse. And it came to the Supreme Court
    because there was an objection that a judge should not sit--
    basically, the nemo iudex problem, should not sit in his own
    cause, so to speak, and the problem was that the--one of the
    litigants had received three--the judge had received $3 million
    in political support from one of the litigants. Is that--the
    fact pattern correct?
        Judge Kavanaugh. I believe that is correct, Senator.
        Senator Whitehouse. Yep. And the standard that the Court
    came up with was whether that judge had--whether that donor,
    that party, had a significant and disproportionate influence--
    ooh, we did not spell ``influence'' right--in placing the judge
    on the case.
        Judge Kavanaugh. Right.
        Senator Whitehouse. Correct?
        Judge Kavanaugh. I believe so. That is my memory.
        Senator Whitehouse. So, and the--Justice Kennedy----
        Judge Kavanaugh. A Justice Kennedy opinion.
        Senator Whitehouse [continuing]. Decided that the
    Constitution requires----
        Judge Kavanaugh. Right.
        Senator Whitehouse [continuing]. Recusal. If the
    Constitution requires recusal of a judge who was the
    beneficiary of a $3 million piece of political support to help
    him get into office, was it not follow perforce that the person
    who actually appointed the judge would be in a similar or
    stronger position of significant and disproportionate
    influence?
        Judge Kavanaugh. Senator, the question in the Caperton
    case, as I understand, was because of the amount of money, the
    financial interest, which is a whole separate brand.
        Senator Whitehouse. Correct, which would have a significant
    and disproportionate influence on the judge becoming a judge,
    right? That is what the connection was. The spending of money
    by the party helped make the judge the judge. In this case, if
    a criminal matter involving President Trump came before you, he
    would not have just spent $3 million to make you a judge. He
    would have flat out made you the judge, 100 percent--finito,
    right?
        Judge Kavanaugh. Senator, the question of recusal is
    something that is governed by precedent, governed by rules. One
    of the underappreciated aspects of recusal is whenever I have
    had a significant question of recusal as a judge on the D.C.
    Circuit, I have consulted with colleagues, and so, too, they
    have consulted with me when they have had their own questions.
    So, that is part of the process. In other words----
        Senator Whitehouse. Is not actually the 100 percent
    responsibility for direct appointment more significant in terms
    of influence than simply making a big political contribution to
    a judge? That is the 100 percent responsibility, appointed,
    period, done.
        Judge Kavanaugh. Well, just on the--I do not mean to
    quibble, but on the premise of your question, the Senate
    obviously, it is a shared responsibility. The President and the
    Senate participate in a Supreme Court confirmation process--
    appointment process.
        Senator Whitehouse. Well, you were very clear yesterday in
    our discussion that it was the President of the United States
    who appointed you, and this is about that. This is about how
    you get to the seat, and you got appointed by the President.
    Would that not pertain as a significant influence--I mean, what
    possible greater influence could there be on who is in the seat
    that you are nominated to than the nomination of the President
    to that seat?
        Judge Kavanaugh. So, two points, if I could, Senator.
    First, I have said already, I do not believe it appropriate in
    this context to make decisions, and recusal is a decision, on a
    case, and so, I do not think it is appropriate.
        Senator Whitehouse. Okay. Well, if it is not appropriate,
    then let me move on with something else because--let me ask you
    about the question of Presidential, shall we say, ``conflicts
    with prosecutors.'' When you were in the Starr prosecution
    effort, you were exposed to this contest with the Clinton White
    House, and you described the Clinton White House as running a,
    and I am quoting you here, ``Presidentially approved smear
    campaign,'' was one phrase you used; ``a disgraceful effort to
    undermine the rule of law,'' was another phrase you used; and,
    ``an episode that will forever stand as a dark chapter in
    American Presidential history.''
        Judge Kavanaugh. That was about something different.
        Senator Whitehouse. And you--``Presidentially approved
    smear campaign against Starr'' was what the topic was. You then
    said in a later memo that ``the President has tried to disgrace
    Starr and his office with a sustained propaganda campaign that
    would make Nixon blush, and he should be forced to account for
    that.'' Have your views of Presidential interference or
    smearing of independent or special counsel changed since you
    made those statements?
        Judge Kavanaugh. Those comments were in a memo written, as
    I recall----
        Senator Whitehouse. Two actually. Two memos, but close
    enough, yes.
        Judge Kavanaugh. Well, the one that I am remembering
    written late at night after an emotional meeting in the office,
    dashed off, and some of the language in that, as I think I told
    you or some of the Senators in individual meetings, was heated,
    and I understand that. But that was what my memo at the time.
        Senator Whitehouse. And now?
        Judge Kavanaugh. I do not think--I think I have been clear
    I do not want to talk about current events because I do not
    think a sitting--I am a sitting judge as well as a nominee. I
    do not think I should talk about current events.
        Senator Whitehouse. How about just the guy, the guy who was
    outraged at being on the receiving end of a smear campaign?
    Does that guy still exist, or is he long gone?
        Judge Kavanaugh. Well, that is--that is what I wrote at the
    time, how I felt one night after a meeting we had had in August
    1998, I believe, at least the memo I am remembering.
        Senator Whitehouse. Okay. Last topic because my time is
    getting short here. The hypothetical problem that I have has to
    do with an appellate court which makes a finding of fact,
    asserts a proposition of fact to be true, and upon that
    proposition hangs the decision that it reaches. And the
    question is, what happens when that proposition of fact
    actually in reality--you have referenced the real world so
    often--actually in reality turns out not to be true. What is
    the obligation of an appellate court if it has hung a decision
    on a proposition of fact, and then the proposition of fact
    turns out not to be true? Does it have any obligation to go
    back and try to clean up that discrepancy, to clean up that
    mess?
        Judge Kavanaugh. I think, Senator, it is probably hard to
    answer that question in the abstract because----
        Senator Whitehouse. But if I give you specifics, then you
    will say you cannot answer that because that would be talking
    about a case. So, I am kind of in a quandary here with you.
        Judge Kavanaugh. Well, I was going to give you a couple
    thoughts, which are I think that would be wrapped up in the
    question of precedent and stare decisis. And one of the things
    you could look at, one of the factors you could look at, how
    wrong was the decision and if it is based on an erroneous
    factual premise, that is clearly one of the factors you would--
    you would----
        Senator Whitehouse. You would look at it and whether it
    could be----
        Judge Kavanaugh. A mistake of history. Sometimes there have
    been cases where there were mistakes of history in decisions,
    mistakes of facts, and so forth.
        Senator Whitehouse. So, just quickly, the two examples that
    comes readily to mind, one is Shelby County in which the Court
    said in looking whether there was still any kind of
    institutional racism in the preclearance States that they
    needed to worry, nope: The ``country has changed and current
    conditions''--to use their phrase--``are different.'' First,
    where do you suppose the five Justices who made that decision
    got expertise in vestigial State racism to make that
    determination at all?
        Judge Kavanaugh. Senator, I cannot comment on the decision
    other than to say it is a precedent. I understand the point you
    are making about the----
        Senator Whitehouse. Because you do know that since then,
    both North Carolina was found to have targeted minority voters
    with ``surgical precision,'' which is a pretty rough phrase,
    and Texas got after it so frequently that a Federal court
    finally said, look, we think there is a penchant for
    discrimination here. So, if you--if you have got the five
    judges saying that it is over in these States and then it turns
    out it really is not over, that there is actually still
    surgical precision targeting of minority voters, and that there
    is a penchant for discrimination in the Texas State government,
    that ought to be something that might cause some
    reconsideration of the Shelby holding, ought it not?
        Judge Kavanaugh. So, three things on that, I think,
    Senator. One, I think the case did not strike down preclearance
    as opposed to saying the formula needed to be----
        Senator Whitehouse. De facto it did. Preclearance ended in
    all those States with that decision.
        Judge Kavanaugh. I agree. I understand that.
        Senator Whitehouse. Okay.
        Judge Kavanaugh. But the----
        Senator Whitehouse. So, I have got 1 minute left. Let me
    jump to the other example because I think it is an important
    one, and my time is running out. And that is Citizens United.
    Citizens United took on the proposition that the unlimited
    spending that it authorized by people capable of unlimited
    spending would be both transparent and independent, correct?
        Judge Kavanaugh. The Court upheld the disclosure
    requirements in that case, if that is the question. I am not
    sure----
        Senator Whitehouse. It actually said more than that. It
    said that it is the transparency and the independence of the
    spending that it authorized----
        Judge Kavanaugh. Yes.
        Senator Whitehouse [continuing]. That were the guardians
    against corruption.
        Judge Kavanaugh. Right, so it was not contributions to
    parties or candidates, correct.
        Senator Whitehouse. So, the First Amendment ends where
    efforts to corrupt begin, correct? You do not have a First
    Amendment right to corrupt your Government.
        Judge Kavanaugh. The Supreme Court has relied on corruption
    and the appearance of corruption as part of the test, and it
    is--you know the story.
        Senator Whitehouse. Correct, and in order to fend off the
    argument that big money corrupts and absolute money corrupts
    absolutely, they said, no, because there is going to be
    independence and transparency. In fact, if I remember
    correctly, they said--well, I do not have it front of me and I
    am out of--oh, here we go: ``The separation between candidates
    and independent expenditures negates the possibility of
    corruption.'' So, if they are wrong factually about this
    spending being transparent, and we know that they do from what
    we have seen since then, and if they are wrong factually about
    the independence of this spending, and we know that they are
    from actual events that have happened since then, then that
    strikes a pretty hard blow against the logic of Citizens
    United, does it not?
        Judge Kavanaugh. So, Citizens United, as you know, is a
    precedent of the Supreme Court, so entitled to respect as a
    matter of stare decisis. But as you know, and I would just
    reiterate, if someone wants to challenge that decision, they--
    one of the things that anyone can raise about case is that it
    is based on a mistake in premise or a mistake in factual
    premises, and that is always the kind of thing that courts are
    open to hearing.
        Senator Whitehouse. My time has expired. I thank the
    Chairman for the indulgence of the extra minute.
        Senator Tillis. A couple of things. First, I would just
    note that I believe Justices Breyer and Ginsburg sat on the
    Supreme Court during Clinton v. Jones and three out of four of
    President Nixon's appointees were on the Supreme Court that
    heard U.S. v. Nixon. And, Judge Kavanaugh, I have a--my
    colleague and friend, Senator Whitehouse, attempted to imply
    you would resolve the constitutional question of whether a
    sitting President can be indicted. Is it not that, in a
    contemporaneous law review article you authored, you explicitly
    stated--these are your words--``whether the Constitution allows
    indictment of a sitting President is debatable''?
        Judge Kavanaugh. That is what I said in the contemporaneous
    Georgetown Law Journal article. I have said that subsequently
    as well.
        Senator Tillis. And without objection, I would like to have
    that article submitted for the record.
        [The information appears as a submission for the record.]
        Senator Tillis. And before I transition, if Senator Cruz
    will indulge, I reserved 13 minutes of my time last night, and
    I was wondering, there were two instances where you were not
    allowed to answer the question. I did not know if you wanted to
    make any clarifying comments on disclosing sources relative to
    the discussion around Judge Starr. And at one point you were
    saying that Senator Whitehouse said something you said, ``that
    is about something different.'' I do not know if you remember
    what that was, but if you want to clarify it before we
    transition to Senator Cruz, I will give you a minute to do so.
        Judge Kavanaugh. I think I will just leave the record as it
    stands.
        Senator Tillis. All right.
        Judge Kavanaugh. That third comment that he referenced was
    about something--a different aspect of that investigation.
        Senator Tillis. Okay.
        Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman, and I want to note
    at the outset that the Senator from Rhode Island took his
    questioning as an opportunity to impugn the residents of North
    Carolina and the residents of Texas as having a penchant for
    bigotry, and I appreciate the compassion from the Senator from
    Rhode Island. I will point out--I will let you rise to the
    defense of your own State, but I will point out in the State of
    Texas, that we had just a few years back, three Statewide-
    elected African-American officials, all Republican, I might
    note, which I believe at the time was the most of any State in
    the Union. And I think it is the case that Rhode Island has
    none.
        [Disturbance in the hearing room.]
        Senator Cruz. And I would note as well----
        Senator Whitehouse. For the record, I apologize to my
    colleague if he takes any umbrage about my reference to the
    general residents of Texas. This was a specific quote from a
    Federal court decision in Texas referring to the decisionmakers
    in that case. So, I apologize----
        Senator Tillis. Senator Cruz, you have 30 additional
    seconds.
        Senator Cruz. Judge Kavanaugh, yesterday you had some
    discussion with Senator Lee about what it means to be a
    textualist. And I want to go back and revisit that conversation
    and ask for someone at home who is watching this, why should it
    matter to them if a judge is a textualist. What difference does
    that make to somebody not involved with the Supreme Court?
        Judge Kavanaugh. Senator, it goes to the foundation of the
    Constitution and the system that the Framers designed with a
    legislative branch, an executive branch, and a judicial branch
    that were all separate. As was said in Federalist 78, the
    judiciary does not exercise will, but it exercises judgment.
    The policy decisions are made by the legislative branch with
    the President, of course, in terms of signing legislation, so
    the House, the Senate, and the President. The President
    enforces Federal law, comes to the judiciary.
        When we interpret a statute, if we as judges must adhere to
    the text of the statute, why is that? Two reasons I think are
    paramount. The first is the statute as written is what was
    passed as a formal matter by the Congress, by both Houses of
    the Congress, signed by the President into law. So, as a formal
    matter, that is the law. So, if we are going to exercise
    judgment and not will, we need to adhere to the law as passed,
    and the law as passed is reflected in the written words that
    were--went through both Houses and signed by the President.
        Second, in supporting that, as a practical matter,
    legislation is a compromise, and within the Senate, within the
    House, with the President as well, lots of compromises are
    inherent in any legislative product. Now, that is what my
    experience shows. That is what, I know, your experience shows
    as well, Senator. So, when a case comes to court, a statute
    comes to court, we upset the compromise that you so carefully
    reached and where people might have given up this for that in
    terms of the legislative final language. And we then insert
    ourselves after the fact into the process and upset the
    compromise if we do not stick to the actual words of the text
    of the statute as passed by Congress.
        So, as both a formal matter of what the law is and as a
    practical matter of not inserting ourselves into the
    legislative process and upsetting the legislative process, it
    is critical that judges stick to the law as written, the text
    of the statute as passed by Congress and signed by the
    President.
        Senator Cruz. What in your view is the proper role, if any,
    for legislative history in statutory adjudication? As you know,
    different Justices have different views on this.
        Judge Kavanaugh. Well, I think all judges are much more
    skeptical of legislative history than they once were. That is
    the influence, as you know, Senator, largely of Justice Scalia,
    but really very mainstream now to be very skeptical of
    legislative history. And, again, two reasons support that
    skepticism, if not outright refusal to use it. The first is
    that the legislative history, and by that I mean the Committee
    reports or the floor statements made by individual Members on
    the floor of the House or Senate, are not part of the law as
    passed. And that is important because it would be very easy,
    and I have said in my articles, for Congress, if there are a
    paragraph or a paragraph or more in the legislative history and
    a Committee report that was really important, we will put it
    into the law. Put it into the introduction of the law, have it
    be part of the law that is passed. When it is a Committee
    report, it might have just been seen by one Committee in one
    House. It might not have even been seen by the other House. The
    President, of course, who is part of the process, might never
    have seen it. So, to rely on that is to upset the formal
    process by which law is enacted in the United States.
        So, too, again, the legislative history, the Committee
    report, is not part of the compromise that is reached between
    the House and the Senate and the President, at least not
    ordinarily. And so, you are allowing one Committee, for
    example, or one Member to go down to the floor of the House or
    Senate, and to say something that will shape subsequent
    judicial interpretation and upset the careful compromise that
    is reflected in the text that is passed by the Senate, passed
    by the House, and signed by the President.
        So, again, both formal and practical reasons why skepticism
    of legislative history is warranted, and why Justice Scalia, I
    think, was able to persuade Justices across the spectrum,
    judges across the spectrum, that legislative history is useful
    for understanding why something came to be, but not as a tool
    for upsetting or changing your interpretation of the words of
    the statute.
        Senator Cruz. Also, yesterday when you were talking with
    Senator Lee, I believe you described yourself as an
    originalist.
        Judge Kavanaugh. Yes.
        Senator Cruz. Can you explain what that means to you, what
    you mean by that, and why, again, people at home should care,
    why that should matter if a judge or justice is an originalist.
        Judge Kavanaugh. So, by ``originalist,'' it is important to
    be clear because there are different things people hear when
    they hear the term ``originalist.'' There was an old school of
    original intent, the subjective intentions of the drafters or
    ratifiers, and that is not really the proper approach, in my
    view, for similar reasons to the discussion of legislative
    history of the statutes.
        By ``originalist,'' what I have meant is original public
    meaning or the ``constitutional contextualism'' is a term I
    have used that refers to the same concept, which is, pay
    attention to the words of the Constitution. The Constitution,
    as Article VI of the Constitution makes clear, is law. It is
    not aspirational principles. It is law. It is the supreme law
    of the land, and in that sense it is superior to statutes, but
    it is law-like--just like statutes are, superior law.
        The Constitution itself, including the amendments, but the
    original Constitution, was itself a compromise, so it is law
    and it is a compromise reached at Philadelphia in the summer of
    1787. And, of course, Madison's notes and the history of that
    shows all the compromises that were reached. Probably the most
    famous compromise is the compromise that allows for
    representation according to population in the House,
    representation according to State in the Senate, the
    Connecticut compromise, as it is often referred to.
        It is important for judges, again, not to upset the formal
    law that is written in the Constitution or to upset the
    compromises reached either in the original Constitution or in
    the amendments. Now, one key thing to add to that is precedent
    is part of the constitutional interpretation as well as
    Federalist 78 makes clear and the Judicial Power Clause of
    Article III also makes clear. So, a system of precedent is
    built into how judges interpret the Constitution and
    constitutional cases on an ongoing basis. So, that is part of
    the proper mode of constitutional interpretation and important
    system of precedent.
        Senator Cruz. Thank you. Let us shift back to the topic you
    and I discussed yesterday, which is religious liberty, which is
    a topic of considerable interest and importance to a great many
    Americans. In private practice, you wrote an amicus brief in
    the Santa Fe case for Congressmen Steve Largent and J.C. Watts.
    Could you describe to this Committee what that case was about
    and your representation there?
        Judge Kavanaugh. I will. Of course, Senator Cornyn argued
    the case as Attorney General for the State of Texas and did an
    outstanding job. I remember participating in the moot court, as
    the Senator recalled.
        Senator Cornyn. It did not turn out too well, Judge.
        [Laughter.]
        Judge Kavanaugh. You did an excellent job, Senator, as I
    remember being there. So, the case involved prayer before a
    football game, and the Supreme Court, of course, has had a
    number of cases on religious expression in schools, and these
    are always challenging cases and very fact-specific. There are
    two principles that the precedents have set forth. One is that
    school-sponsored prayer at school events is often
    impermissible, either at the school day, Engel v. Vitale, or
    graduations, Lee v. Weisman.
        At the same, when students want to express themselves in
    some way--tee shirt, clothing, or saying their own prayer, say,
    before a football game or other event, if students want to say
    a prayer for themselves, or there is an open forum where
    students are allowed to say whatever they want and one student
    chooses to talk about religion or say a prayer--that is
    generally on the free speech side of the house, freedom of
    religion side of the house of the Supreme Court precedent,
    which would protect the religious liberty of the individual in
    that circumstance.
        The Santa Fe case came--I think Senator Cornyn would say--
    well, Senator Cornyn would say it came on the free speech,
    freedom of religion side of the house. The Supreme Court
    thought that the school was too involved, I would say, in the
    prayer opportunity in that case, and, thus, attributed the
    prayer in that case to the school. And the Supreme Court,
    therefore, said that the prayer in that case was impermissible.
        It was a very fact-specific decision, I think, based on how
    some of the actual prayers had gone down in the school district
    there. And so, it was really in the gray area on the facts
    between these two principles--freedom of speech and freedom of
    religion for individuals on the one hand, no school-sponsored
    prayer on the other--and those two principles are part of the
    Supreme Court precedent that I think the Courts have applied
    for a long time now.
        Senator Cruz. So, what led you to want to take on that
    representation in the amicus brief?
        Judge Kavanaugh. Well, I think at that time I worked on
    several--I was asked to work on several cases involving
    religious liberty and religious speech. I also did a case in
    the--amicus brief in the Good News Club case, and that was a
    case where a school district allowed use of a--the gymnasium
    auditorium area after school for whatever group from the
    community wanted to use the facility. And they would allow
    everyone to come in, you know, Boy Scouts, the community--any
    community group to come in, but they did allow religious groups
    to come in. And that seemed to be discrimination against
    religion, discrimination against religious people, religious
    speech.
        And I was asked to do an amicus brief, which made the
    point--I wrote that made the point that religious people,
    religious speakers, religious speech is entitled to its place
    on an equal basis in the public square, including, in this
    case, in the school auditorium or gymnasium. The Supreme Court
    agreed with that principle in that case, stating that
    discrimination against religion in public facilities in the
    nature of what was going on in that case was impermissible and
    a violation of freedom of speech, freedom of religion, and,
    therefore, unconstitutional.
        Those cases are important, I think, because it is important
    that the--to recognize that the Constitution, the First
    Amendment of the Constitution as well as many statutes, of
    course, protect religious liberty in the United States,
    religious freedom in the United States. And as I have said in
    some of my opinions, we are all equally American, no matter
    what religion we are or no religion at all, and that means
    religious speakers and religious speakers have a right to their
    place in the public square.
        Senator Cruz. Another case you were involved in as a judge
    is, you wrote a dissent from denial of re-hearing en banc in
    the Priests for Life case. Can you tell this Committee about
    that case and your opinion there?
        Judge Kavanaugh. That was a group that was being forced to
    provide certain kind of health coverage over their religious
    objection to their employees. And under the Religious Freedom
    Restoration Act, the question was, first, was this a
    substantial burden on their religious exercise, and it seemed
    to me quite clearly it was. It was a technical matter of
    filling out a form--in that case they said filling out the form
    would make them complicit in the provision of the abortion-
    inducing drugs that they were, as a religious matter, objected
    to.
        The second question was, did the Government have a
    compelling interest nonetheless in providing the coverage to
    the employees. And applying the governing Supreme Court
    precedent from Hobby Lobby, I said that the answer to that was,
    yes, the Government did have a compelling interest, following
    Justice Kennedy's opinion in Hobby Lobby, said the Government
    did have a compelling interest in ensuring access.
        And then it came down to the least restrictive means prong
    of the Religious Freedom Restoration Act. And that prong of the
    act, to my mind, is an opportunity to see is there--is there a
    win-win in some respects. In other words, the Government
    interest in ensuring healthcare coverage, can that be provided
    without doing it on the backs of the religious objector. So,
    that is what the Court is looking for.
        In that case, Professor Voll has written about that, and in
    that case it seemed to me that the Government had avenues to
    ensure that the coverage was provided without doing so on the
    backs of the religious objectors, and I so ruled, following the
    Supreme Court precedent in Hobby Lobby and in a subsequent
    case, Wheaton College, where they had an order that I followed,
    and it seemed to me to dictate the result that I identified in
    the Priests for Life dissent.
        Another case, the Religious Freedom Restoration Act, just
    to reiterate, was overwhelmingly passed by Congress in the
    early 1990s and signed by President Clinton, and was an
    important addition to the protection of religious freedom in
    the United States to supplement the constitutional protection
    that exists in the Free Exercise Clause.
        Senator Cruz. Well, and I would note, much like yesterday
    when we discussed your pro bono representation of the
    synagogue, that Priests for Life, using the paradigm that some
    on the Democratic aisle have suggested of little guy versus big
    guy, by any measure Priests for Life, where the little guy
    against the almost all-powerful Federal Government. And in that
    opinion, presumably because you felt the law dictated it, you
    sided with the Priests for Life in that decision.
        Judge Kavanaugh. That is correct, Senator, and I think in a
    lot of the religious freedom cases that the Supreme Court has
    had, that has been the case. There was a prisoner, in an
    opinion written by Justice Alito, I believe unanimous opinion
    where the prisoner is being--a Muslim prisoner was being forced
    to shave his beard in violation of his religious beliefs.
    Justice Alito, as I recall, wrote the opinion for the Supreme
    Court saying that was a substantial burden on his religion and
    was not necessary. And that is just another example of how
    religious liberty protects all of us no matter what our
    religious beliefs are, and that is an important principle--
    foundational principle both of the Constitution and of the
    Religious Freedom Restoration Act.
        Senator Cruz. Another case that you were involved in, in
    your career, that stood out to me personally just by being a
    Cuban American is that, as I understand it, in November 1999
    when Elian Gonzalez came to this country as a young child. And
    sadly, the Federal Government ended up coming into the home he
    was staying, with machine guns, taking him into custody and
    removing him to Cuba. You worked on Elian Gonzalez's case pro
    bono against the INS returning him to Cuba, and if you could
    talk about that case a little bit to the Committee.
        Judge Kavanaugh. Yes, thank you, Senator. I was asked by
    another person in my firm who had gotten a call from someone in
    Florida whether we could on an emergency basis do, as I recall,
    a re-hearing en banc petition in the Eleventh Circuit, and then
    a cert petition in the Supreme Court on a really very short
    notice because he was going to be returned.
        The question was really due process, what kind of hearing
    needed to be held before the INS returned him to Cuba. It was a
    question under the Refugee Act as what that required, and also
    a question under the Due Process Clause. And interestingly, it
    seemed that the INS had not--was interpreting the Refugee Act
    in a way that seemed a stretch of the statutory language, and
    it was not some kind of formal regulation. So, the question of
    Chevron deference to an informal agency position was a question
    in the case, and I wrote the cert petition and the en banc
    petition before that saying that the agency was stretching the
    language of the statute beyond recognition, and was doing so in
    a way that was entitled to no deference because it was not in
    any kind of formal regulation, which years later turns out to
    be a position the Supreme Court has agreed with in terms of
    administrative law.
        But in that case, I got involved because I was asked to get
    involved on a moment's notice in a case of importance for
    people who needed help.
        Senator Cruz. Let me just ask one final question. You have
    been nominated to the highest court in the land. As you know,
    there is another highest court in the land. That is the
    basketball court atop the U.S. Supreme Court courtroom.
        Judge Kavanaugh. Yes.
        Senator Cruz. And I believe that no sitting Justice has
    played regularly there since Justice Thomas many years ago when
    he was a much younger Justice. If you are confirmed, do you
    intend to break that tradition and return to having a Justice
    play on the highest court in the land?
        Judge Kavanaugh. Well, I do, if fortunate enough to be
    confirmed. I will--Justice Thomas did at some point get
    injured, so I hope that precedent is not one that I would
    follow. But if I am fortunate enough to be confirmed, yes,
    indeed, Senator. Thank you.
        Senator Cruz. Excellent. I am very glad to hear it.
        Chairman Grassley. Before I call on Senator Klobuchar,
    there are a couple of things. One, I became aware of the fact
    that a lot of the committee confidential material that has been
    requested, some of the requests we got were already public. So,
    somebody is not doing very good homework if they are asking us
    for committee confidential stuff to be disclosed that is
    already available to the public.
        Then I want to ask you, Judge Kavanaugh, you testified in
    2004 that you were not involved in handling Judge Pryor's
    nomination while you were in the White House Counsel's Office.
    Is that right?
        Judge Kavanaugh. I believe that is----
        Chairman Grassley. I am talking about the handling of it.
        Judge Kavanaugh. Yes, the handling. We had one person who
    would be assigned to each judge. I was not the--as I recall, at
    least, I was not the primary person on that.
        Chairman Grassley. So, is it not the case that somebody
    else handled the nomination, and if you know who that is, I
    would like to give you a chance to say so, and if you do not, I
    want to suggest a name.
        Judge Kavanaugh. I do not remember who it was.
        Chairman Grassley. Could it have been Benjamin Powell?
        Judge Kavanaugh. It sure could have been, yes. He was
    another associate counsel.
        Chairman Grassley. What, if any, involvement did you have?
        Judge Kavanaugh. I do not recall specifics. We would have
    met at meetings. I could have attended a moot court where we
    did a mock hearing. I do not remember specifics, but I--it
    sounds--that sounds right to me that Benjamin would have been
    the person primarily in charge of that, handling it.
        Chairman Grassley. Well, I had colleagues attempting to
    insinuate that you were interviewed--that you interviewed Judge
    Pryor, the documents that we have, that he was referring, is
    one of your colleagues asking how the Pryor interview went. It
    certainly seems to me that this email is more likely to
    indicate that you know the people who interviewed Judge Pryor,
    but may have even been kept in the loop because it was
    something that you were interested in.
        Judge Kavanaugh. That sounds correct. I knew him, and,
    therefore, was interested in his process.
        Chairman Grassley. Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman. I am
    going to do some follow-ups from our discussions yesterday,
    Judge. I thought I would start with campaign finance. The
    document that the Chairman has pointed out several times was
    originally designated ``committee confidential,'' that I put
    the request in and got made public. And on that document, you
    said that contributions to--limits on contributions to
    candidates have some constitutional problems. And I asked you
    about Buckley v. Valeo, which is notable because it did not
    apply strict scrutiny to campaign finance laws. You really did
    not answer yesterday about whether you would follow that
    precedent of Buckley, and so, I want to be more specific. Do
    you think that strict scrutiny is the right standard to apply
    to all campaign finance laws?
        Judge Kavanaugh. Well, the Supreme Court, as you say,
    Senator, has, since 1976 in the landmark Buckley case, applied
    a different level of scrutiny, is one way to put it, to
    expenditures on the one hand and contributions on the other.
    And that divide has persisted since then to the current day so
    that now contributions to parties as well as candidates are on
    the one side of the line, and independent expenditures or
    expenditures and donations to outside groups are on the other
    side of the line.
        So, that law is precedent of the Supreme Court. That has
    been around for a long time and has set the basics for the
    campaign finance framework that we are all familiar with.
        Senator Klobuchar. Okay. So, do you see--but will you say
    it is settled law or precedent? I am trying to----
        Judge Kavanaugh. It is precedent of the Supreme Court that
    has been applied since 1976, and, therefore, entitled the
    respect under principles of stare decisis. And anyone seeking
    to upset that--there are people who do not like the
    expenditure--the freedom to--the Court's blessing of freedom to
    make unlimited expenditures, of course. There are people from
    the other direction that do not like some of the contribution
    limits who do not like Buckley v. Valeo from that side either.
    So, there are people who kind of hit it from both sides.
        Senator Klobuchar. I understand.
        Judge Kavanaugh. But it is a precedent that has been
    applied repeatedly.
        Senator Klobuchar. And so, do you think Brown v. Board of
    Education is settled law?
        Judge Kavanaugh. I think Brown v. Board of Education, as I
    have said many times before, is the single greatest moment in
    Supreme Court history.
        Senator Klobuchar. I know, I know, I know, you said it, and
    I appreciate that.
        Judge Kavanaugh. And it is correct. It is correct.
        Senator Klobuchar. Okay. So, it is----
        Judge Kavanaugh. It is correct because it corrected a
    historic mistake in Plessy v. Ferguson.
        Senator Klobuchar. I understand, but is it settled law? I
    am trying to get at this difference between when you say some
    things are precedent, which is what, you know, we had an issue
    here because the last hearing we had, Justice Gorsuch said a
    bunch of things were precedent, and now he is on the Court and
    he has already dissented actually from Justice Roberts, and did
    not even want to uphold the reasonable expectation of privacy.
        So, I am trying to get at the difference between when
    people that come before us say it is precedent versus settled
    law. Do you think there is a difference in those two words?
        Judge Kavanaugh. Well, here is what I know, Senator, which
    is for cases or issues that might come back before the Court,
    it is important as a matter of independence as reflected in the
    nominee precedent not to give a forecast or hint about that.
    And part of that is giving a thumbs up or thumbs down on those
    precedents that could be involved in that.
        Senator Klobuchar. Got it. But so, if Brown v. Board of
    Education is settled law and say, like, Roe v. Wade you just
    say it is precedent. Precedent, non-precedent with Casey, is
    that a difference, because I--Brown v. Board of Education was--
    how many years ago? So, that was 64 years ago, but Roe v. Wade
    was 45 years ago. And I am trying to figure out if you are
    using these words in different ways when something is precedent
    and something is settled law.
        Judge Kavanaugh. All right. So, what I am trying to do is
    adhere to the line that has been drawn by the eight Justices
    currently sitting on the Supreme Court. And the line they have
    drawn is for the vast body of Supreme Court precedent, they
    have refused, in Justice Kagan's words, to give a thumbs up or
    thumbs down on that precedent. There are some historical cases
    where there is no prospect of that case coming back where they
    felt free to indicate their agreement with them.
        Senator Klobuchar. And so, that is Brown v. Board of
    Education.
        Judge Kavanaugh. Correct. In Brown v. Board of Education, I
    said, single greatest moment in Supreme Court history.
        Senator Klobuchar. But it is just that Roe is now 45 years
    old. I mean, that is the issue. Why is that not a thumbs up
    settled law?
        Judge Kavanaugh. Well, no--none of the currently sitting
    Justices of the Supreme Court have opined on that.
        Senator Klobuchar. Okay. I want to go back to Presidential
    power, and this is not a hypothetical. I am just going back to
    2009, which is not that long ago, in the University of
    Minnesota Law Review. And that is where you said, ``We should
    not burden a sitting President with civil suits, criminal
    investigations, or criminal prosecutions.'' And when you and I
    talked about this yesterday, you said that Congress could still
    pursue an impeachment proceeding, right?
        Judge Kavanaugh. Yes, the impeachment mechanism.
        Senator Klobuchar. Your view back then because you would
    not comment on it, but your view when you wrote this was that--
    well, your view now is that Congress should still be able to
    pursue an impeachment.
        Judge Kavanaugh. Well, the Constitution specifies
    impeachment always as a tool for--in the Constitution itself.
        Senator Klobuchar. Okay. So, when we go back to when you
    wrote this, it is not a hypothetical, but when you wrote this
    in 2009 and you were thinking about it, did you think then, and
    this is what you meant, that a President should not have to be
    investigated. I mean, you said it, right?
        Judge Kavanaugh. The context there, I believe, Senator, was
    talking about civil suits, or criminal investigations, or
    criminal lawsuits, and it was not my position on the
    constitutionality. It was something for Congress to consider,
    and the idea was reflecting on my experience after September
    11th and what we could do to make the Presidency the most
    effective for the American people.
        Senator Klobuchar. I am trying to understand in
    practicality when you look at the last impeachment proceedings
    how you would, in effect, do this if you did not have an
    investigation, because these other ones have used independent
    counsel. They have used special counsel. And if you do not have
    that, do you not effectively eviscerate the impeachment part of
    the Constitution?
        Judge Kavanaugh. Not at all, Senator. Historically,
    Congress has often had investigative bodies that have done the
    work for----
        Senator Klobuchar. But why would we want to foreclose our
    ability to use a special counsel or an independent counsel?
        Judge Kavanaugh. So, that was--that is your decision
    ultimately in Congress to decide. That is one view that you
    just articulated. And, of course, Congress has not enacted any
    special deferral for civil suits, so Congress is stuck with the
    Jones v. Clinton result from that case, and is stuck with, of
    course, the existing system of special counsels.
        Senator Klobuchar. But when you--to get back into where you
    were in 2009 when you wrote this as opposed to just using a
    hypothetical, so we have said several times here no one is
    above the law, and I said that in my opening statement. But
    when you said then, you mean no one is temporarily above the
    law. So, if a sitting President, if she was in office and there
    was some crime committed--murder, white-collar crime,
    everything--then you are saying in this article at the time
    that she should not be subject to criminal prosecution.
        Judge Kavanaugh. That is a--that would be an issue for
    Congress to consider if it wanted to pursue providing a
    temporary deferral. There is--there are statutes that do that
    for members of the military, so servicemembers serving
    overseas. In fact, I think President Clinton's brief in the
    Clinton v. Jones case cited that example as something where
    there is statutory deferral, not immunity. It is important to
    distinguish immunity from deferral. And not above the law, but
    the timing of when a particular litigation will occur. So, I
    would not call that above the law. I would call that a timing
    question.
        Senator Klobuchar. Okay, but there would be a long time. If
    a President was serving for 4 years or 8 years given--and,
    again, I am reading the words, ``We should not burden a sitting
    President with civil suits, criminal investigations, or
    criminal prosecutions.'' So, it feels to me that that was your
    view when you wrote that.
        Judge Kavanaugh. Well, it was an idea for Congress to
    consider along with many other ideas I had in there about
    judicial confirmations and war powers, and it was all
    reflecting--again, that one was reflecting on an idea Congress
    could consider. The whole point was to make the--you know, help
    the country do better based on my observations from 3--5 and a
    half years working in a White House where--during war. During
    wartime.
        Senator Klobuchar. Okay. I want to turn to another topic.
    This is a follow-up from Senator Harris' questions from last
    night. She asked you questions about voting rights. I am the
    Ranking Member of the Rules Committee, and as she noted, many
    States have restricted access to voting since the Supreme
    Court's decision in Shelby County, which struck down a key
    provision of the Voting Rights Act. And according to the
    Brennan Center, 23 States now have more restrictive voting laws
    than they did in 2010. Many of these laws have been challenged
    in court. Some have been overturned.
        So, here is one more question on this. Should courts
    consider these widespread efforts to restrict voting, what has
    been going on since 2010, when ruling on challenges to statutes
    that affect the right to vote?
        Judge Kavanaugh. I think in any particular case, Senator,
    you would want to see what the record established in the case
    was, and the record could include what is going on in that
    particular State, and I can imagine a factual record where that
    would include also potentially what is going on in other States
    as well.
        Senator Klobuchar. Thank you. Thanks. Studies by the
    Brennan Center and other nonpartisan organizations have found
    no evidence of widespread voter fraud, and a study by The
    Washington Post found only 31 credible instances of fraud from
    2000 to 2014 out of more than 1 billion ballots cast. Do you
    believe there is evidence of voter fraud? Do you believe--I
    know you told Senator Harris that you read some election law
    blogs that were sitting here last night. And so, have you read
    one of these articles on widespread voter fraud on one of these
    blogs you mentioned? I am just concerned because that is out
    there, and I would think that would be something that could be
    looked at.
        Judge Kavanaugh. Well, I would certainly look at Professor
    Hassan's election law blog, and that is one of the ones that I
    have looked at. I have looked at other blogs as well, and there
    is discussion of this issue, and I would want--as a sitting
    judge, I would want to se a record before me of what is going
    on in a particular case. I hesitate to opine on something based
    on something I have read in a law review article or blog. I
    think you have a better sense of what is going on there. But I
    would want a record in a particular case to determine what the
    evidence in that particular case was.
        Senator Klobuchar. Okay. And I want to turn now to
    affirmative action, and Senator Booker raised these questions
    as well late last night. And in a 2017 speech at Notre Dame,
    you discussed how affirmative action represents a
    ``longstanding exception'' to the ``basic equal protection
    right not to be treated by the Government on account of your
    race.'' And you summarized the Court's debates on this issue
    and remarked, ``On what basis is the Court making those
    decisions? Is there something in the text of the Constitution
    that tells us one is good enough and the other is not good
    enough? Not really. Again, this is common law judging to define
    the contours of the exception to the constitutional right.''
    So, what did you mean by that statement?
        Judge Kavanaugh. Well, what I meant by that is we, in many
    areas of constitutional law, have, say, free speech rights, but
    we have exceptions analyzed, usually we are just talking about
    under strict scrutiny, and we have talked a lot about the
    Second Amendment, how the regulations that co-exist with the
    individual Second Amendment right. And so, too, in the
    Fourteenth Amendment context, the equal protection context,
    what kinds of programs are permissible, consistent with the
    equal protection right. And the precedent is critical on this.
    The precedent has built up things over time, the Bakke case, of
    course, the most prominent in the higher education context
    where the Court rejected remedying past societal discrimination
    as a basis for an affirmative action program, but the Court
    accepted diversity as a compelling interest for an affirmative
    action program. And that rationale has remained as part of the
    Supreme Court's precedent in the higher education context.
        So, the Court applies these principles. They build up case
    law over time, and that is part of the system of precedent that
    develops, and that is what I was referring to there, I believe.
        Senator Klobuchar. Okay. While at the White House, you
    suggested that a Federal program meant to encourage the
    participation of minority- and women-owned businesses in
    transportation contracting was unconstitutional. This was a
    document that was just made public by the Chair today. Although
    you say that your--it was your personal opinion in the
    document, you told Senator Booker that this was just your view
    as a lawyer for a client. The client was the President at the
    time.
        The program remains in place today, and it is intended to
    level the playing field and increase the participation of
    minority- and women-owned businesses in local and State
    transportation projects. So, I am just trying to understand
    your views here. Do you believe that the use of race as a
    factor in Federal contracting programs violates the Fourteenth
    Amendment?
        Judge Kavanaugh. So, my note in that case, as I understand
    it and have seen it briefly, was rooted in Supreme Court
    precedent, the Croson case. And I think it even says, ``See
    Croson,'' in the email, and Croson is the Supreme Court
    precedent where the Court had invalidated a Richmond
    contracting program, as I recall. And so, that precedent made
    clear what conditions need to be satisfied before a racial--a
    contracting program of that kind could be sustained consistent
    with the Constitution.
        And the analysis that we went through suggested that, at
    least as it was being applied, as I recall, the Federal program
    went afoul of the Supreme Court precedent specified in the
    Croson case. So, in that sense, I was providing advice about
    how the program would fit within the Supreme Court's existing
    precedent in the Croson case. At least that is my best
    understanding. I have not gone back to re-study it, but that is
    my best understanding was, that it was rooted in the precedent
    of the Supreme Court.
        Senator Klobuchar. Okay. Well, maybe we can get that in
    writing at some point if you want to look back at it.
        [The information appears as a submission for the record.]
        Senator Klobuchar. We have witnessed unprecedented attacks
    on journalists and journalism over the past several months.
    This should be concerning to everyone because the role of
    journalists is critical to our democracy. This is personal for
    me. My dad was a journalist his entire life, and even wrote a
    blog--he is now 90--for a while. You probably did not read that
    one, though.
        [Laughter.]
        Senator Klobuchar. In New York Times v. Sullivan, the Court
    issued a landmark ruling in support of First Amendment
    protections for the press by affirming that when newspapers
    report on public officials, they can say what they want unless
    they say something untrue with ``actual malice.'' Under New
    York Times v. Sullivan, do you believe the First Amendment
    would permit public officials to sue the media under any
    standard less demanding than actual malice, and can you explain
    what that standard means to you?
        Judge Kavanaugh. Well, the Supreme Court has elaborated on
    and applied that standard repeatedly over time. I have, too, as
    a lower court judge, so that precedent has now been applied
    over and over and over again. I am not aware of much effort to
    deviate from that standard. Interestingly, in New York Times v.
    Sullivan, the Court in the course of that opinion said that the
    Sedition Act of 1798 had been overturned in the court of
    history, which I thought was an interesting turn of phrase in
    New York Times v. Sullivan. Of course, the Sedition Act was the
    act that said that criticism of public officials was illegal in
    the United States in 1798. Never actually struck down by the
    Court, but New York Times v. Sullivan made clear that that act
    had been overturned in the court of history.
        Senator Klobuchar. Okay. I also want to talk about First
    Amendment protections for journalists and how journalists have
    been deterred from doing their jobs at times under threat of
    jail time. And I have raised this issue in the hearings for
    many of the Justice Department nominees this Congress. But it
    is also critical for the Court.
        In Branzburg v. Hayes, a 5-to-4 Court did not recognize the
    reporter's privilege, at least in the context of criminal grand
    jury testimony. Since then, various circuit courts have debated
    the contours of the decision with most courts----
        [Disturbance in the hearing room.]
        Senator Klobuchar. With most courts now recognizing some
    type of privilege, particularly in civil cases. Can you talk
    about the scope of that decision and whether there are
    instances where the Court should recognize a reporter's
    privilege?
        Judge Kavanaugh. In civil cases. So I did sit on a case
    once where we had exactly that question presented.
        Senator Klobuchar. I knew that.
        Judge Kavanaugh. And we had a great oral argument, and it
    was fascinating, and I put a lot of time into something, and
    then it settled before our opinion ever came out. So I never
    actually released my opinion on that issue and--but I know the
    issue well from the time I spent on that case at the time, and
    I know the arguments.
        Senator Klobuchar. You want to share them with us----
        Judge Kavanaugh. Well, I think it is----
        Senator Klobuchar [continuing]. In the remaining minute
    with me here?
        Judge Kavanaugh. It is a matter that obviously is the
    subject of current litigation and could come before me again.
    So I--as a matter of judicial independence, I cannot do so. But
    I will say it is a very interesting issue, a question of
    precedent, and the oral argument in the case, which is
    available publicly, was fascinating because of the issue
    presented as you described it.
        Senator Klobuchar. Okay. How would you apply the First
    Amendment to a reporter's decision to protect a confidential
    source?
        Judge Kavanaugh. So there is also important precedent on
    that matter that makes clear the importance of the
    relationships of reporters and their sources. Again, the
    criminal-civil divide there is something that I think has been
    a part of the case law in the--in the past where the criminal
    context has been deemed in some cases sufficiently compelling.
        But that is set forth as important part of the reporter's
    privilege, and the relationship with confidential sources is
    very important, I understand, to the role of journalists in
    bringing sunlight to American democracy.
        Senator Klobuchar. Thank you.
        Chairman Grassley. Before we go to Senator Sasse, I would
    like to note that we have had some good luck in confirming this
    week eight Federal judges to lifetime appointments.
        [Disturbance in the hearing room.]
        Chairman Grassley. Eight Federal judges to lifetime
    appointments this week. Last week, we did seven judges. Twelve
    were confirmed without any objection from Democrats. And so we
    have had a pretty good record finally of being able to show
    that you do not have anything to fear from lifetime
    appointments for Federal judges like we have heard a big issue
    it is today.
        Go ahead.
        Senator Sasse. Thank you, Mr. Chairman.
        Judge, welcome back. Congratulations on your last day of
    interviewing in your life.
        I would like to talk about precedent. You have been a law
    professor--how long have you been a professor?
        Judge Kavanaugh. I started in 2007 was the first year. I
    have taught 12 separate calendar years.
        Senator Sasse. Okay. Let us pretend you are a sixth grade
    civics teacher for our 20 minutes together instead of a law
    professor. I think precedent is critically important, but I do
    not think the American people--it is not something that we
    debate in front of them much, so it is something that maybe we
    could benefit from having more shared understanding about.
        Has the Supreme Court ever made a mistake?
        Judge Kavanaugh. The Supreme Court has made some major
    mistakes at times--Dred Scott, Plessy v. Ferguson, good
    examples.
        Senator Sasse. How do you know when you have a mistake?
        Judge Kavanaugh. Sometimes you know right away, and I think
    in those cases, with the dissents written in those cases, those
    dissenters knew right away, and I think they were mistakes
    right away. Plessy v. Ferguson was wrong the day it was
    decided.
        Senator Sasse. It was 1896, and we knew it was wrong when
    it happened. What was the ruling count? Do you remember the
    vote?
        Judge Kavanaugh. There was only one dissenter, Justice
    Harlan, the first Justice Harlan was the only dissenter in that
    case.
        Senator Sasse. Okay. It is so close to McCain's event that
    I do not--I know we should not be joking right now, but I just
    want to talk about lunch. Republican Senators have lunch
    together three times a week, and whenever we do, if somebody's
    phone goes off, it was always John McCain's.
        [Laughter.]
        Senator Sasse. When he would get bored at lunch, he would
    be watching CNN, and he would not know that it came on at full
    volume 10. So it just felt like a ghost of lunches past.
        You wrote a really important article in Catholic Law Review
    last year, ``The 10 Principles of Good Umpiring,'' and it was
    not about you as basketball coach. It was about the job of a
    judge.
        I am going to speed through them. So I am oversimplifying,
    but I think your top 10 list was if you are a judge--or if you
    are an umpire, you cannot be a partisan. You have got no
    rooting interest. You have got no fan favorites.
        Number two, the rules have to exist before the game.
        Number three, you have to apply the rules consistently.
        Four, you cannot remake the rules based on your
    preferences. If your view of the game changes--Dez Bryant a
    couple of years ago, that catch at the goal line,
        [Disturbance in the hearing room.]
        Senator Sasse. It may be the case that the NFL decides in
    the course of a year that the targeting penalty does not work.
    A judge does not get to remake that rule on the fly.
        Number five, you have got to have backbone or courage.
        Number six, you have to be able to tune out the crowd.
        Number seven, you have to have an open mind. You think you
    know what case is coming before you, and people may present
    arguments that are different than you thought.
        Number eight, you need the right demeanor and temperament.
        Number nine, you have to work collegially with your
    colleagues.
        And number 10, you have to be good at explaining.
        Rule number two, the rules have to exist before the game.
    You then go from having a kind of paragraph-by-paragraph
    structure, you pause and have a long 2(b), and you explain a
    little bit about precedent. Can you give us a 60- or 90-second
    view about how precedent relates to having rules of the game
    before the game?
        Judge Kavanaugh. Yes. Precedent is important for stability
    and predictability. And so to know what the rules are ahead of
    time is important for good judging and for good umpiring, and
    to do it consistently with how it has been done before I think
    is part of the system of precedent.
        The point is when the rules are set ahead of time by the
    precedent or by the law, then you are not making up the rules
    as you go along in the heat of the moment, which will seem
    unfair, which will seem like you are a partisan because you are
    going to seem like you are favoring one side or another because
    of allegiance to that team or favoritism to that team rather
    than applying the rules ahead of time.
        Which is why in sports, as you know well, Senator--because
    I know of your devotion to sports--there are a lot of detailed
    rules that are set forth about how the game is played and how
    referees and umpires are supposed to call the game. And that is
    to ensure that there is predictability, there is stability,
    that the players can rely on that and that it is overall
    fairness.
        Due process is not a word used often in the refereeing
    context, but it really is an element of due process. Notice
    about what the rules are ahead of time so that everyone has
    confidence in the fairness of the game and that the umpiring,
    which is critical to the outcome of many games, is done in a
    fair and impartial way.
        So it facilitates impartiality, integrity of the game,
    fairness of the game. And it is true for games, sports, and it
    is true--I think the analogy is very strong, frankly, and this
    is--why I wrote that article is because the Chief Justice of
    the Court had talked famously about the judge as umpire, and
    because I coach and play a lot of sports and I really thought
    about the analogy, and I thought there are actually a lot of
    parallels between being a good judge and a good umpire. I am a
    connoisseur of umpiring.
        Senator Sasse. I want to jump in here because I agree with
    you that the analogy is strong and tight, but I think it is
    imperfect, right?
        Judge Kavanaugh. Yes.
        Senator Sasse. Because in a football--mind you, I was a
    football coach. In a football game, everything that is going to
    happen inside the four corners of that 120 yards with end zones
    is predictable in that Woody Hayes comes off the sideline in
    1971 and punches a player in the face. That was new, and yet it
    was still nonparticipation.
        There is a rule you can only have 11 players. Coach cannot
    play. Another 12th player cannot play. And so there was a rule
    that spoke to that.
        But in what you are doing, it is not as defined because the
    cases that may originate are not as perfectly cabinable, if
    that is a word, as in football, what might happen. So help me
    understand the distinction between judging as umpiring and the
    fact that the Supreme Court has made decisions in the past. It
    is not the case that every decision the Supreme Court has ever
    made is right and is now a part of the permanent rulebook. You
    sometimes have to throw them out.
        So sixth-grade level, help us understand how, from 1896 to
    1954--you have repeatedly called Brown the greatest moment in
    Supreme Court history. I think it is one of the greatest
    moments in American history as well.
        In those 58 years, the Court was wrong for that whole time,
    and yet the way we think about precedent, we might have our
    sixth-graders thinking we should always take every received
    decision as right. So how do you reconcile the two?
        Judge Kavanaugh. Well, with the factors the Supreme Court
    looks at or whether the decision is not just wrong, but
    grievously wrong, whether it is inconsistent with the law that
    has grown up around it, what the real world consequences are,
    including workability, and then reliance.
        And one of the genius moves of Thurgood Marshall, among
    many genius moves he made as a lawyer, was to start litigating
    case by case. He knew Plessy was wrong the day it was decided,
    but he also knew as a matter of litigation strategy the way to
    bring about this change was to try to create a body of law that
    undermined the foundations of Plessy.
        And he started litigating cases and showing case by case
    that separate was not really equal. And he did it in cases like
    Sweatt v. Painter and many other cases. And he built up a
    record over time that by the time he went to the Supreme Court
    to argue Brown v. Board of Education, he had shown its
    inconsistency with the law that had built up around it for
    those who were not otherwise as quickly onboard with the idea
    that Plessy was wrong the day it was decided. He was taking no
    chances.
        Senator Sasse. I want to interrupt you because I want you
    to keep coming forward these 58 years. But just as a civics
    commercial, what you are describing right here, in the new
    documentary ``Marshall,'' every mom and dad and teacher ought
    to show it to their kids.
        I actually got to see it before it was out because Senator
    Harris gave me a copy, and my kids and I watched it before it
    was public. But everybody should watch the Marshall documentary
    that is going through the history of what he was doing as a
    long-term litigation strategy.
        But continue, please.
        Judge Kavanaugh. Well, I think that by the time it got to
    Brown v. Board of Education that the foundations for
    overturning Plessy had been strengthened by showing what the
    real world consequences were and by building up a body of law
    that was inconsistent with the principle, the erroneous
    principles set forth in Plessy.
        And so he had a strategic vision of how to do this, which
    was brilliant, and he effectuated along with a team of lawyers
    over time litigating case after case after case and building up
    factual records that would show the harm, the badge--the
    Supreme Court ultimately said the badge of inferiority from
    separate educational facilities and separate--separate
    facilities more generally. And that is--that is how he was able
    to show that the precedent, even with principles of stare
    decisis in place, should be overturned.
        Senator Sasse. But so if you were on the Court during that
    period, that 58-year period--I want to get at some point to
    this distinction between precedent, super precedent, precedent
    on precedent, super-duper precedent. But one of the reasons you
    think this is because of the Harlan dissent.
        So back up. And again, sixth-grade level, what is the
    purpose of a dissent? Why do we write them?
        Judge Kavanaugh. We write dissents because we, in a multi-
    member court, disagree with the decision that is being made by
    the majority and because we think that the issue is
    sufficiently important if you are on the Supreme Court that
    perhaps a future court will pay attention to your decision, or
    in a statutory case, sometimes maybe Congress will think that
    your interpretation of the statute was better, and maybe
    Congress will update the statute to reflect your review.
        But the purpose of dissents in constitutional cases, I
    think Justice Ginsburg has said this, Justice Scalia used to
    say this, dissents often speak to the next generation, and it
    is important, therefore, in constitutional cases of importance
    to have those dissents. And Harlan's dissent was a classic. It
    had some lines that are very memorable about the separation of
    the races in the Louisiana railcars, and that law had just
    recently been enacted. So this was an example after the
    Fourteenth Amendment.
        After the Civil War and the Fourteenth Amendment, there was
    a period of positive movement, at least some positive movement,
    not complete by any stretch. And Strauder v. West Virginia
    reflects that in 1880, where the Supreme Court says what is
    this, but the law should be the same for the Black and the
    White.
        That was a case where African Americans were being excluded
    from juries--all-White juries--and the Supreme Court said no to
    that. And, but then progress, any progress went backward, as
    reflected in the Plessy v. Ferguson decision, which upheld the
    separation of the races in that case.
        And so the Harlan dissent was very important for setting
    forth a clear principle rooted in the text of the Constitution
    and rooted in the principles of the Fourteenth Amendment and
    subsequently vindicated, at least on paper, of course, in Brown
    v. Board of Education.
        Senator Sasse. Why do you write a concurring dissent?
        Judge Kavanaugh. You can write a separate dissent or
    concurring opinion in the majority opinion. Sometimes you will
    write a concurring opinion to the majority opinion because you
    have a different rationale for reaching the same result. So you
    might have a----
        Senator Sasse. So who is your audience?
        Judge Kavanaugh. Your audience, that is a good question.
    Sometimes it is also future courts. But oftentimes, when you
    are at the Supreme Court level, I think--I obviously do not
    know, but I think they are writing concurring opinions
    sometimes to influence or suggest things to lower courts about
    how this case, either another issue or related issue or
    tangential issue, should be resolved or thought about in the
    lower courts.
        Sometimes the concurring opinion is written to the future
    Supreme Court that might be 5 years down the road about an
    issue that is related to the issue being decided by the
    majority opinion. There are lots of different purposes that one
    might have for a concurring opinion when you are on the Supreme
    Court, at least as I have read them over the years.
        Senator Sasse. So let me give you a hypothetical. You are
    on the Court, and there is a 6-to-3 decision. And you are on
    the losing side, and so you write your dissent. And the next
    year there is a case that looks to you to be almost exactly the
    same. So you do not grant cert. You do not vote for it, but
    other people do. And so a case is coming back before you.
        And I know you are going to tell me that you need to be
    open-minded, and maybe the case is really different and you
    were wrong when you did not grant cert. But just bracket that
    problem for a minute. Let us pretend, a 6-to-3 case, you lost.
        Then there is a new case that comes before you. Are you
    supposed to have the view of the majority the next year, even
    though you disagreed last year, or do you write the same
    dissent again?
        Judge Kavanaugh. So as a matter of precedent, the ordinary
    course is that you follow the precedent of the Supreme Court,
    even if you were on the losing side, maybe especially if you
    were on the losing side. There are times when Justices have
    persisted in their dissents repeatedly over the years,
    particularly in certain critical constitutional issues, or
    sometimes they have not persisted in the dissent but joined the
    majority, but said I still agree with myself back in the prior
    precedent where I had dissented originally.
        You see different approaches to this by different Justices
    on different issues. I do not think it is a one-size-fits-all
    answer to your question, at least in terms of what the Justices
    have done over time on that particular question. Most famously,
    Justices Marshall and Brennan dissented in every death penalty
    case because they did not accept the precedent of the Supreme
    Court that allowed the death penalty under the Eighth
    Amendment.
        Senator Sasse. So how do you imagine you would act in that
    circumstance if there is a difference--there is a diversity of
    views across Justices in our history. But if you have got the
    same case coming back the next year, do you dissent again, or
    do you accept a majority opinion? Could you write the majority
    opinion?
        Judge Kavanaugh. Well, that is what I think a good judge
    does, which is once the decision has been made, you accept the
    precedent, subject to the rules of stare decisis. And yes,
    there are lots of historical examples where that has happened,
    and that has been done.
        Justice White had been a dissenter in Miranda v. Arizona
    famously and then wrote many decisions applying Miranda
    subsequent to that, accepting the decision. Chief Justice
    Rehnquist, of course, ultimately wrote the decision where the
    question was whether to overrule Miranda and wrote the decision
    reaffirming Miranda because he decided that, at that point, it
    had--did not meet the conditions for overruling a precedent in
    that case.
        So I think ordinarily, ordinarily you get onboard the
    precedent, but you might still write separately to say I think
    this was a huge mistake, and we should go back to a different
    approach. You see that sometimes. I think there are lots--there
    are lots of permutations to the question you are asking,
    Senator, but the ordinary course----
        Senator Sasse. I want to ask them, but the Chairman will
    only let me have 3\1/2\ more minutes. He is miserly about this.
        Judge Kavanaugh. Yes.
        Senator Sasse. What is the difference between an appellate
    court judge's job and a Supreme Court Justice's job?
        Judge Kavanaugh. There are many.
        Senator Sasse. Specifically with regard to questions where
    there has been a precedent.
        Judge Kavanaugh. So at the D.C. Circuit level or the court
    of appeals level, we follow vertical stare decisis, absolutely,
    and that means that we are not permitted to deviate from a
    Supreme Court precedent. With respect to Supreme Court, or let
    us put it this way, when I am on the D.C. Circuit and we are
    reconsidering en banc a prior precedent of our own, we can do
    that at times if the conditions for overruling a precedent are
    met. We cannot do that with respect to Supreme Court precedent.
    We have to follow that.
        And why is that? Because that is there is one Supreme Court
    in our hierarchical system, and lower courts have to follow
    that, or there would be chaos in the Federal system if lower
    courts were not strictly bound to follow the precedents of the
    Supreme Court.
        Senator Sasse. Is there a single Supreme Court Justice
    today who agrees with the every extant opinion of the Court?
        Judge Kavanaugh. I think that has got to be zero.
        Senator Sasse. Right. So how does that get netted out in
    the next controversial case? When you use these terms--
    precedent, super precedent, precedent on precedent--how does
    that get netted out?
        Judge Kavanaugh. Ordinarily, it gets netted out by the
    Court following the precedent until--until unless or until the
    conditions for overturning something are met. Brown v. Board
    being the most prominent example of when that happened. Erie
    Railroad case overruling Swift v. Tyson. There are examples
    throughout our history where that has happened.
        But it is rare, and ordinarily, what happens is once a
    decision has been decided, that is what stare decisis means.
    You follow the decision that has been set forth by the Supreme
    Court, subject to the rules of stare decisis.
        And you see that time and again. That is part of stability.
    That is part of predictability. That is part of impartiality.
    That is part of public confidence in the rule of law that it is
    not just going to move pillar to post, that the law is stable
    and foundational.
        Again, it is not--Brown v. Board shows it is not absolute.
    And that is a good thing, but it is critically important to the
    impartiality and stability and predictability of the law.
        Senator Sasse. And the fact that Harlan should have been
    the guiding opinion for those 58 years is not true just for the
    Supreme Court. It was also true for appellate courts? Could an
    appellate judge have gone with Harlan in 1940?
        Judge Kavanaugh. An appellate judge was bound by the
    precedent of the Supreme Court, and that would have been,
    sadly, Plessy v. Ferguson at that time.
        Senator Sasse. So the core difference here for the Supreme
    Court is there is greater latitude to reconsider the previous
    errors of the Court.
        Judge Kavanaugh. Of the Supreme Court, that is correct,
    Senator.
        Senator Sasse. I am at 30 seconds left. So I have got to
    get my last one out to get in under the bell. I will shift
    gears just a tiny little bit.
        What is the Declaration of Independence? In what way--the
    Constitution is fundamental law for us. What is the Declaration
    of Independence?
        Judge Kavanaugh. So, the Declaration of Independence, first
    of all, is a legal document, legally declaring independence, of
    course, from Great Britain. But it also sets forth a series of
    grievances against the monarchy, the system, many of which are
    reflected in the Constitution in terms of protections that are
    in the Constitution.
        If you trace to the Declaration of Independence, you see
    the grievances they had reflected and protections we have in
    the Constitution, starting with the separation of powers, but
    also including the individual protections, whether it is ex
    post facto law or freedom of speech or quartering. The Third
    Amendment not much mitigated, as we know, Senator, but you can
    trace it.
        But this Declaration of Independence is a set of principles
    that I think guide our beliefs of life, liberty, and the
    pursuit of happiness. All men are created equal. All people are
    created equal in our society. And those principles have guided
    us, inspired us, been the source of our liberty, the source of
    much of what we have done as a country since the Declaration of
    Independence.
        But it is not law in the same way the Constitution is law
    that is applied in courts.
        Senator Sasse. Thanks.
        Chairman Grassley. Senator Coons.
        Senator Coons. Thank you, Chairman Grassley.
        [Disturbance in the hearing room.]
        Senator Coons. Thank you, Chairman Grassley.
        Thank you, Judge Kavanaugh. To you, to Ashley, to your
    family and friends, thank you for being here and for the
    opportunity to engage with you. Again, you have certainly shown
    great persistence and engagement.
        [Disturbance in the hearing room.]
        Senator Coons. In the last round, we talked about the
    bedrock constitutional principle that no one should be above
    the law, including the President, which is a principle
    foundational to our democracy. It is about more than any one
    person and any one President. And I just want to continue
    asking you about the President's obligation to cooperate with a
    Federal investigation and how your view of the President's
    power might implicate an investigation.
        As we all know, in 1974, senior officials in the Nixon
    administration in the campaign were on trial for crimes related
    to Watergate. And with so many former White House and Justice
    Department officials implicated in crimes, then-President Nixon
    felt threatened by the investigation.
        So special prosecutor Archibald Cox, when he issued a grand
    jury subpoena for the Watergate tapes, audio recordings of
    White House conversations, reasonably believing they contained
    evidence of criminal activity, the President acted. Instead of
    complying with the subpoena for tapes and providing the
    evidence, President Nixon had the special prosecutor fired, and
    he fought the subpoena for the tapes all the way to the Supreme
    Court.
        I want to focus on the question of the President's action
    in firing the special prosecutor because that is what I think
    is a key issue here. Judge, when President Nixon fired special
    prosecutor Archibald Cox, did he violate the law or the
    Constitution?
        [Disturbance in the hearing room.]
        Judge Kavanaugh. I know that the regulation in place for
    Leon Jaworski after the firing had special protection for
    against firing, and I think that has become the model for the
    regulations. I am not recalling the specifics of the Cox
    regulation in place at the time.
        Senator Coons. I will tell you that there were for-cause
    restrictions in place in regulation at the time. Given that, do
    you think firing the special prosecutor violated the law or the
    Constitution?
        Judge Kavanaugh. Well, if it violated the regulation, it
    violated the regulation.
        Senator Coons. Would it have violated the Constitution?
    What I am getting at, Judge, is your view of Presidential power
    and whether or not it would be a violation of the Constitution
    for there to be these for-cause restrictions on the President's
    ability to fire the special prosecutor?
        Judge Kavanaugh. Well, I think the Supreme Court in United
    States v. Richard Nixon analyzed the specific regulation at
    issue in that case and actually relied on the specific
    regulation in finding that the case was justiciable under the
    precise terms of the regulation in place at the time. In fact,
    the Court analyzed that in really specific detail, pointed out
    that so long as the----
        [Disturbance in the hearing room.]
        Senator Coons. Let me be clear about the point I am trying
    to get to.
        Judge Kavanaugh. Okay.
        Senator Coons. It is your views about whether or not, when
    President Nixon fired Archibald Cox, he obstructed justice in
    violation of the Constitution or the firing itself violated the
    Constitution. It is important to know your views on U.S. v.
    Nixon as well, and we will turn to that. But I am interested in
    your understanding of the Constitution and whether or not it
    prohibits restrictions on the President's ability to fire a
    special prosecutor at will.
        Judge Kavanaugh. So the Supreme Court said, and so you are
    asking my views. My views are what the precedent says. In other
    words, I follow the precedent. The precedent of the Supreme
    Court in the U.S. v. Nixon case did apply that regulation,
    analyzed----
        Senator Coons. And Judge, U.S. v. Nixon was unanimous.
    Correct?
        Judge Kavanaugh. It was unanimous, 8-to-0.
        Senator Coons. Are you aware of any Justice having
    questioned the decision in U.S. v. Nixon since then?
        Judge Kavanaugh. No. I have called it one of the four
    greatest moments in Supreme Court history, U.S. v. Richard
    Nixon.
        Senator Coons. You have, and that is exactly what I want to
    get to because you have also, in another context, as we talked
    about yesterday, in a roundtable in 1999, volunteered
    unprompted that maybe Nixon was wrongly decided. Do you think
    U.S. v. Nixon was wrongly decided?
        Judge Kavanaugh. I have said it was one of the four
    greatest decisions and correct decisions in terms of the
    specific regulation at issue in the case and the Court's
    holding in the context of a criminal trial subpoena, that the
    subpoena for the information, the tapes was enforceable in that
    context. And that is what I have said before publicly about the
    Nixon case.
        And that 1999----
        Senator Coons. So, Judge, you would agree that it was
    correctly decided? Did I just hear you right?
        Judge Kavanaugh. Can I--yes, of course. When I say it is
    one of the great--I mean, when I say something is the greatest,
    that means I agree with it. And the point was under the
    specific regulation at issue in that case, a criminal trial
    subpoena for the information, and it was a moment of judicial
    independence, a moment where the Court, I think, came together
    as unanimous opinion written by Chief Justice Burger. So that
    is an important moment in the Court's history.
        Senator Coons. So you would agree then, just following the
    U.S. v. Nixon precedent, that a Court can order a President to
    produce records in response to a grand jury subpoena or can be
    compelled to testify in front of the grand jury?
        Judge Kavanaugh. I am not going to answer hypotheticals
    about to apply U.S. v. Nixon.
        Senator Coons. But that is the holding?
        Judge Kavanaugh. The holding of U.S. v. Nixon was that the
    subpoena for the information in the context of the criminal
    trial had to--could be enforced and that, therefore, given the
    regulation at issue in the case, the case was justiciable, and
    the subpoena could be enforced. I am not going to answer
    hypotheticals about how it applies in other contexts.
        By the way, I should add that the context of what you have
    up there is incorrect. So, but I have said Nixon was one of the
    four greatest moments in Supreme Court history. I have written
    it several times before----
        Senator Coons. You have.
        Judge Kavanaugh. Including 1999. The context of that, if
    you want to know, was a roundtable with me and some lawyers who
    had represented the Clinton administration. We were just
    talking, reflecting on the independent counsel investigation.
    And my point to them, they were concerned that the subpoenas
    that were enforced by the courts during the Starr independent
    counsel investigation had weakend the Presidency. That was the
    position of the Clinton lawyers.
        And I said, well, we were just following U.S. v. Nixon.
    That was my position. So my position was either you are wrong
    or Nixon is wrong, to the Clinton lawyers. And that is the
    context of that comment. The tone of voice there makes the
    printed words look much different from how they were intended,
    and I think that been seriously mischaracterized.
        Senator Coons. And the striking thing about the context,
    which we discussed before and I made clear in a letter I was
    going to question you about, is that Phil Lacovara, who was
    facilitating this roundtable, who was the Watergate prosecutor
    who argued U.S. v. Nixon, in a later interview said he did not
    think you were just being provocative, this was just some
    academic give-and-take with some Clinton lawyers. Lacovara has
    been quoted saying that statement that perhaps Nixon was
    wrongly decided was Brett staking out his jurisprudential
    approach since law school.
        It seems Lacovara thought you were serious about raising a
    question about whether U.S. v. Nixon was wrongly decided
    because--and this is what you said at the roundtable--Nixon
    took away the power of the President to control information in
    the executive branch.
        Judge Kavanaugh. Right. And that is why the Clinton
    lawyers, I thought, were wrong.
        Senator Coons. So----
        Judge Kavanaugh. That was my point.
        Senator Coons. Why should the person being investigated----
        Judge Kavanaugh. The point, the point--the point that I was
    making was that Clinton lawyers, who were--were saying that the
    independent counsel office had weakened the Presidency, I was
    saying to the Clinton lawyers it was not the Starr office who
    had done that. It was United States v. Nixon that had done
    that. And then I pointed out to the Clinton lawyers--and I
    think we have discussed this in the office, had a good
    discussion in your office about this--was I said, but you were
    unwilling. I said this to the Clinton lawyers. You were
    unwilling to challenge United States v. Nixon.
        Well, that was the governing precedent, and that is the
    precedent we were litigating, and that is where your concern
    should be. And that is the context in which that line was said.
    With all respect to Mr. Lacovara, I think he is
    misunderstanding what I was saying there.
        And here is how I know he was misunderstanding. Because in
    a contemporaneous Law Review article at that same time, I
    specifically talked about U.S. v. Nixon and the importance of
    that precedent. So that is how I know he was misunderstanding
    the point of what--I respectfully think he was misunderstanding
    the point of what I was saying there.
        Senator Coons. So if U.S. v. Nixon was rightly decided, was
    Morrison v. Olson rightly decided?
        Judge Kavanaugh. Well, I have talked about Morrison v.
    Olson.
        Senator Coons. Yes. That was the whole point of our
    exchange yesterday, and that is the root of my core concern.
    And what I am getting at in this whole line----
        Judge Kavanaugh. I have associated myself with Justice
    Kagan's position on Morrison v. Olson.
        Senator Coons. And given our exchange yesterday, I went
    back and looked at ``Presidential Administration,'' her article
    where she expressly rejects unitarianism, as she calls it, the
    unitary executive theory. The theory that you do not just
    mention in passing but expound in your PHH dissent.
        Judge Kavanaugh. I do not----
        Senator Coons. It is exactly this reason that I have
    concerns, Judge.
        Judge Kavanaugh. But I specifically recognize, Senator--and
    I understand the point. But I specifically call Humphrey's
    Executor the precedent that we must follow in the independent
    agency context. Humphrey's Executor, of course, accepts
    independent agencies, as did I in that case, as precedent of
    the Supreme Court that I have referred to as entrenched.
        The only thing I was--the only question in PHH was can we
    go further than that kind of independent agency, consistent
    with Article II, or does Humphrey's Executor draw the line that
    sets forth the permissible boundaries under which Congress can
    establish independent agencies?
        Senator Coons. In an exchange you had with Senator
    Feinstein earlier today, this was exactly the question where I
    do not think you ever really answered it.
        As I understand your dissent in the CFPB case, PHH v. CFPB,
    your exact problem with the structure Congress created for this
    independent agency was that the Director was not removable at
    will by the President. The Director is removable, but only for
    cause.
        That is the line that I am drawing here between your
    concerns or criticisms in one context a long time ago about
    U.S. v. Nixon, your comments about being able to fire the
    prosecutor at will in a number of Law Review articles, your
    comments in some roundtables and discussions in 2016, and the
    dissent in PHH and the structure of the CFPB. What offended
    your constitutional sensibilities, as I understand your
    dissent, Judge, this year in PHH, was that the President could
    not fire at will the Director.
        And that is the whole reason of my asking you about did the
    President violate the Constitution, in your understanding, in
    firing the special prosecutor in Watergate? It is a coherent
    theory. You can have a coherent theory that the Congress cannot
    restrain the President's ability to fire at will lesser
    executive branch officials. I just want to have a clear
    understanding of it.
        Judge Kavanaugh. I want to understand the question. So the
    first part of the question was, part of your premise----
        Senator Coons. So earlier today, let us return to an
    earlier exchange you had with Senator Feinstein. She was asking
    you about your dissent in PHH. What was it that caused you to
    write an opinion, what was the constitutional view, the
    underpinnings of your decision that having a single Director
    removable for cause by the President was constitutionally
    unsound?
        Judge Kavanaugh. Okay, I can explain. Can I get a minute?
        Senator Coons. Yes.
        Judge Kavanaugh. Okay. So I was following a precedent of
    the Supreme Court from about 10 years ago, Free Enterprise Fund
    case. I had written the dissent at the D.C. Circuit in that
    case, a novel independent agency structure for the PCAOB, the
    accounting oversight board.
        Senator Coons. Right. I am familiar.
        Judge Kavanaugh. I wrote a dissent saying that the--that
    structure departed from the traditional independent agency
    structure. I dissented. The Supreme Court took the case, agreed
    with my dissent in a majority opinion by Chief Justice Roberts
    saying that the outer lines, at least as I interpret what Chief
    Justice Roberts said for the Court, the outer lines of
    independent agencies are the traditional independent agency
    structures set forth in Humphrey's Executor. At least that is
    how I interpreted the opinion.
        And then----
        Senator Coons. But was Humphrey's Executor not also, Judge,
    critically about removable at will versus for-cause?
        Judge Kavanaugh. Yes. And that is so long as it----
        Senator Coons. And is this not exactly why the majority in
    your Circuit said that your dissent flew in the face of
    Morrison?
        Judge Kavanaugh. They thought Humphrey's Executor allowed
    structures beyond the multi-member agency that was upheld----
        Senator Coons. Yes, exactly.
        Judge Kavanaugh. In Humphrey's Executor. I disagreed, based
    on the Free Enter--the same thing had been said about my
    dissent in Free Enterprise Fund. The Supreme Court took it and
    agreed with my dissent in Free Enterprise Fund. I thought this
    case is very similar to what I had written in Free Enterprise
    Fund. In fact, I block quote my old dissent.
        Senator Coons. But what you did not say in response to
    Senator Feinstein's question that I am still trying to get an
    answer to, was not your core concern in your PHH dissent that
    the President could not fire at will the Director of the CFPB?
        Judge Kavanaugh. That was the concern because that departed
    from history to have a single Director independent agency
    structure, not the multi-member independent agency structure
    that existed in Humphrey's Executor, and that had----
        Senator Coons. And you can see how that then raises
    questions and concerns about your distinction between fireable
    at will or fireable for cause.
        Judge Kavanaugh. But----
        Senator Coons. And as this body has taken up and debated
    whether or not it is permissible for us to legislate a
    protection for special prosecutors that they can only be fired
    for cause, not at will, your repeated citation of the Scalia
    dissent in Morrison v. Olson rises again to the fore. Thus, my
    question to you. Will you also agree that Morrison was
    correctly decided?
        It is good law. It is a settled case. You may have in a
    response to a previous question said, oh, it is a one-off case
    about a now extinguished statute.
        Judge Kavanaugh. Right.
        Senator Coons. But as I said yesterday, why then pick it
    out of the whole constellation of constitutional opinions as
    the one you most want to put a nail in its coffin? Why the
    animus against this if you do not think it was wrongly decided?
        Judge Kavanaugh. I have said what I have said about
    Morrison, but Justice Kagan said that it is one of the greatest
    dissents ever written by Justice Scalia, which----
        Senator Coons. Yes.
        Judge Kavanaugh. Unless I am misreading something----
        Senator Coons. You are misreading something, Judge, with
    all due respect. I went back to look at ``Presidential
    Administration'' by Justice Kagan after you cited it to me
    yesterday. That is clearly not what she is saying. She is not
    endorsing the unitary executive.
        Judge Kavanaugh. You are conflating----
        Senator Coons. She is saying Scalia wrote a beautiful
    dissent, in my view.
        Judge Kavanaugh. You do not think she agrees with it?
        Senator Coons. I do not think she agrees with it at all.
        Judge Kavanaugh. I think when she calls something the
    greatest, she probably agrees with it.
        Senator Coons. But let us get to what you believe. What I
    am encouraged by is, that you have said when you call U.S. v.
    Nixon the greatest, you think it is rightly decided. What I am
    not getting an answer from you on is whether you think Morrison
    v. Olson was rightly decided.
        But I would be interested in hearing whether you think
    Griswold v. Connecticut or Eisenstadt v. Baird were correctly
    decided. An opinion that Justices Kennedy, Ginsburg, Roberts,
    and Alito proffered when they were before this Committee in
    their confirmation hearing----
        Judge Kavanaugh. I think I----
        Senator Coons [continuing]. Were those correctly decided?
        Judge Kavanaugh. I think I said last night in response to
    Senator Harris, who asked me about whether I agree with
    Senator--with Justice Alito and Chief Justice Roberts on that,
    I said yes.
        Senator Coons. That they were correctly decided?
        Judge Kavanaugh. I answered that I agreed with Justice
    Alito and Chief Justice Roberts.
        Senator Coons. Can I just take a minute and explore your
    view of the independent counsel, the idea that the independent
    counsel statute is unconstitutional? Because you have written
    and spoken about that repeatedly. 1998, 1999, in law journal
    articles and public speeches. As I perhaps pointedly raised
    yesterday, in 2016, you called the independent counsel statute
    a ``constitutional travesty.''
        Judge Kavanaugh. That is what Senator Durbin had also, in
    essence, called it.
        Senator Coons. Well, what I am concerned about is what you
    said about it because you are the nominee for the Supreme
    Court, not Senator Durbin.
        Judge Kavanaugh. That is what the entire--that is what the
    entire Congress, the entire Congress had basically taken that
    view in 1999 that it was unrestrained, unaccountable, a
    disaster.
        Senator Coons. Let us say it was widely panned.
        Judge Kavanaugh. But it is very different----
        Senator Coons. But you chose to call it out as a
    constitutional travesty, and you are the nominee for the
    Supreme Court in front of me. So just give me a moment. While
    you worked for Ken Starr as independent counsel under the
    independent counsel statute, you took an oath of office to
    defend the Constitution. Correct?
        Judge Kavanaugh. As interpreted by the--you know, you
    follow precedent of the Supreme Court. If the Supreme Court has
    upheld something, you still work in your public service.
        Senator Coons. So you took an oath. You were engaged in
    public service. You believed then, as we all do, that it was
    your job to act in compliance with the Constitution. But you
    also fully utilized the tools available to the independent
    counsel, right? You were part of a team that sought a subpoena
    against President Clinton for evidence, for DNA evidence. Yes?
        Judge Kavanaugh. Can I get 30 seconds?
        Senator Coons. I think this is a ``yes'' or ``no''
    question. I am down to 2 minutes.
        Judge Kavanaugh. Can I get 30 seconds?
        Senator Coons. If it is your last 30 seconds.
        Judge Kavanaugh. Okay. I want to emphasize that the special
    counsel system that is in place now is something that I have
    specifically repeatedly and expressly said is consistent with
    our traditions in my 1999 Georgetown Law Journal article and in
    the CFPB decision. The special counsel system, I have said, is
    part of our tradition.
        That is the system in place. You are talking about
    something that has not been in place for 20 years.
        Senator Coons. That is right. The independent counsel
    statute, that structure, has not been in place for 20 years. My
    core concern, first, was that you were perfectly happy to use
    all the tools available to the independent counsel when you
    worked there. After working there, discovered an enthusiasm for
    its invalidation as a constitutional matter.
        In trying to understand that, I have dug into your
    writings, your opinions, your speeches and concluded that you
    hold a view of the executive branch, which I believe you made
    clear this year in your PHH dissent, which I believe is in line
    with Justice Scalia's view as expounded in his dissent in
    Morrison v. Olson, which is that there has to be in the
    President, as the chief law enforcement officer of the United
    States--this is the unitary executive theory, not mine--the
    ability to fire at will any special prosecutor.
        And the ability--and I have got quotes from you in
    different contexts saying that what is appropriate in this
    traditional special counsel setting like the Watergate period
    is if the President disagrees with the conduct of the
    prosecutor, he should simply fire him and bear the
    consequences.
        My point essentially is this. I am convinced that you--you
    have said repeatedly you support the traditional practice of
    appointing special counsels, but you have not acknowledged you
    have supported this practice because the President has retained
    the power to fire the special counsel at will. And those of us
    who have tried to enact statutes that might restrain the
    President in some way, by putting in place for-cause removal
    restrictions, have had thrown back at us the dissent from
    Morrison v. Olson, a dissent which you embrace and cite and a
    dissent which I think reveals a deep commitment to a view of
    the President that in our current context is profoundly
    dangerous.
        And I simply wish, Judge--and we will have a third round to
    explore this. I simply wish you would be clear with us and the
    American people about your view of the scope of Presidential
    power and what its consequences might be. I do not think you
    are being direct with me about that because I think to be
    direct with me about that in this context would put your
    nomination at risk.
        Judge Kavanaugh. And I would respectfully disagree,
    Senator. You are talking about a statute that has been--not
    existed for 20 years.
        Senator Coons. That is no longer what I am talking about,
    Your Honor, as you know. What I am talking about is your view
    of Presidential power as made clear in speeches and in writings
    and in a decision this year. We are not talking about the
    independent counsel statute now. We are talking about the scope
    of Presidential authority, and I think it has consequences for
    our Nation.
        Chairman Grassley. You can answer.
        Senator Coons. You are clearly a capable and good man.
        Chairman Grassley. You can answer.
        Senator Coons. And a good neighbor and a good coach, and we
    have heard a lot about that. What I want to hear more about is
    an honest answer about your view of Presidential power.
        Chairman Grassley. You can answer.
        Judge Kavanaugh. You are talking--if I can answer
    uninterrupted for 25 seconds?
        Chairman Grassley. You can answer--you can answer on the 10
    minutes I did not use.
        Judge Kavanaugh. Yes. Respectfully, Senator, first of all,
    I appreciate your care--and we have known each other since law
    school, we have been friendly with each other since law
    school--and your devotion to this. Respectfully, I believe you
    are talking about a statute that has not been in place since
    1999.
        Second, the special counsel system I have specifically
    written about multiple times and approved. Third, if there were
    some kind of protection, for-cause protection or some other
    kind of protection that were different from the old independent
    counsel statute, I have said that I would keep an open mind
    about that. So I have not said anything to rule that out.
        And finally, I have reaffirmed repeatedly or I have applied
    repeatedly the precedent of Humphrey's Executor for traditional
    independent agencies and have never suggested otherwise. I have
    referred to that as an entrenched precedent.
        So those are--and I have referred to U.S. v. Nixon as one
    of the greatest decisions in Supreme Court history.
        Chairman Grassley. We will soon take a break, and then
    Senator Flake is up next. But before, there is a couple of
    things.
        One, it will be a 15-minute break, but if you can make it
    7\1/2\ minutes, I would appreciate it.
        [Laughter.]
        Chairman Grassley. Well, I am not ordering you to do that.
    I just said I would appreciate it.
        But before you go, I want to get back to this Justice
    Kagan's comment on Morrison, and this is something that you and
    the Senator from Delaware have discussed a long time. Somehow
    that the only commentary on Morrison v. Olson is from Kagan's
    Law Review article, ``Presidential Administration.''
        But she also said this in a magazine, Stanford Lawyer, 3
    years ago. And it says, ``Justice Kagan has called Justice
    Scalia's dissent in Morrison one of the greatest dissents ever
    written and said that every year it gets better.''
        We are in recess.
        [Whereupon, at 3:48 p.m., the Committee was recessed.]
        [Whereupon, at 4:03 p.m., the Committee reconvened.]
        Chairman Grassley. Tell me when you are ready, Judge.
        Judge Kavanaugh. Thank you, sir.
        Chairman Grassley. Senator Flake.
        Senator Flake. Thank you. Judge Kavanagh, if it is fourth
    quarter and you are down by 1 point, what play do you call and
    which one of the young ladies in the front row do you get the
    ball to?
        [Laughter.]
        Judge Kavanaugh. I cannot choose. They are all great
    players, as you know, Senator. It is awesome to have them all
    here.
        Senator Flake. Do you want to let us know who they are and
    what your team is here?
        Judge Kavanaugh. These are a variety of teams that I have
    coached. So, I started coaching many years ago, and some of
    these girls are as old as 10th grade now, so they are older
    than my daughters. I started coaching the Fifth-16 then, I
    guess, 4 years ago. So, the oldest girls, Caroline and Abigail,
    10th grade; Sara and Fiona, 10th graders; Madison, ninth
    grader. Girls over here. Well, these are my two, of course, and
    Keegan, and Coco, and Anna, and Shawnee, Quinn, Sophie are all
    here. And so, let us see. We have got: Liza is going into the
    fifth grade, Margaret is in seventh, Keegan is in fifth, Coco
    is in fifth, Anna is in seventh, Shawnee is in seventh, Quinn
    is in sixth, and Sophie is in seventh. So, I think I got it all
    right, yes.
        [Applause.]
        Senator Flake. Well, thank you.
        Judge Kavanaugh. And they are all awesome players. They
    really are. I mean, they are tough as nails, right, Caroline?
    Caroline Conahan, no one tougher.
        Senator Flake. Well, there goes my whole line of
    questioning.
        [Laughter.]
        Senator Flake. Well, thank you all for coming. Welcome
    here. Let me ask a variation on the question that Senator Sasse
    asked a few minutes ago. He asked you what Supreme Court
    decisions over the years were decided wrongly. You answered.
    You have decided over the past 12 years about 307 cases, I
    believe, on the circuit court. Are there any that you look back
    on and say I just did not get it right, or this one has not
    held up well over time? And I know that is a difficult
    question. I mean, as politicians, that is a tough thing for us
    to answer, but I would be glad to, you know, tell you the
    number of cases where Senator Sasse got it wrong.
        Senator Sasse. And I will reserve my time for rebuttal.
        Judge Kavanaugh. Well, Senator, I will point out where I
    reconsidered something in one case. So, the Bahlul national
    security case that I had, one of the questions in that case was
    what did the ``law of war'' mean in Section 821, and I
    referenced it in a prior case as being limited solely to the
    international law of war. And then after reflection and
    actually after the Deputy Solicitor General for President Obama
    argued in our court, at oral argument he planted a seed in me
    that I interpreted it too narrowly, and that it included not
    just the international law of war, but the U.S. historical
    practice.
        And I went back and really thought about that. He made a
    compelling case at oral argument, and I went back and dug
    deeper and studied it, and ultimately concluded he was right in
    what he had said at oral argument, and I referenced that in my
    subsequent Bahlul opinion that based on the arguments of the
    Deputy Solicitor General, I had gone back. It is like--it is
    like a replay official. You know, I made the call on the
    original case, but gone back and looked at it again carefully,
    studied it over and over again, and went back to the history,
    and concluded he was right. So, that is one example where I
    myself in one of my opinions pointed out that in a previous
    decision, I had, you know, under-interpreted the scope of one
    statute.
        Senator Flake. Going a little further there, which ones
    have you struggled with? Which ones were the most difficult,
    and how did you deal with those?
        Judge Kavanaugh. Senator, I think what Justice Kennedy used
    to say in response to that question is something that always
    comes into my mind. When he was always asked what is the
    hardest case, what is the most difficult case, he would always
    say, ``The one I am working on right now.'' And I think that
    is--I think that--there is something to that, which is every
    case you want to give it your all and you are focused on the
    case you are working on at that moment.
        There, of course--more responsive to your question, I think
    what Justice Kennedy said is correct, but perhaps more directly
    responsive to your question, I, of course, think national
    security cases are quite difficult and quite important because
    you know the significance of them. But, so, too, every case has
    an effect on real people in the real world. So, I want to give
    every single case, give it my all. I do not treat any case as a
    second-tier case. I treat every case as the most important
    case. And that is why I think Justice Kennedy's comment really
    does resonate with me and does point out something, which is to
    the litigant before you in that particular case, that is the
    most important case they will ever have. It is probably the
    only case they will ever have, and it is important that I treat
    it as the most important case for me at that moment in time and
    while I am deciding it.
        Senator Flake. Can you talk briefly a little bit about the
    process that you have undergone in the appellant court. It will
    be a little different at the Supreme Court level. But when a
    case comes before you, you sit down with your clerks I am sure,
    and assign research to them. Do they frequently work with other
    clerks, compare notes? Do you do that with the other judges?
    How does it usually work, and how might that be different with
    the job you are applying for?
        Judge Kavanaugh. I think there are a lot of similarities to
    the Supreme Court in terms of the process from my time clerking
    for Justice Kennedy at least, my experience there and seeing
    how it works now. So, in basic terms, what I do is I read the
    briefs very carefully. I have my clerks prepare binders, many,
    many binders of all the cases I need to read, of all--I like to
    know the law review article and treatises on point. I like to
    go back and see if there are any historical materials that
    might be, and they are all in the binders. Then I will talk
    about it with the clerks. I will have one clerk who is handling
    it, but sometimes talk about it with all the clerks, about my
    tentative views.
        The judges, interestingly, do not talk about the case ahead
    of time with each other, and the reason for that is we each
    want to come into the oral argument having formed our own
    tentative approaches and questions, and not having been
    influenced by maybe, well, this is what the other judge thinks,
    and so, that will suddenly influence you. But if we come into
    the oral argument with three independent perspectives, the
    practice has been that will help us reach a more informed
    decision. Each of us will be prepared.
        Then at the oral argument itself--it is so important--we
    learn from the lawyers, but we also learn from each other at
    the oral, the questions, similarly the way this process works.
    You hear the questions of other Senators, and that sparks
    thoughts for you to ask questions and other Senators to ask
    questions. So, too, for the judges. Then we conference right
    after oral argument, and we give our tentative views and go
    around and debate and discuss. And it is very collegial, and
    there is a lot of fluidity in that discussion. It is not as--it
    is not here is my position and that is it. It is never--for 12
    years, I have never been in a single conference where any judge
    has said anything like that. Rather, it is a here is what I am
    thinking, what are you thinking, and we go around and go in
    turns, and then discuss it, and reach a tentative resolution.
        Then we write it up. One judge is assigned to draft up the
    opinion and writes--that is an intense process for me and I
    think for all judges of draft after draft after draft, and I
    talked about that, to get it exactly right. I want it to be
    clear, and I want it to be consistent with precedent, and I do
    not want to--I want the losing party to think they have gotten
    a fair shake. I want the affected parties to be able to
    understand it, to be as clear as possible.
        And that discipline of writing sometimes convinces you you
    might have gotten it wrong when you first were thinking about
    it, and sometimes you change 180 sometimes, but often will just
    shift your views. But the writing is such a discipline. That is
    an important--the whole thing is a process with three judges,
    or nine on the Supreme Court, that is designed to make sure you
    get it right. And so, the collective decisionmaking process
    combined with the discipline of preparing and the discipline of
    oral argument, the discipline of writing it out.
        That is why judges when they come here are very reluctant
    when they get a hypothetical to just give a one-off answer
    without going through that process. Process protects us as
    judges. It protects the people who are affected by our
    decisions. So, we are--we love process because we are used to
    process, and process, in our view, helps us make better and
    more informed decisions.
        Senator Flake. Thanks. Let me talk a little about what I
    touched on yesterday, obviously the independence of the
    judiciary or separation of powers are what's at issue here, and
    the most important questions I think you have been asked are
    about that. Senator Coons and I, along with a few others,
    traveled to Southern Africa a few months ago, and we met there
    with the constitutional court of South Africa at a time when
    just a few weeks before, or a month before, they had ruled
    against the sitting president, expenditure of funds issue and a
    few other things. But rendered a decision against the president
    of the country, the executive, that allowed the parliament then
    to go in and remove him.
        And we talked about that, and they marveled at how this
    country--this country of South Africa had had such a court that
    understood their role and how important it was to be completely
    independent of the executive. One of the justices put it, well,
    he said, we cannot allow the executive to climb over the
    lectern, and I thought that that was an image that is apropos
    here as well. There have to be some limits to Executive power
    where he, head of the executive branch--the President in our
    case--cannot climb over the lectern. And in many cases, just
    north to Zimbabwe where for the past 37 years, Robert Mugabe
    had over a period of time climbed over the lectern enough
    where--to put judges in place that would rule whatever he
    wanted.
        And the genius of our system, or separation of powers, and
    the independent judiciary is that we can never allow that to
    happen, and there have to be constraints. And you mentioned
    some of them yesterday with regard to what constrains the
    President. But still, the President has immense powers largely
    because we have conceded too much from the Article I branch to
    the Article II branch.
        But when we talk about Presidential power now, I was struck
    by a conversation you had yesterday with Senator Feinstein, and
    I want to explore it a bit. You mentioned as a point of pride,
    and I think it is a point of pride, that you had ruled in the
    Hamdan case after 9/11. This is one of the bodyguards or
    drivers for Osama bin Laden. It was an extremely unpopular
    decision, but one to protect his constitutional rights, and to
    ensure that we just did not look and say, here, here is
    something unpopular, we cannot protect his rights.
        Yet when you were asked why you feel how you do now on the
    independent counsel statute, you feel differently than you did
    in the 1990s. And you mentioned to Senator Feingold that you
    feel differently because of 9/11. And that ostensibly, the
    President needs to be given more reign, I guess, because he
    needed to focus on national security issues. But I am trying to
    square that. I think that your explanation of how you ruled in
    the Hamdan case is admirable. I am not sure about your
    explanation with regard to giving the President more leash or
    more authority because of 9/11 squares with that. Can you shed
    some light?
        Judge Kavanaugh. That was simply a proposal in 2009 when
    President Obama was coming into office that for Congress to
    consider, but there would be pros and cons if Congress did
    consider something like that, about--and it was not immunity.
    It was simply the timing of litigation, the Clinton v. Jones
    scenario, for example. And it was something--an idea based on
    my experience, but Congress would, of course, consider the pros
    and cons.
        The principle I emphasized there was no one is above the
    law in the United States Constitution under the--in the United
    States Government. There is a question, and that is Federalist
    69, of course, but it is also woven right into the text of the
    Constitution. But there is a question about timing for members
    of the military, for example. That is why we defer--have
    deferral for them. But it was not a constitutional position, so
    I really want to emphasize that, Senator, that that was not a
    position of what I thought was required by the Constitution;
    rather, something to be studied as Congress studies things all
    the time to ensure the effective operation of the Government.
        On your point about Hamdan, I do think some of the--and
    your point about your trip, some of the great moments in
    Supreme Court history have been those moments of judicial
    independence and moments of political crisis, the Youngstown
    Steel case. We were at war with Korea, and the President seizes
    steel mills, well intentioned because it is well intentioned to
    serve the war effort, but the Court says it is not consistent
    with law, and, therefore, unlawful, and the Court rules against
    President Truman.
        We talked a lot about the United States v. Richard Nixon
    case, a unanimous decision in 1974 by Chief Justice Burger who
    had been appointed. The Clinton v. Jones case itself was a
    moment where the President of the United States was ruled
    against by the Supreme Court, including two of his appointees.
    The Boumediene and Hamdan cases in the Supreme Court, before
    Hamdan came back to me, were cases; Boumediene by Justice
    Kennedy in 2008 ruling against President Bush, Boumediene v.
    Bush, in a wartime case.
        And so, to my Hamdan case, I do look at that as a case
    where the rule of law protects all who come into court
    regardless of who you are. And no one is above the law, and the
    President is subject to many legal restraints in terms of the
    official capacity, the war effort. And I think my decisions
    have shown that independence in a variety of areas.
        Senator Flake. Thank you. Let me shift gears in my final
    couple of minutes to technology. We struggle here in Congress
    with striking a balance obviously between security, freedom,
    between innovation, privacy. We just had the Facebook hearing
    in this room along with the Commerce Committee, and questioned
    Mark Zuckerberg on these issues. A late night comic that night
    commented that with all of us questioning out here, at least
    five of us, our password for our email is, ``password.'' And
    so, we were not as nimble in dealing with a lot of these
    issues, but the same applies to the Court.
        How does the Court, how will the Court, how would you as a
    Supreme Court Justice deal with these issues? Would you
    describe yourself as technologically literate? I know you have
    dealt with these issues on the D.C. Circuit, but balancing
    privacy, and innovation, and security, and freedom. This is
    going to make up a big chunk of what the Supreme Court does
    over the coming months and years.
        Judge Kavanaugh. Senator, I do think that technological
    developments are going to be a huge issue for the Supreme Court
    over the next generation. And Chief Justice Roberts has been
    a--writing some of the key opinions, the Carpenter case most
    recently, which was a very important decision, the Riley case
    before that. And you see how he is--and this would not
    necessarily have been predicted at the time of his 2005
    hearing, how he has focused and led the Court in making sure
    the Fourth Amendment keeps abreast of technological
    developments, and his opinions are very clear.
        Senator Flake. Specifically, what impact does technology
    have on the Fourth and the First Amendments?
        Judge Kavanaugh. So, I think the Carpenter case explains
    that once upon a time if a piece of information of yours ended
    up in the hands of a third party and the Government got a third
    party, that really was not any effect on your privacy. But now
    when all of our data is in the hands of a business, a third
    party, and the Government obtains all your data, all your
    emails, all your texts, all your information, your financial
    transactions, your whole life is in the hands of a data company
    and the Government gets that, your privacy is very well
    affected. And that is the importance, I think, of the Carpenter
    decision is that it recognizes that change and understanding of
    our understandings of privacy. And I think going forward that
    is going to be a critical issue.
        One of the cases I did write an opinion in, GPS
    surveillance, and putting a GPS tracker on your car. And I
    wrote an opinion in the D.C. Circuit where I recognized that
    putting a GPS tracker on your car was an invasion. A new
    technology was an invasion of your property. And, therefore,
    was something that violated the Fourth Amendment.
        [Disturbance in the hearing room.]
        Judge Kavanaugh. So, and was something that the Supreme
    Court then in an opinion by Justice Scalia adopted that
    approach to recognizing the GPS surveillance. But I think going
    forward, as I have said, these are backward-looking hearings
    sometimes, but the forward-looking question you asked is, I
    think, a very important one about the change in Fourth
    Amendment, not doctrine, but the change in technology that in
    turn requires us to understand it as we apply Fourth Amendment
    doctrine going forward, and First Amendment free speech
    principles as well. Our conception of speech will have to take
    account of the technological developments as well.
        Senator Flake. Just one last question. What does an
    independent judiciary mean in terms of judges and their
    personal political or religious beliefs? Have you known good
    judges who are Democrats, Republicans? Do you see a difference?
    Are they viewed that way? What about Catholic, or Mormon, or
    Muslim, or an atheist? What should be our approach to judiciary
    in that sense?
        Judge Kavanaugh. Well, I think, Senator, all judges are
    independent. We do not sit in separate caucus rooms. We do not
    sit on sides of an aisle. We are not Republican judges or
    Democratic judges. We are independent United States judges, and
    so, too, with respect to religious beliefs. As I have written,
    we are equally American no matter what religion we are or if we
    have no religion at all. And so, too, as judges. We are all
    equally United States judges no matter what religion we are,
    and we see that right in the text of the Constitution that no
    religious test shall be imposed as a qualification for any
    office in the United States.
        Chairman Grassley. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman. Good afternoon,
    Your Honor.
        Judge Kavanaugh. Thank you.
        Senator Blumenthal. And welcome to your team.
        Judge Kavanaugh. Thank you, Senator.
        Senator Blumenthal. I want to, first of all, tie up a
    couple of loose ends from yesterday. I asked you yesterday
    whether during your service in the Bush administration you took
    the position that not all legal scholars believe Roe v. Wade is
    settled law, and whether the Supreme Court could overrule it.
    You said, in fact, that the Supreme Court could, and you
    declined to say whether you would commit to saying that you
    would not vote to overturn Roe v. Wade. I believe, thanks to
    that exchange, that an email has now been made public in which
    you took exactly that position, and you argued in that email
    that Roe can be overturned.
        My question to you is whether during that break, did anyone
    suggest to you that I would ask about this email? I think we
    took a break before I asked you my question. Did anyone ask you
    whether--did anyone suggest to you that I might ask about this
    email during the break before the questioning?
        Judge Kavanaugh. Just now?
        Senator Blumenthal. No, yesterday.
        Judge Kavanaugh. Boy, I am not remembering. I am not
    remembering one way or another. What did I--I am not
    remembering.
        Senator Blumenthal. Did anyone show you this email during
    the session yesterday at any point?
        Judge Kavanaugh. I would have to check actually. I do not
    remember. During each break yesterday, I have had--I have had
    these emails, I think.
        Senator Blumenthal. And you reviewed this one before you
    came to testify.
        Judge Kavanaugh. I am not--I am not going to remember,
    Senator, but I do know that that email does refer to what--my
    impression of what legal scholars think. It is not--I think the
    premise of your questions was, respectfully----
        Senator Blumenthal. Well, if you do not--if you do not
    remember somebody--whether someone showed it to you or not, I
    want to move on to another area. You were asked yesterday by
    Senator Harris as to whether you had certain conversations
    about the special counsel investigation with anyone outside of
    the group of judges on the D.C. Circuit. At that point, your
    answer was vague, and it was again this morning when Senator
    Hatch asked you about it. So, I want to ask you very
    specifically, have you discussed the special counsel
    investigation with anyone outside of the group of judges on the
    D.C. Circuit?
        Judge Kavanaugh. I have had no inappropriate discussions
    with anyone. Of course, it is on----
        Senator Blumenthal. Have you had any discussions with
    anyone, appropriate or inappropriate?
        Judge Kavanaugh. Well, when----
        Senator Blumenthal. Have you ever talked about the special
    counsel investigation with anyone outside the----
        Judge Kavanaugh. If you are walking around in America, it
    is coming up, Senator, so people discuss it. But in terms of--I
    have never made any--let me just finish if I could. I have
    never suggested anything about my views about anything,
    commitments, foreshadowing. I have had no inappropriate
    discussions. Of course, first of all, let me tell you a few
    contexts in which it can come up. Our courthouse has a lot of
    activity going on in it because of that. There are a lot of
    people there, so those are discussions that will come up.
        Senator Blumenthal. Let me be more specific so that we sort
    of hone in on what my concern is. Have you ever talked to
    anybody in the White House about the special counsel
    investigation?
        Judge Kavanaugh. I have no discussions with people in the
    White House about----
        Senator Blumenthal. No one, including----
        Judge Kavanaugh. What do you mean by--I guess I just want
    to make sure I am understanding what your question is going
    for. I have had no issues where I have discussed my views on
    any matters, issues, cases, no hints, previews, forecasts, no--
    --
        Senator Blumenthal. But have you ever talked about the
    special counsel investigation with Don McGahn, who is behind
    you, or anyone else in the White House? That is a simple
    ``yes'' or ``no.''
        Judge Kavanaugh. I am not remembering any discussions like
    that. Of course, in preparing for this hearing I prepared for
    questions like the one you are asking.
        Senator Blumenthal. And they have----
        Judge Kavanaugh. So, those are--those are moot court
    sessions where we have----
        Senator Blumenthal. Well, what discussions have you had
    about the special counsel with people in the White House?
        Judge Kavanaugh. I have not had discussions--if I am
    understanding your question correctly, I have not had such
    discussions, but I want to make sure I am understanding your
    question correctly.
        Senator Blumenthal. It is pretty simple English. Have you
    talked about the special counsel with anyone in the White
    House, anybody who works for the President of the United
    States?
        Judge Kavanaugh. Well, you just rephrased the question,
    though. That was about Mr. Mueller this time, and previously it
    was about the investigation. But I have had no--if I am
    understanding the question correctly, no discussions of the
    kind you are asking.
        Senator Blumenthal. So, you are saying, no, you have had no
    discussions. You have not talked to anyone in the White House
    about Robert Muller or the special counsel investigation.
        Judge Kavanaugh. So, you changed the question again,
    Senator. Of course, I know Mr. Mueller personally from my prior
    experience in the--I mean, I have not seen him in a long time,
    but I knew him when we worked in the Bush administration. So,
    but I have no discussions of the kind that I think you are
    asking about.
        Senator Blumenthal. Well, I am asking about the kind you
    are thinking about, not myself.
        Judge Kavanaugh. Well, I have not had any discussions of
    the kind I am thinking about either.
        [Laughter.]
        Senator Blumenthal. Well, I am going to take that as a
    ``no,'' which you are giving under oath, and we can put aside
    the humor for the moment.
        Judge Kavanaugh. Right, I am not trying to be humorous, I
    am trying to be accurate. For example, if someone says your
    courthouse----
        Senator Blumenthal. No, I am talking about discussions with
    anybody who works for the President of the United States in the
    White House about the special counsel. And so far, frankly,
    your answer has been ambiguous.
        Judge Kavanaugh. I do not think it has been ambiguous.
        Senator Blumenthal. You have dodged the question. You have
    ducked it. It is the same question again and again and again,
    and I am going to move on because I have other ground to cover.
        Judge Kavanaugh. Okay.
        Senator Blumenthal. Have you had conversations about the
    special counsel investigation with anyone at the Kasowitz,
    Benson, and Torres firm?
        Judge Kavanaugh. No, I do not remember anything like that.
        Senator Blumenthal. Are you acquainted with anyone at that
    firm?
        Judge Kavanaugh. I know Ed McNally used to work at the
    White House Counsel's Office, and I now--I understand that he
    works at that law firm.
        Senator Blumenthal. Have you ever talked to him about the
    special counsel investigation?
        Judge Kavanaugh. No.
        Senator Blumenthal. Are you acquainted with Marc Kasowitz?
        Judge Kavanaugh. I am not.
        Senator Blumenthal. Are you acquainted with anyone else at
    the Kasowitz law firm?
        Judge Kavanaugh. I do not believe so, but as I discussed
    with Senator Harris last night, I did not know, for example,
    Senator Lieberman worked at that firm, and he spoke to the
    judges a couple of years ago before this. But that is the kind
    of thing I was worried about when I was talking with Senator
    Harris last night is that I do not have the full roster. But I
    am pretty confident the answer is no.
        Senator Blumenthal. Okay. We have talked about the
    independence of the judiciary, and you have spoken compellingly
    about the importance of an independent judiciary, and I could
    not agree more. I think the heroes of this era will be the
    independent judiciary and our free press. I want to talk to you
    about President Trump's attacks on the judiciary. They have
    been blatant, craven, and repeated, and I want to quote to you
    a couple of those attacks.
        I have achieved a partial quotation of them, 41 tweets
    attacking the judiciary. But the one I want to cite to you is
    from July 13, 2013 when he said, of Justice Ruth Bader
    Ginsburg, ``Justice Ginsburg of the United States Supreme Court
    has embarrassed all by making very dumb political statements
    about me. Her mind is shot. Resign!'' November 10th, 2013,
    again, speaking about Justice Ginsburg, ``Supreme Court Justice
    Ruth Bader Ginsburg was going to apologize to me for her
    misconduct. Big mistake by an incompetent judge.'' Do you
    believe that Justice Ginsburg ``embarrassed us all''?
        Judge Kavanaugh. Senator, I have, of course, spoken about
    all the Justices individually during the course of this
    hearing, and my----
        Senator Blumenthal. If I may interrupt, and I say this with
    all due respect, this is a question where less is more in the
    answer. Do you think Justice Ginsburg has embarrassed us all?
        Judge Kavanaugh. Senator, I am not going to get drawn into
    a political controversy, a line I have maintained. I am not
    going to get three zip codes of a political controversy here.
        Senator Blumenthal. This is not political. This is about
    Justice Ginsburg. Do you believe that her ``mind is shot''?
        Judge Kavanaugh. Senator, respectfully, you are asking me
    to, after having read those comments, you are asking me to
    comment on something another person said, and I am not going to
    do that. I have spoken about my----
        Senator Blumenthal. Do you believe that----
        Judge Kavanaugh. I have spoken about----
        Senator Blumenthal [continuing]. She's an incompetent
    judge?
        Judge Kavanaugh. I have spoken about my respect and
    appreciation for the eight Justices on the Supreme Court, my--
    the honor it would be if I were to be confirmed to be part of
    that Team of Nine with those eight people, all of whom I know
    and respect, and I know they are all dedicated public servants
    who have given a great deal to this country. And so, I have
    made that clear throughout this hearing.
        Senator Blumenthal. Do you believe that a judge should be
    attacked based on his heritage? The President of the United
    States attacked Judge Gonzalo Curiel saying that the Judge--
    ``the judge who happens to be, we believe, Mexican'' in
    attacking him? Do you believe that judges should be attacked
    based on their heritage?
        Judge Kavanaugh. Senator, again, I am not going to comment
    on----
        Senator Blumenthal. Well, these are issues that concern the
    independence of the judiciary, Your Honor. With all due
    respect, you talked about your heroes who have the grip and
    backbone to stand up and speak out. We are talking here about
    an independent judiciary, and my colleagues have raised this
    point. And I might just say to you as I said to Judge Gorsuch,
    then-Judge Gorsuch, now Justice Gorsuch, that the judiciary and
    nominees like yourself have an obligation to stand up for the
    judiciary. And he said that these attacks are ``disheartening
    and demoralizing.'' Do you agree?
        Judge Kavanaugh. Senator, I am not sure of the
    circumstances, but the way we stand up is by deciding cases and
    controversies independently without fear or favor. Beyond that,
    we follow the canons in the leadership of Chief Justice
    Roberts, who is a superb leader of the American judiciary in
    terms of maintaining the independence of the judiciary and
    staying well clear of political controversy.
        Senator Blumenthal. Let me ask you something else then
    about the intersection of President Trump and yourself. On the
    night of the announcement of your nomination, you were at the
    White House.
        Judge Kavanaugh. Yes.
        Senator Blumenthal. And you chose to begin your speech
    introducing yourself to the American people by saying, and I
    quote, ``No President has ever consulted more widely or talked
    with more people from more backgrounds to seek input about a
    Supreme Court nomination.'' What was the factual basis for that
    statement?
        Judge Kavanaugh. So, I did think about that. Those were my
    words. Senator Harris asked me about that last night, and the
    President and Mrs. Trump when we were there, my family was
    there that night at the White House. He and Mrs. Trump were
    very gracious. I was very impressed with during the 12-day
    period between Justice Kennedy's announcement of his retirement
    and the announcement of my nomination, I was impressed as a
    citizen and as a judge with the thoroughness of the process.
    And I did look into, to your point directly, and thought about
    and looked into comparing what I knew about past processes and
    made that comment----
        Senator Blumenthal. You looked into past appointments? Did
    you talk to President Clinton about how many people he talked
    to before he nominated Justice Ginsburg?
        Judge Kavanaugh. So, last night I said to Senator Harris
    that President Clinton, I do recall, talked to a lot of people
    as well. And I indicated that is why I used the phrase----
        Senator Blumenthal. He talked to just about everybody in
    Washington, did he not?
        Judge Kavanaugh. And President Trump talked to a lot of
    people as well, and so I said to Senator Harris last night, I
    mentioned President Clinton specifically as an indication of
    someone who likewise consulted very widely, as I recalled.
        Senator Blumenthal. But you did not have any factual basis,
    any record, any research at the time of that statement, did
    you?
        Judge Kavanaugh. I did actually look into it as best I
    could, you know, thinking about the technological developments,
    and I did think about it very carefully. He talked to an
    enormous number of people based on my understanding in those 12
    days.
        Senator Blumenthal. I want to talk to you now about real-
    world consequences; that is, impacts in the real world on real
    people of the decisions that courts make. We were talking
    yesterday about the statement that you made in Seven-Sky v.
    Holder, and I think we have it here. Under the Constitution
    essentially, that statement says to me a President can deem a
    statute to be unconstitutional, even if a court has held or
    would hold the statute constitutional. Now, you stated
    yesterday to me when we talked at some length that your view
    was compelled by Heckler v. Chaney and other cases on
    prosecutorial discretion. I disagree. Nothing in Heckler
    suggests that the President can essentially nullify, simply
    deem a law unilaterally unconstitutional based on his personal
    view of the law's constitutionality.
        So, Heckler stands for the principle that courts will
    generally not second guess executive branch's decision on how
    to use scare enforcement resources, like I did as a U.S.
    Attorney or as Attorney General of my State of Connecticut.
    Nowhere it says that Chief Executives are free effectively to
    nullify duly passed statutes that have been upheld by the
    Court. But I want to go to the real-world impact.
        Clearly, Heckler does not say that there are no limits, but
    for the sake of real-world impacts, I think there must be
    impacts. And one of them affects the Affordable Care Act and
    the protections it provides to millions of Americans, about 13
    million Americans, including 500,000 in Connecticut who suffer
    from diabetes or high blood pressure or mental health issues.
    There are 15 to 20 or more pre-existing conditions.
        And one of them affects a young boy. His name is Connor
    Curran. He is 8 years old. He suffers from Duchenne muscular
    dystrophy, and I want you to think about Connor. This is a
    chronic and terminal condition. It will slowly erode his motor
    function. Unless we find a cure, eventually it will take his
    life. His parents have told me, and I have gotten to know his
    family pretty well, although he appears healthy and happy
    today, he will slowly lose his ability to run, to walk, even to
    hug them goodnight. As Connor gets older, he will need more and
    more help. He will need the Affordable Care Act more and more.
    He will need protection from abuses that involve pre-existing
    condition.
        My reading of your view of the constitutional authority of
    Donald Trump is that he could simply deem the Affordable Care
    Act unconstitutional even if it is upheld by the D.C. Circuit
    Court of Appeals and then by the United States Supreme Court,
    and even though it has been signed by a President who deems it
    to be constitutional and passed by a Congress who deem it to be
    constitutional. Do you think the President of the United States
    has that unilateral authority to nullify protection for Connor,
    and should the Connor family be afraid?
        Judge Kavanaugh. Senator, thank you for bringing up this
    example. In my opinions on the Affordable Care Act in the
    Sissel case where I upheld the Affordable Care Act against an
    Origination Clause challenge and in the Seven-Sky case where I
    made clear that I thought the timing of the case was premature,
    in both those decisions I expressed my respect for the
    congressional goal in that legislation of ensuring health
    insurance for uninsured Americans and providing more affordable
    healthcare for all Americans to take care of people who did not
    have health insurance, people who had conditions like the one
    you are bringing out here.
        I understand the real-world impacts of the Affordable Care
    Act. I have made that clear in my decisions. I have also----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. So, in my decisions on the Affordable Care
    Act, I have shown respect for the act and respect for Congress,
    respect for the law, and understanding of the real-world
    impacts. In terms of prosecutorial discretion, the United
    States v. Nixon case did say that the executive branch has the
    exclusive authority and absolute discretion whether to
    prosecute a case----
        Senator Blumenthal. I am just going to interrupt you
    because I am out of time.
        Judge Kavanaugh. Okay.
        Senator Blumenthal. And if the Chairman wants to give you
    more time, I am more than happy to hear the rest of your
    answer.
        Judge Kavanaugh. Thank you, Senator.
        Senator Blumenthal. But I just want to express to you my
    fear and my deep concern that you will not apply the law to the
    facts, but use the law to advance an ideological position that
    may affect the people of America like Connor. Thank you.
        Chairman Grassley. Before I go to Senator Crapo, did you
    say all you wanted to the Senator?
        Judge Kavanaugh. I did.
        Chairman Grassley. You do not have to respond to what I am
    going to say, but I think that we need some clarification if
    you want to give it, but only if you want to give it. We have
    heard it suggested that you did not give clear testimony about
    the--any relationship you might have with various people in
    regard to the Mueller investigation. So, have you made any pre-
    commitments or offered any hints, previews, forecasts, winks,
    nods, or secret handshakes to the President, the Vice
    President, the White House lawyers, anyone else in the
    administration or anyone at all about if and how you would rule
    on any matter related in any way to Special Counsel Robert
    Mueller's current investigation?
        Judge Kavanaugh. No, I have not.
        Chairman Grassley. Senator Crapo.
        Senator Crapo. Well, thank you, Mr. Chairman. And before I
    begin asking questions, I would like to follow up on that exact
    line. I have in my hands a printout of the story that was
    published 2 hours ago on CNBC. The headline says, ``Trump
    lawyer Marc Kasowitz denies Kavanaugh ever spoke to anyone at
    the firm about Mueller probe.'' It goes on to discuss this in a
    little more detail, but I would like to ask unanimous consent
    that this report be put into the record.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as a submission for the record.]
        Senator Crapo. Thank you, Mr. Chairman. Judge Kavanaugh,
    before I go to some of my questions, and which I am going to
    ask you just to describe mostly some of the legal parameters in
    which we work together with regard to the separation of powers,
    I wanted to go back to the independent counsel versus special
    counsel issue just one more time. You will recall yesterday in
    my questioning I went through the differences between the
    independent counsel and special counsel.
        The reason I am coming back to it is I have been a little
    puzzled by my colleagues' attacks on your writings about the
    Morrison case back in--which was talking then about the 1988
    case in which the Supreme Court upheld that then old
    independent counsel system. And I have concluded--maybe I am
    wrong, but I have concluded that the reason they keep bringing
    it up and bringing it up and bringing it up is that they may be
    trying to create some confusion between the old case--the old
    system, which you were criticizing, which Justice Scalia
    criticized, if I understand correctly, which Senator Durbin
    criticized, and others did, and the current system.
        And I think--I wonder if maybe they are trying to create an
    impression in the public that you were criticizing the current
    system, so I just want to give you one more chance to make it
    clear. In your writings about the Morrison case, were you
    criticizing the current special counsel system?
        Judge Kavanaugh. Thank you, Senator. No, I was not, and I
    have tried to make clear to Senator Coons and you and otherwise
    that I have repeatedly discussed the special counsel system,
    the tradition of that kind of system with approval in the
    Georgetown Law Journal article that I wrote in the late 1990s,
    as well most recently in the PHH decision where I specifically
    distinguished that from the independent counsel system. The old
    independent counsel system in Morrison, which dealt with it has
    not existed since 1999. The current special counsel system I
    have always spoken approvingly of the general system and the
    tradition of special counsel.
        Senator Crapo. Well, thank you, and I hope that that puts
    it to rest. Like I said, for several days now, I have been
    perplexed as to why it is that your criticism of a system that
    ended in 1999 was of such concern. And I hope that any
    confusion that has been created by those consistent attacks
    does not create and will not create an impression that you were
    making any comment about our current situation. So, thank you
    for that.
        What I would like to do with the rest of the time I have is
    to go through some issues related to the separation of powers,
    and I realize that you have been through this it may seem like
    endlessly in the last few days. But I want to go back and first
    start with the notion of deference with regard to rulemaking in
    the Chevron doctrine. Could you just describe to us what the
    Chevron doctrine is?
        Judge Kavanaugh. Yes, Senator. What that says, that
    doctrine, when Congress passes a statute in an administrative
    agency, executive or independent agency is implementing that
    statute, the agency's interpretation of that statute will be
    upheld by a court so long as it is a reasonable interpretation
    of any ambiguity or gap that may exist in the statute. If the
    agency is interpreting it in a way contrary to its language as
    interpreted by the text structure, history as reflected in
    Chevron Footnote 9, then it is an impermissible interpretation.
    But otherwise, if it is--there is an ambiguity or a gap and the
    interpretation is reasonable, the courts under the Chevron
    doctrine uphold it.
        Senator Crapo. And when you talk about interpreting the
    statute, you are talking about agency rulemaking.
        Judge Kavanaugh. Ordinarily, it will be a--typically it
    will be an agency rulemaking or at least often it will be an
    agency rulemaking.
        Senator Crapo. And there is an exception, correct, for
    major cases? What is the exception?
        Judge Kavanaugh. For rules of major economic or social
    significance, the Supreme Court has long made clear that the
    deference to the agencies will not apply in those cases. In
    those cases we expect Congress, in the words of the Supreme
    Court most recently in the UARG case, we expect Congress to
    speak clearly if it wants to assign rulemaking on an issue of
    major economic or social significance to an agency. And that is
    a doctrine that Justice Breyer in the 1980s first talked about,
    I believe, Justice Rehnquist in a 1980s decision as well talked
    about. And those--that doctrine has been applied by the Supreme
    Court since the 1990s most recently in the King v. Burwell and
    UARG decisions.
        Senator Crapo. It seems to me that that is a pretty broad
    or maybe narrow exception, and what I mean is ill defined. How
    does a judge----
        [Disturbance in the hearing room.]
        Senator Crapo. How does a judge determine when you have a
    major circumstance that would be impacted by the exception? Is
    there a standard or are there some rules of how a judge makes
    that determination?
        Judge Kavanaugh. There is no clear rule on that. I have
    talked about that in the U.S. Telecom decision that the Supreme
    Court has not as yet provided specific guidance. And you look
    at the number of people affected, the amount of money involved,
    the kind of attention it has received in Congress, the kind of
    attention it has received in the public, and you make a
    judgment based on that whether this is the kind of rule, as
    Justice Breyer first explained, that is really filling a
    smaller intricacies of a statute or as a big social or economic
    decision. And there are lots of factors you can look into to
    determine that.
        Senator Crapo. Well, also it seems to me, and this is
    relevant to a number of other comments that you have received
    in questions, that if the congressional statute that is passed
    is vague or broad, that the room for agency discretion is
    greater. Does that play an impact--play a role in the
    determination as to whether it is a major exception that would
    require a deeper review by the Court?
        Judge Kavanaugh. Well, the question of ambiguity is
    something that applies in all of these Chevron cases, but I do
    think, as well, in the major rules situation, what Justice
    Scalia said for the Supreme Court in the UARG case is, if it is
    a rule of major economic or social significance, we expect
    Congress to speak clearly. And that ``speak clearly'' phrase in
    Justice Scalia's opinion for the Court is quite important. In
    other words, we want to see an express assignment of authority
    to decide a major social or economic issue if that is going to
    be upheld as a rule by the courts.
        Senator Crapo. Well, thank you. I appreciate that. This
    issue is very important to me and to a number of my colleagues
    because there is a concern among many Members of Congress that
    Congress has delegated too much of its responsibility to the
    executive branch by giving them this deference in rulemaking.
    And the broader and more vague the congressional delegations
    are, the greater the opportunity for the Executive to simply
    write law through rulemakings. And so, it is a very significant
    issue.
        A further question I have is, and I know you have also been
    asked this earlier, is there a point at which congressional
    delegation can be so broad as to be unconstitutional? For
    example, one of the cases or examples you were given earlier
    was if Congress just decided to create another group and say we
    are going to have them be Congress now.
        Judge Kavanaugh. So, the Supreme Court has long applied the
    non-delegation doctrine that allows broad delegations, at least
    under the precedent, but there is a limit to how broad those
    delegations can be. And there are--there is litigation in the
    Federal courts now and in the Supreme Court now about certain
    applications of the non-delegation doctrine. But the general
    law is that Congress can delegate broadly, but there are
    limits. It has to be ``an intelligible principle'' is the
    phrase that the Supreme Court has used.
        Now, what that means in practice has been decided under a
    series of cases applying that principle over time, and those
    precedents build on one another, and that is what the Court
    applies to figure out whether a delegation has gone too far.
        Senator Crapo. And this brings in the issue of independent
    agencies as well, and I know you have talked about that a lot
    as well. Humphrey's Executor is the case that sets the
    standard, correct, as to what is an appropriate--appropriately
    constitutionally created independent agency?
        Judge Kavanaugh. That is correct. The 1935 decision in
    Humphrey's Executor upheld the concept of independent agencies
    where the heads of the agencies are removable only for cause,
    not at will, and the--so we see agencies such as the FERC, the
    Federal Communications Commission, the SEC, and the like.
        Senator Crapo. And you have ruled in the PCAOB case that
    the creation of that independent agency was unconstitutional?
        Judge Kavanaugh. That particular independent agency was
    differently structured than the typical and traditional
    independent agencies. I dissented in the D.C. Circuit on the--
    in a challenge to the constitutionality of that structure
    because it was two levels of for cause removal, in essence. The
    Supreme Court granted review. In an opinion by Chief Justice
    Roberts, they agree with the approach I had set forth, in
    essence, in the dissent in the Free Enterprise Fund v. PCAOB
    case in Chief Justice Roberts' opinion for the Court in that
    case.
        Senator Crapo. And what about the CFPB case? I understand
    that you did not rule that the CFPB could be--was so
    unconstitutional that it had to be eliminated, but that its
    structure needed to be changed with regard to the President's
    authority to replace the director. Could you first of all just
    describe your reasoning in that case a little bit, and then I
    have one follow-up question on that.
        Judge Kavanaugh. That decision, in my view, followed from
    the PCAOB case Chief Justice Roberts had written for the
    Supreme Court. The CFPB was also structured differently from
    the traditional independent agency, and the Supreme Court,
    speaking through Chief Justice Roberts, had made clear that
    independent agencies that were novel, not historically rooted,
    the structure, were problematic constitutionally, and the
    single director head of an independent agency was something
    novel, not something that had traditionally occurred in
    independent agencies.
        So, I felt under the precedent set forth by the Supreme
    Court in the Free Enterprise Fund case that that was a problem,
    but I did not say that the agency was invalid or could not
    continue to pursue its important functions, regulatory
    functions for consumer protection. Rather, I said simply that
    the single director head of it had to be removable at will, not
    for cause. And I also made clear, though, if Congress wanted to
    have a traditional multi-member independent agency, Congress
    could, of course, change that structure if it wanted.
        The important point for your question is that the agency
    would continue to operate. There was another judge who did say
    that due to that flaw, the whole agency should stop, cease
    operation. I did not agree with that remedy because I did not
    think that was the proper remedy under the Supreme Court's
    precedents remedying constitutional problems.
        Senator Crapo. Well, that is really my follow-up question.
    I am one of those who has been working since almost before the
    creation of the CFPB to establish a board, a balanced board to
    run the CFPB, which I think would have addressed the
    constitutional issue that you found. But the question I have is
    why did you choose the route that kept the agency operative
    rather than joining with the other judge to say that it had to
    cease operating until it was fixed?
        Judge Kavanaugh. Senator, that is a question of a doctrine
    known as severability, and that--what that doctrine means is
    suppose you have a law, a big law, and one provision of the law
    is unconstitutional, what do you do as a court? Do you strike
    down the entire law or do you hold simply the one provision
    invalid and excise that provision from the law. And the
    traditional approach is reflected perhaps best in Marbury v.
    Madison, which found a section of the Judiciary Act of 1799 on
    jurisdiction of the Supreme Court, of the courts, to be
    unconstitutional. And what did the Court do in Marbury v.
    Madison? Did it strike down the entire Judiciary Act? No, it
    excised the one provision that was--or did not enforce the one
    provision that was unconstitutional, and simply excised that.
        The traditional approach to severability is ultimately one
    of congressional intent to try to figure out what Congress
    would have wanted in the statute, but I have written about this
    both in cases and in articles that as a general proposition,
    the proper approach for a court is to try not to disturb more
    than is necessary of the work Congress has done in setting
    forth the statute to a scheme. And, therefore, severability, as
    I referred to it, narrow severability is the norm unless
    Congress has specified a contrary intent, or unless the whole
    law just--unless it just would not work otherwise.
        Senator Crapo. All right. I appreciate that explanation.
    And to go back to agency deference for just a minute, I would
    like to talk about the Administrative Procedures Act just to
    create the full picture. When we were talking about the Chevron
    doctrine, that is a Court-made doctrine with regard to
    deference on agency rulemaking and other interpretation of
    statutes.
        The Administrative Procedures Act contains a statutory
    requirement, does it not, that requires the findings of fact
    that the agency makes in quasi-judicial proceedings to be
    honored. Have I got that right?
        Judge Kavanaugh. That is with some deference, that is
    correct.
        Senator Crapo. And the reason I bring that up is not so
    much because it is a judicially created issue, but because it
    just shows the broad parameter of deference that either through
    Congress or through judicial precedent has been given to the
    executive branch in terms of what many of us believe is the
    equivalent of making law. And just as we do not want you making
    law, I personally do not want to see the executive branch
    making law without involvement of Congress to the maximum
    extent possible.
        And so, these are issues that I just hope that you will pay
    attention to in terms of the appropriate establishment and
    precedent necessary for the kind of separation of powers in our
    constitutional system that we need to have as we move forward.
    I am not even asking you to comment on that. I am just making
    an observation.
        Judge Kavanaugh. Well, I will add one comment, which I do
    think it is important when we do review adjudications, which is
    another part of the bread and butter of the D.C. Circuit, so
    agency adjudications where, for example, it could be a benefits
    case of some kind or a--an adjudication of an NLRB case. That
    when we review those adjudications, I do think it is important
    that courts be aware of the importance of those cases for the
    individuals affected by those cases, and to make sure that the
    adjudications are complying with the principles of American
    justice and due process that we expect in the adjudication when
    someone's life, liberty, or property is on the line. And
    administrative adjudication is something I have written about
    in many of my cases to make sure that the proper kind of fact
    finding is occurring even in the administrative adjudications.
        Senator Crapo. Well, thank you. I appreciate you making
    that note, and I actually have pages of summaries of your
    adjudications on those kinds of issues. And I will just make a
    conclusory statement there for the argument that you are not
    watching out for the little guy or that you are not making sure
    that the litigants in their engagement with executive agencies
    are protected, people just have to read the cases. I commend
    you for being very, very carefully attentive to making sure
    that the rights of individuals in agency adjudications are
    protected and honored.
        Judge Kavanaugh. Thank you, Senator.
        Senator Crapo. Last thing I will do with my 2 minutes is, I
    want to talk to you about western States issues. Senator Flake
    got into this a little bit yesterday, and I actually was
    surprised to hear him say--I think he said--83 or 85 percent of
    Arizona was owned by the Federal Government. I am impressed. I
    am sorry for him, but in Idaho it is 63 percent of the State is
    Federal land. We believe that--you know, we have got the
    bragging rights to gorgeous country, whether it is mountains,
    rivers, deserts, fishing, hunting, recreation of all different
    kinds. The environment that we have in Idaho is a wonderful
    place. That is one of the reasons people go there to live.
        We are also very concerned about the management of that
    Federal land. We want to make sure that at the same time we
    protect and preserve this heritage, we also allow the people
    who live there to be able to have an ability to make a life and
    to make a living. And there is a conflict there. I do not
    believe it is an irreparable conflict. In fact, I believe it is
    something where both a strong economy and a strong environment
    can be achieved. I am not asking you to make any commitments
    about anything, except I would like you to just acknowledge to
    me as you did to Senator Flake that you understand we have got
    some incredibly different types of issues in the West that
    relate to the differences in land ownership.
        Judge Kavanaugh. Absolutely, Senator. I understand that,
    and I have tried through my decisions--cases like the Otay Mesa
    case, cases like the Carpenters case--to understand the
    situation with the West, the land, the designations of land. It
    is not my job, of course, as a judge to make the policy
    decisions for those land or environmental regulations, but it
    is my job to police the boundaries of what you have set forth
    in the statute, and to make sure that the Executive is not
    unilaterally rewriting the law or going beyond what has been
    authorized by Congress.
        It is also my job when constitutional boundaries are
    crossed in terms of action taken by the Government with respect
    to land or landowners, to make sure that I am enforcing the
    Constitution. I understand, and I hope my opinions demonstrate
    my understanding and appreciation for the importance of land
    and land owners in the western States and throughout the entire
    United States for that matter. But I know how important it is
    to you and Senator Flake as well.
        Senator Crapo. Thank you very much.
        Judge Kavanaugh. Thank you, Senator.
        Chairman Grassley. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman.
        The Chairman asked and you responded that you had not
    engaged in any secret handshakes, winks, and no discussions
    relating to the Mueller investigation. On the other hand, your
    Minnesota Law Review article, wherein you said Congress should
    protect a sitting President from criminal or civil proceedings,
    is a pretty big signal or notice to this President, and as far
    as I can see, it is a very big blinking red light.
        I was also listening to the series of questions asked of
    you by Senator Blumenthal regarding the comments made by the
    President referencing judges. Is disagreeing with the President
    a concern to you?
        Judge Kavanaugh. I am an independent judge. I have ruled in
    cases such as the Hamdan case where that was a signature
    prosecution of the Bush----
        Senator Hirono. So you are saying that disagreeing with the
    President is not a concern to you. Is that what your response
    is?
        Judge Kavanaugh. I am saying that, as a judge deciding
    cases or controversies, I decide cases based on who has the
    better position. I have done that for 12 years, and I have a
    record to show that in 307 opinions and----
        Senator Hirono. Is----
        Judge Kavanaugh. Over 2,000 cases.
        Senator Hirono [continuing]. Is disagreeing with the
    President a concern to you when it is not a case in front of
    you?
        Judge Kavanaugh. Following the lead of the judicial canons,
    following the lead of Chief Justice Roberts who leads the
    Federal judiciary, we stay out of politics. We do not comment
    on politics, we do not comment on comments made by politicians.
    We stay out--way away from politics.
        Senator Hirono. So to the extent that a comment is made by
    the President, then disagreeing with him, any statement that
    the President makes is political to you and you will not
    respond. Thank you.
        Let me follow up with some questions that some of us had of
    you yesterday and last night. Yesterday evening, Senator Tillis
    asked you about Rice v. Cayetano, and that is the case that I
    discussed where the issue was whether the State of Hawaii could
    restrict those voting for offices of the officers of the Office
    of Hawaiian Affairs, which administers certain lands held in
    trust for Native Hawaiians to only Native Hawaiians.
        In fact, Hawaii felt so strongly about the importance of
    its trust obligations to the Native Hawaiian community, the
    people of Hawaii--the people of Hawaii voted to create the
    Office of Hawaiian Affairs, also known as OHA, in our
    Constitution. It is not just a law; it is in our Constitution
    that we created the Office of Hawaiian Affairs in 1978.
        In answering Senator Tillis, you describe the case, Rice v.
    Cayetano, giving it a different and a grossly misleading spin.
    What you said totally ignored and disparaged the trust
    obligation that the State had to Native Hawaiians, and this
    trust obligation led the State to create the Office of Hawaiian
    Affairs and to decide who should be able to vote for the
    leaders of that office, Native Hawaiians.
        You said the State, quote, ``denied voting to people who
    were residents and citizens of Hawaii but were not of the
    correct, correct race, and therefore, African Americans and
    Latinos and Asian Americans and Whites were barred from voting
    for that office.'' You then misstated the holding of Rice v.
    Cayetano. You said, quote, ``The Supreme Court held that that
    was a straightforward violation of the Fourteenth and Fifteenth
    Amendments of the U.S. Constitution.''
        I will get to your misstatement later, but my first
    question to you is, Do you think that Rice can be used to
    justify the argument that programs to benefit Native Hawaiians
    are subject to strict scrutiny and of questionable validity
    under the Constitution, as you noted in the email that I
    referred to last night?
        Judge Kavanaugh. I appreciate the question, Senator, and
    thank you for raising it. In Rice v. Cayetano Justice Kennedy
    wrote the opinion, for 7-to-2 Supreme Court, saying that the
    voting restriction in that case violated the Constitution.
        To your question about--I am getting to your question--
    about the other question, that was something I wrote in an
    email then, and if that issue came before me, I would--there
    has been subsequent precedent that would be relevant, and I
    would have an open mind about how to apply the precedents of
    the Supreme Court, the strict scrutiny or intermediate scrutiny
    that would apply in a case like that and would consider the
    facts and circumstances and arguments.
        Senator Hirono. Rice is a Fifteenth Amendment case. It was
    a State-action case, so should another State-action-voting case
    come to you, you would apply Rice.
        My question was, whether you would turn to Rice with a
    proposition that programs that benefit Native Hawaiians should
    be subject to strict scrutiny because they are of questionable
    validity under the Constitution----
        Judge Kavanaugh. Right, but----
        Senator Hirono [continuing]. Then to my question----
        Judge Kavanaugh. Yes, so I appreciate that, Senator, and I
    think that would be analyzed in the light of Rice but in the
    light of all the other precedents of the Supreme Court on
    programs that--so contracting programs and higher education
    programs, which has set for the body of precedent under which
    programs like that would be analyzed. And I would look at the
    specific program under the facts and arguments of that case----
        Senator Hirono. So considering that Rice was a Fifteenth
    Amendment case and you are citing to other examples where other
    constitutional provisions may come into play, Rice should be
    limited to a Fifteenth Amendment case because that is what the
    Court decided. But, in fact, you answered last night that the
    case was decided under the Fourteenth and Fifteenth--you said
    it was a straightforward violation of Fourteenth and Fifteenth
    Amendments of the U.S. Constitution. So that is not what the
    Court did, as I have iterated, and I think you agree because, I
    mean, that is what you wanted the decision to be based on. You
    wanted the Rice decision to be based on the Fourteenth and
    Fifteenth Amendments, so that is not what they did.
        So this reminds me of the criticism that was lodged against
    you in the U.S. v. Anthem case where the majority said that you
    applied the law as you wanted it to be, not what it is.
        A question to you is where in the Rice Court's opinion did
    the Court decide the case on Fourteenth Amendment grounds?
        Judge Kavanaugh. Well, the principal of the Fifteenth
    Amendment is that there cannot be voting restrictions on the
    basis----
        Senator Hirono. I am asking you where in the decision does
    the Court rely on the Fourteenth Amendment. You are citing to
    the Fifteenth Amendment. This is the Fourteenth Amendment.
        Judge Kavanaugh. Well, I think the Fourteenth and Fifteenth
    Amendments, I think both prohibit restrictions on voting on the
    basis of race. The Fifteenth Amendment explicitly--this refers
    to voting, but the Fourteenth Amendment, of course, applies, as
    I read the precedent, to all State restrictions on the basis of
    race.
        Senator Hirono. Well, the Fourteenth Amendment mainly
    relies on one man, one vote. That is a whole other line of
    cases, but that is not what the Court chose to decide to base
    its decision on Rice, so I would expect someone who is going to
    be on the Supreme Court to be very, very careful in citing
    precedent and to be very accurate in saying what the Court
    based its decision on.
        And it is totally clear to me because you have not been
    able to cite to the opinion in Rice that says we are deciding
    this case based on the Fourteenth Amendment. They did not. So
    that is very disturbing to me that you would cite that case for
    the proposition that it was based on the Fourteenth Amendment
    when clearly it was not. And you have been, as I noted, been
    criticized for citing law as you wished it to be and not as it
    is.
        Let me go on to Priests for Life case. And the Free
    Exercise Clause of the First Amendment ensures that each person
    has the freedom of conscience to pursue their own religious
    values. These rights end where they would interfere with
    another's ability to do the same. However, in recent years, a
    wide range of individuals and institutions have received
    special dispensation to impose their beliefs on others. And, of
    course, most notably this is the Hobby Lobby v. Burwell case.
        So a case that raised those kinds of issues came before you
    in the Priests for Life, and in that case one of the things you
    had to determine was whether there was a substantial burden on
    the employers. And the employers, their claim, the act of
    filling out a form to let their insurance company and Health
    and Human Services know that they had a religious objection
    were not going to cover the contraception, was overly
    burdensome.
        And it was not the priests who were providing the
    contraception coverage. A third party was. And the priests were
    not forcing that third party to cover birth control. Congress
    was through the ACA. In your dissent you thought that was too
    much. You said the employer's religious exercise was
    substantially burdensome and that they could deny contraceptive
    coverage to their employees.
        So my question to you is do you believe that the Freedom of
    Religion Clause supersedes other rights?
        Judge Kavanaugh. No, Senator. I made clear in that decision
    that the Religious Freedom Restoration Act has a three-part
    test: first, substantial burden. I found that satisfied their
    based on the Hobby Lobby precedent, which I was bound to follow
    and the Wheaton College; second, compelling interest. I did
    find a compelling interest there for the Government in ensuring
    access. And then the third prong is least restrictive means,
    and I made clear there--I cited Reva Siegel's law review
    article, which makes clear the----
        Senator Hirono. Let me get to the first prong, which is
    whether this was an unduly burdensome. So you determined that
    filling out a two-page form was unduly burdensome. Did you now?
        Judge Kavanaugh. I concluded that penalizing someone
    thousands and thousands of dollars for failing to fill out a
    form when they did not fill it out because of their religious
    beliefs was a substantial----
        Senator Hirono. No, if they filled out a two-page form,
    they could have been totally insulated from thousands and
    thousands of fines. So the question became not the fines. That
    was irrelevant. The question was whether a two-page form was
    overly burdensome, and you determined it was overly burdensome.
    So, you know, it kind of defies logic to me.
        Let me go on to what I would consider to be a related case,
    which is Garza v. Hargan. And I would consider these two cases
    as being related because, first of all, they are both cases
    about women's reproductive freedom. And second, while you
    balance the interest of the parties involved in very different
    ways, you come to different conclusions, what is similar is in
    both cases you ruled against the women.
        In Garza v. Hargan, been brought up before, you argue that
    the Government's basically charade of trying to keep the young
    women in custody until it was too late to get an abortion was
    not an undue burden on her rights. So forcing her to remain in
    HHS's custody and in fact considering this to be a parental
    consent case, which was not the case, that was irrelevant. And
    in Priests for Life you insisted that a Government requirement
    that religious employers fill out a pretty short form declaring
    their objection to providing health care was too much of a
    burden.
        And in each case you reached your desired outcome, which is
    against women's reproductive rights and you ignore the
    commonsense meaning of burden. By the way, filling out the two-
    page form, the majority opinion did not consider that overly
    burdensome. And, you know, I really think that your conclusions
    that filling out this form was overly burdensome defied logic,
    but it is logical in the sense that in both cases you were
    against women's reproductive rights.
        So how is it possible for me to draw any other conclusions
    that basically you really want to limit a woman's reproductive
    rights? So even though you engaged in a balancing test in the
    case of Priests for Life, filling out a two-page form was too
    much, but in the case of Garza, it was not too much to have
    this young woman remain in custody and to be forced, as far as
    you are concerned, to wait around for foster parents to be
    found.
        Judge Kavanaugh. In each case, Senator, I was doing my best
    to apply the precedent on point. The Hobby Lobby and Wheaton
    College case--the Wheaton College case had dealt with a form,
    and so I followed as best I could the Wheaton College case. The
    Supreme Court had, I think, a 6-to-3 vote, found--or granted
    emergency injunction in that case. I tried my best to follow
    that precedent.
        Senator Hirono. See, that is the thing about following
    precedent because, you know, oftentimes, your own perspective--
    a judge's ideological viewpoints, et cetera, come into play as
    to which precedent to apply, how to apply the precedent, and
    what parts of the precedent you want to apply.
        Let me get to something that should be really simple. I
    think you said yesterday that Korematsu had been overruled. And
    in Trump v. Hawaii, the Chief Justice wrote, ``Korematsu was
    gravely wrong the day it was decided. It has been overruled in
    the court of history and to be clear has no place in the law
    under the Constitution.'' I am just really curious. Is being
    overruled by the court of history a valid way to overrule a
    case?
        Judge Kavanaugh. I think what the Chief Justice was
    recognizing in that case was the same thing the Supreme Court
    Justice Brennan had recognized in New York Times v. Sullivan
    where he said the Sedition Act of 1798 had been overruled in
    the court of history. In other words, there was not a specific
    case that arose, but it was important for the Supreme Court to
    nonetheless recognize that this law in the case of the Sedition
    Act and this precedent in the case of Korematsu was no longer
    good law and to note that. And so the Chief Justice noted that
    in the Trump v. Hawaii case.
        Senator Hirono. This was, by the way, long after a coram
    nobis case was brought many, many years later when it was made
    very clear that Korematsu had been wrongly decided. It would be
    nice if the court of history can overrule cases, but let me go
    on to Trump v. Hawaii.
        The Chief Justice declared that Korematsu has nothing to do
    with this case, but Justice Sotomayor called the--I am quoting
    her holding--``all the more troubling given the stark parallels
    between the reasoning of this case and that of Korematsu v.
    United States.'' And she continued, quote, ``In Korematsu the
    Court gave a pass to an odious, gravely injurious racial
    classification authored by an Executive order and basically the
    Court invoked an ill-defined national security threat to
    justify an exclusionary policy in sweeping proportion.''
        Now, are not the parallels between the cases very strong?
    Because in Trump v. Hawaii, as it was in Korematsu, the
    President discriminated against a minority group on national
    security grounds, and in both cases the Court did not question
    an obviously bogus justification. They did not, in both cases,
    go behind the bald-faced assertion by the President that this
    was based on national security.
        So where does this reasoning take us? Because if the
    President can claim national security as a shield against any
    challenge to his actions, under what circumstances do you think
    a Court--based on the most recent case, Trump v. Hawaii, should
    a Court look behind the President's stated justification of
    national security?
        Judge Kavanaugh. The Supreme Court has made clear, Senator,
    in a variety of cases that it will hold the executive branch to
    account in national security cases, the Boumediene case in
    2008, the Youngstown case in 1952, the Hamdan case. National
    security is not a blank check for the President. The Supreme
    Court has said, Justice O'Connor writing in the Hamdi case. And
    that is an important principle under our Constitution, is that
    even in the context of wartime, the courts are not silent.
    Civil liberties are not silent.
        In the particular case you are raising, Chief Justice
    Roberts concluded that there was no violation in that case, but
    the general principle that, I think, is important to reiterate
    is, that we are a nation of laws, including in the national
    security context, and that precedent of the Supreme Court over
    the course of our history has recognized that the law applies
    even in wartime and national security.
        Senator Hirono. Well, the thing is, though, the most recent
    iteration of an articulation of national security to justify an
    Executive order is Trump v. Hawaii. The record was replete with
    references and statements that the President had made as to
    what his true intentions were, that this was a Muslim ban. He
    talked about it during the campaign. He talked about it after
    the campaign. He told the Justice Department----
        [Disturbance in the hearing room.]
        Senator Hirono. He told the Justice Department, as
    President, get me an iteration of this ban that would withstand
    constitutional challenge, and so the most recent iteration is
    very concerning because it says to me that the President can
    say this is based on national security, and the Supreme Court
    made very plain that it would not look behind that
    articulation. Let me move on. I am running out of time.
        So the Warren Court, in 2017 you gave a tribute to the late
    Chief Justice William Rehnquist. You explained that you chose
    the topic because ``it pains me''--you--``that many young
    lawyers and law students, even Federalist Society types, have
    little or no sense of the jurisprudence and importance of
    William Rehnquist to modern constitutional law.'' And then you
    went on, ``they do not know about his role in turning the
    Supreme Court away from its 1960s Warren Court approach where
    the Court, in some cases, seemed to be simply enshrining its
    policy views into the Constitution, or so the critics
    charged.''
        And then you praised Chief Justice Rehnquist because he
    ``righted the ship of constitutional jurisdiction.'' What
    decisions of the Warren Court were you referring to as,
    ``simply enshrining its policy views into the Constitution''?
    Were you thinking about Brown? Were you thinking about Loving?
    Were you thinking about any of the Warren Court decisions that
    created rights for individuals? Privacy rights? There is a
    whole array. So which were the Warren Court decisions that you
    thought needed to be righted by the Rehnquist Court?
        Judge Kavanaugh. And I said, ``or so the critics charged.''
    I identified the areas where Chief Justice Rehnquist had helped
    the Court, I think, reach consensus or maybe a middle ground on
    areas such as criminal procedure that is Religion Clause cases,
    and I identified all those in the speeches. When he passed
    away--and even before he passed away, many of the Justices who
    worked with him were very much praiseworthy of Chief Justice
    Rehnquist for fiercely defending the independence of the
    judiciary----
        Senator Hirono. I would really be interested to know the
    particular cases that you are referring to, not general kinds
    of cases, particular cases.
        Judge Kavanaugh. I think I referred to them in the speech,
    but thank you, Senator.
        Chairman Grassley. After Senator Kennedy asks his
    questions, we will take a 30-minute dinner break. I expect we
    will be back around 6:15 then, and four Senators will be able
    to ask questions, Booker, Tillis, Harris, Cornyn, and then
    several Members have requested a third round. After all
    questions are finished, we will then move to Dirksen 226 for
    the closed session. Senator----
        Judge Kavanaugh. I just wanted to say one thing----
        Chairman Grassley. I am sorry. I----
        Judge Kavanaugh. Mr. Chairman. When I introduced the
    players earlier, I did not see the three in the second row,
    Mary Grace, Shay, and Keke are in the second row. They are all
    three eighth-graders.
        [Disturbance in the hearing room.]
        Judge Kavanaugh. And Megan.
        Chairman Grassley. Okay.
        [Disturbance in the hearing room.]
        Judge Kavanaugh. They are getting an introduction to
    democracy, Mr. Chairman----
        [Laughter.]
        Judge Kavanaugh. So it is noisy and I will explain that to
    them later.
        Chairman Grassley. Senator Kennedy.
        Senator Kennedy. Thank you, Mr. Chairman. Welcome, ladies.
    You will get used to the yelling. Senator Tillis is keeping
    count. It has happened over 200 times in the last 3 days. It is
    not really how democracy is supposed to work.
        Judge, I will repeat what I said yesterday. I am not going
    to ask you to give me a hint about how you might vote on the
    Court if you are confirmed. I certainly do not want you to
    violate the judicial canons of ethics, and I may have to gently
    interrupt you a few times to kind of move you along or move me
    along.
        Yesterday, you started to talk about Justice Harlan and his
    feeling about whether he should vote in a political election,
    and somehow we ran out of time, and I thought I would give you
    an opportunity to finish that thought.
        Judge Kavanaugh. Thank you, Senator. And one of the things
    that we have to do as judges, as I have emphasized many times
    in this hearing, is maintain the independence of the Federal
    judiciary, independence from politics, independence from
    political influence or public pressure or public influence. And
    part of that, part of the canons for Federal judges, Federal
    judiciary is that we do not attend political rallies, we are
    not allowed to donate to political campaigns, support political
    candidates, put bumper stickers on our cars, signs in our yard.
        And one of the things I decided--we are allowed technically
    to vote, but one of the things I decided after I voted in the
    first election and I read something about how the second
    Justice Harlan had decided not to vote in elections because he
    thought that reinforced the independence that he felt as a
    judge. And I thought about that and I decided to follow that
    lead.
        I am not saying my approach is right and other judges take
    a different approach on that, and I fully respect that, but for
    me it just felt more consistent for me with the independence of
    the judiciary not to vote because I have always consider voting
    a sacred responsibility and one in which I think very deeply
    about the policies I am supporting and the people I am
    supporting. And that seemed almost as if I were taking policy
    views at least to myself into the voting booth, and I did not
    want to do that as a judge. So I decided to follow the lead of
    the second Justice Harlan.
        I will be the first to say I am not the second Justice
    Harlan. He was a great Justice on the Supreme Court and
    someone, of course, who I would be very--if I were to be
    confirmed, honored to be on that Court and follow in his lead.
        Senator Kennedy. You do not vote in political elections?
        Judge Kavanaugh. I do not vote in political elections.
        Senator Kennedy. Interesting. Last night, you talked a
    little bit about your outreach efforts to attract more women
    and minority law clerks. Would you quickly go through that for
    me again? I think I was getting coffee when you were talking
    about that.
        Judge Kavanaugh. Senator, one of the issues in American
    society generally, of course, but also in the judiciary in
    particular, has been to advance--to overcome the discriminatory
    history of the country and to help advance the cause of women
    and minorities in the legal profession. And one of the areas
    where that has revealed itself is law clerk hiring. And one of
    the--and that is important because the----
        Senator Kennedy. Law clerks for judges, you mean?
        Judge Kavanaugh. Yes, law clerks for judges. We get four
    law clerks each year, and they are there for just 1 year and
    then they turn over after a year. They are like a team. They
    turn over after the year and you get a new team of four the
    next year. Those law clerks are among the best and brightest
    out of American law schools, and they often will go on to
    leadership positions in the Congress or in the State
    legislatures or in the judiciary or in the bar or in public
    service, and so those are important training positions for the
    future leaders of America.
        And there were disparities when I came on the bench in the
    number of women and minorities, so I decided to be very
    proactive about that. There was a problem identified. I decided
    to be proactive. So on the women law clerk front I am very
    proud that of my 48 law clerks, a majority of them have been
    women, and they are the best and brightest. And one of them was
    just confirmed as a Federal judge on the U.S. Court of Appeals
    for the Eleventh Circuit, Britt Grant, and she was in my second
    class of clerks.
        That is important because, as I talked about, my mom was a
    trailblazer in the law and overcame barriers to help women
    achieve equality in the law, and I want to do my part as well
    and not just because of her but she was an example to help
    achieve equality for all women to give them an equal place at
    the table and future opportunities. And I think I have helped
    one small--I am just one small piece and I do not want to
    overdo it, but I have tried to be proactive about it and to
    make a difference. So, too----
        Senator Kennedy. What about minority outreach?
        Judge Kavanaugh. Right. So in 2009 or 2010, so after I was
    on the court for about 3 years, there was a hearing I think in
    the House Appropriations Committee with--the two Justices
    usually go up every year and talk about the Supreme Court
    budget and testify before the Appropriations Committee to get
    money or to explain the need for money for the Supreme Court
    for the following year. And Justice Thomas and Justice Breyer
    were there that year, and they were asked about the seeming
    disparity with minority law clerks in general, African-American
    law clerks in particular, and one of the things they said--and
    they were talking about Supreme Court law clerks. Those are the
    law clerks for the Supreme Court Justices. And one of the
    things they said was they hired from the lower courts, from the
    courts of appeals. And they pointed out that the pool in the
    courts of appeals had the disparities, and so they were really
    dependent on what the court of appeals did and does. I took
    that as a bit of a call to action to do something about it
    myself.
        Senator Kennedy. And what did you do, Judge?
        Judge Kavanaugh. I reached out initially to the Black Law
    Students Association at Yale Law School, emailed them and asked
    them if I could come talk to them. Yale Law School is a school
    that produces a lot of law clerks, so I thought--and it is my
    alma mater----
        Senator Kennedy. I have heard of it.
        Judge Kavanaugh. I start there, and I went and spoke to
    them. What I did is I went and spoke to the group and I
    explained to them the importance of clerking. I encouraged them
    to clerk. I explained the history of the disparities. Then I
    gave them in essence what I thought were tips about how to make
    yourself a better clerk, kind of like a coach, tips to how to
    be a better clerk candidate, classes to take, professors, how
    to deal with professors----
        Senator Kennedy. Do you think that helped?
        Judge Kavanaugh. I do think it helped. I was uncertain
    frankly when I walked into the room how that would work, and it
    worked great in terms of the reaction I got and also in terms
    of I think the real-world results. And the way I thought about
    it is if I make even a difference for one clerk or one student,
    it is worth it.
        Senator Kennedy. Sure.
        Judge Kavanaugh. And I think I did for more, and I have
    kept it up year after year. I have done it also where I teach
    at Harvard Law School, and I am proud of the results. I think
    it has made, you know, again, a small difference, but it is one
    person at a time, one clerk at a time, one student at a time,
    and I think hopefully by talking about it in this forum, I can
    encourage more efforts of that nature, which are really just
    recruiting efforts and explanation for--many of the students at
    law schools are first-generation professionals and do not have
    the networks necessarily that others do and so----
        Senator Kennedy. I know we could--I can tell you enjoy
    talking about it.
        Judge Kavanaugh. I could go for about 2 hours on that, but
    yes, Senator, thank you for cutting me off.
        Senator Kennedy. And I will be glad to go if the Chairman
    will give me 2 hours, but I do not think he will.
        [Laughter.]
        Senator Kennedy. I know you have read an opinion before
    where you agree with the conclusion but you do not agree with
    the reasoning. Have you had that experience?
        Judge Kavanaugh. I have.
        Senator Kennedy. Yes, I think we all have.
        Judge Kavanaugh. Yes.
        Senator Kennedy. Here is why I ask that. Can you tell me
    what in God's name a penumbra is?
        Judge Kavanaugh. Senator, the Supreme Court, as I think you
    are referring to, once used that term, but it does not use that
    term anymore for figuring out what otherwise unenumerated
    rights are protected by the Constitution of the United States.
    What it refers to now is a test in the Glucksberg case--and
    Justice Kagan talked about this in her confirmation hearing
    when she was sitting in this seat. The Glucksberg case sets
    forth a test where unenumerated rights will be recognized if
    they are rooted in history and tradition. And why that matters
    I think to your point----
        Senator Kennedy. Can I stop you? It is deeply rooted----
        Judge Kavanaugh. Yes.
        Senator Kennedy [continuing]. And are those roots that are
    just deep or are those roots that are deep that have been
    growing there a long time? Do you understand what I am asking?
    Is it----
        Judge Kavanaugh. I fear I do not.
        [Laughter.]
        Senator Kennedy. Well, that is my fault, not yours. Is it
    something that Americans have cherished for a long time or can
    it be something that is a moray of contemporary society?
        Judge Kavanaugh. So when the Court is referred to deeply
    rooted in history and tradition, it has looked to history. Now,
    how deep the history must be, I do not think there is a one-
    size-fits-all answer to that and how much contemporary practice
    matters. I also do not think there is a one-size-fits-all. But
    the important thing is the Court--and again, Justice Kagan
    emphasized this in her hearing--that the Glucksberg test means
    that the Court is not simply doing what your role is, which is
    to figure out the best policy and to enshrine it into the law,
    in the Constitution in the case of the Court, but rather is
    looking for as best it can objective indicia of rights that are
    not explicitly enumerated in the Constitution but that are
    nonetheless protected.
        The best example I think is the Pierce case. Oregon passed
    a law saying that everyone--and this is in the 1920s--saying
    that everyone in the State of Oregon, every student had to
    attend a public school and could not attend a parochial or
    private school. And parents who wanted to send their children
    or child to a Catholic school sued and argued that that
    violated the United States Constitution. It made it to the
    Supreme Court. The right in essence, the claimed right was, the
    right of parents to direct the upbringing of their children by
    sending them to a private or parochial school. And the Supreme
    Court affirmed and recognized that right under the United
    States Constitution even though that is----
        Senator Kennedy. And that is a good example, Judge, and
    again, I apologize for interrupting, but we are dealing here
    with values, are we not, that we all cherish together as
    Americans like the rule of law or privacy or equal opportunity
    or personal responsibility? How are you to determine what
    values all Americans cherish? How do nine people determine what
    values all Americans cherish enough to read into or to discover
    as a result of the superior intellect of those nine individuals
    is a part of the Constitution and has been there for a long
    time? But most of us could not see it except the nine Justices.
        Judge Kavanaugh. Well, I do not think that is the
    conception of the judicial role that the Supreme Court has
    articulated.
        Senator Kennedy. I agree, but that is the perception some
    people have, and perception is important in appreciation of
    government.
        Judge Kavanaugh. Well, I agree with you. The values
    question is one that, of course, is first and foremost for
    Congress to figure out the policy or the State legislatures.
    Judges, Federal judges, the Supreme Court, we are not supposed
    to be, I think consistent with your question, simply importing
    our own values into the Constitution. It is not just supposed
    to be five people. We are five people like every other
    American. We do not have a charter to create new rights just
    because we think they are best. Rather, we find them----
        Senator Kennedy. Excuse me again for interrupting, but I
    think Justice Scalia would say and has said that, no
    disrespect, but that five people, whoever they may be in the
    United States Supreme Court, can establish this value and that
    their sense of morality or their value system is no better or
    worse than picking the first five names in the Washington, DC,
    phone book.
        Judge Kavanaugh. He did say that, and I think that is a
    comment that I think is shared by the Justices on the Supreme
    Court, and it is reflected now in the Glucksberg test. But I
    recognize that it is important to explain that to people so
    that people do not get confused about our role. Our role is
    rooted in law, it is rooted in precedent, it is rooted in not
    our values per se but the values reflected either in the
    Constitution or reflected in the legislation passed by
    Congress. And I realize there are gray areas in what I am just
    saying, but it is very important to explain that to people.
        Senator Kennedy. And here is my point. Excuse me again for
    interrupting. I will bet most Americans could agree today and
    would agree that we have a privacy right. Search and seizure
    privacy is important, but we also believe now that disclosure
    privacy is important, autonomy privacy is important, and it is
    part of our Constitution. And frankly, I am glad that it is.
    But how it got there matters. How it got there matters. It is
    not just the end result. Let me leave that for a second----
        Judge Kavanaugh. I agree with that.
        Senator Kennedy [continuing]. And just kind of shift gears.
    I have just got a few minutes left. I can tell from your
    testimony the last 3 days or 2 days that high school, those
    were formative years for you. You went to Georgetown
    Preparatory School?
        Judge Kavanaugh. I did Georgetown Prep, a Jesuit high
    school here. It was very formative.
        Senator Kennedy. What was it like for you? What were you
    like? Did you ever get in trouble?
        [Laughter.]
        Senator Kennedy. Were you more of a John-Boy Walton type
    or----
        [Laughter.]
        Senator Kennedy [continuing]. A Ferris Bueller type?
        [Laughter.]
        Senator Kennedy. These ladies are old enough to understand.
        Judge Kavanaugh. I loved sports first and foremost. I think
    that--I worked hard at school. I had a lot of friends. I have
    talked a lot about my friends.
        Senator Kennedy. Yes.
        Judge Kavanaugh. And they have been here. So it was very
    formative. And when I think back on it----
        Senator Kennedy. You left out of the trouble part. I was
    waiting for that but----
        Judge Kavanaugh. Right, so that is encompassed under the
    friends I think. Yes.
        [Laughter.]
        Senator Kennedy. Yes. You were an athlete?
        Judge Kavanaugh. Yes, I played football and basketball. My
    football coach was named Jim Fegan, and he is a legendary
    football coach. And so over the last 8 weeks where I have been
    in a slightly different situation than I have been for the
    previous 53 years in terms of where I can go freely, I have
    been working out on weekends at my old high school and running
    on the track and ran into him out there. It was awesome to run
    into him. He still helps out with the football team, and he
    sent me a text three nights ago, so it is awesome.
        Senator Kennedy. Okay. That is all I am going to get out of
    you, is it not? I understand. All right. Let me yield back.
        Strike that, Mr. Chairman. Just in case we have to have the
    time, I am going to reserve my 2 hours and 10 minutes. I am
    sorry, my 2 minutes and 7 seconds.
        [Laughter.]
        Senator Kennedy. Now, see, I was going to ask the Judge
    if--not him but any of his underage running buddies had ever
    tried to sneak a few beers past Jesus or something like that in
    high school, but I am not going to go there.
        [Laughter.]
        Judge Kavanaugh. Okay.
        Senator Cornyn [presiding]. I want you to.
        [Laughter.]
        Senator Cornyn. Well, I for one am grateful for the
    Senator's self-restraint.
        [Laughter.]
        Senator Cornyn. Judge, your endurance has been remarkable.
    Those of us on the dais have been able to come and go and tend
    to other business along the way. You have had to sit there for
    two full days and you are not through yet----
        Judge Kavanaugh. No----
        Senator Cornyn [continuing]. But you are getting close. I
    think you said you have run a couple marathons. Consider this
    about the 20-mile mark----
        Judge Kavanaugh. Yes.
        Senator Cornyn [continuing]. Where you hit the wall.
        Judge Kavanaugh. Yes.
        Senator Cornyn. But we are getting closer.
        I just want to say briefly that your conversation with
    Senator Kennedy about your recruiting female law clerks and the
    importance of being proactive there reminds me of a
    conversation I had briefly before you and I met when I served
    on a State Appeals Court, the Texas Supreme Court, where I
    would also hire law clerks, and most often they would be female
    law clerks. And I would ask them occasionally, I said, ``Well,
    why do you think it is that I end up hiring predominantly
    female law clerks?'' She said, ``It is easy, Your Honor. We are
    smarter and we work harder.''
        [Laughter.]
        Judge Kavanaugh. Yes.
        Senator Cornyn. So with that, we are going to take a 30-
    minute break. We will be back about 6:15, and then Senator
    Booker, Senator Tillis, Senator Harris, and I will ask
    questions before we go to the third round.
        [Whereupon, at 5:48 p.m., the Committee was recessed.]
        [Whereupon, at 6:16 p.m., the Committee reconvened.]
        Chairman Grassley. Are you ready, Judge?
        Judge Kavanaugh. I am.
        Chairman Grassley. Senator Booker.
        Senator Booker. Thank you, Mr. Chairman.
        Judge, we, at 1:20 p.m. today, received another 1,000
    documents, and I am just wanting to know, are you familiar with
    the 1,000 documents we just received at 1:20 p.m. today? Are
    you familiar with those documents or what is in those
    documents?
        Judge Kavanaugh. I have not been involved in the documents.
    So I do not know what you have and what--I do not know.
        Senator Booker. So even if I were to ask you questions from
    one of those 1,000 documents, you would not--you would need to
    see them?
        Judge Kavanaugh. Even if I have seen them before, I would
    like to see them.
        Senator Booker. I understand. So 1,000 documents, the idea
    that any Senator up here could go through 1,000 documents since
    1:20 p.m. and ask you questions, have you have a chance to see
    what we would like to ask you questions, seems a little absurd.
    If Bill Burck was the one to give those documents, I cannot
    help but wonder what else, again, he might be holding back,
    what else they might be trying to hide.
        And so I understand you stand by your record, but it is our
    job to try to examine that record, the fullness of that record.
    And so I just want to ask you some questions perhaps that can
    illuminate Bill Burck's role. And so, Judge, have you
    communicated in any way with Bill Burck or his team since
    Justice Kennedy's retirement announcement on June 27, 2018?
        Judge Kavanaugh. I saw him on the Saturday after my--the
    Saturday after my nomination, I saw him at an event, a social
    event with a number of people.
        Senator Booker. Was that--did you communicate with him
    beyond that?
        Judge Kavanaugh. No, I have not communicated with him
    beyond that, nor do I--have I had--I said before on the
    documents, I have not been involved in the substance, the
    process. I have stayed away from that. That is an issue for the
    Senate and the Bush library.
        Senator Booker. Okay. So if you have not communicated
    directly with him about this process, have any of your
    intermediaries that have been working with you or preparing you
    for this been in discussions with Bill Burck or his team since
    Justice Kennedy's retirement announcement on June 27, 2018?
        Judge Kavanaugh. All I can say is what I know.
        Senator Booker. So to your knowledge, you do not know if
    your people who have been preparing you for this have been in
    consultation or coordination with Bill Burck?
        Judge Kavanaugh. When you say people?
        Senator Booker. Who you have been helped to prepare for
    these hearings, I imagine?
        Judge Kavanaugh. You mean White House and Justice
    Department people?
        Senator Booker. Whoever might be helping you prepare for
    these hearings.
        Judge Kavanaugh. I do not know what the White House--the
    White House and Justice Department people could speak for
    themselves about that.
        Senator Booker. I guess what, you see, I am asking you is
    if the folks who are preparing you have been communicating with
    Bill Burck about these documents, what is being released, or
    anything like that. Do you have no knowledge of that, or do you
    know if people who have been preparing you have been in contact
    and communication with Bill Burck about these documents?
        Judge Kavanaugh. I do not know what the process has been,
    other than what I----
        Senator Booker. But I am not asking about the process. I am
    asking do you know if the people who have been preparing you
    have been in touch with Bill Burke about the documents, content
    of the documents, or anything related to the documents?
        Judge Kavanaugh. I do not know the answer to that question.
        Senator Booker. You do not know if the people who have been
    preparing you have in any way been communicating with Bill
    Burck about the documents?
        Judge Kavanaugh. Can you--do you want to identify some
    specific----
        Senator Booker. No, sir. I am just asking you that.
        Judge Kavanaugh. Is who prepare--I just want to make sure
    we are on the same page.
        Senator Booker. Yes, sir.
        Judge Kavanaugh. So that there is no confusion. I do not
    know who is--I have been staying out of it for obvious reasons.
    I mean, I let other--it is not my privilege to assert.
        Senator Booker. So you have never taken--you have never
    taken a stand regarding the release of the documents with
    anybody in the White House, the DOJ, or anyone else? You have
    never taken a stand on this?
        Judge Kavanaugh. This was an issue for the Bush library.
        Senator Booker. I understand there is an issue. You have
    stated this on the record. I am just asking have you ever taken
    a stand with anyone from the White House or the DOJ about
    document release?
        Judge Kavanaugh. No. I do not have a--I do not have a
    position, stand on----
        Senator Booker. I know you do not have a position. I am
    asking what has transpired.
        Judge Kavanaugh. Right. And I am in the position that I
    think Justice Scalia was in when he was being asked about his
    memos from the Office of Legal Counsel, and he said that is a
    decision----
        Senator Booker. Again, I have a lot--a short amount of
    time. I appreciate your knowledge of Justice Scalia's record
    and statements. I just want to know what you think, sir, and
    what you know.
        Judge Kavanaugh. What I think is that--I am just going to
    repeat myself. But what I think, it is an issue for the Senate
    and the Bush library.
        Senator Booker. So why do we not move on? You told Ranking
    Member Feinstein and Senator Coons that you had never taken a
    position on the constitutionality of criminally investigating
    or indicting a sitting President. You stand by what you told
    the Ranking Member?
        Judge Kavanaugh. I am happy to have my recollection
    refreshed.
        Senator Booker. Sir----
        Judge Kavanaugh. But that is my recollection.
        Senator Booker. Okay. You told Senator Klobuchar that you
    ``did not take a position on the constitutionality, period.''
    You stand by that?
        Judge Kavanaugh. Again, I am happy to have my recollection
    refreshed, but that is my recollection as I sit here.
        Senator Booker. And that is your position now? Because you
    have said this to me in private as well, that you had never
    taken a stand on the constitutionality of this issue about--
    about investigating or indicting a sitting President.
        Judge Kavanaugh. I think in the various Georgetown events,
    I referred to it as an open question. In my Minnesota Law
    Review, I referred to it as an open question. I think here I
    have referred to it as an open question.
        And I have said if it comes to me, you know, a lot of
    things would have to happen. I just----
        Senator Booker. But you indicated----
        Judge Kavanaugh. Just 20 seconds.
        Senator Booker. I just want to try to get the question, so
    you understand what I am asking.
        Judge Kavanaugh. Yes. Yes, sir.
        Senator Booker. That the constitutionality itself, have you
    taken an issue on the constitutionality of these issues about
    criminally indicting or investigating a sitting President?
        Judge Kavanaugh. No. I have said repeatedly, and here is--
    --
        Senator Booker. No. That was it. ``Yes'' or ``no.'' You
    said ``no.'' Can I refresh your recollection with things you
    have said, sir?
        So this is a Georgetown article, and again, I have the
    quote----
        Judge Kavanaugh. I have--seems that----
        Senator Booker. Okay. I just want to walk through it, okay?
    So you agree you did say this. You said, ``The
    constitutionality itself seems to dictate.''
        Judge Kavanaugh. Yes.
        Senator Booker. So you are expressing a view on the
    constitutionality. Look at what you wrote in The Washington
    Post. The Constitution--again, you use the conditional word--
    appears to preclude, but you talked about the
    constitutionality. Appears to preclude.
        Judge Kavanaugh. And that was----
        Senator Booker. Please.
        Judge Kavanaugh. In the Georgetown Law Journal in 1998 and,
    as has been reported, I advised--my advice to Independent
    Counsel Starr was not to seek----
        Senator Booker. In the Minnesota Law Review article, you
    said that the Constitution establishes a clear mechanism,
    talking about what the Constitution establishes, yes?
        Judge Kavanaugh. Well, let us be very clear. Can I get 30
    seconds?
        Senator Booker. Yes, of course.
        Judge Kavanaugh. Okay. So the Constitution obviously sets
    out a mechanism for removal.
        Senator Booker. Yes.
        Judge Kavanaugh. Right. The question of criminal indictment
    is simply a question of timing, and the question is does it
    have to be after or may it also be before? The Justice
    Department--10 more seconds. The Justice Department for 45
    years has said it must be after.
        Senator Booker. And I guess you see what I am getting at
    here is that you have talked about this issue quite a bit. Even
    what Senator Whitehouse brought up when you were asked, people
    were asked to raise their hand, give a hand how many people
    believe a sitting--as a matter of law that a sitting President
    cannot be indicted during a term of office.
        We saw the videotape. You raised your hand. You have
    commented on it multiple times. I guess this is sort of what I
    am saying. I am going to get this----
        Judge Kavanaugh. It said law, right, in the Justice--it did
    not say Constitution.
        Senator Booker. As a matter of law, yes.
        Judge Kavanaugh. Right. And I do think it is important--
    again, I do not want to take too much of your time, but it is
    important to know that the Justice Department, since 1973 and
    to this day, through Republican and Democratic administrations,
    has had that position.
        So before it could come to a court, if I am on the D.C.
    Circuit, before it could come to a court, that position
    presumably would have to change after 45 years. So it would
    have to change. And then a prosecutor with a President would
    have to decide I want to go forward as a matter of prudence.
    And then, third, would have to decide you have the evidence.
        Senator Booker. Okay.
        Judge Kavanaugh. And fourth, a--it would have to be
    challenged.
        Senator Booker. Sir? Okay.
        Judge Kavanaugh. After all that, it would get to court. And
    then I would consider----
        Senator Booker. Sir? Okay. I want to move on, but you--you
    have made clear that you have never, you know spoken about
    these issues in a constitutional manner. And I just want to say
    that in a lot of your statements it seems like that you are not
    just talking about this as a matter of policy, you are making
    some speculations about the constitutionality of it, which I
    think sends a clear signal about where you stand on those
    issues.
        I really want to move on because----
        Judge Kavanaugh. I promise you I have an open mind.
        Senator Booker. Okay. You speak a lot in your speeches and
    articles about the matter of character. And just looking at
    President Trump's comments, there is a number of sources that
    keep track of how many lies he tells. There is about--it is
    sort of stunning that according to one source, he has made
    4,200 misleading claims during his Presidency. That is an
    average of about 7.6 false or misleading statements per day.
        Now I have listened to you speak a lot about character and
    the character of the Presidency. At Duke University in 2000,
    for example, you said that character matters and that the
    President of the United States should not--should be a role
    model for America. Do you still think character matters for the
    President of the United States?
        Judge Kavanaugh. Senator, given the lead-in to your
    question that you have heard me talk about, I need to stay so
    far away from any political conversation.
        Senator Booker. Three zip codes away. I have heard you say
    that a number of times.
        Judge Kavanaugh. Three zip codes.
        Senator Booker. And, but that was not what you did when you
    were a Bush appointee. You talked a lot about Bush's character,
    even in your confirmation hearing, you said at your swearing-in
    ceremony. You were willing to comment about President Bush,
    who--and his character. In fact, you said he was--you had the
    greatest respect for President Bush.
        Now we have a President now that has said a lot of
    comments, and this is not in any way a partisan or political
    issue because people on both sides of the aisle have denounced
    the kind of statements that this President has made, matters of
    character. Trump--President Trump during the campaign referred
    to immigrants as rapists. He said a Federal judge was not able
    to do his job because of his heritage.
        He bragged about sexually assaulting women. He has mocked a
    disabled reporter. I could go on and on and on. The list they
    provided me is long, but my time is brief.
        Do you want to say right now, do you have the greatest
    respect? You said this about the last President, you thought it
    was okay. Do you have the greatest respect for Donald Trump?
        Judge Kavanaugh. Senator, to reiterate, you do not hear----
        Senator Booker. You cannot even say if you have great
    respect for Donald Trump?
        Judge Kavanaugh. You do not hear sitting judges commenting
    on political----
        Senator Booker. I am just asking what you said about
    President Bush in the last time you were before the United
    States Senate. Do you have the greatest respect for Donald
    Trump?
        Judge Kavanaugh. I appreciate the question. And what I have
    said during this process is I need to stay away----
        Senator Booker. And you do not need to--three zip codes.
    You do not need to repeat again. You are not answering my
    question. And I want to tell you why I am building toward this.
    Because there is an issue of this President who is asking for
    loyalty tests from the people he is putting forward for
    offices.
        Now you heard how he is continuing to bash the Attorney
    General of the United States of America and saying that if you
    knew he was going to recuse himself that he would not have put
    him forward. You have seen this President demanding loyalty,
    expecting loyalty. President Trump not only said that about
    Jeff Sessions, but you know he has said that about other folks.
        And so you are not willing to say about--to comment on the
    character of this President. You are not willing to say if you
    have great respect for this President. Just last night, you
    would not comment on the fact that the President, to one of my
    other colleagues when he was talking about both sides being to
    blame, really excusing, it seemed, the behavior of neo-Nazis.
    And I am just wondering what kind of loyalty is being required
    of you for this job? That is what I am building to by asking
    you and trying to keep apples to apples.
        What you said about President Bush, why are you not saying
    it about President Trump? And so I want to just--just build to
    this in the remaining time I have left. In May 2016, then-
    candidate Trump put out his first list of potential Supreme
    Court nominees. You were not on that list.
        In September 2016, he put out another longer list. You were
    not on that one. Then in May 2017, something incredible
    happened. Robert Mueller was appointed by the special counsel
    to investigate any links and coordination between the Russian
    government and the Trump campaign. The President was now in
    jeopardy, or at least his campaign was in jeopardy. He was a
    subject of a criminal investigation.
        And then President Trump puts out a third list of nominees,
    and your name is on that list. Now you have heard so many of my
    colleagues asking about your views, the constitutionality of a
    President being investigated. You are failing to at least hold
    President Trump in your eyes to the same level of the
    Presidential character, which you have talked about in speech
    after speech. And suddenly, you are going mum as to the
    character of this President, given all his lies, all his
    remarks that have been renounced, actually criticized on both
    sides of the aisle.
        And now there is a suspicion, and I do not think it is a
    big leap to think that the public has this suspicion that
    somehow you want a position, and I wonder, do you credibly
    believe that if you agreed right now to recuse yourself, do you
    credibly believe that somehow, like he said with Jeff Sessions,
    that he would not hold your nomination up. If you recused
    yourself. Do you credibly believe that?
        Judge Kavanaugh. Senator, in this process, I need to uphold
    the independence of the judiciary. And one of those----
        Senator Booker. But that is what is at question right now.
    I mean, right now, there is a shadow over the independence of
    the judiciary because a President who has been credibly accused
    by his former lawyer of being an unindicted co-conspirator has
    the opportunity to put a judge on the Bench.
        The only judge from that list that was added after the
    Mueller investigation, of all those judges, you are the only
    one that has spoken extensively, from raising your hand at a
    Georgetown Law School event to speaking about it. I do not
    think it is a big leap to have the common person begin to
    suspect that you are being put up right now, a person that
    cannot even speak to the character of this President, will not
    even say what you said about George Bush, that you have the
    greatest respect for a President.
        And granted, it is hard to say about someone who brags
    about sexually assaulting women. It is understandable for
    people to suspect that there is something going on, that
    somehow this is rigged that you are going to get on that bench.
    And I hear your admonitions that you are going to be
    independent, but the suspicion is clearly there.
        And so you have written extensively about this. You have
    spoken to the issue. You have written about the issue in law
    journals. Can you tell me why the common person, millions of
    Americans, would not sit back and say, well, this is Donald
    Trump, who has demanded loyalty from an FBI Director, demanded
    loyalty from the Attorney General, all the people he seems to
    be putting in positions of law enforcement.
        In fact, he criticizes in the most--as a tweet we saw right
    before these hearings began, criticizes very dramatically the
    Justice Department for doing investigations on folks, it seems,
    because they are Republicans in the most partisan way. And to
    me, that cast a shadow over these whole processes.
        It is a shadow. Of course, it is extended by not having
    your documents. It is extended by not having access to your
    full record. But can you speak to that for me, sir? Can you
    speak to that credible suspicion that people might have that
    the system is somehow rigged and the President is putting
    somebody up just to protect him from a criminal investigation?
        Judge Kavanaugh. Senator, three quick points. One, my only
    loyalty is to the Constitution. I have made that clear, and I
    am an independent judge. Two, the Justice Department for 45
    years has taken the position, and still does, that a sitting
    President may not be indicted while still in office. Three, I
    have not a position on the constitutionality and promised you I
    have an open mind on that question.
        And four, I did talk about a congressional proposal which
    was not enacted, and as you have heard me say for 2 days, I
    draw a distinction between what Congress does and what the
    Constitution requires. So just because I talked about something
    for Congress to consider in the wake of the experience with
    President Bush does not mean that I think that is in the
    Constitution. I have made clear that I have not taken a
    position on the constitutionality and have an open mind.
        So if you put those four points together, I think you
    should conclude that I--and read my 12 years of opinions and
    read the letters and read the teaching evaluations and look at
    my whole life, I think you should conclude, respectfully, that
    I have the independence required to be a good judge.
        Senator Booker. And I appreciate it and respect--and I
    afford you, sir, respect as well. You have spent your whole
    life in public service. And you and I both know, and I am not
    sure if you will say it right now, but this is unusual times in
    the United States of America. If you had told me what has been
    going on the last 3, 4 months was going to happen 4 years ago,
    I would think you are describing a fiction novel and not
    something that actually could be happening in our country right
    now.
        You have seen in these last few days everything from a
    high-level White House official writing about the chaos and the
    President, invoking the Twenty-fifth Amendment, which you know
    very well, and much more. We have a President under
    investigation. People surrounding him being indicted,
    criminally charged.
        All of us, I really believe this, every single Senator up
    here is going to be tested. The test for all of us is coming,
    and the test for the Supreme Court is coming as well. And this
    is going to be a time, if we have a constitutional crisis,
    where the faith in this country will be tested, shaken again.
    And it is really important that the Supreme Court be above
    suspicion.
        And so Senator Blumenthal asked you this. I sent you a
    letter. Why not right now, right now, even at the jeopardy of
    President Trump pulling back your nomination, why not now
    alleviate all of that suspicion that the reasonable person can
    have? Why not just announce right now that you will recuse
    yourself from any matters coming before the Supreme Court
    involving the Mueller investigation?
        Judge Kavanaugh. Because if I committed to how I would
    decide or resolve a particular case and that it would be----
        Senator Booker. But would not a recusal take you out of the
    position that you had to decide or resolve? To say that this is
    a time in this Nation where I should do the right thing, and
    just take that suspicion off to restore the faith in the
    Supreme Court and in this country.
        Chairman Grassley. I have 10 minutes on my time. I will
    give you whatever time you want to respond to it, and I will
    make sure you are not interrupted.
        Judge Kavanaugh. Just a few seconds.
        Chairman Grassley. Look at me, will you, please? I am the
    guy that gave you the time.
        [Laughter.]
        Judge Kavanaugh. Oh, yes, sir. I will try to keep you both.
        If I committed to deciding a particular case, which
    includes committing to whether I would participate in a
    particular case, all I would be doing is demonstrating that I
    do not have the independence of the judiciary that is of the
    judging that is necessary to be a good judge. Because all of
    the nominees who have gone before have declined to commit
    because that would be inconsistent with judicial independence.
        Chairman Grassley. Senator Tillis.
        Senator Tillis. Thank you, Mr. Chair.
        And Judge Kavanaugh, if you want to continue to look at the
    Chair, you can, because he gave me the time.
        [Laughter.]
        Senator Tillis. Mr. Chair, I would like unanimous consent
    to introduce some documents for the record. First is, from 13
    States' Attorneys Generals who, among other things, said that
    Judge Kavanaugh has an unshakable respect for the proper role
    of the courts within the constitutional structure.
        I have an op-ed from the New Hampshire Union Leader. Among
    other things, they said that Kavanaugh is an experienced, well
    qualified pick.
        Another document is from 80 former law students at Harvard
    Law. They say Judge Kavanaugh consistently encouraged his
    students to voice different viewpoints, even if others or the
    Judge himself might disagree.
        Another document written--or I should say an article
    written by Jonathan Turley of The Hill, who says that no one
    can use the Mueller probe to hold up the Supreme Court nominee.
        Another document from Salvador Rizzo from The Washington
    Post, and basically, the question is, does Brett Kavanaugh
    think that the President is immune from criminal charges? And
    his assumption--or his assertion is that Kavanaugh does not
    think so.
        Ed Whelan, National Review, ``Dems' Latest Documents
    Hullabaloo.'' Catholic Charities CEO, someone that I know Judge
    Kavanaugh has worked closely with. He says, ``I know Brett to
    be a man committed to his community and to those less
    fortunate.''
        Catholic Youth Organization basketball parents--and I might
    add, I coached my kids, and I actually think that parents are
    the toughest constituency to get support from. And you
    apparently have done that, and they have submitted letters to
    that effect.
        Also, a letter from the Charleston Post and Courier
    editorial board, ``Kavanaugh, the Right Choice.'' From the
    Boston Herald staff, ``Nix the Toxic, Give Brett Kavanaugh a
    Shot.''
        From William Whitaker, the president of the Washington
    Jesuit Academy, lauding Judge Kavanaugh for the work that he
    has done for tutoring over the past several years. From my
    former colleagues in the House; a letter from the Majorities of
    the House and Senate supporting Brett Kavanaugh's nomination;
    from my Lieutenant Governor supporting same.
        And finally, a letter from the DOJ dated August 5, 2005, in
    response to Senator Joe Biden's, at the time, request for
    Justice Roberts' information. I think it is a very interesting
    read.
        Now before I make some comments and hope to keep the record
    alive for yielding back the most----
        Chairman Grassley. Wait a minute. You asked permission to
    put them in the record.
        Senator Tillis. I did.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as submissions for the record.]
        Chairman Grassley. Proceed.
        Senator Tillis. Thank you.
        First, before I get started, I think it is really
    important. I ran over to a convenience store when I was taking
    a break and thinking, I am taking a break. The other Members
    are taking a break. Hopefully, Judge Kavanaugh did. The ones
    who were not taking a break were the staff.
        So I would like to thank the staff on both sides of the
    aisle. I know you work hard.
        And to the police, who are working mandatory 16-hour
    shifts. You know, it is one thing----
        [Applause.]
        Senator Tillis. It is hard--it is very--it is very
    difficult for those of you facing forward to see what they are
    doing. But I do not think you understand the complex operation
    and the work they are doing to keep us all safe. And those who
    are exercising their First Amendment right safe.
        And finally, to the Chair, thank you. You have done a great
    job, as you always do. And I appreciate your fairness. I love
    your sense of humor, and I look forward to us continuing this
    for probably about another 5 hours. Now----
        [Laughter.]
        Senator Tillis. Now I have got to get on to a few things,
    and you know, Judge, I was Speaker of the House in North
    Carolina for 4 years. And when we would get into extended
    debates and our conference would meet, at a break I would say,
    ``Guys, if it has already been said, do not say it again.'' So,
    there is not a whole lot more I am going to say.
        Clearly, we have got an impasse here, but that impasse did
    not start based on the discussions we had over the last 3 days.
    The impasse started in some cases before you were ever
    nominated. There are people on the other side of the aisle,
    including people on this Committee, who opposed your nomination
    on a fill-in-the-blank basis before you were ever nominated.
    And all they did is fill in the blank on July 10th.
        These are the assertions people made. They already
    concluded before they saw the first document, and they were not
    going to change their minds. Now they do deserve getting as
    many documents as possible, and they will have more time to get
    documents.
        I want to make a point on the 1,000 documents that the
    Senator from New Jersey mentioned. It is actually 1,000 pages,
    not 1,000 documents. So let us just be sure to be clear on
    volume. And let us also be clear that those documents are
    publicly available.
        And let us also be clear that the record will be held open
    until early next week so additional questions for the record, I
    assume, and other information can be submitted.
        Next week, you will go into the hearing--or you will go
    into the Committee, you will be held over. That is another
    week. The following week, you will go to Committee. We will
    have debates again. Another opportunity for comments to be made
    by the same Members who have already made up their minds.
        And then, hopefully, the following week, you will be on the
    floor, and every Member will have an opportunity to have their
    say on the floor. So for anybody to say that this discussion is
    over and the discovery is over, over the next couple hours is
    simply creating theater.
        Now I want to talk a little bit about theater. I want to
    talk about what happened last night. I did something I seldom
    do. I seldom interrupt another Member, regardless of how much I
    want to talk. Last night was the first time of probably only
    three times in the 3\1/2\ years I have been in the U.S. Senate.
        But the reason I did it is, I felt like we were going down
    a path that subsequently proved to be true, and at the time,
    Senator Kennedy was chairing. He rightfully allowed the
    discussion to go. But I want to talk about the timeline that
    occurred and then what happened this morning.
        So at about 9:30 last night, we had an exchange where you
    were being asked to respond to something that you had not seen.
    We subsequently found out, it was because it was ``committee
    confidential.'' And again, I am not an Ivy League school
    attorney, but I really feel like when you have got in 30-point
    type running diagonally across the page something that says
    ``committee confidential,'' you probably ought not read
    verbatim from it. But that is what happened last night.
        But about 9:30 last night, a request was made to release
    those documents. That is one of the reasons why I thanked the
    staff, because those staff stayed up until about 4 a.m. this
    morning, talking first with President Bush's people, then
    talking with the White House and getting it cleared. And they
    were cleared and in an email box at about 3:15 this morning,
    3:30.
        Now I do not expect somebody to check their email at 3:15
    or 3:30. Maybe some of you do. But certainly in the 6 hours
    between the time that email hit your email box and the
    theatrics that happened in this Chamber today, you could have
    actually found out that you did not have to be Spartacus. You
    did not have to go interact with civil disobedience. You got
    what you wanted.
        You could have come in here and started out, had a
    discussion about it if you wanted to, incorporated it into the
    discussion today. But that would have given you an opportunity
    to put that in the proper context. So perhaps it was not as
    helpful.
        The fact of the matter is what happened today and what has
    happened subsequent to this afternoon reminds me of something I
    am more likely to see at the Kennedy Center. Maybe, maybe a
    version of ``Much Ado About Nothing,'' but not really
    appropriate for what we are doing here.
        Now I have noticed--I love watching people and body
    language, and I have noticed you--I have had hash marks for the
    number of times we have been interrupted. I just did not think
    I could keep track of the number of times that you touched that
    pocket Constitution.
        [Laughter.]
        Senator Tillis. And I have to know--and I know it is
    tattered. It is almost a metaphor for the very document itself,
    challenged, kind of torn through, but kept together, largely
    intact, hopefully will continue to be intact. But do you have a
    story behind that pocket Constitution?
        Judge Kavanaugh. Well, I got it about 25 years ago. I know
    that because the Twenty-seventh Amendment, which was ratified
    in 1992, is not in my version. So I have written in the Twenty-
    seventh Amendment in my handwriting.
        And then I have used it each year teaching my classes at
    Harvard Law School on separation of powers in the Constitution,
    and I have written a lot of notes, and there is a lot of ink in
    there. And the assignment on the first--for the first day of
    class, the students have to read the entire Constitution word
    for word. And for the last day of class, they have to read the
    entire Constitution word for word.
        And on the first day of class for about the first hour or
    hour and a half, I give them a tour of the Constitution. So I
    start with the beginning and kind of roll through the whole
    thing, Article I, and I go through the different clauses.
    Article II, Article III, Article IV, go through the whole
    thing. Article V, Article VI.
        Then we go through the amendments, and but I really focus
    on the original text of the Constitution because people have
    heard a lot about a lot of the individual amendments, although
    I point out some of the less--the ones that are not always
    discussed as much. But I go through the structure because I try
    to explain how the structure fits together to protect
    individual liberty. And some of the clauses about how the House
    of Representatives and the power of Congress, the power of the
    Senate, how that all fit together, the different----
        Senator Tillis. I just find it remarkable----
        Judge Kavanaugh. Sorry.
        Senator Tillis [continuing]. That in spite of your
    encyclopedic knowledge that you keep it with you, and you
    always refer back to it. And the fact that you have had it for
    25 years is a testament to those cheap pocket Constitutions.
        Judge Kavanaugh. I will say that when I met with Senator
    Feinstein, I wish she were here, but she saw this, and she--and
    because she talked about how much she appreciated the words of
    the Constitution, and I pulled it out. And she said, ``Well,
    that looks tattered.'' And she gave me a new one.
        So if this thing ever totally falls apart and hers has the
    Twenty-seventh Amendment in it--so if this falls apart, I told
    her I would use her copy for the future.
        Senator Tillis. Thank you. Well, I am going to ask you a
    few other personal questions, but also, you know, I started out
    by saying we know where everybody was beforehand because a
    couple people made public statements. We know people want more
    documents. You have more time.
        If you have more questions, ask them and submit them for
    the record. If you want more documents, request them because
    they have been in each and every case granted. Do not wait
    until the day before the floor to say I have not gotten the
    document, when now you have had a running clock since August
    the 22nd to request some documents that were actually cleared
    overnight.
        I also want to point to this. I do not understand how
    somebody with that kind of track record, with either judges
    appointed by a Democratic President and judges appointed by a
    Republican President on the district court or the D.C. Circuit
    could actually be viewed in such a divisive way. I do not see
    how somebody who has clearly judged on both sides of the issues
    here, sometimes you have judged in a way that made some of my
    folks mad, and sometimes you have judged in a way that made
    some of their folks mad.
        But I think if we go back and really examine this, this has
    been a political exercise more than anything else. I, for one,
    think you should be very proud of that record, and I, for one,
    will not be surprised if you do not have--meet or exceed that
    when you get on the Bench.
        And that is the last thing I want to talk about. You know,
    last night I went through some of the cases, and I kept on
    going through more. But folks, I mean, let us get real. Read
    his opinions. And the amazing thing about these opinions, I had
    never read an opinion. I read a few when I was speaker, but not
    many.
        I first started reading opinions when Justice Gorsuch was
    in front of us. And the first thing that I was amazed with is
    how approachable they are. You do not have to read all the
    footnotes. If you are like me, you can read the summary. You
    get the point. You can go to some of the footnotes, but read
    them. Because if you do, you will be amazed by them.
        Do not judge it based on a tweet or some sort of get out
    and protest. Read them.
        John Locke, I think, said, ``To prejudge other men's
    notions before we have looked into them is not to show their
    darkness, but to put out our own eyes.'' Do not put your eyes.
    You may disagree, but you may want to take a look at how
    thoughtful all of Judge Gorsuch's 307 opinions are. I said
    Gorsuch--and Judge Kavanaugh.
        [Laughter.]
        Senator Tillis. So just look at it. I mean, go away. I
    walked over to this convenience store to get me some kombucha
    and come back here and--and I was just thinking. I talked with
    some people there. Apparently, they were in the audience. I
    think they were clearly on the other side, and they said,
    ``What are you doing here?'' I said, ``I am getting a drink.''
        And I said, look, you know, what really bothers me is how
    we go into this process and we take these incredible people,
    and you wonder why they do it. So that is the last thing. And I
    told them the same thing. I said read some of his opinions. Do
    not believe what you have been told. Do not judge someone based
    on someone else's judgment.
        Judge them based on the body of work. And your body of work
    extends long before the 12 years that you have actually been in
    the role of public service, and that is what I am going to end
    with. I actually started public service about the same time you
    did, Judge Kavanaugh. Actually, we have, I think, some
    similarities.
        I was a partner at a big four accounting firm. I traveled
    all over the place. I have two kids. I coach their tee-ball,
    their soccer. I was sometimes flying in for practice on Monday
    night and trying to get home on Friday night to be on the
    ballfields.
        I then went into the legislature in 2011. That is really
    the first time I did, or 2007, I should say, public service.
    And then became Speaker of the House, and came up here.
        And sometimes when I am in settings like this, I ask myself
    the question I am about to ask you. Why on earth do you do
    this, and why on earth do you want to do it? You are brilliant.
    You have augmented your God-given talents with an extraordinary
    education, and you have served so extraordinarily well. You
    know well that in the private sector--I mean, your potential is
    endless.
        So in the remaining time, and whatever you do not use I
    will yield back, why on earth are you doing this?
        Judge Kavanaugh. Senator, I appreciate that. I am doing--
    been a judge and doing this and going through this process
    because from an early age, I tried to commit myself to public
    service. I have talked about the motto of our Jesuit high
    school, which was, ``Men for Others''--and that motto of public
    service is something I have always tried to pursue.
        And following the example set by my mom of law, and I found
    that an important way to contribute to public service. And then
    became, of course, a lawyer and within public service as a
    lawyer, I think one of the highest forms--not the only, but one
    of the highest forms of public service as a lawyer is to be a
    judge. Because our rule of law in this country, our rights and
    liberties depend on independent, neutral, impartial judges, and
    I thought I could contribute in that way to the public service
    and the rule of law.
        And so I, when that opportunity arose, I was honored to be
    considered and honored to become a judge. And I have enjoyed
    and been honored to do it for the last 12 years because I know
    that it is not abstract. It is not academic. It has real
    effects for real people in the real world.
        And being part of the process of our Government by which
    the rights and liberties of people are protected in the real
    world was the highest form of public service. At the same time,
    I have recognized that that is not the only way to contribute.
    So I have, as I have mentioned before, sought to teach, sought
    in hiring law clerks to train the next generation, teaching the
    Constitution, sought to volunteer with Father John in
    Washington Jesuit Academy.
        Coaching has been just an enormous part of the last 7
    years, and then, you know, my family.
        So, but the public service as a judge is--it is a great
    honor, and it is a great--it is a great responsibility. To the
    discussion I just had with Senator Booker, I understand the
    responsibility I bear as a nominee to this Court. I appreciate
    that. I hope my experience gives me the ability to, if I were
    to be confirmed, to live up to that responsibility. I will give
    it my all, if I am confirmed, as I have tried to do for the
    last 12 years.
        So thank you for the question.
        Senator Tillis. Judge Kavanaugh, thank you. Thank you for
    what you are going through. Thank you for your past service and
    what I believe is going to be a distinguished career on the
    Bench. And God bless you and your family.
        I yield the rest of my time.
        Judge Kavanaugh. Thank you, Senator.
        Chairman Grassley. Thank you for the 2 minutes you did not
    use.
        Senator Harris.
        Senator Harris. Thank you.
        Judge, as you know, these hearings are placed to hopefully
    get answers, and as I am sure you have noticed, your lack of a
    clear answer to a question I asked you last night has generated
    a lot of interest.
        I received reliable information that you had a conversation
    about the special counsel or his investigation with the law
    firm that has represented President Trump. As you will recall
    last night, I asked you whether you had had such a
    conversation, and under oath, you gave no clear answer.
        Then today my Republican colleagues raised the issue with
    you, and again, you said you do not recall and that you had no
    ``inappropriate conversations'' with anyone at that law firm,
    which has led a lot of people to believe that that was
    equivocal in terms of a response.
        So whether a conversation was appropriate in your opinion
    is not a clear answer to my question. My colleague, Senator
    Blumenthal, again, asked you, and you said you were pretty
    confident the answer was ``no.'' So, frankly, if last night you
    had just said ``no'' or an ``absolute no'' even today, I think
    this could be put to rest.
        But I will ask you again and for the last time. ``Yes'' or
    ``no,'' have you ever been part of a conversation with lawyers
    at the firm of Kasowitz Benson Torres about Special Counsel
    Mueller or his investigation, and I ask were you ever part of a
    conversation? I am not asking you what did you say. I am asking
    you were you a party to a conversation that occurred regarding
    Special Counsel Mueller's investigation? And a simple ``yes''
    or ``no'' would suffice.
        Judge Kavanaugh. About his investigation. And are you
    referring to a specific person?
        Senator Harris. I am referring to a specific subject, and
    the specific person I am referring to is you.
        Judge Kavanaugh. No, who was the conversation with? You
    said you had information.
        Senator Harris. That is not the subject of the question,
    sir.
        Judge Kavanaugh. Okay.
        Senator Harris. The subject of the question is you and
    whether you were part of a conversation regarding Special
    Counsel Mueller's investigation.
        Judge Kavanaugh. The answer is no.
        Senator Harris. Thank you. And it would have been great if
    you could have said that last night.
        Judge Kavanaugh. Well, I----
        Senator Harris. Thank you.
        Judge Kavanaugh. In my--never mind.
        Senator Harris. Let us move on.
        Judge Kavanaugh. Okay.
        Senator Harris. Yesterday, Senator Blumenthal asked if you
    could recuse yourself in cases involving the personal civil or
    criminal liability of the President. You declined to say that
    you would. So my question is could a reasonable person question
    your independence in cases involving the President's civil or
    criminal liability?
        Judge Kavanaugh. I am sorry. Can you repeat it for me?
        Senator Harris. Would it be reasonable for someone to
    question your independence in cases involving the President's
    civil or criminal liability, should that occur?
        Judge Kavanaugh. My independence I believe has been
    demonstrated through my 12-year record and what you have heard
    from the people who have worked with me, and I believe deeply
    in the independence of the judiciary. I rule based on the law,
    and you can look at cases that I have ruled against when I
    became a judge against the Bush administration. And I have
    talked about the history of our country and the history of the
    Supreme Court.
        Senator Harris. And on that point, sir, and particularly
    history of the Supreme Court in confirmation hearings. Justice
    Kagan, during her confirmation hearing, committed to recusing
    in cases she handled as Solicitor General. Justice Breyer
    committed to recusing in cases implicating his financial
    interests in Lloyd's of London.
        Justice Ginsburg refused to commit to recusing in cases
    that were on her D.C. Circuit recusal list. Justice Scalia
    committed at the hearing to recuse in a case implicating an
    issue that was the same as an issue he had decided as a D.C.
    Circuit judge. So my question to you is will you commit to
    recusing in any case involving the civil or criminal liability
    of the President who appointed you--or nominated you?
        Judge Kavanaugh. The independence of the judiciary requires
    that I not commit to how I would decide a particular case and
    to issue a commitment on a discretionary recusal issue in
    either direction. So if I answered that question in either
    direction----
        Senator Harris. But do you think it is inappropriate----
        Judge Kavanaugh. That would be a--I would be violating my
    judicial independence, in my view, by committing in this
    context. I have explained----
        Senator Harris. But with all due respect, sir, I shared
    with you that other nominees sitting at that desk, or some desk
    like that, have committed to recusing. There have been
    circumstances where they have committed. So is it your opinion
    then that they violated some ethical code or rule?
        Judge Kavanaugh. I do not know all of the circumstances,
    but I believe those were situations that were required recusals
    where they had previously had to recuse and were simply
    indicating their required recusals. But I do not know all of
    the circumstances.
        A discretionary recusal as a commitment to get a job or a
    discretionary nonrecusal as a commitment to get a job, either
    direction would be violating my independence as a judge, as a
    sitting judge and as a nominee to the Court.
        Senator Harris. Okay. It is clear you are unwilling at this
    point to commit to recusal. So we can move on.
        One of your mentors, Justice Kennedy, wrote landmark
    opinions in the area of LGBTQ rights that have had a major
    impact on the lives of many Americans. Let us assess one of
    those cases, and that is the Obergefell case.
        In Obergefell, as you know, the Court held that same-sex
    couples have a right to marry. My question is whether the
    Obergefell case was correctly decided, in your opinion?
        Judge Kavanaugh. Senator, Justice Kennedy wrote the
    majority opinion in a series of five cases, Romer v. Evans----
        Senator Harris. If we can just talk about Obergefell, that
    would be great.
        Judge Kavanaugh. I want to explain it.
        Senator Harris. I actually know the history leading up to
    Obergefell, so can you just please address your comments to
    Obergefell?
        Judge Kavanaugh. I would like to explain it, if I can? He
    wrote the majority opinion in Romer v. Evans, Lawrence v.
    Texas, United States v. Windsor, Obergefell, and Masterpiece
    Cakeshop. Concluding in Masterpiece Cakeshop importantly with a
    statement, if I could just read this?
        Senator Harris. But, no, please do not. Because I actually
    have read it, and I am sure most have. My question is very
    specific. Can you comment on your personal opinion on whether
    Obergefell was correctly decided? It is a ``yes'' or ``no,''
    please.
        Judge Kavanaugh. In Masterpiece Cakeshop, and this is, I
    think, relevant to your question, Justice Kennedy wrote in the
    majority opinion joined by Chief Justice Roberts and Justice
    Alito and Justice Gorsuch and Justice Breyer and Justice Kagan,
    the days of discriminating against gay and lesbian Americans or
    treating gay and lesbian Americans as inferior in dignity and
    worth are over, paraphrasing.
        Senator Harris. Are over. Right. Do you agree with that
    statement?
        Judge Kavanaugh. That is the precedent of the Supreme Court
    agreed with by a----
        Senator Harris. Sir, I am asking your opinion.
        Judge Kavanaugh. I----
        Senator Harris. You are the nominee right now, and so it is
    probative of your ability to serve on the highest court in our
    land. So I am asking you a very specific question. Either you
    are willing to answer or not. And if you are not willing to
    answer it, we can move on.
        But do you believe Obergefell was correctly decided?
        Judge Kavanaugh. So each of the Justices have declined, as
    a matter of judicial independence, each of them, to answer
    questions in that line of cases.
        Senator Harris. So you will not answer that question?
        Judge Kavanaugh. Following the precedent set by those eight
    Justices, they have all declined----
        Senator Harris. Thank you.
        Judge Kavanaugh. When asked to answer that question.
        Senator Harris. I have limited time.
        Judge Kavanaugh. But it is important that----
        Senator Harris. I would really like to move on. You have
    said that Brown v. Board of Education was one of the greatest
    moments in the Court's history. Do you believe that Obergefell
    was also one of those moments?
        Judge Kavanaugh. I have said, Senator, consistent with what
    the nominees have done, that the vast swathe of modern case
    law, as Justice Kagan put it, you cannot, as a nominee in this
    seat, give a thumbs up or thumbs down. That was--that is her
    words.
        Senator Harris. Do you think that Obergefell was one of the
    great moments in the history of the Supreme Court of the United
    States?
        Judge Kavanaugh. And for that reason, those nominees have
    declined to comment on recent cases, all of them.
        Senator Harris. Is it a great moment, is what I am asking
    you, not to comment on the legal analysis. Do you believe that
    was a great moment in the history of the Court?
        Judge Kavanaugh. So Justice Kennedy wrote the majority
    opinion saying the days of treating gay and lesbian Americans
    or gay and lesbian couples as second-class citizens or inferior
    in dignity and worth are over on the Supreme Court. That is a
    very important statement, Senator.
        Senator Harris. I agree. That is why I think you repeated
    it. Thank you.
        Let us move on. Over the last several months, we have all
    witnessed the inhumane and heartbreaking separation of
    immigrant children from their families by this administration.
    Despite a court order requiring the administration to reunite
    them over a month ago, nearly 500 immigrant children are still
    separated from their parents.
        Do you believe that constitutional rights of parents,
    specifically fundamental due process rights, are implicated in
    such family separations?
        Judge Kavanaugh. Senator, that is a matter of pending
    litigation, I believe. And as a sitting judge on the D.C.
    Circuit or as the nominee, I, of course, cannot comment.
        Senator Harris. Have you watched the coverage of any of
    these cases on television, or have you read about the
    experiences those parents and those children have had?
        Judge Kavanaugh. I have seen some television.
        Senator Harris. In the 1889 Chinese Exclusion Case, the
    Supreme Court permitted a ban on Chinese people entering the
    United States. The Court said Chinese people are ``impossible
    to assimilate with our people'' and said they were immigrating
    in numbers ``approaching an invasion.''
        This case has never been explicitly overruled. You have
    said you would be willing to talk about older cases. So can you
    tell me, was the United States Supreme Court correct in holding
    that Chinese people could be banned from entering our country?
        Judge Kavanaugh. Senator, the cases in the 1890s, as you
    know----
        Senator Harris. 1889, to be specific.
        Judge Kavanaugh. Okay, in that era reflect discriminatory
    attitudes by the Supreme Court. Of course, that is the era also
    of Plessy v. Ferguson.
        Senator Harris. But would you be willing to say that that
    was incorrectly decided?
        Judge Kavanaugh. Senator, I do not want to opine on a case,
    a particular case without looking at it and studying with the
    discrimination----
        Senator Harris. Are you aware that that case has not been
    overturned?
        Judge Kavanaugh. Senator, I know that with a number of the
    cases, like Korematsu. Let me use that as an example.
        Senator Harris. Which we have discussed earlier.
        Judge Kavanaugh. That is----
        Senator Harris. But this case in particular, were you aware
    that it had not been overturned?
        Judge Kavanaugh. Senator, I realize that there are still
    cases in the immigration context----
        Senator Harris. Have you ever written about any of those
    cases and your thoughts about whether they should be re-
    examined or potentially overturned, and sometimes obviously
    they should be overturned?
        Judge Kavanaugh. Well, there is a swathe of cases----
        Senator Harris. Have you talked about this case ever?
        Judge Kavanaugh. I do not believe. I am happy to be
    refreshed if you have something that suggests I have.
        Senator Harris. No, it is actually a question.
        [Laughter.]
        Judge Kavanaugh. Okay.
        Senator Harris. And under the Constitution, Judge, do you
    believe that Congress or the President can ban entry into the
    United States on the basis of race?
        Judge Kavanaugh. That was, of course, one of the issues
    that was just in litigation, and there is still litigation
    about the immigration laws and how exclusions----
        Senator Harris. So you are not going to answer that.
        Judge Kavanaugh. That is pending litigation, so I think I,
    as a matter of independence and precedent.
        Senator Harris. Will not answer that. That is fine. Let us
    move on.
        In 2013, Texas passed a law that imposed new restrictions
    on healthcare facilities that provide abortions. The effect was
    that after the law was passed, half those facilities closed,
    which severely limited access to healthcare for the women of
    Texas.
        In 2016, Whole Woman's Health was decided, wherein the
    Supreme Court invalidated the Texas restrictions. Was Whole
    Woman's Health correctly decided? ``Yes'' or ``no''? And we can
    keep it short and move on.
        Judge Kavanaugh. Senator, consistent with the approach of
    nominees----
        Senator Harris. You will not be answering that.
        Judge Kavanaugh. Following that nominee precedent.
        Senator Harris. Okay. I would like to ask you another
    question, which I believe you can answer. You have said
    repeatedly that Roe v. Wade is an important precedent. I would
    like to understand what that really means for the lives of
    women. We have had a lot of conversations about how the
    discussion we are having in this room will impact real people
    out there.
        And so my question is what, in your opinion, is still
    unresolved? For example, can a State prevent a woman from using
    the most common or widely accepted medical procedure to
    terminate her pregnancy? Do you believe that that is still an
    unresolved issue? I am not asking how you would decide it.
        Judge Kavanaugh. Senator, I do not want to comment on
    hypothetical cases. Roe v. Wade is an important precedent. It
    has been reaffirmed many times.
        Senator Harris. So are you willing to say that it would be
    unconstitutional for a State to place such a restriction on
    women for Roe v. Wade?
        Judge Kavanaugh. Senator, you can--the process on the
    Supreme Court was--in Roe was reaffirmed in Planned Parenthood
    v. Casey, of course, and that is precedent on precedent. And
    then there are a lot of cases applying the undue burden
    standard. And those themselves are important precedents, and I
    had to apply them----
        Senator Harris. And we have discussed that many times. I
    actually had the benefit of sitting through most of the hours
    of your testimony over the last 2 days.
        Judge Kavanaugh. Thank you.
        Senator Harris. I know you have talked a lot about that.
    Can Congress ban abortions nationwide after 20 weeks of
    pregnancy?
        Judge Kavanaugh. Senator, that would require me to comment
    on potential legislation that I understand, and therefore, I
    should not, as a matter of judicial independence following the
    precedent of other nominees, do that.
        Senator Harris. Okay. Then we can move on. I am going to
    ask you about unenumerated rights. So you gave a speech
    praising former Justice Rehnquist's dissent in Roe. There has
    been much discussion about that, and you wrote celebrating his
    success that ``successful in stemming the general tide of
    freewheeling judicial creation of unenumerated rights.'' That
    is what you said in celebration of Justice Rehnquist.
        So, ``unenumerated rights'' is a phrase that lawyers use,
    but I want to make clear what we are talking about. It means
    rights that are protected by the Constitution even if they are
    not specifically mentioned in the Constitution.
        Judge Kavanaugh. Right.
        Senator Harris. So they are not in that book that you
    carry. So what we are talking about is the right to vote. That
    is an unenumerated right. The right to have children, the right
    to control the upbringing of your children, the right to refuse
    medical care, the right to love the partner of your choice, the
    right to marry, and the right to have an abortion.
        Now putting those unenumerated rights in the context of the
    statement you made, which was to praise the stemming of the
    general tide of freewheeling creation of unenumerated rights,
    which means you were--the interpretation there is you were
    praising the quest to end those unenumerated rights. My
    question to you is which of the rights that I just mentioned do
    you want to put an end to or roll back?
        Judge Kavanaugh. Three points, I believe, Senator. First,
    the Constitution, it is in the book that I carry. The
    Constitution protects unenumerated rights. That is what the
    Supreme Court has said.
        Senator Harris. But it does not explicitly protect the
    rights that I just listed, and we both know that that is the
    case.
        Judge Kavanaugh. Right. So that is point one. Point two is
    Glucksberg, the case you are referring to, specifically cited
    Planned Parenthood v. Casey as authority in that case. So Casey
    reaffirmed Roe. Casey is cited as authority in Glucksberg. That
    is point two.
        And point three, Justice Kagan, when she sat in this chair,
    pointed repeatedly to Glucksberg as the test for recognizing
    unenumerated rights going forward. In describing the precedent,
    I agree with her description of that in her hearing.
        Senator Harris. So thank you for that. So then let us put
    the rights that I mentioned, which are unenumerated, in the
    context of your praise of Justice Rehnquist as having ``stemmed
    the general tide of freewheeling judicial creation of
    unenumerated rights.'' Arguably, every right that I mentioned
    on that list was a judicially created unenumerated right.
        And my question then is when you praised a jurist who
    attempted to end those rights, which rights in particular do
    you believe are praiseworthy of ending?
        Judge Kavanaugh. So that was the test that was set forth by
    the Supreme Court going forward for recognition of additional
    unenumerated rights. That was cited as authority in that case,
    Planned Parenthood v. Casey, which reaffirmed Roe. The point--
    --
        Senator Harris. So let us talk about the right to vote. Do
    you believe that that falls in the category of having been
    caught up in the general tide of freewheeling judicial creation
    of unenumerated rights?
        Judge Kavanaugh. What I was describing with Chief Justice
    Rehnquist, and it was a description of his career was in a
    variety of areas and his role----
        Senator Harris. But specifically your reference was to
    unenumerated rights, sir.
        Judge Kavanaugh. Right. And in a number of areas I have
    described five different areas of his jurisprudence, where he
    had helped the Supreme Court achieve what I think has been a
    common sense middle ground that has stood the test of time in
    terms of precedent in a variety of areas. At least that is how
    others have described it.
        The Glucksberg case, as Justice Kagan explained when she
    was in this chair, is the case that the Supreme Court has
    relied on for forward-looking future recognition of
    unenumerated rights. It did not----
        Senator Harris. Thank you, sir. I am familiar with that. I
    think you are not going to address the specific unenumerated
    rights, or are you? Because if not, we can move on.
        Judge Kavanaugh. I think I have addressed it. Thank you,
    Senator.
        Senator Harris. Okay. In 2011, you were a judge on one of
    the challenges to the Affordable Care Act. The court you sat
    upon held there that you dissented on procedural grounds on the
    court, which upheld the Act.
        One of your former law clerks described your opinion in
    that case, and that is the Seven-Sky case, as ``a thorough
    take-down of the individual mandate.'' He would go on to clerk
    for Supreme Court Justice Kennedy that year or the next year,
    and the Supreme Court then held or heard the challenge to the
    Affordable Care Act. And according to him, your opinion was ``a
    road map'' for the dissenting Justices, the ones who would have
    struck down the Affordable Care Act.
        Given you wrote the ``road map,'' according to your law
    clerk, could one reasonably conclude that you would have voted
    to strike down the Affordable Care Act, had you been on the
    Supreme Court?
        Judge Kavanaugh. A couple points, Senator. First, I
    concluded--in one case I upheld the Affordable Care Act against
    an Origination Clause challenge. In the case you are referring
    to, I did not reach the merits. But I discussed the merits pro
    that were being argued in both directions.
        My opinion has been described as the road map for both
    sides because I described both positions, and actually, it was
    not a road map at all because I did not reach----
        Senator Harris. He also described it as a take-down.
        Judge Kavanaugh. Well, I speak for myself, and my own
    opinions speak for themselves. And what my----
        Senator Harris. So he was out of bounds--of line then? And
    I am sure the Chairman wants to close this questioning, so we
    can leave it with that.
        I thank you, Judge.
        Judge Kavanaugh. All right. Thank you for your time,
    Senator.
        Chairman Grassley. Before I call on Senator Cornyn, the
    Minority has requested a third round of questions, and that is
    perfectly legitimate. It may make your day longer, Judge, but
    we did the same thing in the Gorsuch hearing.
        We have agreed to 8-minute rounds. Senator Leahy has given
    his additional 8 minutes to Senator Hirono. So she will have 16
    minutes. And then we will go to our traditional closed session
    down in the regular Committee room, 226, that we have already
    discussed.
        So two things I need to know. Would you like to have a few
    minutes from me if you would like to respond to some of the
    issues my colleague has raised, including recusal from any
    cases involving the Mueller investigation, your opinion or
    response to whether Obergefell was correctly decided, and about
    Whole Woman's Health issues, that due process rights of family
    separation? Any of those things that you did not get a chance
    to explain you want to explain?
        Judge Kavanaugh. No. That is okay, Mr. Chairman. I think we
    had a good dialogue.
        Chairman Grassley. Okay. Then one other thing, would you
    like--when we get done with Senator Cornyn, before we start the
    third round, because that adds up to about 80 minutes, assuming
    none of you guys want to talk--and I hope you do not want to.
        [Laughter.]
        Chairman Grassley. Would you like to have a 2\1/2\-minute
    break or a quick 10-minute break or 7----
        Judge Kavanaugh. I can go with 5, Mr. Chairman.
        Chairman Grassley. Okay. When Senator Cornyn is done, we
    will take a 5-minute break.
        Senator Cornyn. Mr. Chairman, this side may have a few
    pearls of wisdom, too.
        Chairman Grassley. Okay, but here----
        Senator Cornyn. No, I take your point.
        Chairman Grassley. Okay. Well, let me explain.
        Senator Cornyn. I think most everything has been asked and
    answered.
        Chairman Grassley. I would not want to cut anybody off if
    they get really warmed up about something.
        Senator Cornyn. Mr. Chairman, I have in my hand a
    description of a series of letters and editorials. I would like
    to ask that those letters and editorials described in this
    document be made part of the record.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as submissions for the record.]
        Senator Cornyn. So, Judge, a lot of things going on here
    today and yesterday, I think you will agree. One of the things
    that bothers me a little bit is the suggestion that some
    Americans can participate in the political debates and others
    should be demonized and be condemned, sort of a guilt by
    association.
        And we have heard in particular you being criticized, and
    the Federalist Society in particular being criticized for
    participating in the judicial selection process, debating legal
    issues, social issues, and the like. But, and I recall my
    friend from Minnesota talked about the Brennan Center. She
    referred to it as a nonpartisan group. I would not call it
    that. I would call it a left-leaning, progressive group, just
    like I would call NARAL, the Alliance for Justice, Sierra Club,
    Emily's List, and others.
        I mention all of those because each of those organizations
    and their members have weighed in on the important topic of
    your confirmation. And I just think it is--well, it reminds me
    a little bit of Joseph McCarthy, talk about one of the dark
    periods of the Senate's history. In the red scare of the 1950s,
    he was known for asking, ``Were you now or have you ever been a
    member of the Communist Party? ''
        And he was appropriately admonished and ultimately left the
    Senate because he made irresponsible allegations in public
    against innocent people. But the idea that we would somehow
    disparage Americans or their associations and somehow disparage
    their right to express themselves on a matter of public
    interest like the confirmation of a Supreme Court Justice
    strikes me as a bad road to go down.
        That is not a question. That is a statement. I want to--I
    have found this hearing, I hope you have, to be edifying in a
    number of ways. It is not always pretty. It is like democracy
    itself. Sometimes it gets pretty messy. But that is what we do
    here in the Senate. We make sausage and--or we give those who
    make sausage a bad name sometimes by what we do here.
        But this is democracy. This is the people--people's
    representatives in action, advocating on their behalf different
    points of view. And the ultimate decisionmaker in all this, of
    course, is the American people, and that is as it should be.
        But one of the things that Senator Crapo and Senator Sasse
    and others have raised during the course of this hearing is,
    the role of administrative agencies in our Government. First of
    all, were there any administrative agencies at the founding of
    America?
        Judge Kavanaugh. Senator, in the First Congress, they
    created a Secretary--Department of War and Foreign Affairs,
    Treasury. So there were a few departments created at the
    beginning of the republic. But obviously, those were ones of
    core executive functions, and as more--so those were the ones
    at the beginning.
        But to your point, not anything approaching the number of
    agencies now.
        Senator Cornyn. Well, that is very helpful. I had not
    really thought about those as being administrative agencies,
    but they certainly are departments of Government, and they
    would issue regulations and rules that essentially what we see
    today when administrative agencies issue rules and regulations,
    they have the force of law, do they not?
        Judge Kavanaugh. They do, Senator.
        Senator Cornyn. And we do not get to vote on the
    bureaucrats who occupy those agencies, do we?
        Judge Kavanaugh. Senator, for the independent agencies, of
    course, they operate with for-cause protection, and the
    executive agencies are appointed by the President with the
    advice and consent of the Senate, the principal executive
    officers. They are not elected. As to your point, they are not
    elected.
        Senator Cornyn. Well, one of the things that I think is
    part of the genius of our representative Government is the fact
    that those of us who do make policy are--run for election, and
    we can either be voted into office or voted out of office. But
    when it comes to administrative agencies, the American people
    do not have that choice, do they?
        Judge Kavanaugh. They are not elected. That is correct,
    Senator.
        Senator Cornyn. And so what I want to talk to you about
    briefly here is just the growth of the administrative--of
    administrative agencies in our Government and the fact that
    over time an enormous body of decisionmaking has been delegated
    from the collected representatives of the people, the Congress,
    to these administrative agencies that issue voluminous rules
    and regulations, which have the force of law.
        And to the comments made by some of my colleagues more
    eloquently than I am making them, Congress has delegated more
    and more responsibility to them and accepted less and less
    responsibility to make the hard judgments that ultimately we
    will be held accountable for at the ballot box. And I want to
    just talk to you a little bit about--we talked about the
    Chevron case, and you have explained that. I will come back to
    that in a minute.
        But if a community bank or credit union in Austin, Texas,
    the regulatory agencies that govern them and audit them and the
    like, they have--they issue regulations and rules and can
    basically penalize or otherwise punish those community banks
    and credit unions in Austin, Texas, can they not?
        Judge Kavanaugh. That is correct in terms of establishing
    rules and then being able to bring enforcement actions
    sometimes that are brought before administrative law judges
    subject to sometimes deferential judicial review.
        Senator Cornyn. And because of the Administrative
    Procedures Act that Senator Crapo talked about and because we
    presume that these administrative agencies have expertise that
    courts do not, there is deference afforded to the fact-finding
    and the legal conclusions in the application of those rules to
    contested cases, correct?
        Judge Kavanaugh. That is correct. That is a concern that I
    have identified in some of my cases about fact-finding and the
    fact that sometimes it appears not always to live up to the due
    process requirements. It is something I have identified in a
    few cases. It is a part of our administrative system, so I am
    talking about specific cases where I have ruled that in that
    specific case there was a problem with how the adjudication was
    conducted.
        Senator Cornyn. And if the courts will defer under
    Administrative Procedures Act and under that body of law to the
    fact-finding by an administrative agency and the courts say,
    well, unless it is arbitrary and capricious or some similar
    standard, they are going to let it stand. There is really no
    recourse for an individual even in a court of law if in fact
    what that agency has done has made an erroneous decision in all
    circumstances, right?
        Judge Kavanaugh. That can be correct.
        Senator Cornyn. I know we are getting into a little bit of
    complexity here and there are some nuances associated with----
        Judge Kavanaugh. But----
        Senator Cornyn [continuing]. But I think you get my drift.
        Judge Kavanaugh. Your general description is right. I have
    been very in the weeds sometimes in cases involving individuals
    in administrative adjudications where we have had judicial
    review because I know those of the cases where individual lives
    and liberty and property--the Rossello case was a good example
    where the woman was denied Social Security benefits for her
    disability because of a claim that she had had employment at
    some point even though she really had not. It had gone on for
    15 years, and I was very stern, I would say, in the opinion I
    wrote in that case about how that was inconsistent with basic
    due process and the law.
        And so I have been--every case matters, of course, but the
    cases with individuals who seem to have gotten the runaround
    from the Government are cases where I think judicial review is
    especially important. And that can be criminal defendants, that
    can be in administrative adjudications. Whoever it is, you want
    to make sure they are getting treated fairly under the law.
        Senator Cornyn. And I do not know if it happened in the
    case of the woman you described, but in some instances even
    after the agency makes a decision, if you want to appeal the
    decision of that agency, they tell you to go next door and talk
    to another employee of the same agency and state your grounds
    for appeal, hardly due process in my regard. Is that generally
    a concern about whether there is an independent review process
    even within an administrative agency?
        Judge Kavanaugh. That is an issue many have raised as a
    concern in the Supreme Court since Crowell v. Benson has upheld
    the general concept of administrative adjudication. But whether
    it is Article III adjudication or administrative adjudication
    and we are reviewing it, we need to make sure that people's due
    process rights are being respected.
        Senator Cornyn. Well, it just strikes me that, given the
    explosion of administrative agencies and the people that work
    for them, the explosion of regulations that Congress never
    passes on and that the courts are, by doctrine, by precedent,
    deferential to both the finding of fact and the conclusions of
    law under the Chevron doctrine, then there is a lot of room for
    a lot of abuse, and a lot of individuals strike me as--the
    frustration they feel that their Government is no longer
    responsive to them is very real and a serious issue.
        But now let us get into the Chevron case, it strikes me--
    and I may not get this right. You will correct me if I am
    wrong. That basically where Congress is ambiguous on the grant
    of authority to an administrative agency, the Court will defer
    to the agency in the interpretation of its own legal authority
    if it is a reasonable conclusion. Is that right?
        Judge Kavanaugh. That is a correct description of the
    Chevron doctrine.
        Senator Cornyn. Well, I got lucky, I guess.
        [Laughter.]
        Senator Cornyn. But my point is why in the world would an
    agency be able to determine their own legal authority? I mean,
    given the other concerns we have about a lack of
    accountability, a lack of due process, would the courts then
    say, well, we are going to let them define the scope of their
    own legal authority where they can act, and we are going to
    defer to that. Why in the world would the courts do that?
        Judge Kavanaugh. Well, that is one of the critiques that
    has been leveled at Chevron, one of the things that is
    important, I believe, is to recognize Chevron itself--I hate to
    get in the weeds, but Footnote 9 of Chevron is very important
    in terms of using all the tools of statutory construction
    before you make a finding of ambiguity in the statutory term at
    issue or otherwise. And I think that is important for courts to
    take seriously.
        As I have pointed out, the ambiguity finding is
    sufficiently uncertain that, that is, in my view, as I have
    written, in tension with the notion of the judge as neutral
    umpire and something that has been of concern to me. There is
    also the major questions exception, major rules exception to
    the Chevron doctrine that I have written about.
        Senator Cornyn. Well, I am certainly not going to ask you
    on how you might rule in a future case, but this has been
    identified by legal scholars and by judges of all description
    and orientation as a serious issue that may need to be
    revisited in the future.
        And like I did with our Santa Fe School District case, I
    will just express my own frustration with that, but especially
    when you compound it with the Consumer Financial Protection
    Bureau where Congress insulated the Bureau from any sort of
    oversight by Congress and where they appointed a head of the
    Consumer Financial Protection Bureau with vast powers to get
    into the personal financial information of every American and
    give them really more authority than we would ever give any of
    our intelligence agencies, it just strikes me as a tremendous
    abuse of power. Again, it is not a question, but I will use the
    opportunity to express a frustration I know Senator Crapo, as
    the Chairman of the Banking Committee, shares with me.
        In the 5-minutes I have left, let me ask you a softball
    question, cameras in the courtroom. One of the reasons why I
    think these confirmation hearings, as painful as they are to
    the nominee and their family and friends, are so important is I
    think more people in America have learned about how their
    Government should operate and does operate by watching the last
    2 days and you and the doc then they have through all their
    time in elementary school, junior high school and high school
    and college.
        Most Americans do not really study American history
    anymore, much less civics, and so I think this is a wonderful
    opportunity, and I am glad your students, your team are here on
    the front row may be listening to a few things because I think
    this is really important. If Americans are going to accept
    responsibility for their Government and if they are going to
    hold public officials accountable for performing their
    responsibilities according to the Constitution, they need to be
    able to understand the sorts of issues we have been talking
    about here today, and they need to get involved and express
    themselves.
        So, to me, cameras in the courtroom I know are
    controversial on the Supreme Court. I will tell you--and you
    know this already--many State courts, for example----
        Judge Kavanaugh. Yes.
        Senator Cornyn [continuing]. The Texas Supreme Court has a
    fixed camera in the corner that never moves, and everybody
    forgets it is there and nobody grandstands and they have oral
    arguments and the judges do their thing and ask questions. The
    lawyers give answers. And I think it is another great
    opportunity for people to see their government in action.
        And I know the Supreme Court, no cameras in the courtroom,
    you maybe pay to have a very nice artist rendition of your oral
    argument. I was given a copy of mine from my staff when I
    argued the case we talked about, and my staff said, ``Well, we
    paid $50 to take 5 years and 10 pounds off.'' And I said,
    ``Thank you. Money well spent.''
        But the point is, I think the American people would learn
    an awful lot by seeing the Supreme Court in action, and I
    applaud the action that your court and others have taken to
    make that more accessible with recordings and the like. But I
    would hope that the Court would continue to look at the
    possibility that more and more of its activities would be
    available to the American people because not everybody can go
    across the street and get a nice seat in that wonderful marble
    palace over there and see the Court in action. I think they
    would be awed, I think they would be impressed, and I think
    they would learn a lot about how the courts do operate and
    should operate in our system of government.
        So, I know the O.J. Simpson trial--and I am showing my age
    here--gave cameras in the courtroom a bad name and certainly
    some of the activities we see at hearings like this where
    people know they are going to be on TV camera encourages them
    to misbehave and disrupt. That may be the cost of doing
    business sometimes. I am confident that the Court could control
    that much better than we in Congress can.
        But I would just like for you to take a couple minutes to
    comment on that. And how should the judiciary look at this
    great opportunity to inform and educate the American people
    about how their Government works and certainly the judiciary
    and what the risks you see to the litigants into the fair
    administration of justice?
        Judge Kavanaugh. Senator, thank you. First, you mentioned
    that this--you used the word painful. For me, this has been a
    great honor to be here, the greatest honor, and for my family
    to be here. I have enjoyed the discussions with all the
    Senators on the Committee. I have enjoyed--and it is
    continuing, I know. And I have enjoyed it, the 65 meetings. I
    know this is not my last comment, but I have enjoyed the 65
    meetings, I have enjoyed the hearing. It is a great honor.
        As I have said repeatedly, I am a sunrise side of the
    mountain. I am an optimist. I am positive about the future of
    the judiciary. I am positive and optimistic about the future of
    the country. We are always forming a more perfect union,
    seeking to fulfill the promises of the Constitution, and to be
    here is a great honor.
        You mentioned people watching. If there is one thing they
    take away, I hope they understand that an independent judiciary
    is the crown jewel of our constitutional republic in my view
    and that the judiciary has been, must be, and must continue to
    be independent of politics, that we do not make the policy
    decisions. We do the best we can to decide the law under the
    precedent of the Supreme Court, the laws passed by Congress.
        To your point about cameras, I view it as of vital
    importance going forward, vital importance to maintain the
    confidence of all Americans, all Americans in the independence
    and impartiality of the judiciary. And I know how concerned and
    focused Chief Justice Roberts is on maintaining confidence--and
    all the Justices on the Supreme Court--maintaining the
    confidence of all the American people in the independence of
    the judiciary and the rule of law in the United States of
    America. And I understand that. I understand the responsibility
    I bear as a nominee and, if confirmed as a Justice, to do
    everything I can and everything I do to maintain confidence in
    the independence of the judiciary going forward.
        I do agree with you; when you watch an oral argument of the
    Supreme Court and you see the Justices in action grappling with
    cases, it is inspiring to see them in action grappling, as I
    have said, not sitting on different sides of an aisle, not
    caucusing in different rooms, as one group seeking as best they
    can to get the right answer under the precedent and laws of the
    United States. It is inspiring, and it is something, if I am
    fortunate enough to be there, that I will give it my all to
    live up to that responsibility. As I said to Senator Booker, I
    understand the responsibility I would bear if I were on that
    Court, and I would do everything I can to live up to it and
    maintain it.
        As to cameras, consistent with what I have said, I have an
    open mind on that. I have seen the benefits of live audio, but
    I would want to listen first, listen to the eight Justices who
    are there and have thought about it, have experienced it. But I
    have an open mind.
        And I will close with this: I want to do everything I can,
    as I said to the Chairman, to maintain confidence of the
    American people, all the American people in the independence
    and impartiality of the judiciary.
        Chairman Grassley. Okay. We will take a 5-minute break.
        [Whereupon the Committee was recessed and reconvened.]
        Chairman Grassley. Judge, I want to apologize to you. I am
    the one that did not get back here on time.
        Okay. I think we will start with Senator Durbin with your 8
    minutes right now. Well, if she wants to go first, she can,
    but----
        Senator Durbin. Yes.
        Chairman Grassley [continuing]. I would like to have
    somebody start. Why do you not take a couple minutes right now
    just to use up two of your minutes? I do not think she will
    care. Go ahead.
        Senator Durbin. You are going to have to represent me in
    this. Is she here? All right.
        Judge, thank you very much. I have a granddaughter who is
    going into the second grade, and she came home from school in
    first grade last year to tell her mom that there had been an
    instruction from the teacher about what to do in her first-
    grade classroom if a shooter came into their school. She was
    told to get on the floor and stay away from the windows. Her
    mom called me in tears and said I cannot believe it has come to
    this, that in the first grade we have got to warn our kids
    about shooters coming in to schools. But we know we do. And I
    talked to Senator Blumenthal and Senator Murphy about the
    tragedy at Sandy Hook and so many other tragedies.
        That is why I want to spend a moment talking about the
    Second Amendment here because you have taken a position on the
    Second Amendment which you yourself have described as a lonely
    voice. You have taken a position which I do not believe is
    responsible from a public safety viewpoint. You laid out your
    text history and tradition test for reviewing Second Amendment
    challenges to gun laws and your dissent in the D.C. Circuit
    Court Heller case. Your test would have courts ignore the
    public safety impact of laws and instead search to see if the
    laws had historic analogs.
        In a March 31, 2016, speech at the American Enterprise
    Institute, you said, quote, ``I thought Justice Scalia said
    pretty clearly what the test is, that history and tradition-
    based approach. I have been a lonely voice in reading Heller
    that way,'' end of quote. Indeed, Judge, I am not aware of any
    Circuit that follows your test, the history and tradition test.
    They all apply intermediate or strict scrutiny and ask basic
    questions about public safety.
        In the 2011 Heller case, the two judges in the majority of
    the D.C. Circuit, both Republicans I might add, said this about
    your lone dissent: ``Unlike our dissenting colleague, we read
    Heller straightforwardly.''
        Now, one lonely voice can connote that you are inspiring,
    insightful, or brave. It might also connote that you are just
    plain wrong. And in this situation it is a life or death test,
    whether it is an assault weapon or the person who can buy it or
    use it. I need to know from you how you can reconcile your
    position with your opening statement to this Committee. Do you
    remember what you told us, the rule of common sense? The rule
    of common sense suggests to me that you would not be a lone
    voice on an issue of life and death involving innocent
    Americans. Common sense would suggest that you would join with
    Justice Scalia and other Federal courts who believe that
    scrutiny, which involves public safety, should be the test.
        Judge Kavanaugh. Senator, thank you. It is not my test. It
    is my interpretation of the Supreme Court's test. In my opening
    statement I emphasized precedent. It is all about precedent
    so----
        Senator Durbin. You are alone. You are alone. You have
    admitted you are alone.
        Judge Kavanaugh. Not anymore.
        Senator Durbin. How can you read the same case others have
    read and come up with a completely different solution and say,
    ``I am just following the precedent''?
        Judge Kavanaugh. Many other judges since I gave that talk
    have agreed with the approach I set forth in that case, but the
    important thing is the opinion speaks for itself. It goes
    through in painstaking detail the Heller case for the Supreme
    Court authored by Justice Scalia and then the McDonald case
    authored by Justice Alito and explains that the exceptions to
    the individual right protected by the Second Amendment are laid
    out in part three of the Supreme Court's Heller opinion.
        You mentioned intermediate or strict scrutiny. I said
    specifically in my opinion that the history and tradition test
    may allow some additional regulations than strict scrutiny
    test, so in terms of comparing how much, to your point, gun
    regulation is permissible, I made that explicit point in my----
        Senator Durbin. But would not the commonsense rule that you
    stressed in your opening statement, at a time when so many
    innocent people are being killed with guns, suggests that we
    ought to be mindful that the Second Amendment is not a suicide
    pact? We ought to make America safe and to find a construction
    of this which sets you apart from those who are looking to
    public safety as the standard is a troubling thing. I am sure
    that some groups--I am not going to name names; you know what I
    am talking about--applaud your position, but I would just say
    from the viewpoint of parents and families and people worried
    about gun safety, why do you set yourself aside from the
    mainstream of thinking on this?
        Judge Kavanaugh. Because that is how I read the precedent
    of the Supreme Court as best I could. I specifically talked
    about at the end of that opinion, too, as well, the real-world
    consequences. I was very aware of the real-world consequences.
    I am very aware of the drills that are done in the schools
    these days. I am very aware that I lived in the DC area, which
    was known as the murder capital of the world, for a time in the
    1980s with mostly handgun violence. I am very attentive to that
    issue.
        At the same time, I am a judge. My duty, as I have
    explained repeatedly, is to follow the Constitution, as
    interpreted by the Supreme Court. I explained in as much detail
    as I possibly could how I analyzed Justice Scalia's majority
    opinion and Justice Alito's plurality opinion in McDonald.
    They, as I read them, seem to reject the balancing test that
    had been articulated in Justice Breyer's dissenting opinions in
    both cases. I explained that in detail. It is important to
    underscore the Supreme Court said and I have said, following
    it, machine guns can be banned----
        Senator Durbin. That has been the case since the 1930s.
        Judge Kavanaugh. But I just want to reiterate, machine guns
    can be banned under the Supreme Court precedent.
        Senator Durbin. Thank goodness.
        Judge Kavanaugh. And so, too, the Supreme Court said
    traditional laws such as felony possession laws, concealed
    carry laws are permissible, bans on possession by mentally ill,
    bans on possession of guns in schools and government buildings,
    all of those were articulated by the Supreme Court as
    permissible regulations, and those are some of the regulations
    that has traditionally existed.
        But I understand and I am aware of what you are talking
    about in terms of schools, and I understand the drills. And, of
    course, the test----
        Senator Durbin. Common sense.
        Judge Kavanaugh. Gun violence----
        Senator Durbin. Rules of common sense.
        Last question I have for you is this: When the President
    introduced you as his nominee, you said, ``Throughout this
    process, I have witnessed firsthand''--you said this to the
    President--``I have witnessed firsthand your appreciation for
    the vital role of the American judiciary.'' What did you
    witness about this President's appreciation for the vital role
    of the judiciary?
        Judge Kavanaugh. I witnessed his discussion with me in my
    interview, his discussion with me the night he announced me at
    the White House, his discussion on that Sunday night when I
    went to the White House--he and Mrs. Trump met with me--and his
    discussion of the judiciary with me. What I based that judgment
    on was my interactions with him on the Monday, on the Sunday,
    and on the Monday.
        Senator Durbin. We usually instruct juries not to put their
    life experience and common sense aside when they make a
    verdict, and I think the verdict on this President and his
    vital role in the judiciary would include more than those
    meetings. Thank you.
        Chairman Grassley. In between any Democrat, if a Republican
    wants recognition, ask for it. Otherwise, Senator Hatch.
        Senator Hatch. Well, let me just ask one question. Hang on.
    Let me just ask one question to you. You told Senator Durbin
    earlier that, quote, ``We are all equal before the law in the
    United States of America,'' unquote. And yesterday, you said
    that, quote, ``No matter where you come from, no matter how
    rich you are, no matter your race, your gender, no matter your
    station in life, no matter your position in government, it is
    all equal justice under the law,'' unquote.
        So in your opinion, what does equal justice under the law
    mean to you?
        Judge Kavanaugh. Equal justice under the law means that
    every American, every citizen, everyone who ends up in an
    American court is entitled to equal treatment, due process,
    equal protection, your argument will prevail on the facts and
    the law in a particular case, not----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. Not based on the identity of the parties
    or the litigants, not based on policy views, and that is a
    critical foundation of the rule of law in the United States and
    of the independence and impartial judiciary that we hold dear
    in the United States.
        Senator Hatch. Well, thank you, Judge. That is all I care
    to ask.
        Chairman Grassley. Senator Feinstein.
        Senator Feinstein. Thanks very much, Mr. Chairman.
        If I do not use all my time, I would like to cede what
    remains to Senator Coons.
        Chairman Grassley. That will be done, yes.
        Senator Feinstein. Thanks.
        Judge, you have very expansive views on Presidential power,
    and they are not limited in whether the President can be
    checked by Congress or the courts. I think you believe that a
    sitting President cannot be indicted, cannot be prosecuted,
    cannot be investigated, and should have the authority to fire a
    special counsel at will.
        It is my understanding in 2016 you told the American
    Enterprise Institute that you will put the final nail into the,
    I guess, coffin of the independent counsel. Would you comment
    on that, please?
        Judge Kavanaugh. Senator, thank you. The nail in the
    independent counsel statute was put in by Congress in 1999 when
    Congress overwhelmingly decided not to reauthorize the law as a
    general matter.
        In terms of Executive power, I would just urge--we have not
    discussed a few issues here today, but by opinion on the
    political question doctrine in El-Shifa, my article on national
    security and my book review of Judge David Barron's book, my
    mens rea opinion dissent in Burwell joined by Judge Tatel, my
    administrative law--the Harvard Law Review piece, if you just
    read those four pieces, just read those four pieces, I think
    you will understand that I am not someone who has an unduly
    expansive view, that I am one who has held the executive branch
    to account in a number of different areas, consistent with our
    constitutional structure. And those are important, so if you
    are just going to read a few things, just read those four
    things----
        Senator Feinstein. I will.
        Judge Kavanaugh. And I think you will understand my
    understanding----
        Senator Feinstein. I will.
        Judge Kavanaugh. Of how Executive power and legislative
    power interact.
        Senator Feinstein. Okay. In 2003 while you were in the
    White House Counsel's Office, the Supreme Court decided to hear
    two cases involving University of Michigan's efforts to
    increase racial diversity. The Bush administration filed briefs
    in the Michigan case arguing that the University of Michigan's
    programs were unconstitutional. Senator Booker asked you about
    this. So please tell me, what was your view on whether the Bush
    administration should oppose the University of Michigan's
    efforts to increase racial diversity on the campus? And do you
    support using race as one factor in admission to college or
    universities to achieve racial diversity on campuses?
        Judge Kavanaugh. Thank you, Senator. This was an issue on
    which the existing precedent of the Supreme Court and President
    Bush's views, in my view, dovetailed. I was working for
    President Bush. He was interested in promoting racial
    diversity. He had said as much as Governor of Texas. That was
    his position as President of the United States. He believed
    also, and this is consistent with Supreme Court precedent as
    well I believe, in using race-neutral means first to see if
    that--in Texas, the top 10 percent plan in the wake of the
    Hopwood decision of 1996, then-Governor Bush had been part of
    that. He always talked about the importance of diversity. And
    in the Michigan case, he insisted that the brief filed by the
    administration reflect his position that promoting racial
    diversity was an important goal for his administration.
        Senator Feinstein. Okay. Let me ask you a question on
    employment discrimination involving the LGBT community, and
    this is a while back. On July 11, 2001, you received an email
    from your White House colleague, Brad Berenson, who wrote that
    you were a walking point on faith-based issues. You replied to
    him that you had, and I quote, ``mapped out a preliminary
    strategy to respond to concerns raised about the Bush
    administration's policies allowing Federal funding to go to
    religious organizations that discriminate against LGBT
    individuals.'' Could you describe your involvement in Bush
    administration's efforts to exempt charities from State and
    local laws prohibiting employment discrimination against LGBT
    individuals?
        Judge Kavanaugh. Senator, thank you. I do not recall the
    specifics, but I do know that one of President Bush's
    initiatives when he came into office in 2001 was an Office of
    Faith-Based Initiatives. He was very focused on making sure
    that religious organizations could participate as equals, not
    as preferred, but as equals in American society, and that was
    something that the Faith-Based Initiatives Office worked on and
    something he was very focused on. I do not remember the details
    of----
        [Disturbance in the hearing room.]
        Judge Kavanaugh. I do not remember the details of
    particular--of that particular, but I do know that President
    Bush--at the same time, I also did speak to--on occasion to the
    Log Cabin Republicans, which was a group that we--that I talked
    to about judicial nominations, as I recall. And President Bush
    is someone who, you know, believed deeply, as he said
    repeatedly, in quality for all Americans.
        Senator Feinstein. Were you involved in the discussion of
    any other action to permit employment discrimination against
    LGBT persons?
        Judge Kavanaugh. Employment discrimination? I do not recall
    anything specific on that, Senator.
        Senator Feinstein. Okay. That is all I have.
        Chairman Grassley. Okay. Senator Coons will have another 1
    minute and 22 seconds before I call on you. Any Republican want
    the floor? Senator Kennedy, then I will--I am going to----
        Senator Kennedy. Now, Mr. Chairman? Okay. Nothing. Thank
    you.
        [Laughter.]
        Senator Kennedy. My office is now going to be moved to
    Arlington.
        [Laughter.]
        Senator Kennedy. Judge, real quickly, yesterday you--we
    talked about originalism, and you defined that as
    constitutional textualism. And what counts according to the
    Supreme Court in interpreting the United States Constitution
    and the Bill of Rights is the public understanding of the
    document--what the words meant at the time they were drafted
    and approved. And you pointed--if I get this wrong, stop me.
    And you pointed out that intent--the intent of the delegates
    was not something that should be focused on.
        There were 55 delegates, I think about 55 delegates to the
    Convention.
        Judge Kavanaugh. Originally.
        Senator Kennedy. Originally. They obviously did not move in
    lock step. Delegates, Senators, Congressmen, Congresswomen have
    a multitude of reasons for voting as they do. That is why we
    focus on the public understanding, which is sort of an
    objective, reasonable person standard, right? Am I in the
    ballpark?
        Judge Kavanaugh. That is correct.
        Senator Kennedy. Okay. So, here is my question. Why then--I
    am not suggesting we should not. I am just curious. Why then do
    we put so much emphasis on the Federalist Papers, or for that
    matter, the Anti-Federalist Papers when you are only getting
    the point of view of one person?
        Judge Kavanaugh. That is a great question, and we should be
    careful when we look at the Federalist Papers. It is a great
    document. Those papers describe the structure of government in
    magnificent ways, but they were an advocacy piece to try to
    convince people in the ratifying Convention and a ratifying
    convention to vote ``yes'' on the draft Constitution. So,
    sometimes the--as with everything else that is an advocacy
    piece, we have to be careful to make sure that the words
    control and not necessarily an advocacy piece about the--about
    the document. And there were lots of statements in ratifying
    conventions as well.
        This was a compromise, and not everyone, in fact, probably
    no one was a hundred percent with the final product, yet they
    came together. Ben Franklin performed a critical role at the
    Convention in bringing about the spirit of compromise that
    ultimately allowed them to get over the finish line, with
    George Washington as the presider at the Convention. And that
    compromise is contained in the words of the document.
        Of course, precedent is part of the system we have now, and
    I always like to add that, that precedent is critical to how we
    today decide cases. But the original meaning, the words control
    over any intent of any one person or group of people.
        Senator Kennedy. Briefly, do you put much stock in Theron's
    treatise, compilation, discussion of the Convention record?
        Judge Kavanaugh. So, I find them fascinating, the notes of
    the Convention, and to see the day-by-day debate on the
    Convention and how things changed, how close we were to so many
    different things, things such as proportional representation in
    the Senate. That was close. A one-term President, that was
    close. The various compromises that were reached, the debate
    over the Necessary and Proper Clause. Some of those things that
    caused Gary, and Randolph, and Mason not to sign the final
    Constitution because they had such profound disagreements with
    the structure and were concerned in some respects with having a
    Bill of Rights which was not part of the original Constitution.
        So, I enjoy the notes. I put--you learn from them. But,
    again, those don't necessary control--those help you
    understand, but they do not control over the actual words of
    the document. So, to the Federalist Papers, they help you
    understand what is going on and how to read it all together as
    a whole, and they help you understand the Government. But you
    have to be focused on the words.
        Senator Kennedy. Thank you, Judge. Thank you, Mr. Chairman.
        Chairman Grassley. Since Senator Leahy gave his 8 minutes
    to Senator Hirono, I am going to give Senator Leahy what time
    he needs off of my time.
        Senator Leahy. Thank you, Mr. Chairman. I will be very
    brief. Judge, how are you doing?
        Judge Kavanaugh. I am doing great. It is an honor to be
    here, Senator.
        Senator Leahy. I will leave that one alone.
        [Laughter.]
        Senator Leahy. In your concurrence in Klayman v. Obama, you
    went out of your way to say that not only is the dragnet
    collection of America's telephone records by the National
    Security Agency okay because it is not a search, you also said,
    and I did not see any support in this, that even if it is a
    search, it is justified in order to prevent terrorism. I
    believe Senator Lee is still here. This was months after
    Senator Lee and I worked to pass the USA Freedom Act, which
    prohibited such collection.
        Now, the year before you issued your opinion, the Privacy
    and Civil Liberties Oversight Board had stated it could not
    identify a single instance involving a threat to the United
    States in which the program made a concrete difference in the
    outcome of an counterterrorist investigation. Now, it also
    found the NSA phone records program was not essential to
    thwarting terrorist attacks. Why did you--I am just curious why
    you went out of your way to write an opinion stating that the
    program met a critical national security need when it already
    had been found by the national security people, it made no
    concrete difference in fighting terrorism.
        Judge Kavanaugh. Senator, I appreciate that question. The
    important point, I would say, as I was trying to articulate
    what I thought based on the precedent at the time. At the time,
    when your information went to a third party and the Government
    obtained the information from the third party, the existing
    Supreme Court precedent was that your privacy interest was
    essentially zero.
        The opinion for the Supreme Court by Chief Justice Roberts
    this past spring in the Carpenter case is a game changer, and
    that is important. I talked repeatedly in this hearing about
    how technology will be one of the huge issues with the Fourth
    Amendment going forward, and you see Chief Justice Roberts'
    majority opinion in Carpenter. That alters and really is a game
    changer from the precedent on which I was writing at that time,
    so I would----
        Senator Leahy. Do you think if Carpenter had been decided,
    you would have written the concurrence you did in Klayman?
        Judge Kavanaugh. I think--I do not see how I could have.
        Senator Leahy. Thank you. I agree with that. And you joined
    the dissent in U.S. v. Jones. You claimed that there was zero
    expectation of privacy in a person's movement outside their
    home. You said, ``Infinite number, zero value part is also
    zero.'' Given the ever-greater data available to all of us and
    the ever-greater computing power to analyze everything, there
    is more computing power here than there was in our first
    moonshot. This sounds more like an analysis we get from the
    Chinese government than we would from James Madison had he
    known about what we can do. So, because of Carpenter, do you
    believe that there comes a point in which collection of data
    about a person becomes so pervasive that a warrant would be
    required even if the collection of one bit of the same data
    would not?
        Judge Kavanaugh. Two points on that, Senator. I also went
    on in that opinion to say the attachment of the GPS device on
    the car was an invasion of the property right, and that
    independently would be a Fourth Amendment problem. When the
    case went to the Supreme Court, the majority opinion for the
    Supreme Court followed that approach that I had articulated in
    saying that it was a violation of the Fourth Amendment. So, the
    approach I had articulated there formed the basis of saying it
    was actually unconstitutional in that case to install the
    device. I relied on that in the Silverman decision from 1961
    and Justice Brennan's concurring opinion in the Knotts case in
    the 1970s.
        On your other point on technology and the phone that you
    held up, I do think the Supreme Court case law in the Riley
    case written by Chief Justice Roberts and the Carpenter case
    written by Chief Justice Roberts, both majority opinions, show
    his and the Court's recognition of the issue that you are
    describing in that technology, it has made things different,
    and we need to understand those differences for purposes of
    applying Fourth Amendment law now.
        And I do think those two decisions are quite important as
    we move forward. And I think this will be one of--someone
    sitting in this chair 10 years from now, I think the question
    of technology on Fourth Amendment, First Amendment, war powers,
    is going to be of central importance. So, I appreciate the
    question, but I think the Supreme Court case law is developing
    in a way consistent with your concern.
        Senator Leahy. Do you think it is consistent with the fact
    that there will be areas so pervasive that you will need
    warrants?
        Judge Kavanaugh. Well, that--the Supreme Court case law is
    certainly suggesting as much in the Riley and Carpenter cases,
    and the Jones GPS case, which I had written an opinion on.
        Senator Leahy. Yes. I mentioned this, and I thank you, Mr.
    Chairman, because Senator Lee and I spent a great deal of time
    talking to our colleagues, both Republicans and Democrats,
    because of our concern that privacy is disappearing, and,
    frankly, privacy is important. Thank you, Mr. Chairman.
        Senator Sasse. Mr. Chairman? Mr. Chairman, could I make a
    30-second comment?
        Chairman Grassley. Yes.
        Senator Sasse. I am not aligned with the Leahy-Lee bill on
    USA Freedom, but I just want to say I thought that was a great
    line of questioning. And so much of the American people's, you
    know, absorption of events like this through cable news is
    right versus left, and I think that was past versus future. And
    I just think there is a lot there, Senator Leahy, that is
    really useful for us to think about. Thank you.
        Chairman Grassley. Senator Whitehouse.
        Senator Whitehouse. Thank you very much, Judge. When we met
    in my office, I was trying to get a sense of the intimacy of
    your relationship with Mr. Leo of the Federalist Society. And I
    asked you if he was in your phone. Do you remember that?
        Judge Kavanaugh. I do.
        Senator Whitehouse. And you answered as to whether he was
    in the contacts or saved calls or whatever. Just could you let
    me know for the record what you said then? I do not want to put
    words in your mouth.
        Judge Kavanaugh. I said, ``yes.''
        Senator Whitehouse. With respect to our earlier----
        Judge Kavanaugh. I have known him for 25 years.
        Senator Whitehouse. Yes. With respect to our earlier
    question about waiving source confidentiality with respect to
    reporters who you spoke to during the Starr investigation, I
    just want to make sure that I understand what you said because
    you kind of referred it to Judge Starr, and I do not want to be
    in a situation where I am getting the two of you going opposite
    ways. Do I correctly understand that you personally have no
    objection to reporters disclosing their conversations with you,
    you just do not want to speak for Judge Starr who you feel has
    equities here to the extent that you were working at his
    direction, or do you have a personal objection to the reporters
    disclosing those conversations?
        Judge Kavanaugh. I would want to think about that some
    more, Senator.
        Senator Whitehouse. Could you get back to me on that?
        Judge Kavanaugh. I can.
        Senator Whitehouse. Under advisement was one of the options
    I offered you, and you have taken it. Fair enough.
        You have had a lot of conversation with all of us about the
    concern that you are basically a human torpedo being launched
    at the Mueller investigation, so that when it gets to the
    Supreme Court, you will knock it out. And the Law Review
    article has been talked a lot about that in the context of the
    President cannot be investigated, and your comment about Nixon
    being wrongly decided has been talked about a lot. And how you
    have pushed back on that has been to assert that United States
    v. Nixon is one of the four best decisions in the Court's
    history.
        Judge Kavanaugh. I have said that before.
        Senator Whitehouse. Yep. So, here is my concern, because
    virtually every time, if not every time, that you have
    mentioned United States v. Nixon, you have dropped in to your
    description of the holding that it was a trial court subpoena.
        Judge Kavanaugh. Yes.
        Senator Whitehouse. And I do not know if you drop that in
    just as a factual observation because that was, in fact, a
    17(c) trial subpoena, or whether that was a loophole, an escape
    hatch so that when that comes, you are in a position to say,
    well, I told the Senate that because that was a trial court
    subpoena, but Mueller is going to be coming with grand jury
    subpoenas, and they are different, and so nothing that I said
    in that hearing should interfere with my ability to stop
    Mueller's subpoenas. What in that context is your view of the
    trial court subpoena part of U.S. v. Nixon? Was that essential
    to the holding, or were you just using that to describe one of
    the facts in the holding?
        Judge Kavanaugh. Senator, I appreciate that. I have been
    careful to describe the holding of the case, and----
        Senator Whitehouse. Does it apply to a grand jury?
        Judge Kavanaugh. Well, that is--so, I figured I would get
    lots of hypothetical questions about this, that, or the other
    thing, and as a sitting judge I need to be careful about----
        Senator Whitehouse. I know, but you are the who has been
    dropping this trial court phrase in, and I think it is fair to
    ask you are you simply using that as a factual observation or
    is that the escape hatch to be able to discard U.S. v. Nixon in
    this context and say, oh, yes, it is still a great decision,
    but it has no relevance to the ongoing investigation of the
    President--investigations of the President.
        Judge Kavanaugh. I understand the question----
        Senator Whitehouse. Okay.
        Judge Kavanaugh. And appreciate the question, but what I
    have done is describe the holding as I have described it in
    this hearing because I think it is important not to be
    answering hypotheticals----
        Senator Whitehouse. Yes, but you are the one who chose to
    use it as a counterpoint or as evidence against concerns that
    you are going to basically, like I said, be the human torpedo
    to take out anything that Mueller brings to the Supreme Court.
        Judge Kavanaugh. What I was trying to do was merely
    reiterate what I had said in a variety of forums over 20 years
    as against one 1999 excerpt that I thought was a serious and
    severe misunderstanding of my longstanding position about the
    case.
        Senator Whitehouse. But since you have been the one who put
    your regard for United States v. Nixon into play as a data
    point in the conversation about whether you are going to tank
    the Mueller investigation at your first chance, I think it is
    fair for us because you have opened the door by using it that
    way, to ask whether you believe that the central holding of
    Nixon, which is that ``a President has to answer a subpoena
    applies equally to a trial court and a grand jury subpoena
    alike,'' because if it does not, I am going to feel very misled
    by the way you have used this.
        Judge Kavanaugh. Right. So, I have tried to describe in
    summary fashion exactly what the Supreme Court said in the
    Nixon case, and it is a very important opinion and it is very--
    but I have tried to describe just what they said and not go
    beyond what they said in themselves in that opinion.
        Senator Whitehouse. Yep. And so, why did you use it in the
    context of a grand jury investigation if you did not mean it
    that way?
        Judge Kavanaugh. Well, I was--you mean when I was in the
    Independent Counsel Office?
        Senator Whitehouse. No, no, no, when we were in this
    conversation right here. We have had a lot of questions where
    we have been talking about is the President amenable to
    investigation, is the President amenable to indictment, is the
    President amenable to subpoena. And you have constantly
    referred back to U.S. v. Nixon, and if that is not a real
    assurance because in the back of your mind, which you did not
    tell us, is that that is only limited to trial subpoenas and I
    am still cool with taking out grand jury subpoenas, I think
    that would be a very unfortunate way to have dealt with the
    Senate on that question.
        Judge Kavanaugh. I understand. I understand your point on
    that, Senator. What I have tried to do is describe the holding
    of the case, what I have said before about it, and I have been
    getting a lot of questions, a real lot of questions about a
    1999 excerpt that I think that was a severe distortion of what
    I have said for many years.
        Senator Whitehouse. Yes, but this is very different. This
    is whether you in this hearing have been essentially playing a
    trick on the Committee by using United States v. Nixon in this
    way without telling us that while you are using it in this way,
    all you intend is that its application is to a trial subpoena,
    and that a subpoena from the Mueller investigation or from
    anybody else to the President--``Olly, olly, in come free''--
    you can knock those out to your heart's content.
        Judge Kavanaugh. I appreciate the question, but if you read
    the opinion, all I am doing is describing what the opinion
    said.
        Senator Whitehouse. I will let it go at this point because
    I am obviously not going to get an answer, but I assert that
    you did more than that by putting this decision in play as a
    statement or as a signal to us that we should take a little
    bit--have a little bit of a pause, if you will, about the--U.S.
    v. Nixon should be looked at again, and the President cannot be
    investigated points that we addressed.
        Judge Kavanaugh. Well, Senator, I think other people have
    been putting it in play repeatedly based on one excerpt that
    was a distortion--I am not saying it is intentional.
        Senator Whitehouse. Okay, never mind. One last question.
        Judge Kavanaugh. Yes.
        Senator Whitehouse. In the Bluman decision, your decision,
    it would be legal for Vladimir Putin to come to the United
    States and buy issue ads.
        Judge Kavanaugh. Can you repeat that?
        Senator Whitehouse. Under your reading of the Bluman
    decision, which says that foreign nationals can buy issue ads
    under election law, Vladimir Putin would be able to buy issue
    ads in American elections. Does the recent activity of Russia
    hacking our last election, interfering with our last election,
    and helping to elect Donald Trump give you any pause about the
    wisdom of a judicial construction that would allow foreign
    nationals to buy issue ads in American elections?
        Judge Kavanaugh. Three quick points, Senator. First, my
    decision for a unanimous panel in that case, which in turn was
    unanimously affirmed by the Supreme Court----
        Senator Whitehouse. Not unanimous on that point, though, I
    do not believe, but go ahead.
        Judge Kavanaugh. It was unanimous affirmed summarily by the
    Supreme Court. The upheld limits on contributions by foreign
    nationals, summarizing briefly there. Justice Stevens, the
    dissenter in Citizens United, has subsequently repeatedly and
    explicitly praised my decision in Bluman in various speeches he
    has given. Third point is, that the case did not involve
    expenditures, and Congress, of course, is free to put in laws
    that ban expenditures by foreign citizens and those----
        Senator Whitehouse. But you did specify issue ads.
        Judge Kavanaugh. I was talking about what the statute said.
    Congress is free, subject to, of course, challenge, to put
    some----
        Senator Whitehouse. My time is up.
        Judge Kavanaugh. Law in place.
        Chairman Grassley. Senator Cornyn.
        Senator Cornyn. So, just to reiterate, Congress writes
    campaign finance laws, not the Federal courts, correct?
        Judge Kavanaugh. That is correct, Senator.
        Senator Cornyn. You were asked whether you were a human
    torpedo. Do you even know what that means?
        Judge Kavanaugh. I do not, but I understood the gist of the
    question.
        Senator Cornyn. Well, with all due respect to my friend,
    Senator Whitehouse, he has got a very fertile imagination, it
    strikes me. And what does it prove that you have somebody's
    name in your phone directory? Somebody you have known for 25
    years?
        Judge Kavanaugh. For 25 years.
        Senator Cornyn. What does that prove?
        Judge Kavanaugh. It proves I have known someone for 25
    years. You know, it might be more than 25 years, but in any
    event, for a long time.
        Senator Cornyn. That sounds about right. That is nothing
    more, it strikes me. That great legal sage unfortunately is not
    here, so I----
        Senator Kennedy. I deny everything.
        [Laughter.]
        Senator Cornyn. That great legal sage, and I am not talking
    about Oliver Wendell Holmes, Jr. Senator Kennedy said something
    that really struck me is right on. He said the Bill of Rights
    is not an a la carte menu, and I would like to know whether you
    agree with that. Can you pick and choose which of the Bill of
    Rights is more important than another, or whether you can
    ignore some and recognize others? How do you, as a Federal
    judge, address that?
        Judge Kavanaugh. As a sitting judge, I try to apply all the
    provisions of the Constitution and all the precedents of the
    Supreme Court without picking or choosing which precedents or
    which pieces of precedents that I might favor, which pieces of
    the Constitution or the laws passed by Congress, apply them
    all.
        Senator Cornyn. So, are any one of the Bill of Rights more
    important than another?
        Judge Kavanaugh. Senator, I think they are all important,
    all the provisions of the Constitution, and the structural
    provisions, of course, are essential, or the Bill of the Rights
    would not be nearly as meaningful because we would not have the
    structural protections to ensure an independent judiciary to
    protect them.
        Senator Cornyn. Our friend, Senator Durbin, asked you to
    apply common sense when interpreting the Second Amendment. I am
    tempted to say common sense is not all that common, but is that
    a basis upon which to construe the provisions of the Second
    Amendment, just to apply your common sense?
        Judge Kavanaugh. The rules--you apply the precedent of the
    Supreme Court interpreting the Second Amendment, which in turn
    interpreted the words, history, structure, historical practice
    of the Second Amendment, and as a lower court judge, it was
    incumbent on me to apply that precedent as faithfully as I
    could. And I explained in very painstaking detail, and I really
    encourage anyone who is interested and has some time because it
    is long, to read that dissent. I am--the analysis in there is
    carefully laid out, and then at the end I describe that I
    understand the real-world consequences of this and the real-
    world issues, and where I have grown up and what I have
    experienced. But I explained it in great detail.
        Senator Cornyn. Thank you. Thanks, Mr. Chairman.
        Chairman Grassley. Senator Coons, you have about 9\1/2\
    minutes.
        Senator Coons. Great. Thank you, Mr. Chairman. I ask
    unanimous consent that letters from eight different groups,
    organizations, individuals be entered into the record.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as submissions for the record.]
        Senator Coons. Thank you. Judge Kavanaugh, we are at the
    end of a long day, and I would like to take a few minutes and
    just explore with you a speech you gave last year, a speech at
    the American Enterprise Institute entitled, ``The
    Constitutional Statesmanship of Chief Justice Rehnquist.''
    There you called Rehnquist your first judicial hero, and you
    went on to discuss at length the 1997 case, Washington v.
    Glucksberg, in which the Supreme Court rejected a fundamental
    right to physician-assisted suicide.
        In Glucksberg, as you know, Rehnquist explained his belief
    that the only liberties protected by the Due Process Clause are
    those that are ``deeply rooted in the Nation's history, legal
    tradition, and practice.'' You praised Rehnquist's opinion. You
    said, and I am quoting your speech here now, ``The Glucksberg
    case stands to this day as an important precedent limiting the
    Court's role in the realm of social policy and helping ensure
    the Court operates more as a court of law and less as an
    institution of social policy.'' Further, ``Rehnquist is a
    Justice who''--I think I am quoting here--``was successful in
    stemming the general tide of freewheeling judicial creation,
    enumerated rights that were not rooted in the Nation's history
    and tradition.''
        The only conclusion I can draw from your praise in this
    speech last year of Rehnquist substantive due process
    jurisprudence in his Glucksberg opinion is that you endorse
    this so-called Glucksberg test, which asserts the only due
    process rights protected by the Due Process Clause--excuse me--
    are those objectively rooted in American legal history and
    tradition. You even said yesterday in a similar exchange here
    that ``all roads''--all roads--``lead to the Glucksberg test.''
        So, let me in the few I have left, ask a few quick
    questions about the implications of applying the Glucksberg
    test in a principled fashion----
        Judge Kavanaugh. Can I say one thing first?
        Senator Coons. I want to get a couple of questions quick,
    and then depending on the grace of the Chairman, we may have an
    exchange----
        Judge Kavanaugh. I said the same thing that Justice Kagan
    said when she was in this chair, about Glucksberg.
        Senator Coons. And here is the most important thing about
    Justice Kagan's jurisprudence. She did not apply the Glucksberg
    test in U.S. v. Windsor, in Obergefell, or Whole Women's
    Health. So, the question I want to get to is what would it mean
    to go and apply this test in a range of settings? So, first, is
    judicial protection of the fundamental right to access and use
    contraception consistent with the Glucksberg test? It is a
    simple ``yes'' or ``no'' question, Judge.
        Judge Kavanaugh. I disagree that it is a simple ``yes'' or
    ``no'' question. What I have said here is, that the precedent
    of the Supreme Court on that question, what Justice Alito and
    Chief Justice Roberts said about those precedents, Justice
    White's concurrence in Griswold, is persuasive application of
    precedent. What is important to know about Glucksberg is it is
    cited in Planned Parenthood v. Casey as authority----
        Senator Coons. Yes.
        Judge Kavanaugh. As authority----
        Senator Coons. But on the specific issue of--and I
    appreciate your having said those were correctly decided. I am
    just trying to get clarity about if it were the Glucksberg
    test, well rooted in our history, legal tradition, and
    practices, would the Court have ever reached those results on a
    fundamental right to access and use contraception, given the
    long history of States having statutes that prohibited access
    to contraception? I think it is a simple ``yes'' or ``no.''
        Judge Kavanaugh. Well, as Justice White explained in his
    concurrence in Griswold actually, those laws had not been
    enforced for decades. But put that aside, the test in
    Glucksberg, as Justice Kagan explained when she was sitting in
    this chair, is a test that is guiding the Supreme Court going
    forward and has been cited in the precedent. It did not disturb
    any preexisting precedent, indeed cited Casey as authority.
        Senator Coons. It did. So, let us move on then to abortion,
    which was really centrally at issue in Casey. Is judicial
    protection of abortion rights consistent with the Glucksberg
    test, something deeply rooted in our history, legal tradition,
    and practices?
        Judge Kavanaugh. Again, I think it is important to
    underscore that the Glucksberg decision written by Chief
    Justice Rehnquist cited Planned Parenthood v. Casey as
    authority, which in turn reaffirmed Casey, reaffirmed Roe v.
    Wade.
        Senator Coons. But had it been the test at the time, the
    Court would not have reached that result. In fact, you said at
    the AEI lecture ``Even a first-year law student could tell you
    the Glucksberg Court's approach to unenumerated rights was not
    consistent with the approach of the cases, Roe v. Wade, Planned
    Parenthood v. Casey.'' So, we know the Glucksberg test, had it
    been applied, would not have reached that same result.
        Let us move, if we could, from contraception, abortion, to
    intimacy. Is the Glucksberg test consistent with the Court's
    historic decision--Justice Kennedy's decision in 2003, Lawrence
    v. Texas, which the Court held the Constitution protects
    intimacy, including same-sex intimacy, between consenting
    adults?
        Judge Kavanaugh. Well, as the Supreme Court said last year
    in a broad majority, under the precedents that now exist, the
    days of treating gay and lesbian Americans as second-class
    citizens--gay and lesbian couples--or as inferior in dignity
    and worth, are over. That was Justice Kennedy joined by Chief
    Justice Roberts, Justice Alito, Justice Gorsuch, Justice
    Breyer, and Justice Kagan. Statement for the Supreme Court
    summarizing, in essence, Romer, Lawrence, Windsor, and
    Obergefell.
        Senator Coons. But had the Glucksberg test been--the sole
    test being applied during Lawrence, Justice Kennedy would not
    have reached the result he did.
        Judge Kavanaugh. Well----
        Senator Coons. Let us move to the right to marry, if we
    could, for a moment.
        Judge Kavanaugh. One sentence----
        Senator Coons. It is the last case we are going get
    through.
        Judge Kavanaugh. Windsor----
        Senator Coons. The right to marry is clearly rooted in our
    history of legal tradition and practices, yes, Judge? And we
    both know the landmark case, Loving v. Virginia, distinguishes
    marriage is clearly deeply rooted in our history, legal
    tradition, and practices, but interracial marriage was not. In
    fact, it was barred in many States, probably longest in
    Virginia. And the Supreme Court struck an important blow in
    1967 in striking down anti-misogynation statutes.
        Last, what about same-sex marriage? If the Glucksberg test
    were the test applied, is a right to marriage regardless of
    gender deeply rooted in our history, legal tradition, and
    practices?
        Judge Kavanaugh. A couple things, Senator. I think Windsor
    and Obergefell talk about equality as well, so there is an
    equality principle. And as the Court said in Masterpiece
    Cakeshop, summarizing all those decisions, a line of five
    decisions all written by Justice Kennedy--Romer, Lawrence,
    Windsor, Obergefell, and Masterpiece Cakeshop.
        Senator Coons. Were they all correctly decided?
        Judge Kavanaugh. They are all--none of the eight currently
    sitting Justices have answered questions about any of those
    cases. As Justice Kagan said, no thumbs up or thumbs down on
    those recent cases. But they--but what the Court said in
    Masterpiece Cakeshop is the most recent statement of the
    Supreme Court for a broad cross-section, a broad--large number
    of Justices on the Supreme Court. And I think I will leave it
    by referring you to that statement from the Supreme Court.
        Senator Coons. Here is my core concern. This quote--this
    quote--what you chose to do in a speech last year in front of
    AEI was to lift up this Glucksberg test. What you chose to say
    yesterday, ``All roads lead to the Glucksberg test,'' gives me
    pause and concern. If you feel I have somehow misquoted you in
    the American Spectator article, if you feel I have somehow
    misquoted you here, I expect we will have a chance through some
    written exchanges to give you an opportunity to further clarify
    that, given the limitation on my time.
        But in what I have read about how the Glucksberg test has
    or has not been applied, the ways most critically in which
    Justice Kennedy himself rejected the Glucksberg test in his
    opinions in Casey, in Lawrence, in Obergefell, I think the
    Glucksberg test is better at rejecting claims of constitutional
    rights than it is at accepting them, and I think it is a blunt
    instrument. And I am concerned that it may reveal an enthusiasm
    for a test that would permit the continued exercise of
    government power in ways that, frankly, would blow up all
    modern substantive due process. If applied rigidly, it would
    blow up precedent in contraception, abortion, protection from
    sterilization, marriage, a whole range of areas.
        These are settled precedent, but those of who sit trying to
    decide whether you should be the next Justice and take Justice
    Kennedy's seat have to ask ourselves what your views would be.
    And in this recent speech where you cite your first judicial
    hero, Rehnquist, in articulating the Glucksberg test, I worry
    that you reveal you do not share the view of our Framers, in
    particular, the Fourteenth Amendment Framers, who understood
    constitutional rights to exist in significant part to right
    historical wrongs, not to ignore them or entrench them.
        Our Constitution's protection for people who are vulnerable
    or marginalized or just different from the majority is what
    makes us a beacon to the rest of the world where there are so
    many countries, where minorities or those who dare to live
    their lives differently are marginalized or oppressed. And it
    is exactly this Glucksberg test that worries me most because it
    excludes all such people from the circle of constitutional
    concern and protection.
        I am troubled, Judge Kavanaugh, if you do not understand
    that is the driving, animating force of our constitutional
    culture. And this is a test that, in my view, is just not up to
    the task of vindicating our country's greatest ideals. Thank
    you.
        Chairman Grassley. If you feel you want to comment, go
    ahead, and then I will call on Senator Lee.
        Judge Kavanaugh. Two points. Justice Kennedy joined
    Glucksberg. Justice Kagan cited Glucksberg repeatedly when she
    was in this chair.
        Chairman Grassley. Senator Lee.
        Senator Lee. So, Glucksberg is precedent, right?
        Judge Kavanaugh. It is, and it is precedent that Justice
    Kennedy joined.
        Senator Lee. And so, it is settled law. I mean, it is
    established. It is entitled to the same respect as other
    precedent, including other precedent mentioned by Senator
    Coons.
        Judge Kavanaugh. It is an important precedent of the
    Supreme Court. It has been discussed by other Justices over
    time.
        Senator Lee. And nothing in Glucksberg or in those other
    cases suggest that Glucksberg is incompatible, suggests that it
    cannot--suggests that it is somehow incompatible with those
    other precedents.
        Judge Kavanaugh. It cited Casey as authority.
        Senator Lee. Thank you.
        Mr. Chairman, I have a letter that I would like to offer
    into the record. This is signed by David Levi. He is one of our
    Nation's foremost legal scholars.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as a submission for the record.]
        Senator Lee. He served until about a month ago as the dean
    of Duke Law School. Prior to that he served as a U.S. District
    Judge in the Eastern District of California. He shares some
    great personal information in here about his interaction with
    Judge Kavanaugh and about the fact that Judge Kavanaugh came to
    Duke Law School. And, as it is becoming a theme in this
    hearing, he describes how Judge Kavanaugh was a mentor to these
    students who participated in moot court competitions, answered
    their questions, gave advice to the participants and all the
    other students there. And I offer that into the record. Thank
    you, Mr. Chairman.
        Chairman Grassley. Second one?
        Senator Lee. Just this one. You have already admitted it. I
    am just thanking you now for doing it.
        Your phone, the contents of your phone, the question you
    received from Senator Whitehouse, the contents of your phone in
    light of Carpenter, he cannot really ask you that, right?
        [Laughter.]
        Senator Lee. I want to echo something that Senator Crapo
    mentioned a few minutes ago with regard to western lands. I am
    not going to make you answer any questions regarding this, but
    there are significant issues that frequently do not get
    addressed as a result of the fact that there are just few
    States where the Federal Government owns most of the land. In
    every State east of the Mississippi, the Federal Government
    owns less than 15 percent of the land. In many of those States,
    it is in the low single digits. In every State west of
    Colorado, the Federal Government owns more than 15 percent of
    the land. In many States like my own, it is most of the land.
    The Federal Government owns two-thirds of the land in the State
    of Utah, even more in Nevada.
        As a result of this, our local communities are severely
    impaired in terms of their ability to manage their own affairs,
    to authorize the most basic of economic activities going on on
    their land. Our local communities cannot tax the land, and
    property taxes are where in most States, including my own, a
    lot of the money comes from to fund schools, to fund basic
    services like search and rescue, police, fire suppression, and
    so forth. As a result of the fact that the Federal Government
    owns all that land and controls what activity can occur on it,
    these States are locked out. They are thwarted in development.
    Cannot do anything on that land without a mother may I. And in
    States like mine, you almost cannot even access a lot of
    property without crossing Federal land, and you have to get a
    permit for it.
        In many respects, this puts the States on equal footing,
    one as compared to another. But in many respects, I think this
    runs into conflict, at least potentially, with some language
    put into the Enclave Clause into Section--in Clause 17 of
    Article I, Section 8, that talks about how if the Federal
    Government is going to be the sole sovereign lawmaking
    authority on Federal land within a State, it is supposed to be
    acquired by and with the consent of the host State's
    legislature.
        That was--that language was put in to the Enclave Clause as
    a result of a concern expressed by Elbridge Gerry, who
    expressed in early September of 1787 as the Convention was
    drawing to a close that unless this clause was put in there,
    the Federal Government might acquire a whole land in a lot of
    these States and use its exclusive lawmaking power under the
    Enclave Clause to compel the States to a humble undue obedience
    to the general Government. And yet this has been overlooked for
    a long time, since the late 1970s.
        Many have improperly conflated the Enclave Clause
    authority--that is, the Federal Government's sole sovereign
    lawmaking capacity relative to Federal lands--its property
    clause authority under Article IV, Section 3, Clause 2, which
    is really a proprietary interest, authorizing Congress to sell
    and otherwise dispose of territory and other property owned by
    the Federal Government.
        There are two different things. In order to exercise the
    Article IV power, Congress just acts because it can dispose of
    land. In order to exercise the Article I, Section 8, Clause 17
    power, to be the exclusive sole sovereign lawmaking authority
    within a State as to that Federal land, that land has to have
    been acquired by and with the consent of the host State's
    legislature.
        The Court has not been careful to distinguish between those
    two, in part because of some, what I believe, was over
    generalization in the case called Kleppe v. New Mexico. This is
    of concern to my State, and I felt the need to make that point
    to you today. You do not have to respond to it.
        I do, however, have a very important question for you. Why
    do you--I notice that you take a lot of notes, and I respect
    that because I can tell you are paying close attention. You use
    a Sharpie, and it is not a fine-tipped Sharpie.
        [Laughter.]
        Senator Lee. It is a regular Sharpie that might smudge and
    make--why do you prefer that pen? I am just dying of curiosity.
        Judge Kavanaugh. So, I can see it.
        [Laughter.]
        Judge Kavanaugh. It is nothing scientific.
        Senator Lee. That is the perfect mic-drop moment, and with
    that, Mr. Chairman, I reserve the balance of my time. Thank
    you.
        Chairman Grassley. Senator Klobuchar.
        Senator Klobuchar. Okay. That is going to be really hard to
    follow, but I will try my best. So, Judge, we talked a lot
    about some big issues, Times v. Sullivan, Executive Power, and
    I want to get back to where I started. You have talked over the
    last few days about what matters is real things, real people,
    and I want to bring it back to that and some of the issues that
    are dense in terms of legal issues, but in the end mean things
    to people.
        And one of the things we have talked about is the net
    neutrality rules, and we know that those were the protections
    that were put in place by the FCC a few years back to prevent
    internet service providers from blocking and slowing traffic so
    that people would have equal access to the internet. And the
    case came before the D.C. Circuit, and they were against you.
    The rules were upheld by a panel of judges appointed by
    Presidents of both parties. We talked about this yesterday. I
    do not want to go over your theory again on major rules, which
    I disagreed with.
        But there was something we did not talk about yesterday,
    and that was that you went actually beyond the bounds of what
    the parties had argued to reach a constitutional issue in that
    case. You found that the First Amendment protects internet
    service providers' right to exercise editorial discretion, even
    though neither of the principal parties had raised a First
    Amendment argument at all. Why did you go out of your way to
    address that constitutional issue?
        Judge Kavanaugh. That issue was raised in some of the
    briefs in the case, point one. Point two, I followed the Turner
    Broadcasting approach that was the majority opinion of the
    Supreme Court in 1994 of Justice Kennedy in the Cable Operator
    context, which, as I explained in the opinion, seemed to apply
    very closely in this situation. It is something I have written
    prior opinions on as well about how Justice Kennedy's opinion
    in Turner Broadcasting applies in other contexts. And it
    seemed----
        Senator Klobuchar. But were you the only judge that went
    that far to take on the constitutional issues?
        Judge Kavanaugh. I may have been, but I was applying Turner
    Broadcasting. It is a precedent of the Supreme Court that
    seemed on point, and it was raised in the case by a party, and
    I thought important to explain.
        Senator Klobuchar. But you have said that the canon of
    constitutional avoidance, which says courts should avoid
    reaching constitutional questions, that are not necessary to
    decide a case, is something you would ``consider jettisoning
    all together.'' I think you said that in a 2016 book review. Is
    that right?
        Judge Kavanaugh. Well, I would talk about--I talked about
    the problem of ambiguity as a trigger for certain canons of
    statutory interpretation because, at least in my practice over
    the last 12 years, that has been one of the sources of
    disagreement among judges that is hard to grapple with and
    figure out what is the--how to bridge that divide when one
    judge says I think this is ambiguous and another one says, no,
    it is not. Justice Scalia--Justices Scalia and Kagan have both
    talked about that as being an issue, and that is one of the
    reasons I talked about it in that Harvard Law Review article.
    That was a Law Review article, however, and not a case or
    decision of mine where I was just identifying my experience and
    talking about ideas.
        One thing about the First Amendment issue I want to make
    clear, I pointed out there if a company has market power under
    Turner Broadcasting, then the Government does have the
    authority to regulate. If a company does not have market power,
    Turner Broadcasting says no, but it does not bar all regulation
    by any stretch, not even close.
        Senator Klobuchar. It just would seem that there is First
    Amendment rights of individuals to use the internet and express
    their own views, and if it gets too expensive for them to use
    it, you basically said that the companies have these First
    Amendment rights, not looking at the issue that I think a lot
    of us as policymakers see, is that unless you have some rules
    of the road in place, it is going to make it very hard for
    individuals and small businesses to access.
        Judge Kavanaugh. I think that is a fair point. An argument
    like that was raised in the Turner Broadcasting case in 1994
    when it was argued to the Supreme Court. That was the term I
    clerked. And that is not the argument that the Supreme Court
    accepted at that time.
        Senator Klobuchar. Okay. You mentioned Justice Scalia, and
    I wanted to end with when we talk about the effects of things.
    And he actually was a champion of the Chevron case, which, of
    course, was the Supreme Court ruling that allowed agencies'
    decisions on health and safety protections to stay in the book.
    It has been referenced in more than 15,000 decisions.
        But you said it was a precedent to me yesterday, but your
    writings--in your writings you have called it ``an atextual
    invention of courts and a judicially orchestrated shift of
    power.'' You have said that ``Instead of applying Chevron,
    courts should simply determine the best reading of the statute
    and no longer defer to agency interpretations.'' Does this not
    mean you really would prefer de novo review for those that are
    still watching this at home? That would mean that the courts
    would act as if they are considering questions of law for the
    first time so that they would not defer to the agency.
        And you have--the way we have set this up here is, Congress
    passes laws, agencies often do the fine work with experts of
    figuring out what those rules are. So, this is what I am so
    concerned about for people's drinking water, for safety
    reasons. If you would then go and go to de novo review or
    change this, and I think it is a very big deal when you look at
    15,000 decisions and the fact that Justice Scalia supported
    this and you appear to be itching toward the other side.
        Judge Kavanaugh. What I have done is identify some of the
    issues that arise when you are applying the doctrine, but I
    also pointed out in that same article that it is--it has
    overlapped with--not to get too into the weeds here--but with
    the State Farm doctrine. And so, when there is a statutory term
    such as ``reasonable,'' ``feasible,'' those--``appropriate,''
    those kinds of statutory terms that judicial deference is
    appropriate.
        Senator Klobuchar. Mm-hmm. Do you think a judge that does
    not have a technology background is better deciding this than,
    say, experts at the FCC when you have rules--or, someone with
    no scientific background better to decide some of these things
    than people who are scientists.
        Judge Kavanaugh. So, I have a number of cases where the
    statute gives discretion to the agency to exercise those expert
    scientific judgments where I have said courts should not second
    guess those in the clean air context where I have upheld
    emissions limited. The NACS, I have written--the air quality
    standards. I have written opinions saying courts should not
    second guess what EPA--where EPA sets the limit within the
    NACS. So, too, in a case called American Radio Relay League, I
    made clear that courts should not unduly second guess agencies.
        It is all about the statute that you write. If it has
    discretion built into it, I am one who does not think courts
    should add requirements that you have not put in. If you have
    written a really tightly confined statute, at the same time of
    an agency pushes beyond those boundaries, the courts are there
    to draw the line, and that is how I have tried to be even
    handed in how I have applied----
        Senator Klobuchar. And, again, and we went over this
    yesterday, but just the finding of unconstitutionality with the
    Consumer Financial Protection Bureau. And then the internet
    rules where, again, you are the only one saying this, and now
    you would be on the highest court of the land if you are to be
    confirmed. And just for me, these rules, it is not just some
    law on the books, it is personal. We are proud of our clean
    water, and clean lakes and rivers in Minnesota. Those are
    safety rules.
        My grandpa worked 1,500 feet underground in the mines his
    whole life. Went down there in a cage, and the sirens would
    sound and people would run because they did not know who was
    killed in the mine that day. And my dad still remembers those
    coffins in the Catholic church up in Ely, Minnesota, and it was
    those safety rules that came in place, many of them implemented
    by agencies that got us to where we are. And it really concerns
    me if we overturn all of that and just leave it in the hands of
    Congress to have to mete through all these minute details when
    we cannot even get through 42,000 documents, so.
        Senator Cornyn [presiding]. Senator Blumenthal.
        Judge Kavanaugh. Can I say two quick points?
        Senator Cornyn. Oh, sure. I did not know there was a
    question.
        Judge Kavanaugh. One, I have a large number of cases,
    particularly in the EPA context, where I have upheld EPA rules
    that have done things and in other administrative agency
    context. It is all about--and I understand what you are saying
    about the people affected by the rules, and in each of the
    cases I have written, I have tried to make that clear.
    Ultimately, my approach to statutory interpretation is rooted
    in respect for Congress.
        Senator Cornyn. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman. Good evening.
    Judge Kavanaugh, I would like you to tell me that I am wrong,
    and I would like you to tell me that you would put aside your
    Heller II dissent, and as a member of the United States Supreme
    Court, if confirmed, you would uphold a ban on assault weapons.
        Judge Kavanaugh. Senator, as a sitting judge, I cannot make
    a commitment about a future case.
        Senator Blumenthal. Well, let me put it this way. In your
    view, a ban on assault weapons in your dissent you voted to
    strike down because it was not longstanding, and it applied to
    weapons in common use. Is that correct?
        Judge Kavanaugh. I applied the precedent of the Supreme
    Court, which made clear that machine guns can be banned.
    Machine guns can be banned. The Supreme Court said that
    explicitly, and I said it as well.
        Senator Blumenthal. But assault weapons are equally
    destructive, and the evidence for them is equally compelling,
    that is, the evidence for a ban on assault weapons, which is
    what the majority in Heller II in your court found, did it not?
    In fact, the court said that it was upholding the ban on
    assault weapons because, ``Our role is narrower, to determine
    whether the district has presented evidence sufficient to
    establish the reasonable fit we require between the law at
    issue and an important or substantial governmental interest.''
    Governmental interest, public safety never figured into your
    test on Heller II, did it?
        Judge Kavanaugh. Senator, the precedent of the Supreme
    Court, which I applied, says that the Government can ban
    machine guns. I encourage--I explained in detail how I
    interpreted Heller. In the Staples case from 1994, which I
    cited, referred to these kinds of guns as in common use, so I
    would encourage you to--at least if you are thinking of me, I
    have to apply precedent. Take a look at that Staples case and--
    --
        Senator Blumenthal. I have taken a look at the Staples
    case, but more compellingly, I have taken a look at what
    assault weapons can do.
        Judge Kavanaugh. I understand that, but I also----
        Senator Blumenthal. And I thought about bringing some
    posters here today showing what happened at Sandy Hook when 20
    beautiful children and six wonderful educators were gunned
    down, just as has happened in countless places across the
    country, including Sutherland Springs in Texas, Parkland in
    Florida, Las Vegas in Nevada, Orlando in Florida, Virginia
    Tech, San Bernardino, most recently in Florida, of course.
    Assault weapons were designed to kill people, were they not?
        Judge Kavanaugh. Senator, the end of my Heller II, opinion,
    I understand and, of course, detest all school violence or gun
    violence, and I said that at the end of my Heller II----
        Senator Blumenthal. I am sure all of us detest school
    violence.
        Judge Kavanaugh. But I----
        Senator Blumenthal. I am asking you to look at the real
    world----
        Judge Kavanaugh. And I did that----
        Senator Blumenthal [continuing]. With real impacts, and I
    am asking you to reconsider your dissent in Heller II, and look
    at the impacts on children, young children who have their whole
    lives ahead of them as did those 20 first-graders in Sandy
    Hook, and a ban on assault weapons might well have saved them.
    There is no knowing for sure, but they might be alive today if
    there had been a ban on assault weapons, and high-capacity
    magazines, and better background checks.
        And now we face the specter of a new kind of weapon, 3-D
    blueprint design guns that are untraceable and undetectable by
    and large. They are not in common use yet, but they will be if
    they are not banned. There is no traditional ban on them. They
    were unimaginable in 1789. The test that you are imposing here
    is out of touch with the real world and the impact on real
    lives, and I would just suggest that, with all due respect, you
    give us the benefit of saying here that you will reconsider a
    test that is out of touch with reality.
        Judge Kavanaugh. Senator, I appreciate what you are saying.
    If someone came to me and argued that the test was wrong, I
    will, of course--of course, I always would listen and try to
    understand. What I did there at the end of my opinion, I am
    from this area, and this----
        Senator Blumenthal. And I know you have lived in the gun or
    gun violence capital of the world. I have heard you say it a
    number of times, and I----
        Judge Kavanaugh. But I grew up in it. I mean, I--you know,
    I do not want to overstate that, but, I mean, I grew up in an
    urban/suburban environment where it was--there was a lot of
    gang and gun violence in the 1980s in the District of Columbia,
    and I talked about Police Chief Kathy Lanier's goals, at the
    time Police Chief Kathy Lanier.
        Senator Blumenthal. But all of that experience is not
    reflected in the test that you are imposing here, despite your
    claim that you look to the real world and impacts on real
    people, nor is it reflected in the test on Presidential power
    that you are going to impose, which says, in effect, a
    President can strike down the Affordable Care Act. Donald Trump
    can strike it down if he deems it, and he alone unilaterally
    believes it to be unconstitutional, even after your court, the
    D.C. Circuit, even after the United States Supreme Court, even
    after President Obama, and the Congress of the United States
    all deem it constitutional. That gives the President virtually
    unchecked power. And in this real world, that is a dangerous
    prospect for us, is it not?
        Judge Kavanaugh. Senator, two things. One, on the Second
    Amendment issue, I did explain as best I could why I felt the
    President controlled and set forth that test. I did point out
    that the test that I understood the Court to be setting forth
    would allow potentially more gun regulation depending on how it
    was applied than, say, strict scrutiny would depend. But I
    pointed that out. And I pointed out what the Supreme Court said
    about banning machine guns. On the Presidential power, I
    referred you before on prosecutorial discretion, what the
    limits are of that being tested in court, and I have said that
    in my Marquette speech in 2015. The concept, of course, is, as
    you know, well established in Supreme Court precedent of
    prosecutorial discretion in the Heckler v. Chaney case.
        Senator Blumenthal. Judge Kavanaugh, I was at Sandy Hook
    the afternoon of that massacre. I do not know whether you have
    been at these kinds of scenes. I do not whether you have seen
    the pictures of what assault weapons can do. They were designed
    for the sole purpose to kill and maim human beings. They are
    very good at it. They were one of the most effective and
    efficient weapons known to man. And I would urge you to
    reconsider. I think the test that you are imposing is out of
    touch with the reality of what assault weapons do, and I think
    it reflects a broader shortcoming in the way you are applying
    law to facts in trying to meet an ideological standard rather
    than a test for the real world.
        Senator Cornyn. Judge, if you care to respond, you can
    respond.
        Judge Kavanaugh. I just wanted to thank Senator Blumenthal
    for sharing that perspective, and I thank you for sharing it,
    appreciate it, and will take it into account and consider it
    and remember what you said here. Thank you.
        Senator Cornyn. Your Honor, would you care to take a 5-
    minute break?
        Judge Kavanaugh. Yes, please.
        Senator Cornyn. We will be in recess for 5 minutes.
        [Whereupon the Committee was recessed and reconvened.]
        Senator Cornyn. I understand Senator Blumenthal will have a
    unanimous consent request with regards to some documents. If he
    has that when he comes back in, we will recognize him. Senator
    Hirono, I believe you are next.
        Senator Sasse. I think I am next.
        Senator Cornyn. I am sorry. Senator Sasse----
        Senator Sasse. Go ahead. Go ahead, that is fine.
        Senator Cornyn. Senator Hirono and then Senator Sasse.
    Thank you.
        Senator Hirono. Oh, I am sorry. I thought we were going
    to----
        Senator Cornyn. I beg your pardon. Senator Hirono, you are
    recognized. Thank you.
        Senator Hirono. Thank you very much, Mr. Chairman, and
    Senator Leahy. And any time that I do not use, of my 16
    minutes, I would like to have that time go to Senator Booker.
        Judge Kavanaugh, as you know, this June, the Court
    delivered a blow to millions of public sector workers with its
    decision in Janus v. AFSCME. In a 5-to-4 decision, five of the
    Justices overturned decades-old precedent, a case called Abood
    that workers around the country depended on for fair salaries
    and basic rights. The Janus decision is important here because
    it shows your nomination fits in a larger campaign that groups
    like the Federalist Society and the Heritage Foundation have
    been waging for decades. Decades. Their goal is to undermine
    well-established Supreme Court precedent that protects workers,
    women, and everyday Americans.
        In Janus, five Justices overturned Abood ``because they
    wanted to.'' Those were Justice Kagan's words, not mine.
    Although the five Justices went through the factors that--for
    overturning precedent, it identified another, what they
    referred to as a very strong reason for not following
    precedent, and that reason was ``fundamental free speech rights
    are at stake.'' In fact, the five Justices said the rule for
    following precedent, also known as stare decisis, applies with
    perhaps least force--least force--to decisions that wrongly
    deny First Amendment rights. So, it sounds as though the Court
    is saying that First Amendment takes precedence.
        So, why is this important is because of the larger
    political campaign by groups like the Federalist Society and
    the Heritage Foundation that I mentioned earlier. So, with the
    help of these groups, the Supreme Court, as Justice Kagan put
    it, has been ``weaponizing the First Amendment in a way that
    unleashes judges now and in the future to intervene in economic
    and regulatory policy.'' And, in fact, just this past year, the
    First Amendment was used to advance the political agenda
    against workers' and women's health and reproductive rights.
    Judge Kavanaugh, do you agree with the five Justices in Janus?
        Judge Kavanaugh. Senator, that is a precedent of the Court
    that, of course, because it is one of the recent cases, I
    cannot comment on whether I agree or disagree with it. But it
    is a precedent that is now part of the body of the Supreme
    Court case law.
        Senator Hirono. And, of course, should you get on the
    Supreme Court, you can either follow that precedent or overturn
    it. But basically, the Court in Janus said that--they come up
    with a very strong reason for overturning even decades-old
    precedent if First Amendment rights are at stake. So, based on
    the answer you just gave me, then that kind of rationale would
    also be the precedent of the Court now.
        So, the Supreme Court sets precedent, of course, and all it
    takes is five votes to overturn precedent, as happened in
    Janus. Five votes. And I am particularly troubled that the five
    Justices in Janus claimed, ``It did not matter that public
    sector unions have relied on the Abood case for decades.'' And
    yesterday when you talked about the role of precedent, you
    talked about--you used words such as how people rely on the
    precedent, whether it creates stability, there is
    predictability, but the five Justices in Janus--the fact that
    public sector unions have been relying on the Abood decision
    for 41 years did not matter.
        So, five Justices also claimed that ``they could overturn
    Abood as a well-established precedent because public sector
    unions were on notice''--this is quoting the Court--``notice
    for years regarding this Court's misgivings about the Abood
    case.'' But as Justice Kagan explained, this so-called notice
    was actually Justice Alito's 6-year campaign to reverse Abood.
    So, I will not go over his 6-year campaign, but suffice it to
    say that Justice Alito made it very plain to potential
    litigants out there who wanted to undo the Abood decision,
    basically he said, come on over because I want to be in a
    position to be able to reverse Abood.
        And the only reason in an earlier case, called Friedrichs,
    said that Abood was not overturned was because of the death of
    Justice Alito, and then after that, Justice Gorsuch was
    confirmed, and Justice Gorsuch was going to provide the fifth
    vote, whereas in the previous vote because of the death of
    Justice Scalia, the earlier case of Friedrichs ended in a 4-to-
    4 tie. But then along comes Justice Gorsuch, and the fifth vote
    was there, and Abood is overturned, and Janus is now the
    precedent case.
        So, to the extent the Court in Janus said, well, you know,
    by the way, all you litigants who are--all you people out there
    who are relying on this precedent, you had notice that we were
    thinking of overturning this case.
        So, do you believe that a Justice should be able to make it
    easier to overturn or even--overturn even well-established
    Supreme Court precedent by simply giving notice that he or she
    has concerns about that precedent, because that is exactly what
    Justice Alito did?
        Judge Kavanaugh. Senator, I think the factors that the
    Court considers is whether the prior decision was grievously
    wrong, whether it is deeply inconsistent with subsequent
    precedent that is developed around it, the real-world
    consequences, the workability of the decision, as well as
    reliance interests----
        Senator Hirono. Well, on the other hand, Judge Kavanaugh,
    can you call a 5-to-4 decision as reflective of the prior
    decision having been grievously wrong, not to mention that in
    the case that came before Janus, ended in a 4-to-4 tie because
    of the death of Justice Scalia? So, by one vote. The Court
    looked to the notice provided by a Justice as one of the
    justifications for overturning this 41-year-old precedent.
        So, my next question is, do you think the prior writings of
    someone before becoming a Supreme Court Justice can count as
    notice, that Americans cannot rely on the protections
    entrenched in well-established precedent? For example, if
    someone like you did some writing that questioned a precedent,
    would that suffice as notice for the Supreme Court to overturn
    precedent?
        Judge Kavanaugh. Senator, I think the factors that the
    Supreme Court considers in applying stare decisis are
    established. If you look at the prior decision, whether it was
    grievously wrong, deeply inconsistent with subsequent
    precedent, the real-world consequences, and the reliance
    interests. And, I understand that you disagree with how those
    factors were applied, and Justice Kagan, of course, in dissent
    disagreed with how they were applied. But, and I understand----
        Senator Hirono. It was a very strong dissent, and it was a
    split decision, and suddenly we are talking about strong
    reasons being the First Amendment rights, which Justice Kagan
    said is now being weaponized. And you can see the trend of the
    5-to-4 decisions that weaponizes First Amendment. We are
    already seeing that. The Court said that where the First
    Amendment rights are concerned, that stare decisis, meaning
    precedent, applies with the least force. Going on. So,
    basically, the concern I have about the reasoning in the Janus
    Court is, that we will see many more 5-to-4 decisions where
    precedent can be overturned if a Justice has given notice as
    Justice Alito did, or if First Amendment rights are concerned.
        Let me turn to the issue of guns. You were asked some
    questions about this, about your position on basically Heller
    II. The Brennan Center for Justice reported that as of August
    20th, 2018, outside groups had spent almost $3.5 million to
    campaign for your confirmation, and I think we have all seen
    those ads. By contrast, groups opposing your nomination had
    spent a less than a quarter of that amount. And one of those
    groups spending hundreds of thousands of dollars to get you
    confirmed to the Supreme Court is the National Rifle
    Association.
        And the NRA makes clear in their commercials what is at
    stake with your nomination. In fact, they highlight that there
    are currently four Justices who favor gun control and four
    Justices who oppose gun control. They then explain, and I am
    quoting their ad, ``President Trump chose Brett Kavanaugh to
    break the tie.'' They urge your confirmation pointing out that
    the viewers' access to guns depends on your vote, Justice
    Kavanaugh.
        So, you had mentioned earlier that the Supreme Court had in
    the past said concealed weapons, guns in schools, machine guns
    could be banned, but, you know, you can provide that fifth vote
    to undo these earlier Supreme Court precedents. So, why do you
    think--this is part of their ad: ``Your right to self-defense
    depends on this vote.'' This is based on--it is part of the
    NRA's million-dollar campaign to get you onto the Court. Why do
    you think the NRA is spending so much money to ensure that you
    get confirmed as a Supreme Court Justice?
        Judge Kavanaugh. Senator, there are a lot of ads for and
    against me, and I have seen----
        Senator Hirono. Well, I am asking specifically about the
    NRA ad. Why do they think you are going to provide the crucial
    fifth vote to--they obviously think that you are on their page.
        Judge Kavanaugh. Senator, there are a lot of ads by groups
    against and for. That is the right of people to express their
    views. I understand that, again stand for. And I am independent
    judge, and I for 12 years have a record of being an independent
    judge.
        Senator Hirono. Well, obviously the NRA does not think you
    are so independent when it comes to gun legislation because
    they are spending a lot of money to tell everybody that you are
    going to provide that crucial vote to their liking. So, you
    know, I think it is--these ads speak for themselves of why they
    think you are the critical person to be on that Court.
        And I want to follow up one more thing, something you told
    Senator Feinstein yesterday regarding your views on guns. You
    seem to indicate that your view on Supreme Court precedent is
    that a type of gun could not be banned, and I will quote you to
    her, what you said yesterday, ``if a type of firearm is widely
    owned in the United States.'' So, did you mean to say ``widely
    owned'' as opposed to ``widely used'' in your response to
    Senator Feinstein?
        Judge Kavanaugh. I think I referred to the dangerous and
    unusual test that the Supreme Court has articulated, and
    referred to how I had applied that test in the Heller--my
    Heller opinion.
        Senator Hirono. Well, you did say that if a type of firearm
    is widely owned in the United States, you would deem any
    limitation on widely owned guns to be unconstitutional. So, is
    it your view that a large enough number of people downloaded
    designs for 3-D guns and printed them, and, therefore they own
    them, that the States and the Federal Government could not ban
    them because now they are widely owned.
        Judge Kavanaugh. Senator, I cannot talk about a
    hypothetical case.
        Senator Hirono. I think that is another reason that the NRA
    is so adamant that you get on the Court. I would like to cede
    the rest of my time to Senator Booker.
        Senator Cornyn. I understand, Senator Blumenthal, you have
    a unanimous consent request to offer some documents?
        Senator Blumenthal. I do. Thank you very much, Mr.
    Chairman. I would like to enter several letters from outside
    organizations into the record. These organizations have voiced
    some of the real-world consequences of Judge Kavanaugh's
    appointment, and they come from the National Council of Jewish
    Women, the National Abortion Federation, various faith
    organizations and communities, the National Center for
    Transgender Equality, the American Public Health Association,
    and the Center for Public Representation. I ask that they be
    made a part of the record.
        Senator Cornyn. Without objection.
        [The information appears as submissions for the record.]
        Senator Cornyn. The Chair recognizes Senator Sasse.
        Senator Sasse. Thank you, Mr. Chairman.
        Judge, you are in the home stretch. Some of us are way
    beyond bed time. I just snuck out and did a goodnight call with
    my kids, and my 7-year-old was so groggy, he asked what I was
    up to, and I told him, and he said--he was curious if you were
    scared of poisonous spiders.
        [Laughter.]
        Senator Sasse. I will protect you from having to answer his
    question. Mike Lee already asked you about Sharpies, so we will
    not ask you about your phobias related to the outdoors.
        I would like to talk a little bit about the First
    Amendment. I am worried about the Liberal Project in the grand
    sense. I think what is happening on campuses right now is
    really dangerous, and I think what happens on campus will
    probably not stay on campus. We have got lots of data that
    shows high school kids do not know our history, do not know
    basic civics. One of the most frightening numbers is that
    Americans under 35, 41 percent of them tell pollsters they
    think the First Amendment is dangerous because you might be
    able to use your free speech to say something that would hurt
    someone else's feelings. So, I would love to explore a little
    bit where we are in the First Amendment.
        So, can we go to history first? What is the core purpose of
    the First Amendment? Why do we have it?
        Judge Kavanaugh. We have protected so individuals can
    express their views in speech and in writing. The idea is that
    there is no such thing as a true idea that is dictated from
    above or by the Government, and that individuals can say what
    they think in speech and writing and help--it is both an
    individual idea that they can express their own opinions and
    their own beliefs, and it is also--I think there is also an
    idea that truth develops through debate, and more informed
    judgment, the more perfect union develops through debate when
    we have different perspectives that are shared.
        And a lot of--a lot of ideas began as unpopular ideas, and
    then people, they take hold over time, and it is important to
    protect the ability of people to speak both for their
    individual rights and for the idea of the betterment of society
    over time through debate and improvement and more perfect
    union.
        Senator Sasse. Thanks. I am encouraged. I was hoping that
    we would hear both sides of that. We need a First Amendment
    because it is required for individual liberty, and we need it
    structurally because society, and particularly a republic,
    needs that discourse. You never really have a great idea of
    what you think if it is just bouncing around inside your head.
    It needs to be dialogued with others, and a free republic, a
    free people need that debate to advance a structure of liberty.
        Why are there five freedoms in the First Amendment? Why do
    we have speech, press, religion, assembly, protest, redress of
    grievances? Why would we not have a different amendment for
    each one? Why is there not just free speech and maybe the two
    clauses of religion, but why are they all together in an
    amendment? And this is not supposed to be some grand ``gotcha''
    question.
        [Laughter.]
        Senator Sasse. I am abusing you for private tutorial.
        Judge Kavanaugh. I think the rights--when they go to New
    York in 1789, James Madison, after going through the ratifying
    conventions and hearing--getting a lot of heat, frankly, for
    why is there not protection in a Bill of Rights, something that
    George Mason and others who were concerned about, what the
    original Constitution. So, when they got to New York, you know,
    he was busy working on this, writing out a draft of the rights
    that he thought should be protected in a Bill of Rights, and
    drew on a lot of the State constitutions. I know I have talked
    with Senator Kennedy about some of that. And I do not have a
    clear answer for why the grouping ended up in that fashion.
        Senator Sasse. Well, is it fair to say that if we did not
    have a First Amendment, would people not have these right? I
    mean, was the Constitution not completed without a Bill of
    Rights because we do not think Government gives us rights? We
    have rights by--because people are created by God with dignity,
    and so the rights are--they belong to people because of the
    nature of humans, and humans are created in the image of God
    and they have dignity. And so, the Constitution stops before
    the Bill of Rights, and then Bill of Rights sort of clarifies a
    whole bunch of things that we believe about people.
        And when you run through them, it is kind of amazing that
    we end at the Ninth and Tenth Amendment, which in a way--well,
    the Ninth Amendment--I want you to tell me what they mean. But
    if I am teaching it to my kids, what I say the Ninth and Tenth
    Amendment mean is, oh, you do not actually need a list that
    might end because if you think that you only have the rights
    that Government decrees for you, then you might think when the
    Government stops talking, you do not have any more rights.
        And it seems to me what the Ninth and Tenth Amendments say,
    oh, by the way, if you do not--if we do not have a list of
    rights that continues, you still have all the ones we did not
    name. And State and local governments, if the Federal
    Government has not said this is a power uniquely enumerated for
    the Federal Government, States and locals, you are the only
    governments that still have these remaining powers. Is that
    fair? Or correct me.
        Judge Kavanaugh. I think one of the ideas at the
    Convention, and they did talk a bit about Bill of Rights there
    or individual rights, and they do have some in Article I,
    Section 9, Article I, Section 10. We forget those rights. I
    hate to take an aside here, but I want to underscore the ex
    post facto bill of attainder provisions are critical to
    individual liberty. Ex post facto is the very definition of a
    tyrannical government when what you did yesterday is made
    illegal tomorrow and you are promised for what you did
    yesterday when it was not illegal then. And so, those were some
    of the foundational individual liberties.
        But the idea I think they had, and it was maybe a bit of a
    political miscalculation at the Convention, was because the
    Federal Government was only given certain specified powers, we
    did not need to put in a Bill of Rights because the Federal
    Government would not have the power to do these kinds of things
    in the first place. Well, that did not go over so great in some
    of the ratifying conventions, and some of the promises that
    were made were instead of amending the existing structure, let
    us get to work as soon as we get to New York in 1789 on a Bill
    of Rights. And there were a variety of discussions, and so that
    is what Madison did when they got to--got there in 1789.
        So, I think your point is correct with respect to thinking
    about where rights come from, but I think in the practical
    politics of the day, the initial idea was the Federal
    Government will not have the power to do that, and then people
    said what are talking about, there are lots of powers in this
    Constitution. Even if you think that----
        Senator Sasse. Clarify.
        Judge Kavanaugh. Let us belt and suspenders and make sure
    that the Federal Government cannot infringe these core
    liberties, which are part of what we think are fundamental to
    being--to being an American.
        Senator Sasse. Why is there not an exception written into
    the First Amendment against hate speech? What is hate speech,
    and who gets to decide what it is?
        Judge Kavanaugh. Senator, I think the principle of free
    speech that the Framers put into the Constitution encompassed
    the idea that there would be, as the Supreme Court has
    subsequently said in a variety of cases, unpopular ideas that
    would be expressed. And that, as we said earlier, it is
    important for individual liberty to have the ability to express
    your thoughts and your words, and it is important for societal
    development, the development of America for the people to be
    able to express their ideas so that we can improve over time.
        And a lot of the ideas we hold dear were unpopular, some of
    them not so long ago. And we developed those ideas over time,
    and part of free speech helps us build a better America.
        Senator Sasse. Yes.
        If we had to unpack American political philosophy in one
    word, I think it is anti-majoritarianism. You never would want
    the Majority to get to define what the Minority cannot hold in
    an unpopular position.
        The Chairman is going to take my gavel, take my microphone,
    but I would love to ask you if speech can ever be called
    violent.
        Judge Kavanaugh. I would just add one sentence to the anti-
    majoritarianism point. We think of the individual liberty
    specified in the Constitution as supporting that, but the
    structure, as I made clear, the structure, the separation of
    powers and federalism, is part of that same overall idea, which
    is protection of individual liberty against majoritarian rule,
    and the whole document tilts toward liberty.
        Senator Sasse. Thanks.
        Chairman Grassley. Senator Booker.
        Senator Booker. Thank you, Mr. Chairman.
        Judge, you do not need to answer this because we all know
    your answer anyway, but will you allow me to ask you a series
    of questions leading to a question that I do not know your
    answer to?
        A simple question. Again, we all know your heart, but just
    a question so I can lead someplace. You would not fire somebody
    because of the color of their skin. Obviously, no. Right? You
    would not fire somebody----
        Judge Kavanaugh. Right, right.
        Senator Booker. I know that is a snappy answer. I just want
    you to say ``no'' to that.
        Judge Kavanaugh. No.
        Senator Booker. Yes.
        Judge Kavanaugh. I have made clear----
        Senator Booker. You have made clear because you have hired
    interns, you have talked to me about friends. I know that is
    the case. And, forgive me, I am not even questioning that. You
    would not fire somebody because of their gender, obviously.
    Right?
        Judge Kavanaugh. So, I have made clear my efforts to
    achieve, as best I can, in the ways I can as a judge----
        Senator Booker. Sir, just because of my time, I heard about
    numerous of my colleagues, even on the other side of the aisle,
    asked you to go through your hiring, and I just know that is
    your heart. I am not challenging that. I am not asking that. I
    am just trying to lead someplace, if you will allow me.
        So you know it would be wrong for someone else to fire
    somebody just because of the color of their skin. Right? It
    would be morally wrong.
        Judge Kavanaugh. Of course.
        Senator Booker. It would be morally wrong. It would be
    morally wrong. Right?
        Judge Kavanaugh. In the civil rights laws----
        Senator Booker. If I could just ask you person to person,
    human being to human being, the dignity of a human being, it
    would be wrong to fire somebody because of the color of their
    skin.
        Judge Kavanaugh. And I understand that. I think my record--
    --
        Senator Booker. It clearly states that, it echoes that----
        Judge Kavanaugh. Yes.
        Senator Booker [continuing]. As it has been stated numerous
    times. I am not challenging that at all.
        Would it be wrong to fire somebody if the person found out,
    hey, I just found out this person is gay? Would it be wrong to
    fire that person?
        Judge Kavanaugh. Senator, in my workplace, I hire people
    because of their talents and abilities. All Americans, all
    Americans----
        Senator Booker. So maybe I can shift, then. Morally, you
    think it is right to hire people, it does not matter their
    background. For someone to fire someone just because they are
    gay, let us shift to the law now. Do they have a legal right to
    fire somebody just because they are gay, in your opinion?
        Judge Kavanaugh. Senator, the question, as I am sure you
    are aware, of the scope of employment discrimination laws being
    litigated right now, and therefore while I would like to talk
    to you about this more, because that issue is in a variety of
    cases right now, it would be inconsistent, as I am sure you are
    going to understand----
        Senator Booker. Right. And I guess Senator Harris, Senator
    Coons, have all brought up these issues. Loving v. Virginia has
    been mentioned, the Obergefell case has been mentioned. I think
    there are a lot of folks who have real concerns if you get on
    the Court, folks who are married right now really have a fear
    that they will not be able to continue those marital bonds, and
    we still have a country where, if you post your Facebook
    pictures of your marriage to someone of the same sex, we still
    have a majority of States where if that employer of yours finds
    out that you had a gay marriage and that you are gay, in the
    majority of American States you can fire somebody because they
    are gay.
        I guess you are not willing to tell me whether you
    personally morally now think that that is right or wrong.
        Judge Kavanaugh. Senator, I am a judge, and therefore with
    the cases that you are well aware of pending in the courts
    about the scope of the civil rights laws, the employment
    discrimination laws--of course, Congress could always make
    those clear----
        Senator Booker. That is what I want to get to, the point
    that you will not give me a moral answer because of the pending
    cases, and I have heard that before.
        Judge Kavanaugh. Right, and I do not want to in any way----
        Senator Booker. So, maybe I can ask you about your concern
    when you were in the Bush White House. Did you have any
    involvement in Bush's effort to support a constitutional
    amendment to ban same-sex marriage?
        Judge Kavanaugh. So, Senator, when I was in the White
    House, that was part of something that he talked about. Of
    course, at that point in time----
        Senator Booker. Did you express an opinion then about it
    yourself?
        Judge Kavanaugh. As staff secretary, things related to
    that, speeches he gave went across my desk, as I have discussed
    before.
        Senator Booker. I am not privy to your documents at that
    time.
        Judge Kavanaugh. Right.
        Senator Booker. Did you ever express your opinions about
    same-sex marriage in those documents that I am not privy to,
    that will one day come out?
        Judge Kavanaugh. I do not recall. Of course, at that time,
    as you are well aware of, Senator, there has been a sea change
    in attitudes in the United States of America, even since 2004,
    as you are well aware.
        Senator Booker. But you are not willing to tell me your
    attitudes then? I mean, we can change. We had President Obama
    evolve on that issue.
        Judge Kavanaugh. Right.
        Senator Booker. So will you tell me your attitudes then
    about it?
        Judge Kavanaugh. I will tell you that there was debate in
    the White House. Vice President Cheney came out, one of the few
    times he came out and publicly disagreed----
        Senator Booker. I do not need to know Cheney's opinions. I
    want to know your opinions on the issue.
        Judge Kavanaugh. I am sorry, Senator. I did not mean to
    interrupt. But there was debate in the White House about what
    President Bush was doing. Of course, as you said, President
    Obama----
        Senator Booker. That was his word, ``evolved'' on the
    issue. But in your opinion--I do not need Obama, Cheney. Just,
    will you express to me your opinion on same-sex marriage?
        Judge Kavanaugh. I do not recall----
        Senator Booker. I am not asking your opinion then. I am
    asking your opinion now. Do you recall your opinion now on
    same-sex marriage?
        Judge Kavanaugh. Well, the Supreme Court in Obergefell----
        Senator Booker. Your opinion. I do not know, maybe I did
    not get the record. I do not know if you have conducted gay
    marriages. I do not know if you have been to gay marriages.
    What is your opinion?
        Judge Kavanaugh. I am a judge. I apply the law. I apply the
    precedent.
        Senator Booker. Have you conducted a gay marriage?
        Judge Kavanaugh. Have I conducted one?
        Senator Booker. Have you presided over one, officiated a
    gay marriage?
        Judge Kavanaugh. I have not.
        Senator Booker. Okay. But you do not want to tell me your
    opinion on that issue.
        Judge Kavanaugh. I apply the law. The law of the Supreme
    Court----
        Senator Booker. I want to move on as quickly as I can.
        Judge Kavanaugh. The law of the land protects that right,
    as dictated by the Supreme Court.
        Senator Booker. Right. I just want to turn really quickly
    to your views on the criminal justice system. A lot of my
    colleagues heard this speech last summer at a conservative
    think tank. You called Chief Justice Rehnquist, and I quote,
    your ``first judicial hero.'' Rehnquist was one of the most
    conservative Justices. You said about him, quote, ``Rehnquist
    fervently believed that the Supreme Court had taken a wrong
    turn in the sixties and seventies when the Court made a lot of
    really landmark decisions.'' Gideon v. Wainwright, about access
    to an attorney. You had the assurance that police officers
    cannot violate your constitutional rights and then turn around
    and use that improperly to gain information. The exclusionary
    rule. The requirement that police officers taking you into
    custody read you your Miranda rights.
        You praised Rehnquist's efforts to ``limit and halt''--that
    is your quote--halt these critical protections. You said that
    it ``righted the ship of constitutional jurisprudence.''
        So, do you think we had taken a wrong turn by establishing
    those rights?
        Judge Kavanaugh. No, that is not what I said, Senator, and
    the fact that we have not discussed exclusionary rule and
    Miranda over the last 24 hours is a sign of success of Chief
    Justice Rehnquist in helping the Supreme Court achieve a middle
    ground that has endured, that has endured and that is not
    really controversial.
        Senator Booker. Well, I think we have not discussed it, at
    least I have not had a chance to ask you about it yet, and my
    time is running out. So just tell me if any of these were wrong
    turns. The exclusionary rule. A wrong turn or not?
        Judge Kavanaugh. Supreme Court----
        Senator Booker. Your opinion. The exclusionary rule. A
    wrong turn or not? Is that settled?
        Judge Kavanaugh. I apply the precedent----
        Senator Booker. You cannot tell me it is settled.
        What about the Miranda warning? Settled or not?
        Judge Kavanaugh. The Court--can I get two----
        Senator Booker. No, not unless you tell me your opinion. I
    know what the precedent is. I know this law very well.
        Senator Cornyn. Senator, I think the witness is entitled to
    answer the question.
        Judge Kavanaugh. In Dickerson, the Court reaffirmed that is
    precedent on precedent.
        Senator Booker. Sir, he has been allowed 6 minutes at the
    end of my time. I know he is going to get a chance to answer my
    questions. I am just trying to get them all out so when he has
    his 6 or 7 minutes at the end.
        You said Rehnquist made our criminal laws more workable.
    But the question really is--this is a quote from you, sir.
        Judge Kavanaugh. Criminal law, singular, I think.
        Senator Booker. Criminal laws, but maybe criminal law in
    general. I have a real question about workable for who, and you
    understand the disparities in our criminal justice system.
        Judge Kavanaugh. Yes.
        Senator Booker. You understand that we have--all the data
    show that people, based upon their financial status, based upon
    the color of their skin, often have different experiences in
    the law. Do you understand that?
        Judge Kavanaugh. Absolutely, Senator.
        Senator Booker. Yes, you know that. I know you know that.
        Judge Kavanaugh. We have talked about that.
        Senator Booker. Yes. Bryan Stevenson says, ``We have a
    system of justice that treats you better if you're rich and
    guilty than if you're poor and innocent'' We have a real issue
    with that. You and I have discussed this.
        Judge Kavanaugh. Yes. That was a good conversation.
        Senator Booker. I appreciated that. And I have 2 minutes
    left for this conversation, so let me just really quickly get
    this out, because I am going to then let you respond.
        And that is the challenge for a lot of Americans right now,
    which is that they really believe that the scales are
    different. We have a system now where we do not even really
    have jury trials in criminal cases anymore, and that was
    something that was really fundamental to our criminal justice
    system, is the jury trial. But the scales have shifted so much
    that you see now--in fact, there is a great book. I did not
    know Senators were going to give me books; I would have given
    you a number for them.
        [Laughter.]
        Judge Kavanaugh. I am happy to get them.
        Senator Booker. I will. I will give you ``The New Jim
    Crow'' by Michelle Alexander.
        Judge Kavanaugh. Yes, I clerked with Michelle Alexander.
        Senator Booker. I am grateful to give you these books. But
    let's keep going on because you were doing a good job of
    allowing me not to get to my question, and I have a very, very
    diligent Chairman who is going to cut me off in 1 minute and 10
    seconds.
        So, you know right now that we have a system that seems to
    be shifting away. ``Why Innocent People Plead Guilty'' is
    another book that is worthy of reading, because of criminal
    defendants and the power shifting. So that is what raises that
    question to me about the rights of criminal defendants. And it
    seems to me that you were indicating that you were in favor of
    what Rehnquist said, that those rights of criminal defendants
    somehow got out of control, that they are making them more
    workable. And the question I have is workable for who?
        It seems that when I look at a lot of these issues, as a
    guy--you and I both have talked--you talked a lot about your
    city of violence. I was the mayor of a big city, every single
    day working to try to keep my city safer. So I know about
    public safety, as you do, and I believe that these systems,
    these laws are making us less safe. They are destroying
    communities, because at Yale, they were not stopping and
    frisking kids on the way home from parties at The Toad looking
    for drugs. They were not getting the same treatment, those
    kids, and there was a lot of drug use at Yale.
        So I hear you saying you are praising Rehnquist, who is
    making these laws more workable, and I would just ask you,
    workable for who?
        Senator Cornyn. Judge, do you want to answer any of those
    questions?
        Judge Kavanaugh. I will try to give about a 1-minute on
    this.
        I understand we had a great conversation about racial
    disparities in the criminal justice system, and we talked about
    ensuring confidence of all Americans in the fairness of the
    criminal justice system and the American legal system and the
    court system and the Supreme Court, and I appreciated that
    conversation.
        I would just note four things. The note I wrote in law
    school about detecting race discrimination in Batson hearings,
    my opinions on acquitted conduct that have been used to enhance
    sentences, my opinions of that, that it is often unfair when
    acquitted conduct is used to jack up sentences far beyond what
    the offense of conviction would be. Third, my opinion on mens
    rea in the Burwell case. I strongly would encourage you to take
    a look at that, because that is part of the fairness and due
    process case.
        I understand your perspective, and I enjoyed our
    conversation, and thank you for that.
        Senator Booker. And if I could get the same treatment that
    Senator Blumenthal got, can I just read some things?
        Senator Cornyn. Absolutely.
        Senator Booker. Thank you very much, sir.
        Mr. Chairman, I am holding a number of letters in
    opposition to the nomination of Judge Brett Kavanaugh to be
    Associate Judge. They are letters from the NAACP, multiple
    health care groups around the country, Voto Latino, the Women
    Lawyers On Guard. There are a number of very esteemed religious
    organizations, the AME Churches representations here, the
    Congressional Black Caucus, and others. I would like to submit
    those to the record.
        And just in honor of Mr. Sasse, because I have a tremendous
    respect for him, and I actually agree with a lot of what he was
    saying about free thought and what is happening in this
    country, I just want to ask the person a friendly question,
    that I would love to read any book that he has to recommend, if
    the Judge would read any book I recommend. I make that offer
    just as an extension of good faith.
        Senator Cornyn. Without objection, they will be made part
    of the record.
        [The information appears as submissions for the record.]
        Senator Cornyn. For the record, Senator Durbin is one of
    the most prolific book recommenders I know in the Senate.
        [Laughter.]
        Senator Cornyn. I have benefited greatly from his
    recommendations of fiction and non-fiction alike. So I would
    suggest----
        Senator Booker. Is that----
        Senator Cornyn [continuing]. Recommend we go back to
    Senator Durbin----
        Senator Booker. Senator Cornyn, I would love to do a book
    exchange with you, sir, as well.
        [Laughter.]
        Senator Booker. Maybe that could help us this morning.
        Senator Cornyn. Okay.
        Senator Booker. Oh, God, please do not do that.
        [Laughter.]
        Senator Booker. In that case, just for the record, I
    retract my comments. That is pretty thick.
        [Laughter.]
        Senator Cornyn. We will go to Senator Flake.
        Senator Flake. Thank you, Mr. Chairman.
        Thank you, Judge. Appreciate your endurance.
        Judge Kavanaugh. Yes.
        Senator Flake. It was noted before, you have done the
    Boston Marathon twice. How does this compare?
        Judge Kavanaugh. I feel good, Senator.
        Senator Flake. Senator Booker represented Heartbreak Hill,
    I think. But you are beyond that and on the way down now.
        I just wanted to make a couple of comments, and I will
    yield additional time to Senator Lee.
        The cameras in the courtroom, I know you addressed it a
    little before. I raised it during the Gorsuch hearings. I am
    very much opposed to it. Not here. I am glad there are cameras
    here. They belong here. This is the Congress. This is the
    Senate. They belong here, and the protests here are people's
    right to free speech, and the country needs to see that. But I
    fear that it would politicize and be detrimental to the
    independence of the judiciary. I am glad that the cameras have
    been resisted in oral arguments. I know you cannot comment or
    will not comment on this, and if you want to, you can. But I
    certainly do not think it is in our interest to bring the
    element of politics any closer to the judiciary. So I will make
    the same comments as I did with Judge Gorsuch's hearing.
        I did Chair a Subcommittee hearing on the use of technology
    in the courtroom last summer. I have had a long interest in the
    topic, and I remain convinced, after the testimony that we
    received there and what I have observed, that we are better off
    having oral arguments the way they have been, and the Court has
    remained and I hope will continue to remain a bastion of
    independence. That is more difficult if there are cameras in
    the courtroom.
        So with that, I will yield my remaining time to Senator
    Lee, as he might use it.
        Senator Cornyn. Thank you, Senator Flake. We will go to
    Senator Harris and then come back to Senator Lee.
        Can I ask? Senator Booker raised some issue about the
    reduction in the number of jury trials in criminal cases?
        Senator Flake. Probably for plea bargaining.
        Senator Cornyn. Oh, is that because of plea bargains?
        Senator Booker. Yes, sir. The percentage of jury trials in
    this country has gone down dramatically.
        Senator Cornyn. It is because of plea bargains, not because
    people are being denied their constitutional----
        Senator Booker. I would say plea bargains are the result of
    mandatory minimum sentences, which have changed pretty
    dramatically.
        Senator Cornyn. Okay. Thank you for that explanation.
        Senator Harris.
        Senator Harris. Thank you.
        Judge, you have spoken about the President's unlimited
    prosecutorial discretion. Does that discretion allow him to
    target his political enemies for prosecution and spare his
    friends?
        Judge Kavanaugh. Senator, in the Marquette speech I gave in
    2015, I pointed out that the question of the limits of
    prosecutorial discretion is a question that is unsettled and
    needs further study. The Supreme Court, of course, has referred
    to the concept and well-settled tradition of prosecutorial
    discretion in Heckler v. Turner and Nixon.
        Senator Harris. And I actually recall you talking about
    that during the course of this hearing. And also I am
    reflecting on a conversation you had with Senator Flake
    yesterday where he raised concerns with you about a recent
    tweet by the President. In that tweet, the President attacked
    the Justice Department for indicting two Republican Members of
    Congress because it would hurt the Republican Party at the
    polls.
        You said you did not want to assess comments in the
    political arena, so I will not ask you to condemn the tweet,
    even though I believe you should. But would you recognize and
    agree with the principle that a sitting President should not
    politicize the Justice Department?
        Judge Kavanaugh. Senator, I think that is asking me to wade
    into the political arena.
        Senator Harris. So it is not a self-evident----
        Judge Kavanaugh. Three zip codes away from the political
    arena, Senator.
        Senator Harris. Okay. Following up on Senator Booker's
    question from yesterday on an interview you gave in 1999 in
    connection with a case you worked on, you said that it was an
    inevitable conclusion within the next 10 to 20 years that the
    Court would say, quote, ``We are all one race in the eyes of
    the Government.'' Would you agree that your statement suggests
    that the Government would no longer recognize racial
    differences? That is my reading of your words. Was that in the
    zone of what you intended?
        Judge Kavanaugh. So, I think I talked to Senator Booker
    about that yesterday.
        Senator Harris. Yes.
        Judge Kavanaugh. That was certainly an aspirational
    suggestion, but I have said as recently as a couple of years
    ago that the long march for racial equality is not finished and
    racial discrimination is still a reality we see on an all-too-
    frequent basis. I said that in my opinions.
        Senator Harris. So the conclusion I draw from that is that
    you would agree, and I certainly believe we have not arrived at
    that place yet.
        Judge Kavanaugh. There is still racial disparity, racial
    discrimination, of course, in American society. I have said
    that in my opinions.
        Senator Harris. So my question is this: Why should it be up
    to the Court to decide when we arrive, whenever that moment
    comes? Why should it be up to the Court to decide?
        Judge Kavanaugh. I think that is a question of how to
    interpret the precedent of the Supreme Court, and it is not--it
    is different areas, as we have discussed. There is precedent in
    the higher education context. There is precedent in the
    contracting context in terms----
        Senator Harris. And does that precedent dictate that it
    should be the Court that would make the decision that we have
    arrived at that place where we are basically all one race in
    the eyes of the Government?
        Judge Kavanaugh. The precedent does not necessarily lead to
    that conclusion. I think that is an open question going
    forward. You are familiar with Justice O'Connor's statement in
    the Michigan case about 25 years ago.
        Senator Harris. Yes.
        Judge Kavanaugh. That clock is moving fast, but we still
    have, as I have said in my opinions, work to do.
        Senator Harris. So I have just a few minutes left, but just
    to continue this conversation, if it were up to the Court to
    decide, just talking again to the natural conclusion, what you
    wrote, will it be the five Justices, then, of the Court, who
    will decide, or are you suggesting that it should be like Brown
    v. Board of Education, where there would be a unanimous
    decision that we have arrived at that point? Or could it simply
    be five Justices, a majority of the Court, deciding that we
    have arrived at that point?
        Judge Kavanaugh. I think a one-size-fits-all answer to the
    question is hard to give in this context.
        Senator Harris. What do you imagine as being the ideal?
        Judge Kavanaugh. Well, the ideal for every case is that
    every case is unanimous. I realize that is naive, but that is
    the goal. When I talk about joining a Team of Nine, that is the
    goal, and I think that is the goal of every Justice, and the
    Court has shown a remarkable ability on the most important
    cases in its history, like Brown v. Board of Education, like
    United States v. Richard Nixon, to achieve unanimity, and that
    is part of the reason those cases stand as such landmarks.
        Senator Harris. Sure.
        Judge Kavanaugh. The decision, the independence, and the
    unanimity.
        Senator Harris. And you and I have discussed that before,
    and you have mentioned that here. I agree with that.
        But tell me, when the Court does make that decision, if
    that moment arrives, that we are one race, does that mean the
    Government should not provide Federal funding to Historically
    Black Colleges and Universities?
        Judge Kavanaugh. Senator, I think the Historically Black
    Colleges and Universities have, of course, been a critical part
    of the educational system in the United States.
        Senator Harris. Pardon me. Because we recognize past
    restrictions on African-American students being able to have
    access to higher education. But do you imagine, though, that if
    we reach this point that you, I think, hope that we will
    achieve--I think that we all do, that we will all be equal----
        Judge Kavanaugh. I think we all do.
        Senator Harris [continuing]. In every way, do you believe
    that that would mean, then, that we would end Federal funding
    for HBCUs?
        Judge Kavanaugh. Again, Senator, when we reach that point,
    it is hard to foresee what that would mean. But what I know
    about the Historically Black Colleges and Universities, of
    course, is the origins of them, that African Americans were
    denied access to higher educational institutions. What they
    have accomplished and produced, and what they continue to do,
    and the importance of those colleges and universities in the
    United States can continue to perform that educational
    function.
        Senator Harris. Thank you. And how would the courts and
    agencies enforce laws like the Civil Rights Act of 1964 if the
    Government does not recognize racial categories? I am not clear
    about what you are imagining would occur.
        Judge Kavanaugh. Well, that is a question of what Congress
    has as the law. So long as Congress and, of course, a landmark
    civil rights law, the Voting Rights Act, those two from 1964
    and 1965, two of the most consequential laws ever passed by
    Congress, ban discrimination on the basis of race, and so long
    as those laws are on the books, and one imagines that those
    laws will always be on the books, discrimination on the basis
    of race will be illegal under the civil rights laws and the
    voting rights laws in what they cover.
        Senator Harris. So what would come of the Civil Rights Act
    of 1964 in that place that you imagined, at least in 1999,
    where we would arrive in 10 to 20 years from then, where we are
    all one race in the eyes of the Government? What would that
    mean for the Civil Rights Act of 1964? Because I am assuming
    that if you are actually confirmed, you will live a long life,
    as all of us do.
        Judge Kavanaugh. Thank you.
        Senator Harris. So it is conceivable that during the course
    of your lifetime--conceivable; I do not know if it is probable,
    but conceivable that we will arrive at that place. So imagining
    that, and imagining that you will be still a member of the
    United States Supreme Court, what do you imagine would be your
    analysis as it relates to the applicability and relevance of
    the Civil Rights Act of 1964, if we arrive at that place that
    you describe?
        Judge Kavanaugh. Well, I am not--I think those might be two
    distinct issues, which one imagines it will always be on the
    books, the Civil Rights Act and the Voting Rights Act prohibit
    discrimination on the basis of race in employment, housing, and
    voting--so long as those are on the books, those will continue
    to be enforced by the Federal courts and discrimination on the
    basis of race would be something that will be unlawful and
    illegal.
        Senator Harris. Thank you. My time is up. I appreciate it.
        Judge Kavanaugh. Thank you, Senator.
        Senator Harris. And then, Mr. Chairman, I would like to
    also introduce letters into the record. I have first a letter
    from several of our Nation's leading civil rights organizations
    signed by the leaders of the National Coalition of Black Civic
    Participation, the Lawyers Committee for Civil Rights, the
    NAACP, the Legal Defense and Educational Fund, the NAACP, the
    National Urban League, and the National Action Network, all
    critical of this nomination and expressing concerns.
        Second, I have a letter from 31 reproductive rights,
    health, and justice organizations, including Planned Parenthood
    Federation of America, NARAL, and the National Women's Law
    Center.
        And finally I have letters from the Feminist Majority
    Foundation, the Disability Rights Education and Defense Fund,
    the American Network of Community Options and Resources, and
    the National Center for Special Education, if they could be
    admitted.
        Senator Cornyn. They will be made part of the record,
    without objection.
        Senator Harris. Thank you.
        [The information appears as submissions for the record.]
        Senator Cornyn. Senator Tillis.
        Senator Tillis. Thank you, Mr. Chair.
        I am going to be real brief.
        One, I thought Senator Booker did a very artful job of
    going down the path of questions that you could answer ``yes''
    or ``no'' to in terms of who you would hire and who you would
    fire. So let me just make sure that I am also clear on
    something you cannot respond to.
        But quite honestly, if firing someone because of their
    gender identification is immoral, it is also something that if
    anybody even suggested it that has ever worked in my
    organization, they would get fired before the sun set. I have
    been very passionate about this issue since 1997 when I set up
    a gay and lesbian recruiting practice at Price Waterhouse. That
    is becoming the norm. It is on us to fix it. It is not on the
    Judge to determine how we are going to get it done.
        And as for HBCUs, I am also proud to have led the first
    HBCU recruiting practice at Price Waterhouse. It is critically
    important. Again, if it comes under threat under the law, then
    let's do our job and fix it.
        The last thing for you. Now you get to answer questions.
        Judge Kavanaugh, there are about 350 lawyers at the
    Kasowitz firm. Is that right?
        Judge Kavanaugh. I do not know the number.
        Senator Tillis. I think that is right based on what we
    found in looking up the firm. Do you know all of them?
        Judge Kavanaugh. No.
        Senator Tillis. Are there any that you do know?
        Judge Kavanaugh. I know Ed McNally. He used to work in the
    White House Counsel's Office when I was in the White House.
        Senator Tillis. Have you ever talked with him about the
    Mueller investigation?
        Judge Kavanaugh. No.
        Senator Tillis. Do you know anyone else that works at the
    firm?
        Judge Kavanaugh. Not that I am aware of.
        Senator Tillis. Thank you. I again appreciate it, and it
    gives me one more chance to thank your family and all your
    friends and all these folks here who are probably going to have
    to go get back massages.
        [Laughter.]
        Senator Tillis. So, thank you all. God bless you. I look
    forward to supporting your nomination.
        Chairman Grassley. Let me close and give the Committee the
    agenda for tomorrow, and then we will go to our closed session.
        Judge, I am very pleased that the American people have
    finally had an opportunity to listen to you and to hear
    directly from you, because that is what these last 2 days have
    been all about, and I hope a lot of people in this country have
    formed very positive views of you, as I have.
        It seemed to me that you made a powerful and convincing
    case for Senate confirmation, hours and hours of questioning,
    and your answers have been compelling and credible. Your 12
    years of judicial experience on the most important Federal
    circuit court in America, 10,000 pages of judicial writings I
    think proves that unquestionably you are qualified to serve on
    the Supreme Court of the United States.
        We also ought to be very impressed with you as a person, a
    lifetime of public service. In addition to serving as an
    outstanding judge, you have been a professor, coach, volunteer
    and, probably most importantly, I think you would see your
    position as a husband and dad as the most important thing in
    your life.
        Tomorrow is the fourth and final day of this hearing. We
    will have four panels. On the first panel we will hear from two
    witnesses from the American Bar Association. Of course,
    everybody knows that Democratic leaders have called their
    judgment of somebody a ``gold standard'' of judicial
    evaluations, and they have rated you unanimously ``well
    qualified'' to serve on the Supreme Court.
        We will then have three more panels after the ABA panel
    where we will hear from 26 additional witnesses, 13 from the
    Majority, 13 from the Minority, and many of these witnesses
    include Judge Kavanaugh's former law clerk students, friends
    and associates. I look forward to hearing about their personal
    bonds with you, Judge.
        Now, without objection, the Committee Members and Judge
    Kavanaugh will move into closed session in Dirksen Room 226.
        This session is adjourned.
        [Whereupon, at 10:12 p.m., the Committee was recessed.]
        [Additional material submitted for the record for Day 3
    follows Day 5 of the hearing.]

                              CONTINUATION OF THE
                          CONFIRMATION HEARING ON THE
                     NOMINATION OF HON. BRETT M. KAVANAUGH
                       TO BE AN ASSOCIATE JUSTICE OF THE
                       SUPREME COURT OF THE UNITED STATES

                                  ----------

                           FRIDAY, SEPTEMBER 7, 2018

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:30 a.m., in
    Room SH-216, Hart Senate Office Building, Hon. Charles E.
    Grassley, Chairman of the Committee, presiding.
        Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
    Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
    Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
    Booker, and Harris.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Chairman Grassley. Good morning, everybody. I welcome you
    to our fourth and final day of the Kavanaugh confirmation
    hearing.
        Over the last 3 days, the American people heard directly
    from the Judge. He sat through hours and hours, and I think my
    staff calculated 32\1/2\ hours of our colleagues' statements
    and, of course, our colleagues' questioning. I think he made a
    very compelling case that he is one of the most qualified
    nominees, if not the most qualified, that we have seen for the
    Supreme Court of the United States. And I have seen, I think,
    15 of them.
        He demonstrated that his 12 years of exemplary judicial
    service on the Nation's second-highest court uniquely qualifies
    him for promotion to the Nation's highest court. In fact, on
    today's first panel, we will hear from two witnesses from the
    American Bar Association. The ABA, whose assessment,
    particularly by Democrat leaders--I like to quote that they
    refer to it as the ``gold standard'' of judicial evaluation--
    has rated Judge Kavanaugh unanimously ``well qualified'' to
    serve on the Supreme Court.
        I am going to tell you a little bit now how today is going
    to evolve. Each ABA witness will have 5 minutes to make an
    opening statement. We will then have 5-minute rounds of
    Senators' questioning of the panel. We will have 3 more panels
    after the ABA panel, where we will hear from 26 additional
    witnesses.
        Many of these witnesses include the Judge's former law
    clerks, students, friends, and associates. They will help make
    the case that not only is Judge Kavanaugh one of the most
    qualified nominees that we have, Judge Kavanaugh is also an
    exceptional judge, teacher, coach, volunteer, and dad. And I am
    sure we will hear that.
        Now I want to point out one person that is going to come on
    a later panel because he has deep Iowa roots. I am pleased and
    proud to hear from Professor Adam White--grew up in Dubuque,
    Iowa, graduated from Dubuque Wahlert High School, the
    University of Iowa, and Harvard Law School. And Adam's parents
    live in Bettendorf, Iowa. So he is probably not here yet, but I
    welcome Adam. And I hope to meet his parents as well.
        We will divide the time equally between the Majority's 13
    and the Minority's 13 witnesses. Each witness has 5 minutes to
    make an opening statement, then 5 rounds for Senators'
    questioning of each of the 3 panels.
        Our first panel today will feature two representatives from
    the ABA Standing Committee of the Federal Judiciary: Paul
    Moxley and John Tarpley. I would like to have you folks stand
    now so that I can swear you.
        [Witnesses are sworn in.]
        Chairman Grassley. Now before you give your testimony, I
    know a fine lawyer in Des Moines by the name of Mr. Brown who
    does a lot of what you are doing, and I know he spends a lot of
    time doing it and takes it very seriously. So let us--did you
    two folks----
        Senator Feinstein. Do I get to make a statement?
        Chairman Grassley. I am sorry. You do get to make a
    statement.
        I apologize. Go ahead. You should make a statement, yes.

              OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
              A U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Senator Feinstein. Thank you. Thank you very much. Thank
    you, Mr. Chairman.
        I do not have any questions for the two panelists, but I
    want to thank them both for all the hard work the ABA does, not
    just on the evaluation of Judge Kavanaugh, but on your
    evaluation of all of the district and circuit court nominees
    that come before the Committee.
        I, in particular, pay special attention to the
    recommendation, and for me, speaking personally, it is very
    important. And I want you to know that, and I believe I speak
    for Members on my side as well.
        For decades, the American Bar has provided an analysis of
    judicial nominations to provide the Senate and the American
    public with an important assessment of a nominee's
    qualifications. So thank you.
        The kind of rating it is, is to some extent what colleagues
    know of colleagues, and I think it is important because we see
    one side of a person, but the ABA sees their professional side
    and hears about their professional side. And I think that is
    very important.
        The rating is not determinative, and by no means is it the
    only consideration necessary to evaluate a nominee. It does
    provide the useful insight into whether the nominee has the
    legal competence, temperament, and integrity to be elevated to
    the Federal bench, and I think it is critically important for
    the ABA to be allowed to follow its process and finish its work
    before a nominee has a hearing.
        And I know I am, Mr. Chairman, speaking for our side on
    that point. Because this enables the Committee to ask questions
    of the nominee, especially if the ABA's evaluation suggests
    areas of concern in the nominee's record. So I hope we can
    return to such a process.
        Once again, thank you for your hard work, and welcome
    today.
        Thanks, Mr. Chairman.
        Chairman Grassley. Thank you.
        Mr. Moxley, do you want to start for your group?
        Mr. Moxley. Happy to.
        Chairman Grassley. Thank you.

            STATEMENT OF PAUL T. MOXLEY, CHAIR, AMERICAN BAR
             ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL
                    JUDICIARY, SALT LAKE CITY, UTAH

        Mr. Moxley. Thank you, Mr. Chair and Ranking Member
    Feinstein. We are honored to be here today representing our
    committee and to explain our evaluation of Judge Kavanaugh.
        We gave him the highest rating possible, which is
    unanimously ``well qualified.'' For over 60 years, we have
    conducted thorough, nonpartisan, nonideological peer review of
    nominees to the Federal courts. We assess the nominee's
    integrity, professional competence, and judicial temperament.
        The Standing Committee does not propose, endorse, or
    recommend nominees. We only evaluate the professional
    qualifications of a nominee to the courts.
        I am from Salt Lake City. John Tarpley, to my left, is from
    Nashville, Tennessee, and in the gallery is Bob Trout. And we
    were also assisted by Pam Bresnahan, who was the chair of this
    committee in July when the nomination came in.
        To be a nominee to the Supreme Court, one must possess
    exceptional professional qualifications. As such, our
    investigation of a nominee to the Supreme Court is much more
    extensive than the other Federal courts. First, all of the
    Circuit members of the committee, of which there are 14,
    participate in the evaluation. Every Federal Circuit in the
    country is covered by these 14 people rather than just the
    Circuit in which the nominee resides.
        Second, while the Standing Committee independently reviews
    the writings of the nominee, we also commission three reading
    groups. In this instance, we had the University of Maryland,
    University of Utah, and a professional group. And in this group
    of people were approximately 48 law professors and
    distinguished practitioners.
        Members of the reading groups independently evaluated
    factors such as the Judge's analytical abilities, the clarity
    of writing, knowledge of the law, application of the law to the
    facts, expertise in harmonizing a body of law, and the ability
    to communicate effectively. We contacted and solicited input
    from almost 500 people who are likely to have knowledge of his
    qualifications, including Federal and State judges, lawyers,
    and bar representatives. Some of these people were identified
    in his Senate questionnaire, which you are also familiar with.
        Also, our committee had a confidential evaluation performed
    on Judge Kavanaugh in the years 2003, 2005, and 2006 when he
    was nominated to the D.C. Circuit Court. We also, Mr. Tarpley
    and myself and Mr. Trout, met with the Judge for about 3\1/2\
    hours in early August and, since then, have talked to him
    regularly on the telephone, had email exchanges, and the like.
        We concluded that his integrity, judicial temperament, and
    professional competence met the highest standards for
    appointment to the Court. Our rating of unanimously ``well
    qualified'' reflects the consensus of his peers who have
    knowledge of his professional qualifications, and we reached
    out to a broad range of legal professionals, including almost
    500 people, and we conducted about 120 personal interviews.
        And with that, I conclude my opening statement.
        [The prepared statement of Mr. Moxley appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Mr. Moxley.
        Mr. Tarpley.

    STATEMENT OF JOHN R. TARPLEY, PRINCIPAL EVALUATOR, AMERICAN BAR
       ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL JUDICIARY,
                          NASHVILLE, TENNESSEE

        Mr. Tarpley. Thank you, Mr. Chairman, Ranking Member
    Feinstein, and Members of the Committee.
        Good morning. I am John Tarpley. As my colleague Paul
    Moxley reported, I am the lead evaluator of the American Bar
    Association's investigation of Judge Kavanaugh's nomination to
    the United States Supreme Court. It is my privilege to be here,
    and it is my privilege to present this testimony on behalf of
    the committee's evaluation of Judge Kavanaugh's professional
    qualifications.
        Let me point out at the start the Standing Committee did
    not consider Judge Kavanaugh's ideology, his political views,
    or his political affiliation. It did not solicit information
    with regard to how Judge Kavanaugh might rule on specific
    issues or cases that could come before the United States
    Supreme Court.
        Rather, the ABA Standing Committee's evaluation of Judge
    Kavanaugh was based on a comprehensive, nonpartisan,
    nonideological peer review of integrity, professional
    competence, and judicial temperament. In evaluating integrity,
    the Standing Committee considers the nominee's character and
    general reputation in the legal community, his industry, and
    his diligence.
        The Standing Committee found that Judge Kavanaugh enjoys an
    excellent reputation for integrity and is a person of
    outstanding character. It was clear from all of our interviews
    and other lengthy conversations that he learned the importance
    of integrity from a very early age and throughout his life.
        Importantly, many of the lawyers, judges, and others
    interviewed praised his integrity. They said his integrity is
    absolutely unquestioned. He is a person of the highest morality
    and the highest ethics. He is what he seems, very decent,
    humble, and honest.
        Another said, he always seeks to be fair. He is not result-
    oriented. He wants to do the right thing.
        On the basis of our comprehensive evaluation process, the
    Standing Committee concluded that Judge Kavanaugh possesses the
    integrity for our highest rating, a unanimous ``well
    qualified.''
        Professional competence, this encompasses qualities such as
    intellectual capacity, judgment, writing, analytical abilities,
    knowledge of the law, and breadth of professional experience. A
    Supreme Court--must possess all of these exceptional qualities.
    Judge Kavanaugh's professional competence easily exceeds these
    very high criteria.
        One of the reading group members noted in reviewing his
    scholarly work, their view was that Judge Kavanaugh writes and
    analyzes the law and the application of the facts to law and
    that--with exceptional clarity and that his opinions are well
    organized, resulting in clear precedent. Another said Judge
    Kavanaugh is an excellent writer with a flair for making
    complicated facts very understandable.
        Given the breadth, diversity, and strength of the positive
    feedback we received from judges and lawyers from all parts of
    the profession, the committee would have been hard-pressed to
    come to any conclusion other than that Judge Kavanaugh has
    demonstrated exceptional professional competence. Those with
    whom he has worked and those who have been involved in cases
    over which he has presided have applauded his intellectual
    acumen, his thoughtful discernment, and his written clarity. As
    a result, the ABA Standing Committee has determined that Judge
    Kavanaugh possesses sufficiently outstanding professional
    competence to be rated unanimously ``well qualified.''
        In evaluating judicial temperament, the ABA Standing
    Committee considers a nominee's compassion, decisiveness, open-
    mindedness, courteousness, patience, and freedom from bias.
    Lawyers and judges overwhelmingly praised Judge Kavanaugh's
    judicial temperament. They said, among other things, he is very
    straightforward. He maintains an open mind about all things.
        He is an affable, nice person. He is easy to get along with
    and even has a good sense of humor. Can you imagine that? A
    judge with a good sense of humor? He is really a decent person.
    His temperament is terrific. He is thoughtful, fair-minded,
    always fair-minded in his questions to counsel. Thus, our
    highest rating in this category.
        In conclusion, Mr. Chairman, I note that the ABA Standing
    Committee shares the goal of your Committee, to assure a
    qualified and independent judiciary for the American people. On
    behalf of the ABA's more than 400,000 members from one end of
    the country to the other, I want to thank you for the
    opportunity to present this statement explaining our
    evaluation.
        We are a very diverse group of lawyers and we agreed
    unanimously that Judge Kavanaugh meets our highest standards
    and rated him as unanimously ``well qualified'' to serve as an
    Associate Justice on the United States Supreme Court.
        Thank you again for this opportunity, and thank you for
    your service.
        Chairman Grassley. I will not have any questions of you. I
    am going to start with Senator Graham. But before I do that, I
    just want to thank you not only for your testimony, but you and
    your colleagues that did this review, we thank you very much
    for that part of your public service and your dedication to the
    rule of law.
        Senator Graham, and then Senator Feinstein.
        Senator Graham. Well, thank you, Mr. Chairman.
        That was an incredible explanation and overview of a well-
    lived life. Do you agree with that?
        Mr. Tarpley. Absolutely.
        Senator Graham. He sounds like a great judge, but a lousy
    politician. He has no chance in my business.
        What I would like to do is thank you because very seldom do
    we have moments like this in modern politics where you pick
    people outside the rim of politics to give us some insight
    about a person like you have done. Often--not often, but
    sometimes, we disagree with the ABA's rating from a Republican
    point of view.
        I am glad you do what you do. I want it to continue. When
    you reach a conclusion that I disagree with, it will not be
    because I do not respect your opinion. From this Committee's
    point of view, I think this is a valuable input.
        Some of us think you may be more left than right at times
    as an association, but that does not matter to me. What matters
    to me is the quality of your work, and I think you do the
    country a great service.
        So just to sum up. Intellect, A-plus?
        Mr. Tarpley. Absolutely.
        Senator Graham. Do you agree with that, Mr. Moxley?
        Mr. Moxley. Yes.
        Senator Graham. Integrity, A-plus?
        Mr. Moxley. A-plus-plus.
        Senator Graham. Again, we have nothing in common, I do not,
    with Judge Kavanaugh, so far as an A-plus-plus. I think I have
    got integrity, but I am not going to--I am not going to put
    myself in the category of this man in terms of his ability to
    impress his peers.
        Would you say he is mainstream in terms of being a judge?
        Mr. Tarpley. Absolutely. He is at the top of the stream.
        Senator Graham. Okay. Have you ever heard the word
    ``radical'' used when it came to Judge Kavanaugh?
        Mr. Moxley. No.
        Mr. Tarpley. Not in--not in all of the evaluations that we
    have done, and we have communicated with more than 100 lawyers
    and judges who work with him on a regular basis.
        Senator Graham. If he is confirmed, do you think the Court
    will be in good hands if he is a member of it?
        Mr. Tarpley. We gave him our unanimously ``well qualified''
    rating. It is our highest rating. Absolutely.
        Senator Graham. Do you agree with that, Mr. Moxley?
        Mr. Moxley. Absolutely.
        Senator Graham. Are either one of you running for
    President?
        Mr. Tarpley. Oh, no.
        [Laughter.]
        Mr. Tarpley. I will save that job for you, Senator.
        Senator Graham. Did not work out.
        [Laughter.]
        Chairman Grassley. Senator Feinstein.
        Senator Feinstein. I have no questions, except to say that
    I think the report in writing is very helpful. I think the
    individuals' names that are down here who have participated in
    different aspects of it is very helpful. I think we have
    something that becomes part of the standing record.
        Mr. Moxley. Yes.
        Senator Feinstein. And there has been some controversy
    about the ABA, as you probably know. And I think the way to
    really solve it are reports like this, which are thorough and
    contemplative and helpful.
        So, thank you.
        Mr. Tarpley. Thank you.
        Mr. Moxley. We understood we needed to make a motion for
    the admission of the statement as well?
        Chairman Grassley. I just think it is automatically
    accepted because we always say you have 5 minutes and a longer
    written statement would be included.
        Senator Cruz or--go ahead, Senator Cruz.
        Senator Cruz. I do not have any questions, but I want to
    briefly enter into the record----
        Chairman Grassley. I should say that we do all this without
    objection. I do not hear any objection so that the report is
    received.
        [The report appears as a submission for the record.]
        Chairman Grassley. Go ahead.
        Senator Cruz. I want to briefly enter into the record a
    letter from the Solicitors General of 12 States, including the
    State of Texas. These SGs have written in their personal
    capacities ``to express our strong support for the confirmation
    of Judge Brett Kavanaugh.''
        They write, ``The Solicitor General serves as the State's
    chief appellate litigator. Thus, we represent our States in the
    U.S. Supreme Court, carefully study the work of the Court, and
    have a keen appreciation for the role that the Court plays in
    safeguarding the rule of law, including vital federalism and
    separation of powers principles. In our view, Judge Kavanaugh
    would make an outstanding addition to the Nation's highest
    court. Throughout his distinguished career, Judge Kavanaugh has
    demonstrated an unwavering commitment to preserving the rule of
    law and advancing the legal profession.''
        And so I would like to enter this into the record.
        Chairman Grassley. Without objection, it will be received.
        [The information appears as a submission for the record.]
        Chairman Grassley. Senator Coons.
        Senator Coons. Let me just ask both of you one question, if
    I might? Would it concern you if we proceeded to consider a
    nominee for a judicial post without taking into account the
    ABA's advice? Paul.
        Mr. Moxley. Yes.
        Mr. Tarpley. I will just add to that--Paul knows that I am
    the wordy one of this duo. But I will add to that, yes, I think
    it is an integral part of the process. It is an important part.
        I am a lawyer. I am really interested in the kinds of
    judges that we have. All of our 410,000 members bring a unique
    perspective to this process. Our individual committee members
    bring a unique serious perspective to the process. It is
    valuable work we believe that we do, and we think it is
    important to the process.
        Mr. Moxley. What I would add to that is, that the thing
    that is hard to get your mind around is, that if you have
    practitioners from a particular district or circuit and they
    are well known to the courts, and you call the judges in your
    district or the lawyers in your district, they are going to
    be--because they know you, they are going to be more honest and
    candid with you, and since it is confidential. And part of our
    rule is, that if someone brings up negative information about a
    nominee, unless we take that information back to the nominee
    for them to rebut it, we do not use it. But it gives--it gives
    the work that we do more authenticity, at least in our minds it
    does. And obviously, we are doing this on a pro bono basis, and
    we think it is important or we would not be doing it. Because
    we are interested----
        Senator Coons. Well, thank you.
        Mr. Moxley. We are interested in having good courts, and we
    represent everyday people who are dependent on the courts.
        Senator Coons. I consult and rely on the ABA ratings when I
    am considering district court, circuit court, and obviously
    Supreme Court nominations. I appreciate your input both on
    Justice Kavanaugh, but this is input that I look for every time
    we are doing a confirmation hearing and I think is valuable,
    and I think it ought to be part of our regular process.
        I appreciate your appearing before us today.
        Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, Senator.
        Senator Crapo.
        Senator Crapo. Thank you, Mr. Chairman. I did not have a
    question, but now I do.
        I, too, appreciate deeply the work that the ABA does and
    the ratings and reviews that it gives on all of our candidates.
    To me, that is not the question that this Committee has been
    struggling with.
        The question is whether the ABA, or anybody for that
    matter, should be giving a blackball and be able to prohibit or
    ban a candidate from being considered by this Committee if it
    does not give it its approval. What are your thoughts on that?
        Mr. Moxley. Incidentally, one of your fellows from Idaho
    was chair of this committee, Tim Hopkins.
        Senator Crapo. A great attorney. Good friend.
        Mr. Moxley. Great, great lawyer and great man. I do not
    think that--we only see our part of the ball, and what we are
    familiar with is the competence of nominees, their integrity,
    and their judicial temperament. You may have other
    considerations that are not on our minds, and I do not think we
    blackball them. We just give our recommendation.
        Senator Crapo. Mr. Tarpley?
        Mr. Tarpley. I agree with that.
        Senator Crapo. Thank you. All right, thank you very much.
    And thank you for your testimony here today. I appreciate it.
        Mr. Moxley. Thank you.
        Chairman Grassley. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman.
        I want to join in thanking you for your excellent work and
    the values that you uphold in this work, the highest traditions
    of our profession, which is advocacy for people regardless of
    their station in life, their status, their background, their
    race or religion. And for that kind of advocacy to work, we
    need judicial independence, and I want to thank you for making
    that a specific criterion in your report, and you remarked that
    you believe that Judge Kavanaugh would uphold judicial
    independence.
        I hope that you join me in the very, very strong feeling
    that attacks by public officials, and I am not going to mince
    words--by the President of the United States--on our
    independent judiciary are a disservice to judicial independence
    and the integrity of our judicial system.
        Mr. Tarpley. I can respond quickly on that one, Paul. The
    ABA feels very strongly that a fair and independent judiciary
    is a linchpin of our society. The Founding Fathers set it up
    like that. It survived all these hundreds of years, and we feel
    very strongly about the fair and independent judiciary.
        Mr. Moxley. What I would add to that is, that a Federal
    district court can declare an act, an Executive order as
    unconstitutional, enter injunctions, and that is also true for
    legislative bills. And that is an integral part of our legal
    system, the federalism and the fact that each branch of
    Government is coequal.
        Senator Blumenthal. But attacks on the courts that
    undermine the faith and confidence of the public in the
    credibility of our courts are a real blow to judicial
    independence, are they not?
        Mr. Moxley. I do not disagree with that.
        Senator Blumenthal. I want to just note for the record that
    both of our guests seem to be in agreement with that
    proposition, and I thank you very much.
        Chairman Grassley. Senator Kennedy.
        Senator Kennedy. Thank you, Mr. Chairman.
        Gentlemen, thank you for being here. Do you have colleagues
    in the audience who worked with you on this effort?
        Mr. Tarpley. Certainly. We mentioned Bob Trout, a
    distinguished lawyer here in the District of Columbia, just
    immediately behind us, who was our local person on the ground,
    who did a tremendous amount of work.
        And Denise Cardman, our staff representative from the
    American Bar Association. We are proud of both of them.
        Senator Kennedy. Mr. Chairman, with your permission, may I
    ask them to stand?
        Chairman Grassley. Yes, would you, please?
        Senator Kennedy. I want to thank all of you for your hard
    work and your input.
        Mr. Moxley. Thank you.
        Senator Kennedy. Thank you for being here.
        Chairman Grassley. Senator Whitehouse, do you have a
    question?
        Senator Whitehouse. Sure. Gentlemen, your evaluation of the
    nominee related to his qualifications and produced a conclusion
    that he was ``well qualified''?
        Mr. Tarpley. Unanimously ``well qualified.''
        Senator Whitehouse. In the evaluation of the nominee's
    qualifications, did you have a chance to look at any patterns
    in his decisions on the court?
        Mr. Tarpley. We looked at a number of decisions. Our
    reading group examined every decision that he rendered. They
    read many of his writings. To be candid, I did not see a
    pattern in his decisions.
        If there were a--if there is a pattern to the decision, it
    is what we saw was an allegiance to the law, a dedication to
    looking at the facts of each particular case and applying the
    law to the facts of that case, and a faithfulness to precedent.
        Senator Whitehouse. Did you make any effort to cross-
    reference who the parties, or amici, were in these cases in
    that review?
        Mr. Moxley. Yes, I will answer that, Senator, and I am not
    sure if you were here during the beginning parts of our
    remarks.
        Senator Whitehouse. I was not.
        Mr. Moxley. Yes. But we had--we had three different reading
    groups who participated in this evaluation, and there were two
    different law schools that participated--University of Utah and
    University of Maryland. And then we had a practitioners group.
    And this consisted of 48 people who broke the law into
    different areas and gave us a report on their--the opinions.
        Senator Whitehouse. And in that evaluation, did it take
    into account what amici, for instance, were appearing before
    the court?
        Mr. Tarpley. The amicus curiae that appeared before the
    court?
        Senator Whitehouse. Yes.
        Mr. Tarpley. I mean, that was a part of the record in every
    case.
        Senator Whitehouse. Obviously. But was that part of your
    analysis?
        Mr. Tarpley. We did not look at who the parties were to the
    case.
        Senator Whitehouse. Or who the amici were?
        Mr. Tarpley. We looked--when the cases were read, it was
    considered as to who the parties were.
        Senator Whitehouse. Yes.
        Mr. Tarpley. As well as who all the amicus curiae were.
        Senator Whitehouse. But in terms of looking for any
    pattern, there was no cross-referencing between decisions and
    who amici and parties were?
        Mr. Moxley. Do not think so.
        Senator Whitehouse. Okay. Just wanted to check. Well, the
    reason I asked that question, to be totally up front about it,
    is that as we showed earlier, when certain amici come before
    the D.C. Circuit, amici who tend to be associated with and
    funded by very powerful, very wealthy right-wing interests,
    they seem to have a better than 90 percent win rate in front of
    this particular judge.
        And I know that he says that he makes decisions based only
    on the quality of the legal work and the argument before him,
    in which case it seems that these particular amici seem to have
    some very superhuman lawyering going their way because a win
    rate above 90 percent, to me, is a bit of a signal that there
    may be something else going on to pursue. Since you never
    looked at that underlying statistic, presumably you drew no
    conclusions about it?
        Mr. Moxley. That is correct.
        Senator Whitehouse. Okay. Thank you.
        Mr. Moxley. But if it would be helpful to the Senator, we
    could have the reading groups look at that particular question.
        Senator Whitehouse. I do not know that we have time, but I
    will consider that. I will get back to you.
        Mr. Moxley. Thank you, Senator.
        Chairman Grassley. Let us see, I guess all of my colleagues
    have asked the questions they want to ask.
        So we thank you, and we will call the second panel. Thank
    you very much.
        Mr. Tarpley. Absolutely. Thank you so much.
        Chairman Grassley. We will wait just a minute while people
    get the right names up here, and then we will have the second
    panel come.
        [Pause.]
        Chairman Grassley. I have indicated to the audience that we
    have three more panels, where we will hear 26 additional
    witnesses. Many of these witnesses include Judge Kavanaugh's
    former law clerks, students, friends, and associates.
        Our next panel includes the following 10 witnesses, 5 for
    the Majority and 5 for the Minority. We have Congressman
    Richmond, Mr. McCloud, Ms. Garza, Ms. Garry, Ms. Weintraub, Mr.
    Olson, Ms. Baker, Ms. Sinzdak, Professor Murray, and Professor
    Amar.
        I would ask if you would stand. And I should have said this
    before you sat down, I am sorry.
        [Witnesses are sworn in.]
        Chairman Grassley. Thank you for your affirmation.
        Now, when the Congressman comes, this will be his
    introduction. Cedric Richmond is a U.S. Representative, Second
    District, Louisiana. Currently serves as Chairman of the
    Congressional Black Caucus.
        Luke McCloud served as law clerk for Judge Kavanaugh in
    2013, 2014. He also served as law clerk for Paul V. Niemeyer,
    U.S. Court of Appeals, Fourth Circuit; Justice Sotomayor,
    Supreme Court; and he is an associate at Williams & Connolly.
        Rochelle Garza serves as managing attorney of Garza & Garza
    Law, located in Brownsville, Texas.
        Louisa Garry is a teacher at Friends Academy, Locust
    Valley, New York. She has known Judge Kavanaugh for 35 years.
        Liz Weintraub is an advocate specialist at the Association
    of University Centers on Disabilities, Silver Spring, Maryland.
    She previously served as a fellow in Senator Bob Casey's
    office.
        Ted Olson is a partner of Gibson, Dunn & Crutcher. He
    served as Solicitor General of the United States, 2001-2004,
    and as Assistant Attorney General in charge of the Office of
    Legal Counsel, 1981-1984. He has argued more than 60 cases
    before the Supreme Court.
        Alicia Baker is a pastor of the Free Methodist Church in
    Indiana.
        Colleen Roh Sinzdak is a senior associate, Hogan Lovells.
    She previously served as a law clerk for Chief Justice Roberts
    and Judge Garland on the D.C. Circuit. Ms. Sinzdak was a
    student of Judge Kavanaugh's at Harvard Law School.
        Professor Melissa Murray, professor of law at New York
    University School of Law. She previously served as a law
    professor at University of California-Berkeley.
        Professor Akhil Amar is the Sterling Professor of Law and
    Political Science at Yale University, where he teaches
    constitutional law in both Yale College and Yale Law School.
    After graduating from Yale Law School, the professor served as
    a law clerk to then-Judge Breyer on the U.S. Court of Appeals,
    First Circuit. The professor taught Judge Kavanaugh when he was
    a student at Yale Law School.
        We will start with you, Mr. McCloud.

      STATEMENT OF LUKE McCLOUD, FORMER LAW CLERK, AND ASSOCIATE,
                WILLIAMS & CONNOLLY LLP, WASHINGTON, DC

        Mr. McCloud. Thank you, Mr. Chairman, Ranking Member
    Feinstein, Members of the Committee.
        I am honored to speak with you today about my former boss
    and my current friend and mentor, Judge Kavanaugh.
        I had the privilege of serving as one of Judge Kavanaugh's
    law clerks from 2013 to 2014. During that time, I worked
    closely with the Judge--day in, day out--helping him to prepare
    for arguments and draft opinions. I witnessed firsthand the
    Judge's approach to deciding cases large and small, and what I
    saw leaves no doubt that Judge Kavanaugh would make an
    outstanding Supreme Court Justice.
        Judge Kavanaugh is a fair-minded and independent jurist.
    Regardless of the parties to the case or the issues being
    litigated, Judge Kavanaugh worked hard to understand every
    argument and perspective. There was always another opinion to
    read, another piece of the record to review, another angle to
    explore.
        That was true even when a case turned on legal issues the
    Judge knew well. He never looked for an easy answer or assumed
    that he had considered all of the relevant points. Judge
    Kavanaugh pushed himself to master every aspect of the cases he
    worked on, and he expected his clerks to do the same.
        To be sure, Judge Kavanaugh and I did not always see eye to
    eye on what the law required, but the Judge did not want clerks
    who reflexively agreed with him or who never offered a contrary
    opinion. Just the opposite, Judge Kavanaugh has made a point of
    surrounding himself with a diverse group of law clerks--diverse
    ideologically, diverse racially, and from diverse backgrounds--
    so that he can better understand all sides of a given issue.
        I can vividly recall spending hours with my fellow clerks
    gathered around the Judge's desk, debating the meaning of some
    statutory phrase or the best way to understand a precedent.
    Invariably, the opinions that Judge Kavanaugh produced
    reflected his careful consideration of and respect for views
    other than his own.
        Moreover, when we disagreed, I always knew that Judge
    Kavanaugh had come to his position honestly, based on a
    rigorous analysis of the strengths and weaknesses of the
    arguments before him. There was no hidden agenda or partisan
    axe to grind. Just the law, always the law.
        These qualities have earned Judge Kavanaugh a sterling
    reputation for his work on the bench. But Judge Kavanaugh has
    also shown himself to be a leader when it comes to his work
    outside of chambers. I especially admire Judge Kavanaugh's
    efforts as an advocate for those who are underrepresented in
    the legal profession. He regularly speaks to diverse law
    student associations to encourage their members to apply for
    clerkships. The Judge also actively mentors the minority
    students he teaches, helping them become future leaders within
    the law.
        Judge Kavanaugh's commitment to promoting the careers of
    minority attorneys is also apparent from his own clerk hiring.
    Of his 48 law clerks, 13 are racial minorities, including 5
    African Americans. These percentages are nearly unheard of
    amongst his peers.
        Many of the Judge's minority law clerks have gone on to
    clerk for the Supreme Court, something that is still all too
    uncommon in these days. I am fortunate to count myself among
    them, but I would not have even applied for that position had
    it not been for the support and encouragement of Judge
    Kavanaugh.
        Again and again during the year I worked for him, Judge
    Kavanaugh showed himself to be a model of judicial excellence.
    But even more than his intelligence and his diligence, it is
    Judge Kavanaugh's character, his fundamental decency and
    kindness, that inspired me then and continues to inspire me
    now.
        Despite being one of the most prominent judges of his
    generation, Judge Kavanaugh remains humble and gracious. He is
    unfailingly polite to everyone he interacts with at the
    courthouse, from his colleagues on the bench, to litigants, to
    the court's professional staff. Judge Kavanaugh also volunteers
    regularly in his community and encourages all he knows to do
    the same. He is, in short, a dedicated public servant, in the
    truest sense of those words.
        I will always be proud, incredibly proud, of the time I
    spent as Judge Kavanaugh's law clerk, and I am prouder still
    today to support his confirmation to the Supreme Court.
        Thank you.
        [The prepared statement of Mr. McCloud appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Mr. McCloud.
        Now, Ms. Garza.

      STATEMENT OF ROCHELLE M. GARZA, MANAGING ATTORNEY, GARZA &
                     GARZA LAW, BROWNSVILLE, TEXAS

        Ms. Garza. Good morning. Thank you for the opportunity to
    testify in this hearing on the nomination of Judge Brett
    Kavanaugh to the Supreme Court of the United States.
        My name is Rochelle Garza. I am an attorney and managing
    member of Garza & Garza Law, PLLC, in Brownsville, Texas, along
    with my brother, and law partner, Myles R. Garza.
        My practice is focused on working with children,
    immigrants, and victims of violence, including unaccompanied
    minor children, through the areas of immigration, family, and
    criminal law.
        I am proud to have been the guardian ad litem for the young
    woman known as Jane Doe, an unaccompanied immigrant minor who
    the Trump administration attempted to block from accessing
    abortion, and I am here today to talk about what this
    experience was like for Jane and the impact that Judge
    Kavanaugh's ruling had on her life.
        Jane was 17 when she left her home in Central America,
    where she was physically abused by her parents, and traveled
    thousands of miles to seek safety. In September 2017, she
    arrived in the United States after a long and dangerous
    journey. As she later said, ``My journey was not easy, but I
    came here with hope in my heart to build a life I can be proud
    of.''
        She was put into the custody of the Office of Refugee
    Resettlement and placed at a facility for immigrant children in
    the Rio Grande Valley. There, Jane learned she was pregnant.
    She immediately knew she did not wish to proceed with the
    pregnancy and expressed this to the facility staff, but as we
    were about to learn, Jane would face unprecedented obstruction
    by the Trump administration.
        I will never forget meeting Jane for the first time. She
    was a petite, 17-year-old. But as I quickly learned, no one
    should underestimate her. Her resolve was strong, and she was
    very certain about her decision to terminate her pregnancy.
        In Texas, minors seeking to terminate their pregnancies
    must obtain parental consent or a judicial bypass, which is an
    order from the court allowing the minor to consent to the
    procedure on her own. It was in that context that I was
    appointed Jane's guardian ad litem.
        A State court granted her bypass, and we scheduled her
    appointment and confirmed the medical costs would be covered by
    a private source. It was then that the Government stepped in
    and ordered the facility from going to her medical
    appointments.
        The way that Jane was treated was unbearable. Even after
    she made her decision, she was forced to undergo biased
    counseling, including a medically unnecessary sonogram at an
    anti-abortion crisis pregnancy center. As Jane later said,
    ``People I do not even know are trying to make me change my
    mind. I made my decision, and that is between me and God.''
        Against Jane's objections, they told her mother she was
    pregnant and wanted an abortion. And even though Jane disclosed
    that when her older sister became pregnant, her parents had
    beaten her until she miscarried. Jane was placed under constant
    surveillance and no longer allowed to leave on outings or
    exercise.
        Despite all of this, Jane was strong. She was determined
    not to be forced to carry the pregnancy to term against her
    will. So we fought back on her behalf. We filed a lawsuit in
    Texas State court to require the facility to allow Jane to be
    transported. At the same time, the ACLU pursued a
    constitutional lawsuit in Federal court in DC on my behalf as
    Jane's guardian ad litem.
        Although the ACLU represents me, to be clear, I am
    testifying on my own behalf.
        The ACLU obtained an emergency order from the district
    court to stop the Government from blocking Jane's abortion, but
    the Government appealed. Judge Kavanaugh issued an order giving
    the Government 11 more days to find a sponsor for Jane,
    something they had already failed to do for the previous 6
    weeks.
        Furthermore, at the end of those 11 days, Judge Kavanaugh's
    order would not have granted Jane--that Jane could finally get
    the care she needed. Rather, she would have to start her case
    all over again, and the Government could appeal. This could
    have taken weeks and might have forced her to carry the
    pregnancy to term against her will, particularly because Texas
    bans abortion at 20 weeks, and Jane was already 15 weeks
    pregnant.
        The pain that this caused her is impossible to describe.
    Throughout her ordeal, I saw her suffer. No politician or judge
    saw firsthand what she went through. As she later said, ``It
    has been incredibly difficult to wait in the shelter for news
    that the judges in Washington, DC, have given me permission to
    proceed with my decision.''
        Thankfully, the full Appeals Court overturned Judge
    Kavanaugh's decision, and I was with her when she had her
    abortion. I saw the relief that she experienced when she was
    able to realize the decision that she knew was right for her.
    But at that point, Jane had been forced to remain pregnant
    against her will for an entire month and by the time--from the
    time she obtained her judicial bypass.
        I am and will always be in awe of Jane. She possessed a
    profound strength of character. She believed that no other girl
    should have to go through what she went through. And, as she
    said, ``No one should be shamed for making the right decision
    for themselves.''
        I can think of nothing more human or more American than
    what I saw in Jane. Knowing that she is now pursuing the life
    she hoped for gives me great pride. She may have been petite,
    but she ignited change. And just like she said, ``This is my
    life, my decision.''
        It was an honor to represent her and to be by her side and
    to witness true perseverance and to share her story with this
    Committee today.
        Thank you.
        [The prepared statement of Ms. Garza appears as a
    submission for the record.]
        Chairman Grassley. Ms. Garry.

                  STATEMENT OF LOUISA GARRY, TEACHER,
                FRIENDS ACADEMY, LOCUST VALLEY, NEW YORK

        Ms. Garry. Chairman Grassley and Ranking Member Feinstein,
    my name is Louisa Garry. I am a high school teacher and coach.
    So it is unusual for me to not be in the classroom with my
    students on the first Friday after Labor Day, but I am honored
    to be here to voice my support of my college classmate and
    longtime friend.
        I met Brett Kavanaugh in 1983, almost exactly 35 years ago
    today. We were both incoming freshmen at Yale. Brett was
    standing under a tent with his parents, waiting to depart for
    the freshman outdoor orientation. I grew up in a small town in
    Ohio and was accustomed to saying hello to everyone. So I
    walked up and introduced myself. Brett warmly received my
    greeting and thus began a friendship that continues to this
    day.
        Our enduring friendship might surprise some because in
    certain ways, we are quite different. I have been teaching and
    coaching high school students for the last 30 years while Brett
    pursued a high-profile career in law. Brett comes from a
    Catholic upbringing in a city and tends to have a conservative
    outlook while I would describe myself as a moderate Quaker who
    seeks out running trails and ocean beaches.
        Our differences have allowed us to learn from each other
    and see things from a different perspective. We have maintained
    a close friendship based on our mutual respect, support, and
    trust.
        One of the things Brett and I do have in common is an
    appreciation for competitive sports. We both have daughters,
    and we often talk about the benefits of youth sports in raising
    strong, independent girls and women with confident voices.
    Brett and I not only watch a lot of sports, we also run
    together.
        We first started running together while Brett was in his
    first year of Yale Law School and I was working at Yale and
    training to compete in the 1988 U.S. Olympic trials for track.
    Brett was not much of a runner, but he could keep up with me on
    an easy warm-up.
        After he ran his first three-mile race, Brett announced
    that he wanted to run the Boston Marathon in his third year of
    law school. He asked me to promise to train and to run it with
    him, and I agreed. Even though I was a competitive runner, I
    had never run anything close to a marathon in distance, but
    Brett's faith in my ability as a runner and coach gave me
    confidence to take on this challenge.
        During the marathon, Brett waited for me through water
    stops and bathroom breaks, just as I waited for him through leg
    cramps and blisters. We ran together, step for step, for 26.2
    miles and crossed the finish line at exactly the same time. We
    ran the Boston Marathon together again, step for step, two more
    times, in 2010 and most recently in 2015 in celebration of our
    50th birthdays.
        Four hours is a long time to spend with someone as you
    physically and mentally struggle through the miles, but I was
    lucky to go through it with Brett, whose humor, fortitude, and
    idealism elevates those around him.
        Brett and I share an interest in the growth and development
    of young people. Many people have heard about Brett's
    basketball coaching expertise, but I believe even more students
    have benefited from taking a class with Brett at Harvard, Yale,
    or Georgetown. Brett is a bright, articulate, and engaging
    educator, and he is generous with the time and attention he
    devotes to mentoring others.
        In November 2016, Brett welcomed juniors from my school to
    the Federal court for a field trip to learn about the judicial
    system. As we prepared for the visit, my students wanted to
    know, is Judge Kavanaugh conservative or liberal? I responded
    they should wait and determine the answer on their own.
        Brett spent over an hour with my class, explaining his role
    as a judge, discussing current issues facing the Federal court
    of appeals, answering the students' questions, and listening to
    their voices. He spoke passionately about his belief in the
    judicial system and the importance of the separation of powers
    in Government. As we left the Federal court, a couple of
    students immediately remarked, ``We could not tell. Is he
    conservative or liberal? Can you tell us?''
        I responded, that is how it is supposed to be. The
    judiciary is supposed to be independent.
        Brett has a wide circle of friends of diverse political
    viewpoints and often shows a willingness to step into
    potentially uncomfortable forums with a spirit of collegiality.
    At our 30th Yale College reunion, Brett joined a panel on free
    speech. The panel broadly represented the diverse perspectives
    of our classmates, and each of the panel members spoke
    respectfully about the challenges faced by universities in
    addressing issues of free speech.
        When discussing how to balance a wide range of opinions,
    Brett quotes the character, Atticus Finch, from the book, ``To
    Kill A Mockingbird,'' and emphasizes how important it is to
    ``stand in a person's shoes.'' Brett does not just speak words
    of empathy and tolerance, he listens and acts upon these words.
    His friends and colleagues describe him as a kind, thoughtful
    person and a good listener.
        I leave it to others to speak to Brett's judicial record. I
    am here to speak to his outstanding qualities, personal
    qualities as a lifelong friend. Brett Kavanaugh will be a voice
    of fairness and integrity as a Justice of the Supreme Court.
        Thank you.
        [The prepared statement of Ms. Garry appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Ms. Garry.
        Now, Ms. Weintraub.

           STATEMENT OF ELIZABETH ``LIZ'' WEINTRAUB, ADVOCACY
            SPECIALIST, ASSOCIATION OF UNIVERSITY CENTERS ON
                 DISABILITIES, SILVER SPRING, MARYLAND

        Ms. Weintraub. Thank you, Chairman Grassley and Ranking
    Member Feinstein and the Members of the Committee for believing
    that I have something important to say about Judge Kavanaugh.
        Fifty-one years ago, I was born with cerebral palsy and an
    intellectual disability. I entered a world that had low
    expectations for me and people like me. Judge Kavanaugh has
    shown that he has the same low expectations, and I am here to
    tell you that he is wrong.
        I have achieved more than many thought possible for someone
    like me. I work full time as a professional where I host
    ``Tuesdays with Liz,'' a weekly YouTube series where I talk to
    people about policy in a way that people with intellectual
    disabilities can understand. You are all invited to be my guest
    on ``Tuesdays with Liz.''
        Today, I live with my husband, who also happens to have a
    disability, and together, we make our own decisions. It has not
    always been this way. In my twenties, some professionals and my
    parents decided to put me into a private institution. My
    parents love me, but instead of treating me like an adult with
    opinions and preferences and asking what I wanted, they made
    the decision for me like I was a child.
        This was wrong. In the self-advocacy movement, there is a
    saying that we hold very dear to our hearts, and that is,
    ``Nothing about us without us.'' This means that any decision
    that affects us should include us. We expect to be part of the
    conversation, even to lead the conversation. Self-determination
    is a basic human right for all people with disabilities. People
    with intellectual disabilities have opinions and preferences,
    and they should be recognized.
        Judge Kavanaugh's nomination matters to me. Reading the Doe
    v. DC case made me very upset that Judge Kavanaugh's decision
    did not respect people's rights and their freedom of choice.
    This is wrong. The lower court in Doe told the D.C. government
    that it needed to ask people with intellectual disabilities if
    they wanted certain medical treatments. That requirement
    respects the civil rights of people with disabilities.
        Judge Kavanaugh had a chance to stand up for the rights of
    the woman in the case, but he failed. He said that the D.C.
    government did not even need to ask them what they wanted but
    could decide for them what was going to happen to their bodies.
    Would this have been too hard to ask? Ask them what they
    wanted. Every adult deserves to be treated like a grown-up and
    have the right to be asked what they wanted, especially when it
    is about their own body. If they need support to understand and
    make an informed choice, then give it to them.
        Our country is founded on liberty and justice for all. And
    all means all. I worry about a Supreme Court Justice who does
    not believe that we, as people with intellectual disability,
    can make decisions for ourselves.
        If Judge Kavanaugh is confirmed, I am afraid that my right
    to make decisions for myself will be taken away. I ask you, for
    myself and my community, when you vote on Judge Kavanaugh,
    please do not vote to turn the clock back and take the rights
    that I and others have fought for.
        Thank you very much.
        [The prepared statement of Ms. Weintraub appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Ms. Weintraub.
        I assume that if you are like everybody in the House of
    Representatives, you are always busy, and you would like to
    go--that is why you were probably on first. So I think I will
    go to Congressman Richmond. Welcome.
        I previously had introduced you as a Congressman and Chair
    of the Congressional Black Caucus.

       STATEMENT OF HON. CEDRIC L. RICHMOND, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF LOUISIANA,
            AND CHAIRMAN OF THE CONGRESSIONAL BLACK CAUCUS,
                             WASHINGTON, DC

        Representative Richmond. Thank you, Mr. Chairman, and we
    did have pending votes. So I want to thank you for the courtesy
    and apologize for being late. And I want to thank the Ranking
    Member, Senator Feinstein, for being here.
        Earlier this week, my Senator argued that--or stated that,
    ``It's not the U.S. Supreme Court that is supposed to fix this
    country culturally, economically, socially, spiritually. Courts
    should not try to fix problems that are within the province of
    the U.S. Congress, even if the U.S. Congress does not have the
    courage to address those problems. Our courts were not meant to
    decide these kinds of issues.''
        That logic would mean that African Americans would not be
    able to attend integrated schools, buy a home previously owned
    by a White person, or lodge at certain hotels. In many cases,
    the high court has acted when Congress had neither the courage,
    nor the will to act.
        For nearly eight decades, African Americans have fought to
    secure historic legal victories that have significantly bent
    the moral arc of the universe toward justice, even at times
    when progress felt incremental. Nonetheless, we know that
    reversing meaningful progress for decades to come would be
    profoundly devastating and an affront to all who courageously
    fought on the front lines, some of whom I currently represent
    as Chair of the Congressional Black Caucus.
        President Trump has seized on this opportunity to pack the
    courts by selecting judicial nominees who lack pragmatism and
    are often strikingly unqualified and proven intolerant bigots.
    We are in the midst of a fundamental shift toward nominees that
    embrace ideology at the fringes of mainstream legal thought.
        The current administration has nominated and, with help of
    Senate Republicans, has confirmed a range of nominees whose
    confirmation hearings portend a precarious legal fate for
    communities of color moving forward. Mr. Kavanaugh's
    confirmation would fortify a generation of destructive
    conservative ideology at a time when several historically
    significant legal challenges will come before the high court.
        As Members of the CBC, we cannot overstate what is at stake
    for African Americans and communities of color across the
    Nation. Judge Kavanaugh, who relies heavily on the same
    textualist reading of the Constitution employed by former
    Justice Scalia, possesses a conservative judicial record that
    leads us to believe that voting rights, education, criminal law
    outcomes will be greatly endangered in the coming years. A
    careful, in-depth evaluation of his record, which has largely
    been shrouded in secrecy and withheld from public examination,
    uncovers writings that illustrate sparse commitment to equal
    protection under the law.
        Additionally, Judge Kavanaugh's lack of deference to
    precedent is staggering and inconsistent with other
    conservative judges who currently preside on the D.C. Circuit
    Court with him. A judge who frequently questions key legal
    precedents represents a grave danger to many legal frameworks
    that have advanced the African-American community.
        Voting rights. From Ohio to Wisconsin to Georgia, the
    vestiges of Jim Crow have resurfaced under a new cloak
    unchecked and unabated. While these States are no longer
    conducting literacy tests, the effects of their new policies
    have been implemented with staggering precision and efficiency.
        By a 5-to-4 vote more than 5 years ago, the Court struck
    down Section 4 of the Voting Rights Act of 1965, making Section
    5 of the law essentially unworkable. The decision has
    precipitated a myriad of voter suppression efforts across the
    country.
        Most recently, the Randolph County Board of Elections and
    Registration in Georgia inexplicably considered a proposal
    calling for the closure of more than three quarters of the
    polling locations in the 60 percent Black county, including one
    location that is 97 percent African-American.
        Despite the eventual rejection of this ill-fated proposal,
    the Federal Government never bothered to intervene and fulfill
    its statutorily obligated responsibilities. Simply put, there
    is no longer any active Federal mechanism dedicated to
    oversight and safeguarding an individual's constitutionally
    protected right to vote.
        As I told you in January 2017, Jeff Sessions' record on
    civil rights is questionable and one that shows that he does
    not care about enforcing civil rights. It is within this
    context that we have grave concerns about Judge Kavanaugh's
    opinion in the 2012 case of State of South Carolina v. Holder.
        In 2011, under the fully viable Voting Rights Act of 1965,
    the Obama administration blocked enforcement of South
    Carolina's State-issued photo ID law because it affected up to
    8 percent of Black South Carolinians. In his ruling to uphold
    the law, Mr. Kavanaugh claimed it ``does not have the effects
    that some expected and some feared.''
        Not only is this statement inexplicably tone deaf, it is
    also inconsistent with reality. These same real-life
    consequences reverberate to other elements of everyday life for
    Black families. On criminal justice, Judge Kavanaugh's record
    on criminal justice is entirely unsatisfactory for a country
    persistently struggling to hold law enforcement accountable for
    mass incarceration and police brutality. He has expressed a
    desire to overturn precedent that protects civilians from
    officers engaging in activities inconsistent with the Fourth
    Amendment. He suggested the probable cause standard should be
    more flexible, which would expose more African Americans to
    failed policies, police tactics like stop-and-frisk.
        Additionally, Judge Kavanaugh's support for narrowing
    individuals' Miranda rights would hurt people of color, who are
    disproportionately subject to excessive law enforcement
    engagement in their respective communities.
        And last, affirmative action. Mr. Kavanaugh's record on
    affirmative action is particularly disturbing and ripe for
    intense scrutiny. Almost 20 years ago, while in private
    practice he wrote that in the future, the Supreme Court would
    agree that ``in the eyes of Government, we are just one race.''
        Given the Department of Justice's recent investigation into
    Harvard University's admissions practices, we are deeply
    troubled by the increased likelihood this will come before the
    Supreme Court in short order.
        With that, Mr. Chairman, I will submit the rest of my
    testimony for the record, but I would just conclude by saying
    that with the cloud of criminality and lack of transparency,
    the Congressional Black Caucus--which is 48 Members--we
    represent 78 million Americans. And I just wanted to say for
    the record, of those 78 million, only 17 million are African-
    American.
        We represent a vast variety of people. And we represent a
    collective conscience of this country--Black, White--in the
    spirit of Goodman, Chaney, and Schwerner, who gave their life
    to make this country a more perfect union, and to fight for
    civil rights, and to fight for justice. And it is within that
    spirit that we have grave concerns and oppose the nomination of
    Justice Kavanaugh.
        And thank you for your time, and I know I went over.
        [The prepared statement of Representative Richmond appears
    as a submission for the record.]
        Chairman Grassley. Thank you very much, Congressman.
        Now, we go to Mr. Olson.
        [Disturbance in the hearing room.]

             STATEMENT OF HON. THEODORE B. OLSON, PARTNER,
             GIBSON, DUNN & CRUTCHER, AND FORMER SOLICITOR
            GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF
                        JUSTICE, WASHINGTON, DC

        Mr. Olson. Thank you, Chairman Grassley, Ranking Member
    Feinstein, and Members of the Committee.
        I have had the privilege of practicing law throughout the
    United States for over 50 years in State and Federal appellate
    courts and 63 times before the United States Supreme Court. I
    have argued to 20 different Supreme Court Justices appointed by
    11 Presidents, from President Eisenhower to President Trump,
    one-fifth of our Nation's Justices appointed by one-fourth of
    our Presidents.
        My experience has given me firsthand exposure to the
    Justices numerous Presidents have selected for the Supreme
    Court, the qualities that these Justices have exemplified, and
    the standards they have established for themselves and for
    their successors. Each of these Justices has manifested the
    highest professional and jurisprudential standards, the
    qualities we expect in Justices appointed by Presidents of any
    political party.
        I have won and lost my share of decisions from Justices
    appointed by Presidents of every political background. I can
    say that in every case, my clients and arguments were received
    with respect, understanding, and great care. Americans are
    rightly proud of the Supreme Court and its Justices, the envy
    of the world.
        I will elaborate on five of the characteristics that I have
    seen in Supreme Court Justices. First, intelligence and
    learning. A Justice on the Supreme Court must understand the
    Constitution, the separation of powers, the Bill of Rights, the
    role of each of the three branches of Government, and Federal
    laws ranging from antitrust and patents to criminal procedure
    and the environmental. And I could go on and on.
        The Court decides 75 cases each year involving an awesome
    range of complex subjects, demanding from each Justice an
    extraordinary breadth of understanding, experience, erudition,
    judgment, and insight.
        Second, respect for precedent and judicial tradition. The
    Justices before whom I have appeared have uniformly manifested
    abiding respect for the role of the judiciary and past
    decisions of the Court. Not every precedent is inviolate, of
    course. As Justice Breyer has explained in his book, ``Making
    Democracy Work,'' the Court has occasionally been mistaken or
    wrong, but its errors have generally been corrected over time.
        The Justices are mindful of the importance of stare decisis
    and the public's reliance on past decisions, but within the
    context of an overarching fealty to the meaning and intent of
    the Constitution and the rule of law.
        Third, open-mindedness and independence. Justices, of
    course, have their individual histories, predilections, and
    past writings. But each Justice must examine every case on the
    merits, carefully review precedents, briefs and oral argument,
    and the views of their colleagues, and only then come to a
    decision. Any other approach----
        [Disturbance in the hearing room.]
        Mr. Olson. Any other approach would, as Justice Ginsburg
    has explained, ``display disdain for the entire judicial
    process.''
        Fourth, integrity. The Justices of our Supreme Court, like
    our judiciary in general, reflect rock-solid integrity. We may
    strongly disagree with the Court's decisions from time to time,
    but no credible critic would suggest that the Court's decisions
    are corrupt or dishonest. Our citizens respect and obey even
    very unpopular decisions because they believe in the integrity
    of the judicial process and the honesty of our Justices.
        Fifth, temperament. An open mind and respectful temperament
    and collegiality are vital to the Supreme Court. And the
    Justices before whom I have appeared uniformly listened to and
    probed, often intensely, the arguments presented to them. But
    however strongly they have disagreed in a particular case, they
    have remained respectful, warm, and gracious to their
    colleagues and to the advocates who appeared before them.
        I have known Judge Kavanaugh for two decades. I know from
    personal observations and experience that he possesses and has
    consistently exemplified the qualities that I have described.
    He received an outstanding education in one of the Nation's
    finest law schools, clerked for extraordinary jurists,
    including the Justice he is being nominated to replace, taught
    constitutional law at Harvard Law School, served in the
    executive branch and in private practice, and for 12 years at
    the highest level of the Federal appellate judiciary. He is
    thoughtful, gracious, open-minded, respected by his peers, and
    widely praised by the lawyers who appear before him.
        Our system contemplates that Justices will be appointed by
    Presidents of either party. As lawyers who appear before the
    Court and as Americans who must live with the Court's
    decisions, we cannot expect that our cases will be decided by
    jurists who always agree with our positions.
        But we can aspire to a judiciary that will be prepared,
    perceptive, competent, open-minded, honest, and respectful.
    That is the jurist that is Brett Kavanaugh. He is the kind of
    person and judge that we expect and deserve on the Supreme
    Court. I hope you will confirm his appointment to this Court.
        [The prepared statement of Mr. Olson appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Mr. Olson.
        Now, Ms. Baker.

                   STATEMENT OF ALICIA WILSON BAKER,
                         INDIANAPOLIS, INDIANA

        Ms. Baker. Good morning, Mr. Chairman and Members of the
    Committee.
        My name is Alicia Wilson Baker. I am a pro-life Christian
    and ordained minister from Indiana. I am someone who was denied
    the birth control I needed because of my insurance company's
    religious beliefs, and I am honored to be here today, truly
    honored to speak on behalf of everyday women.
        If Judge Kavanaugh is confirmed to the Supreme Court, I
    fear that many woman, especially those who can least afford it,
    will not get access to affordable birth control because of
    their employer's religious beliefs. Birth control allows women
    and people to control their lives, and without it, women's
    health and their futures are at risk.
        I would like to tell you about my background. I grew up in
    a devout Christian family in California. My parents were
    leaders in our church congregation. My childhood is filled with
    happy memories of attending church, learning how to put faith
    into action through mission trips and serving our community.
        I decided to go to seminary and become an ordained minister
    so that I can serve others. I currently work at a local
    neighborhood center in urban Indianapolis, where I collaborate
    with local agencies and neighbors to improve the quality of
    life in our neighborhood.
        In 2015, I met and fell in love with my best friend, Josh,
    who is here with me today. Like me, Josh is also a Christian
    who believes that faith a verb. It is about how we live our
    lives. And like me, Josh had decided to wait until marriage to
    have sex.
        Once we got engaged, we knew we would not be ready to have
    children right away. So we started researching birth control
    options. Josh and I were on a tight budget as we struggled to
    pay off our students loans and save for a home. We were
    relieved that the Affordable Care Act requires health plans to
    cover birth control at no additional cost to us.
        On my doctor's advice, I decided to get an IUD, but what I
    got was a nightmare and a $1,200 bill. It turned out my
    insurance company had a religious objection to covering my
    birth control. Nothing in our faith disapproves of birth
    control. We were making prudent and responsible decisions for
    our family, but our beliefs and our decisions were overridden
    by the religious beliefs of an insurance company.
        In the days leading up to our wedding and for several
    months after, I was fighting with my insurance company, sending
    appeal after appeal. In the end, Josh and I scrounged together
    the money. But we had to use the money we had set aside to pay
    off our student loans and buy our first home together. I still
    feel a pit in my stomach when I remember the stress and anxiety
    that we went through just as we were starting our new life
    together.
        But I know I am fortunate. I was ultimately able to pay
    that bill. But what happens to those who cannot pay for their
    birth control? What happens to those who face an impossible
    choice between getting the healthcare they need and putting
    food on the table or paying for childcare or staying in school?
        If Judge Kavanaugh is confirmed to the Supreme Court,
    access to affordable birth control will be in jeopardy. Just 3
    years ago, Judge Kavanaugh heard a case which was about
    something to what Josh and I had experienced. In that case,
    Judge Kavanaugh would have allowed employers and universities
    to use religion to deny birth control coverage to individuals.
        If Judge Kavanaugh had his way, courts would give free rein
    to those who claim their religious beliefs override the law. As
    a Christian, I am against such broad interpretations of
    religious freedom. It is not right that employers may be
    allowed to use religion to avoid following the laws of the
    land.
        I fear that some will use this reasoning not to protect
    religion, but as a way to discriminate. I shudder to imagine
    what this means for real people, for the communities I work
    with every day.
        At this critical moment, when so much is on the line for
    women and their families, my faith guides me. Proverbs 31:8-9
    says, ``Speak out for those who cannot speak, for the rights of
    all the destitute. Speak out, judge righteously, defend the
    rights of the poor and needy.''
        As a person of deep faith, I would never impose my
    religious beliefs on anyone, and no one else should either. My
    religious beliefs are separate from the law, and that is how it
    should be. But Judge Kavanaugh's record shows he does not
    respect this critical separation.
        This Committee and the Senate must weigh the harmful impact
    that Judge Kavanaugh would have on the health and well-being of
    so many people. I urge this Committee to block his nomination
    to the Supreme Court.
        Thank you.
        [The prepared statement of Ms. Baker appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Ms. Baker.
        Now, Ms. Sinzdak.

    STATEMENT OF COLLEEN E. ROH SINZDAK, FORMER HARVARD LAW SCHOOL
     STUDENT, AND SENIOR ASSOCIATE, HOGAN LOVELLS LLP, WASHINGTON,
                                   DC

        Ms. Sinzdak. Mr. Chairman, Ranking Member Feinstein, and
    Members of the Committee, thank you for the opportunity to
    address the Committee about my former Harvard Law School
    professor, Judge Kavanaugh.
        I took Judge Kavanaugh's Separation of Powers class in the
    winter term of 2009. In the years since, he has served as a
    trusted mentor to me. My experience as Judge Kavanaugh's
    student and mentee has led me to offer my firm support of his
    nomination to the Supreme Court of the United States.
        In some ways, my support for Judge Kavanaugh is
    unsurprising. A recent New York Times article catalogued the
    exceptionally strong reviews that Judge Kavanaugh's students
    have given to his teaching. Over the years, students' anonymous
    feedback forms have consistently lauded the Judge as an
    outstanding professor, one who strives to present a balanced
    view of the material in class and who makes himself uniquely
    accessible to students outside of the classroom. I
    wholeheartedly agree with that praise.
        Multiple articles have also detailed Judge Kavanaugh's role
    as a mentor and sponsor for young lawyers, many of them females
    and minorities. You have heard about Judge Kavanaugh's
    impressive record of hiring women and diverse law clerks, but
    Judge Kavanaugh's efforts as a mentor are not limited to his
    clerks. He also works to maintain connections with countless
    law students and young lawyers across the country.
        Judge Kavanaugh is an invaluable resource and advocate for
    those starting out in the profession and a champion of
    diversity in the legal world. Ever since I took his class, he
    has been a mentor and a sponsor, offering friendly advice,
    helpful support, and a listening ear as I have navigated the
    stages of my legal career.
        When I was considering applying for a Supreme Court
    clerkship, Judge Kavanaugh generously offered his advice and
    support, helping me to obtain a clerkship with Chief Justice
    Roberts. And when I went back to work after having my first
    child, a lunch with Judge Kavanaugh helped bolster my
    enthusiasm for my legal career.
        In other ways, however, my support for Judge Kavanaugh may
    strike some as surprising. I am a registered Democrat, and from
    2010 to 2011, I had the great honor of serving as a law clerk
    for then-Judge, now Chief Judge Merrick Garland on the D.C.
    Circuit. In that role, I experienced firsthand what a
    brilliant, fair, and kind jurist he is. I believe the
    judiciary, and the country as a whole, has suffered greatly
    from the failure to confirm Chief Judge Garland to the Supreme
    Court.
        I nonetheless support Judge Kavanaugh's confirmation. In my
    view, preserving and protecting the integrity of the judiciary
    means supporting and confirming highly qualified judicial
    nominees, regardless of whether one agrees with the politics of
    the party that nominated them.
        In my experience, Judge Kavanaugh has the traits that make
    him eminently qualified to serve as a Justice on the United
    States Supreme Court. His impressive intellect is obvious. But
    the Judge is also open-minded, he is principled, and he is
    evenhanded. I would like to speak a little more about each of
    those qualities.
        First, in my interactions with Judge Kavanaugh, he has
    always demonstrated open-mindedness and intellectual integrity.
    When I think back on the Judge's Separation of Powers class, it
    is not his lectures I remember. It is his insightful questions
    and the classroom debates they sparked.
        The course touched on some of the most important issues in
    our constitutional democracy, but rather than telling us what
    to think about them, the Judge asked questions that enabled us
    to develop our own views and share them with the class. More
    than that, he seemed genuinely interested in hearing our
    varying perspectives.
        One of my favorite law school memories is engaging in a
    fierce debate with a Separation of Powers classmate over
    whether INS v. Chadha was correctly decided. Judge Kavanaugh
    seemed delighted to hear both sides, and he encouraged us to
    develop our conflicting views. With Judge Kavanaugh, I was
    confident that if I could make the right argument, he would
    accept my position.
        My belief in Judge Kavanaugh's open-mindedness has deepened
    over the years through my one-on-one conversations with him. I
    often cannot resist sharing my views on separation of powers
    issues, and he is invariably an engaged listener and an
    insightful questioner, despite the fact that we come from
    different sides of the political aisle.
        Second, in my experience, Judge Kavanaugh is highly
    principled. By that, I mean something very specific. He
    carefully delineates the difference between policy preferences
    and what the law demands.
        In the Separation of Powers class, we often discussed
    current events and the way they implicated various
    constitutional concerns. Policy considerations inevitably came
    up, and we certainly discussed those, but the Judge would
    repeatedly remind us that those policy concerns are beside the
    point if the Constitution dictates a different outcome. More
    generally, the Judge taught us that the way to discern the
    legal principles that undergird our democratic system is to
    look to the text, history, and precedents regarding the
    Constitution, not our policy preferences.
        Third, Judge Kavanaugh is evenhanded and treats people
    fairly and with respect. In class, he gave the same
    consideration to the views of all students. I consistently felt
    he was judging our answers based on our ability to reason
    clearly and support our points, not based on any political or
    ideological standard.
        Judge Kavanaugh's evenhandedness goes beyond respect for
    varying ideologies. In my experience, he treats everyone
    equitably regardless of their gender, race, or background. One
    would think, or at least hope that, in 2018, that should not be
    remarkable. But as a woman, I know that explicit and implicit
    bias continue to plague the legal profession, just as they
    plague the rest of society.
        Far too often in my career, I have felt that I was being
    treated as a female lawyer, rather than just as a lawyer. But
    with Judge Kavanaugh, I have never felt that way. In my
    interactions with him, I know that I am being judged on the
    merits of what I say, nothing less and nothing more.
        I believe that a person with such sterling credentials and
    experience as a judge who so clearly values integrity,
    principle, and fairness is eminently qualified to serve on the
    Supreme Court. I, therefore, enthusiastically support Judge
    Kavanaugh's nomination.
        Thank you for your time.
        [The prepared statement of Ms. Sinzdak appears as a
    submission for the record.]
        Chairman Grassley. Thank you very much.
        Now, Professor Murray.

        STATEMENT OF MELISSA MURRAY, PROFESSOR OF LAW, NEW YORK
              UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK

        Professor Murray. Chairman Grassley, Ranking Member
    Feinstein, thank you so much for the opportunity to appear at
    these hearings on the confirmation of Judge Brett Kavanaugh to
    the United States Supreme Court.
        My name is Melissa Murray, and I am a professor of law at
    New York University School of Law, where I teach constitutional
    law, family law, and reproductive rights and justice, and serve
    as a faculty co-director of the Birnbaum Women's Leadership
    Network.
        Prior to my appointment at New York University, I was the
    Alexander F. and May T. Morrison Professor of Law at the
    University of California, Berkeley, where I taught for 12
    years, served as faculty director of the Berkeley Center on
    Reproductive Rights and Justice, and served as interim dean of
    the law school. Like Judge Kavanaugh, I, too, am a graduate of
    Yale Law School.
        Over the course of these hearings, much has been made of
    Judge Kavanaugh's warmth and kindness toward his clerks and
    those in his community. These accounts resonate with me, as
    Judge Kavanaugh and I have traveled in similar professional
    circles over the years. In fact, I, too, have had lunch with
    him, and I can attest to his friendliness and charming
    demeanor.
        But this nomination is not about whom I would befriend or
    with whom I would have lunch. It is not about how Brett
    Kavanaugh treats a handful of women from elite institutions. It
    is about real people on the ground, people like the women to my
    right and the people they represent who will not have lunch
    with Judge Kavanaugh, who will not meet with Judge Kavanaugh,
    but who will nonetheless depend on Judge Kavanaugh to protect
    their constitutional rights to make decisions about their
    lives.
        As you have heard from women like Alicia Baker and Liz
    Weintraub, confirming Judge Kavanaugh to the Supreme Court
    would threaten people's ability to make fundamental personal
    decisions, including deciding whether to have an abortion.
        Reproductive rights are under serious threat in this
    country. What we have seen over the last two decades is a
    concerted strategy that would dismantle Roe v. Wade piecemeal,
    not in one fell swoop, but rather through a death by 1,000
    cuts. This nomination is the culmination of that decades-long
    effort to destroy Roe v. Wade incrementally without necessarily
    formally overruling it.
        The Supreme Court stands as a bulwark against this assault
    on reproductive freedom. Just 2 years ago in Whole Woman's
    Health v. Hellerstedt, Justice Kennedy joined a majority to
    reaffirm the undue burden standard first articulated in Planned
    Parenthood v. Casey, thereby reaffirming the Court's commitment
    to protecting reproductive rights.
        But Judge Kavanaugh's nomination to replace Justice Kennedy
    imperils the Court's ability to continue to hold the line on
    reproductive freedom. In Garza v. Hargan, the only abortion
    case to come before him, Judge Kavanaugh voted to block a young
    immigrant woman from receiving abortion care and insisted that
    she remain pregnant against her wishes weeks after she had made
    her decision and after she had completed all of the State-
    imposed requirements.
        Although he claimed to follow Supreme Court precedent in
    Garza, Judge Kavanaugh's opinion evinced a crabbed and
    skeptical view of these precedents, a view that is completely
    out of the step with the high court's own view of those cases.
        Despite his claims during these confirmation hearings that
    he was respecting Supreme Court precedent on minors and
    abortion, in fact his dissent shows the opposite. He ignored
    the Supreme Court's holding in 1979's Bellotti v. Baird that
    allows minors to complete a confidential judicial bypass in
    lieu of parental or guardian consent.
        Jane Doe had already met the Texas requirement of a
    judicial bypass by the time her case before Judge Kavanaugh. So
    further delay to seek a sponsor was wholly unwarranted.
        Further, Judge Kavanaugh did not explain how the
    Government's flat prohibition wholly preventing Jane Doe from
    accessing abortion failed to constitute an undue burden under
    Casey or a pre-viability ban under Roe. Nor did he weigh the
    potential harms to Jane Doe stemming from a further delay
    against the purported benefits of that delay, as is required by
    Whole Woman's Health.
        Judge Kavanaugh's record in Garza suggests that rather than
    respecting precedent, he will undermine or ignore it. And in so
    doing, he will provide the necessary fifth vote that would
    utterly eviscerate the right to abortion.
        During these hearings, when asked by you, Senator
    Feinstein, whether he agreed with the statement that a woman's
    right to control her reproductive life impacts her ability to
    participate equally in the economic and social life of the
    Nation, Judge Kavanaugh's reply was not, ``I agree.'' Instead,
    he said, ``I understand the importance of the precedent set
    forth in Roe v. Wade.''
        We have seen this before. In 2005, then-Judge Roberts came
    before this Committee and stated that Roe is the settled law of
    the land during his own confirmation process. Despite this
    earnest declaration, as a Justice, he voted to uphold a
    statutory scheme that would have shuttered 75 percent of the
    clinics in Texas.
        If this is what it looks like to respect precedent and
    treat Roe as settled law, then these are empty promises. Since
    2011, politicians have passed over 400 new laws in 33 States
    across the Nation that shame, pressure, and punish women who
    decide to have an abortion. Some of these laws would ban
    abortion as early as 6 weeks, before a woman may even know that
    she is pregnant. Others would require doctors to convey a
    falsehood to patients, telling them that abortion leads to
    breast cancer.
        The point of these restrictions is to make it difficult,
    costly, and in some cases impossible for women to obtain an
    abortion. And as such, these restrictions impede women's
    ability to participate equally in the social and economic life
    of the Nation. And these restrictions are especially
    detrimental to young women, women struggling to make ends meet,
    women of color, immigrant women, rural women, and women who
    have already had children.
        In practice, these restrictions mean that Roe is merely a
    hollow promise and not a reality for many women. To be clear,
    Roe v. Wade is not a decision invented by activist judges. It
    is part of a century's worth of jurisprudence that protects an
    entire constellation of rights, rights relating to family,
    marriage, parenthood, contraception, and personal autonomy in
    intimate life.
        A vote against Roe, whether to overrule as a formal matter
    or gut it through incremental cuts, puts all of those rights in
    jeopardy. And make no mistake about it, a vote for Judge
    Kavanaugh is a vote against Roe.
        Thank you for having me.
        [The prepared statement of Professor Murray appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Professor Murray.
        Now, Professor Amar.

      STATEMENT OF AKHIL REED AMAR, STERLING PROFESSOR OF LAW AND
       POLITICAL SCIENCE, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT

        Professor Amar. Thank you, Chairman Grassley, Ranking
    Member Feinstein, distinguished Senators.
        My name is Akhil Amar. I am the Sterling Professor of Law
    and Political Science at Yale University, where I specialize in
    constitutional law. I have previously testified before this
    Committee on seven occasions, and it is always a solemn
    responsibility to appear here.
        Here are my top ten points.
        Point 1. Brett Kavanaugh is the best candidate on the
    horizon.
        The Supreme Court's biggest job is to interpret and apply
    the Constitution. Kavanaugh has studied the Constitution with
    more care, consistency, range, scholarliness, and
    thoughtfulness than any other sitting Republican Federal judge
    under age 60.
        He is the best choice from the long list of 25 potential
    nominees publicly circulated by President Trump. I say this as
    a constitutional scholar who voted for Hillary Clinton and
    strongly supported every Supreme Court nomination by Democratic
    Presidents in my adult lifetime.
        Point 2. Originalism is wise and nonpartisan.
        Studying the Constitution requires diligence and
    intelligence, especially for those, like Kavanaugh, who are
    ``originalists,'' paying special heed to what the
    Constitution's words originally meant when adopted. I, too, am
    an originalist. In prioritizing the Constitution's text,
    history, and structure to discern its principles and distill
    its wisdom, we originalists are following in the footsteps of
    George Washington, Alexander Hamilton, James Madison, John
    Marshall, Joseph Story, and Abraham Lincoln, among others.
        Originalism is neither partisan nor outlandish. The most
    important originalist of the last century was a towering
    liberal Democratic Senator-turned-Justice, Hugo Black, the
    driving intellectual force of the Warren Court, who insisted on
    taking seriously the Constitution's words and spirit
    guaranteeing free speech, racial equality, religious equality,
    the right to vote, the right to counsel, and much more.
        Among today's scholars, the originalist cited most often by
    the Supreme Court is also a self-described liberal and a
    registered Democrat, yours truly. The best originalists heed
    not just the Founders' vision, but also the vision underlying
    its amendments, especially the transformative reconstruction
    amendments and women's suffrage amendment.
        I believe that Justice Kavanaugh will be in this tradition.
    On various vital issues--voting rights, governmental
    immunities, congressional power to enforce the reconstruction
    amendments--Justice Kavanaugh's constitutional views may well
    be better for liberals than were Justice Kennedy's.
        Point 3. Kavanaugh's writings reflect proper respect for
    tradition and precedent.
        Originalists start with the Constitution's text and
    structure, but almost always need to consult other
    constitutional sources, such as tradition and precedent.
    Harmonizing these different constitutional sources requires
    great legal acumen. Kavanaugh's record shows that he is adept
    at harmonization.
        Point 4. Kavanaugh's views on Executive power have strong
    constitutional foundations.
        Many of Kavanaugh's views about the executive branch are
    quite standard. On several other executive branch topics,
    Kavanaugh's views are not yet conventional wisdom but are
    nevertheless sound and, indeed, align well with the testimony I
    offered this Committee in 1998 and 2017.
        Point 5. The best basis for assessing would-be Justice
    Kavanaugh is the track record of Judge Kavanaugh.
        The judicial track record is more proximate and relevant
    than Kavanaugh's pre-judicial life.
        Point 6. Kavanaugh would work well with his new colleagues.
        I predict that Kavanaugh, a studious and open-minded
    conservative who likes listening to and engaging with moderates
    and liberals, will be a pro-intellectual and anti-polarizing
    force on the Court.
        Point 7. Judicial nominees should not make substantive
    promises about how they would rule on specific legal issues,
    nor should they make recusal promises that closely approximate
    substantive promises.
        Point 8. Senators may properly oppose a judicial nominee
    simply because they disagree with a nominee's general
    constitutional philosophy or likely constitutional votes on the
    bench.
        Point 9. The current Senate confirmation process is badly
    flawed and should be changed for future vacancies.
        Point 10. Back to Point 1. Responsible naysayers must
    become yeasayers of a sort. They must specifically name better
    nominees realistically on the horizon. If not Brett, who?
        Distinguished Republicans, Kavanaugh is your team's
    brightest judicial star. Rejoice.
        Distinguished Democrats, do not be mad. Be smart. Be
    careful what you wish for. Our party controls neither the White
    House nor the Senate. If you torpedo Kavanaugh, you will likely
    end up with someone worse, someone less brilliant, less
    constitutionally knowledgeable, less studious, less open-
    minded, less good for America.
        Thank you.
        [The prepared statement of Professor Amar appears as a
    submission for the record.]
        Chairman Grassley. Thank you all very much.
        Before I ask my questions and take 5 minutes to do that,
    Senator Tillis is going to Chair this Committee after I get
    done asking questions for this panel, I should say. I will be
    back, but because I will be gone when you separate, I want to
    thank all of you for your participation in this process.
        And then I think after this panel, it is scheduled that we
    would have a lunch break.
        I am going to start with Mr. McCloud because it seems to me
    you clerked for different people of different views on
    interpreting the law and the Constitution--Judge Sotomayor, I
    believe, and then also Judge Kavanaugh. So I will let you
    define yourself what the most important characteristics of a
    Supreme Court Justice is and if you see Judge Kavanaugh meeting
    these.
        Mr. McCloud. Well, I think the most important
    characteristics are, first of all, intelligence and
    faithfulness to the law. I think Judge Kavanaugh, as his
    reputation shows from his years on the D.C. Circuit, has those
    characteristics in spades.
        I think something that is maybe underappreciated in terms
    of the work the Supreme Court does is, how closely the Justices
    work together, and I share Professor Amar's view that Judge
    Kavanaugh would work well as a colleague on the Supreme Court.
    He has talked during these hearings about the idea of a Team of
    Nine, working together with his colleagues on the Court, to
    achieve a goal of justice and interpreting the law fairly, and
    I think that he would live that model if he were appointed to
    the Supreme Court.
        Chairman Grassley. Yes, thank you.
        I am going to ask Ms. Garry this, but it is based upon a
    very strong point that Professor Murray made that we hear a lot
    about what Professor--or I mean Kavanaugh has done for people
    that have worked close with him. She fears that he may not take
    the average American's point of view into mind in his work as a
    judge.
        So what would you want the average American to know about
    Judge Kavanaugh as a person and how he might see their
    problems, not the people he has associated with all of his
    life?
        Push the button, will you?
        Ms. Garry. In my experience, Judge Kavanaugh listens and
    hears everyone he speaks with. I do think he considers people
    from a variety of backgrounds. I do not think he has lived only
    in one sphere. I think he has exposed himself to a wide range
    of people, and I think that he would listen empathetically and
    hear their voices.
        Chairman Grassley. And probably a point he has made and how
    he serves at--for low-income people at congregate meal programs
    as an example would be one way I would see from what he has
    said.
        Ted Olson, you are famous in the legal community in this
    town and around the country as well. So you ought to interact
    with a lot of people that, in turn, have interacted with Judge
    Kavanaugh. What do other members of the legal profession say
    about the experiences that they have had with Judge Kavanaugh?
        Mr. Olson. Thank you, Mr. Chairman. That is a very good
    question.
        The fact is that throughout his legal career, I have heard
    nothing but the highest praise for Judge Kavanaugh as a human
    being, as a lawyer, and as a judge. As far as I can tell and as
    far as I have heard, he is uniformly respected by his peers on
    the D.C. Circuit with whom he has worked in many cases for 12
    years or more, including also the most recent appointees to the
    Court.
        Every lawyer that I have spoken to who has appeared before
    Judge Kavanaugh has respected the experience and has related to
    me the fact that he has listened, he pays attention. It is
    impossible to tell exactly how he is going to decide until you
    read the decisions that he makes.
        So, in summary, the answer to your question is I do not
    know of a lawyer or a judge who is more uniformly respected in
    terms of his personality, his character, his integrity, his
    fairness, and his competence.
        Chairman Grassley. Ms. Sinzdak, you obviously remember him
    as a good teacher. What are those qualities, if you can
    transfer them to being a good judge and eventually a Supreme
    Court Justice, what would you say about what you learned of him
    in class versus his being a judge?
        Ms. Sinzdak. I think the qualities are directly
    transferrable. I think he was a great professor because he not
    only listened and engaged more than he talked, but he knew how
    to get people explaining their arguments in the best possible
    way.
        And I think that as a judge, too, he needs to listen to
    everyone before him. He needs to be able to engage with
    different viewpoints. And then also he needs to be able to
    treat those viewpoints equally.
        And in our class, I think that he was open-minded and
    wanted to listen to all, to people of all ideologies equally,
    wanted to hear the different sides of a discussion. And
    similarly, I think that as a Justice, he will listen to both
    sides of an argument. He will consider those.
        And then, third, he knows what is important in the law. He
    was not just a teacher. He was a law professor. And what he
    told us was that what matters in the law is what the law says,
    not what your policy preferences dictate. And I think that in
    many ways, that is the most important quality for a Justice,
    and I think that he exhibited that.
        Chairman Grassley. Senator Feinstein.
        Senator Feinstein. Thank you very much.
        I want to just pick up on the last sentence that you said.
    The issue of qualities really should not matter. It should be
    the fairness, the likeability, the qualifications only. And
    that might be fine if some of the critical things that many of
    us--and I am going to speak for myself as a woman who has been
    a mayor. I represent 41 million people.
        And Ms. Baker, America is like you out there today in the
    young woman. I see it over and over and over again.
        And Ms. Weintraub, I am so proud of you. Stand tall. Be
    strong. You are quite wonderful to be here today.
        Professor Murray, I think you were very cogent. I thank you
    for your remarks. I have never, in all my years here, been with
    a panel the majority of whom are women, and each one of you
    brought a different point of view, and it is very, very
    welcome.
        For me, Ms. Garza, I wanted to ask you a couple of
    questions, if I could, because the Jane Doe case is really a
    problem for me because what it showed was, there were so many
    things in her treatment I did not like. The way she was treated
    by the Office of Refugee Resettlement. She was subjected to
    unnecessary sonograms, you know, forced to go to a crisis
    center, subjected to harassment, as I understand it, had been
    physically abused by her parents, and went to a Texas Judge and
    received an order of approval.
        I do not have that order of approval. What did that order
    of approval say?
        Ms. Garza. Well, in Texas, you have to get a judicial
    bypass to bypass the consent from your parents and to consent
    to your own abortion care. And that order is typically based on
    a best interest assessment, whether or not it is in Jane's best
    interest to go ahead and proceed with making that decision on
    her own or whether or not she is sufficiently mature enough.
        So in this case, she was--it was in her best interest to go
    ahead and proceed with that. A Texas Court decided that, and
    that is how the case moved forward.
        Senator Feinstein. Now the panel that the nominee in
    question was on, were questions asked? Were you there?
        Ms. Garza. No--no, I was----
        Senator Feinstein. It was in appellate court. I understand
    that.
        Ms. Garza. No, I was not there. However, I did listen to
    it. The question was not in--the order was not in question. A
    Texas court made that decision. Jane went through every single
    hoop she needed to go through in Texas, including complying
    with the Texas law of the 2 days, and she was just being
    blocked. She was not being allowed to be--to go to her medical
    appointment, and she was not allowed to be released to her ad
    litems, to myself as her guardian ad litem or her attorney ad
    litems, that were appointed by State courts.
        Senator Feinstein. And why was that?
        Ms. Garza. Just to obstruct her ability to enact her
    decision. It was a policy enacted under ORR, and they directed
    the facility not to allow her to be released.
        Senator Feinstein. So, Professor Murray, I think the
    arguments have been made here, and my great query is, women
    have never historically been treated equal, and finally, you
    know, we got the vote. It began to change. We were able to go
    to higher education. The United States began to accept women,
    and now the world seems to be changing in favor of women.
        What I am most worried about this is, that Roe goes down,
    and for what this meant in my generations, which were the 1950s
    and 1960s, when the death toll was estimated to be between
    200,000 and 1.2 million of women that went to illegal
    abortionists and died. I do not want to see us go back to that
    day. And so that is inherent in this vote.
        Weapons in this country are inherent in this vote, and if
    you look at where America is going, also the quality of the
    individual who is going to sit in that deciding seat I think
    overwhelms most else. Your analysis, and you spoke very
    cogently, how would you analyze this judge affecting those
    issues?
        Professor Murray. Thank you, Senator.
        It is clear to me reading Judge Kavanaugh's opinions on
    these reproductive rights cases, that he says he is following
    Supreme Court precedent, but that is not the case. In the Garza
    case, which is the only abortion case to come before him, Judge
    Kavanaugh said he was following the Federal precedent. Yet he
    did not even engage the question in Whole Woman's Health v.
    Hellerstedt, which would have required him to weigh the
    benefits of a delay against the burdens it would have imposed
    against Jane Doe.
        That is required by the Supreme Court under its most recent
    decision in Whole Woman's Health v. Hellerstedt. He did not
    engage that at all.
        In requiring that Jane Doe take an additional 11 days for
    the Government to seek a sponsor, his decision defied Bellotti
    v. Baird, a 1979 case where the Supreme Court held that a State
    cannot require a minor to obtain parental consent or even to
    notify a parent unless it provides an alternative judicial
    bypass option for determining whether an abortion is in the
    best interest of that minor.
        And as Ms. Garza has said, Jane Doe went through that
    State-required procedure to have a judicial bypass. She
    obtained that bypass. A Texas State judge determined that an
    abortion was in her best interest. The Government then still
    prevented her from obtaining the abortion care she needed, and
    Judge Kavanaugh's decision, which would have required the
    Government to continue looking unsuccessfully for a sponsor for
    an additional 11 days, would have further delayed her care,
    making it almost 6 weeks from the time she decided to have an
    abortion until when she could actually receive it.
        Senator Feinstein. Thank you.
        Thank you, Mr. Chairman.
        Senator Tillis [presiding]. Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman.
        Thank you to each of the witnesses who are here.
        Professor Amar, let us start with you. You are widely
    acknowledged to be one of the most respected constitutional law
    professors in the country. In your opinion, is Judge Kavanaugh
    qualified to serve as a Supreme Court Justice?
        Professor Amar. Unquestionably.
        Senator Cruz. How would you compare his level of
    qualifications to other Supreme Court nominees, without
    specifically disparaging any other nominee?
        Professor Amar. I have great respect for all the Justices,
    but I would actually say, without naming names, that, you know,
    I might rank him--I might predict that end of--well, were he to
    be confirmed by this body, at the end of his service, he would
    rank well above the average. In the--I would say in the top
    tier of modern Justices, and the modern Justices are quite
    impressive.
        Senator Cruz. Ms. Sinzdak, you were a student of Judge
    Kavanaugh's?
        Ms. Sinzdak. That is correct.
        Senator Cruz. What was he like as a professor?
        Ms. Sinzdak. Well, again, he was open-minded, principled.
    He was very fair. I mean, he was also a really nice guy. I take
    the point of my colleagues that likeability is not necessarily
    a criteria. So I did not gear my comments in that direction,
    but he was wonderfully warm. He took students out to dinner and
    was very friendly.
        Senator Cruz. So am I right that you were part of the legal
    team that brought a challenge to President Trump's so-called
    travel ban? Is that right?
        Ms. Sinzdak. That is correct.
        Senator Cruz. And in your experience at Harvard with Judge
    Kavanaugh as a professor, you found him fair, open-minded,
    willing to listen to views from multiple perspectives?
        Ms. Sinzdak. I did. I like to hope that I used a lot of the
    things I learned in Judge Kavanaugh's class to bring that
    challenge against what I still consider an unconstitutional
    order.
        Senator Cruz. Mr. Olson, you served with Judge Kavanaugh in
    the George W. Bush administration. You were Solicitor General
    while he was in the White House. What was your experience in
    terms of any professional interactions you had with him at that
    time?
        Mr. Olson. We did not have a great deal of professional
    interactions because his position in the White House did not
    directly relate to what the Solicitor General was doing. We
    worked often with the Counsel to the President, the White House
    Counsel. But from time to time, there were opportunities to see
    the kind of input that he was providing to the people in the
    White House, the senior officials in the White House, including
    the President.
        He was scrupulous, far as I could tell, scrupulously
    balanced in making sure that the President and other senior
    officials in the Department were receiving even-handed
    presentations. So that he would assure that if one side was
    being advanced to the President, that the other side was also
    being demonstrated.
        His thoughtfulness impressed, I think, everyone around him
    that was dealing with him, both from the standpoint of the
    White House and the Justice Department.
        Senator Cruz. Now you have argued in courts of appeals all
    over the country. Have you had the opportunity to present oral
    argument before Judge Kavanaugh in the D.C. Circuit?
        Mr. Olson. I have. I have presented argument in one of the
    cases involving separation of powers, the constitutionality of
    the Consumer Finance Protection Board, and the court heard that
    case en banc in the D.C. Circuit. All of the judges were
    engaged in that case. It was the kind of case that the D.C.
    Circuit is very good at because it involves separation of
    powers and involves the structure of government.
        All of the judges on that case were engaged. The argument
    must have gone on for a couple of hours. Judge Kavanaugh was as
    engaged, if not more so than the other judges. He--at the end
    of the day, he did not agree completely with the arguments that
    we were making, but he wrote a very thoughtful, reasoned
    concurring dissenting opinion with respect to the
    constitutionality of the Consumer Finance Protection Board.
        He very carefully parsed what the Supreme Court had said in
    the Free Enterprise Fund case and came to a conclusion that
    was, I thought, very persuasive, although I did not completely
    agree with it. Very persuasive and reasonable.
        Senator Cruz. But let me thank each of the witnesses for
    being here on this panel, and I want to echo what Senator
    Feinstein said in particular, Ms. Weintraub. Thank you for your
    powerful and inspirational testimony. Thank you for being here
    and being part of this panel.
        Ms. Weintraub. Thank you.
        Senator Tillis. Senator Klobuchar.
        Senator Klobuchar. Thank you.
        Congressman Richmond, thank you so much for being here and
    for your leadership.
        I asked some questions yesterday of the Judge about voting
    rights, and I referenced data from the Brennan Center for
    Justice showing that 23 States, as you know, have now have more
    restrictive voting laws than they did in 2010. Can you
    elaborate on the consequences of Shelby County?
        And as you know, yesterday Judge Kavanaugh noted that
    Section 2 of the law remains in effect, and is, in your view,
    Section 2 sufficient to protect voting rights?
        Representative Richmond. Thank you for the question.
        Section 2 is absolutely not sufficient. And for States like
    the State I come from and some of the other Southern States
    that were Section 5 States which had to preclear their actions
    that affect voting rights, they were not chosen by random, they
    were chosen because of their past history of affirmatively
    trying to disenfranchise minority voters.
        And so, because of Shelby, you do not have that anymore,
    and you saw the race to the legislature. As soon as Shelby was
    decided, where the courts held, that the disenfranchisement and
    the discrimination basically was done with laser-like
    precision.
        Senator Klobuchar. Word from the circuit court.
        Representative Richmond. Yes. So you see the voter ID laws.
    You just saw in Georgia where they--there was an attempt to
    close polling locations right before a gubernatorial race with
    the opportunity to elect the first African-American Governor in
    this country. So it is a big concern for us.
        Senator Klobuchar. Right. And gerrymandering, as you know,
    this past term in Abbott v. Perez, 5-to-4, Supreme Court upheld
    a number of Texas electoral maps that the dissent said burdens
    the rights of minority voters. Again, 5-to-4 decision.
        Based on Judge Kavanaugh's record, his testimony before the
    Committee, what do you think the future holds there when it
    comes to gerrymandering with him on the Court?
        Representative Richmond. We are very concerned. And if you
    look at the effect that it has in terms of representation,
    especially for minorities, and I am not just saying that. What
    is important is the ability to elect a minority candidate of
    your choice. In many instances, minorities choose to elect non-
    minorities like Steve Cohen who represents Memphis, Tennessee,
    and does an amazing job.
        But the ability to elect a minority is important. And so if
    the Court shifts toward--makes a drastic shift in terms of
    gerrymandering, then we face the ability of rolling back the
    clock in terms of African-American and minority representation
    in this country.
        Senator Klobuchar. Thank you very much.
        Ms. Baker, thank you so much. I do not think we focused
    enough on that case, and you really brought it to light here.
    Can you tell us quickly why it is important that women are able
    to access affordable contraception, as well as the impact that
    you think Judge Kavanaugh's confirmation could have on the laws
    in this area?
        Ms. Baker. Absolutely. For me, as a Christian, I definitely
    believe that--well, one of my favorite Bible verses is John
    10:10, in which Jesus says, ``I have come that you might have
    life and have it to the fullest.'' And I definitely believe
    that birth control helps us to live our best lives as women. It
    helps us to go after, you know, education or our careers, helps
    us to better plan our families and when we are ready to have
    children. And so--if and when.
        And so I really think that is critical to helping empower
    women and continue the advance forward for women in society.
        Senator Klobuchar. Thank you very much.
        And I think the idea here is that you were someone that is
    pro-life. Is that correct?
        Ms. Baker. That is correct.
        Senator Klobuchar. And you are someone that just simply
    wanted to be able to afford contraception after you got
    married. Is that right?
        Ms. Baker. That is correct. Yes.
        Senator Klobuchar. And so the Affordable Care Act, there
    you were hoping to use those provisions and to be able to--
    there is other things in there that is helpful as well, not
    getting kicked off of insurance because of pre-existing
    conditions, an issue that came up here a number of times in our
    questions and concerns.
        But one of them was that you were hopeful about getting
    contraception that you could afford, is that right, when you
    got married?
        Ms. Baker. That is correct. Yes.
        Senator Klobuchar. And so then what happened here is you go
    and you get an IUD, and then you find out that the employer is
    somehow able to exercise their religious rights. Could you
    explain that just a little more for people?
        Ms. Baker. Yes, absolutely. So I had even gone and done my
    due diligence and checked with my personal insurance company
    about the benefits and everything and made sure that it was all
    clear, not just my knowledge of the ACA, and it said it would
    be covered. And so when I went to get my IUD, they give a
    pregnancy test as well, you know, it is being used as
    contraception.
        And so I went and got it put in, and then a few weeks
    later, we got the EOB for $1,200. And that was about a month
    before our wedding and----
        Senator Klobuchar. Right.
        Ms. Baker. As you can imagine, the stress that already
    comes with planning a wedding and then putting that on top of
    it. We are trying to start our new life together, and so it was
    just a very difficult thing.
        Senator Klobuchar. Thank you.
        And Professor Amar, I would ask you questions, but I am out
    of time. And also, you would have to recuse yourself since you
    are my daughter's college adviser.
        [Laughter.]
        Senator Klobuchar. But I would like to note that your
    comments about the Judge having standard conventional opinions,
    maybe we can talk about it after, but it just is not my opinion
    based on looking at his rulings on net neutrality, or some of
    the things he has said about Chevron, or what he said about the
    Consumer Financial Protection Bureau. And so I am looking
    forward to debating that with you at a break.
        Thank you.
        Senator Tillis. Senator Kennedy.
        Senator Kennedy. Thank you, Mr. Chairman.
        I would like to thank all of you for coming today. I know a
    lot of work went into your statements. I find this kind of
    testimony very helpful.
        Number two, I want to especially thank my colleague
    Congressman Richmond. I have known him a long time. Before he
    became a distinguished Congressman, he was a distinguished
    member of the Louisiana House of Representatives, and he is a
    smart guy and a fine American. And a good guy, too.
        Number three, Ms. Baker, you are a Methodist?
        Ms. Baker. Free Methodist, that is correct.
        Senator Kennedy. Right. I am a Methodist, too. When Becky
    and I got married, I was raised in the Presbyterian Church. My
    parents founded two Presbyterian churches. So I was a
    Presbyterian, and my wife, Becky, was a Methodist. So we
    compromised, and I became a Methodist.
        [Laughter.]
        Senator Kennedy. Ms. ``Sinzdak,'' did I say that right?
        Ms. Sinzdak. ``Sinzdak.''
        Senator Kennedy. Ms. Sinzdak, I appreciated your testimony,
    too, as I did the testimony of all of you, and I apologize
    again for hitting you in the head when I was going down to
    shake Congressman Richmond's hand.
        Ms. Sinzdak. That is okay. No harm.
        Senator Kennedy. Mr. McCloud, what year did you clerk for
    Judge Kavanaugh?
        Mr. McCloud. I clerked for him from 2013 to 2014.
        Senator Kennedy. Okay. And then you went on to clerk for
    the Supreme Court after that?
        Mr. McCloud. I did, Senator. For Justice Sotomayor.
        Senator Kennedy. Okay. And now you are with Williams &
    Connolly?
        Mr. McCloud. Yes, Senator.
        Senator Kennedy. You are an associate there?
        Mr. McCloud. Yes, Senator.
        Senator Kennedy. Have a lot of free time, do you?
        Mr. McCloud. Not much, Senator.
        Senator Kennedy. I agree with my colleague Senator
    Feinstein that our world is getting better for women. I am
    biased, of course, but I think our world is getting better for
    many Americans. I am proud of that.
        In the last 20 months, the U.S. Congress and President
    Trump have cut taxes, increased wages, helped create 4 million
    jobs, delivered 4.1 percent growth in our domestic product,
    deregulated the economy, improved healthcare, I believe, for
    our veterans, strengthened our military, stood up to China and
    Iran and North Korea and Russia. And last, but not least, we
    have confirmed some, I think, very accomplished men and women
    to join the Federal judiciary, including, but not limited to,
    one Supreme Court Justice and I think soon to be a second
    Supreme Court Justice.
        And I am proud of that record, and I thank you all again
    for sharing your thoughts with us today.
        Senator Tillis. Senator Whitehouse.
        Senator Whitehouse. Thanks very much.
        Professor Amar, you mentioned recusal. So, let me follow up
    with you a little bit on the recusal question.
        When you have a judicial nominee whose name has been put
    forward by the subject of an ongoing criminal investigation and
    by someone who has been named in open court as directing other
    criminal activity, in the event that those criminal
    investigations should ultimately come before the Court and the
    nominee of that subject and that named co-conspirator is then
    on the Court, it is fair to say, is it not, that the question
    of recusal is a very live and legitimate issue?
        Professor Amar. Senator, it is. And I think back to the
    Nixon tapes case where one Justice who had been appointed by
    Richard Nixon and who had worked in the Justice Department, and
    Watergate involved questions about the head of the Justice
    Department, John Mitchell, one Justice, then-Justice Rehnquist
    did recuse himself from the Nixon tapes case, and three did
    not.
        My thought is that that has to be decided when the case
    arises, and there should never be a promise of any sort to any
    nominator or to this body in the confirmation process about how
    you will vote or even how you will recuse. You decide that when
    the case comes before you. And Rehnquist decided one way, and
    three other Justices appointed by President Nixon decided it
    the other way.
        Senator Whitehouse. Now since that episode, there has--the
    Nixon episode, there has been some case law at the Supreme
    Court developed in the area of judicial recusal, has there not?
        Professor Amar. There has. One thinks, for example, of
    Justice Scalia's decision not to recuse himself in a case
    involving then-Vice President Cheney in his official capacity.
        Senator Whitehouse. I mean actually legal precedent, as
    opposed to behavioral precedent at the Court. And I am
    specifically referring to the Caperton decision.
        Professor Amar. Oh, sure. Sure.
        Senator Whitehouse. What is your summary of the Caperton
    decision?
        Professor Amar. Thank you, Senator.
        So one important thing to understand about that case, which
    arose out of West Virginia, is it involved a State judiciary, a
    State-elected judiciary, and one problem with State-elected
    judiciaries--I know a lot of States have them, I am not a fan
    of them, nor is Justice O'Connor, retired Justice O'Connor, who
    has actually made a crusade of this issue--is, you have to
    raise money to run, and then you do not have life tenure, and
    you have to raise money to run again.
        And that makes it very different, it seems to me, than a
    Federal judge. One of the great glories of the Federal system
    is once you are confirmed to the Supreme Court, it is a life
    tenured position, and you should not make any promises getting
    it. But even if you did, they are not really, as a practical
    matter, easily enforceable because you never have to run again.
        So I see that case as quite distinguishable in important
    ways. It also involved a financial----
        Senator Whitehouse. Although look at the standard. What is
    the standard that the Court used to apply to the judge in
    question to determine that he was constitutionally required to
    recuse himself? Was it not that the funder, by virtue of the
    amount of funding that he put into the race, had a significant
    and disproportionate influence on that judge occupying that
    seat?
        Professor Amar. That was part of the standard, if memory
    serves. It is an opinion of Justice Kennedy, for whom Brett
    Kavanaugh clerked. And there were about 40 different factors,
    actually, that in the dissent by Chief Justice Roberts were
    sort of identified as possible limiting considerations in that
    case.
        But you are absolutely right, Senator----
        Senator Whitehouse. The standard was significant and
    disproportionate influence in putting the judge into that seat.
    Correct?
        Professor Amar. It did involve a huge financial
    contribution by a private person----
        Senator Whitehouse. Correct.
        Professor Amar. In a case that was already pending when--
    when the person was running for the State Supreme Court, a
    pending case.
        Senator Whitehouse. Correct.
        Professor Amar. A huge financial contribution by a private
    individual.
        Senator Whitehouse. And in this case, you have a pending
    criminal investigation, and you have somebody who has done a
    good deal more than put $3 million toward getting that judge in
    the seat. He has actually 100 percent put that judge in the
    seat. Do you not see that there is any potential relevance
    between the Caperton decision and the decision that Judge
    Kavanaugh would face, if confirmed?
        Professor Amar. May I answer? Thank you, Mr. Chair.
        So it is not 100 percent. That is what this body actually
    is about. Presidents do not put people on the Supreme Court.
    And if you have any concern whatsoever that any promise of any
    sort was made to the President or anyone in the White House
    about this litigation, I would say you should vote no because
    promises are improper.
        There is another relevant precedent on judicial recusal,
    and to repeat, when that case comes before the Supreme Court,
    were Justice Kavanaugh to be on it, he is going to have to make
    that decision, as is everyone else. I just do not want him to
    promise anything, one way or another as part of the process of
    becoming Justice Kavanaugh.
        That I start Con Law every year teaching Marbury v.
    Madison, which, as you know, actually has a really interesting
    recusal question, arguably, in it, because John Adams, at the
    very end of his administration, is putting his Secretary of
    State, John Marshall, on the Court. And then the case comes
    before the now-Chief Justice John Marshall, and there is a real
    question whether he should have recused himself.
        I believe he should have, but that is because he had
    firsthand knowledge of adjudicative facts of the case, but not
    merely because he happened to have been picked by one
    President. Because all Justices are picked by one President or
    another one and confirmed by a Senate.
        So it is actually the first question we do, in Marbury v.
    Madison, is the judicial ethics recusal question, and I do not
    think it is a sufficient basis for recusal just that you happen
    to have been nominated by a President who happens to be
    implicated in a litigation. That might not be enough.
        Senator Tillis. Senator Feinstein will be recognized for a
    correction of the record.
        Senator Feinstein. Thank you. I appreciate this, Mr.
    Chairman, because I apparently misspoke.
        It is the estimates of the number of illegal abortions in
    the 1950s and 1960s that range from 200,000 to 1.2 million per
    year. I said deaths. That is not correct.
        Senator Tillis. Senator Hatch.
        Senator Hatch. Well, thank you, Mr. Chairman.
        Mr. Olson, you have been at the center of the DC legal
    community for decades. What is Judge Kavanaugh's reputation
    among the lawyers you know? How is he--how is he thought of and
    regarded?
        Mr. Olson. I do not know of anyone in the judiciary or in
    the legal profession in Washington, DC, or anywhere around that
    who is respected more than Judge Kavanaugh. Now there are other
    judges, of course, who have a reputation which is very, very
    high. The D.C. Circuit on which Judge Kavanaugh sits is
    populated by very, very talented, very fair judges, many of
    whom could be perfectly well qualified to be on the Supreme
    Court.
        But my experience with respect to Judge Kavanaugh, it would
    be hard to describe someone with a greater reputation.
        Senator Hatch. Well, thank you. You have appeared before
    Judge Kavanaugh in court many times. What kind of a judge is
    he? What type of a judge is he during oral argument?
        Mr. Olson. He is very attentive, like other colleagues on
    that court. As I said, this is a very, very fine court. But my
    experience has been that he has not only read the briefs, but
    he understands the history that brings the case to the court.
        He is very, very thoughtful. He asks very hard questions of
    the litigants, no matter which side you are on, very
    perceptive. The sort of thing that you experience in the United
    States Supreme Court, where the Justices are probing the
    strengths and weaknesses of your case and an advocate has to be
    ready to answer those hard questions.
        Judge Kavanaugh asks those hard questions, and you cannot
    tell from his questions where he is going to come out in a
    case. He is looking for information and analysis and input from
    the advocate. That is what a good advocate hopes for in a good
    judge.
        Senator Hatch. Well, thank you.
        Professor Amar, what are the most important qualities you
    think Senators should look for in a potential Supreme Court
    Justice, and why should people from both sides of the political
    aisle, Republicans and Democrats, support Judge Kavanaugh's
    nomination?
        Professor Amar. Senator, I did--I do believe that the most
    important job of the Supreme Court is constitutional
    interpretation and implementation. It does other things, but
    that is the most important. And Constitution does not define
    itself. It requires a lot of careful study, and I just thought
    that Judge Kavanaugh, more than any other sitting Federal
    judge, Republican Federal judge under age 60, has studied it
    with more care and scholarliness and consistency and range.
        He is read very widely. I refer you to the very interesting
    exchanges he had with Senator Lee, for example, about the
    Federalist Papers. How many people would know Federalist 37 and
    39? Maybe 10, maybe 78.
        So, but in answer to--Senator Cruz asked me a question, and
    I should have said one other thing. It is not just that I think
    he will be good on his own on the Court. It is that I think he
    will actually help bring out the best in others. I think it is
    a small group, and when I think about the one-on-one
    interactions and the collegial interactions, I see him as
    exceptional.
        And the final thing that I really do want my fellow
    liberals and Democrats to hear is I believe he actually is
    likely to be better than many are saying, even on this panel,
    on things like voting rights, on congressional power to
    implement the reconstruction amendments. Many originalists do
    not pay enough attention to the amendments, to the women's
    suffrage amendment, to the reconstruction amendments.
        And when I read what Judge Kavanaugh has written, both on
    the bench, including a voting rights case that I actually think
    was an impressive opinion, and I contrast that to Shelby
    County, for example, which I think was the worst decision of
    the last 20 years, in fact, 15 years, I actually am optimistic
    about Judge Kavanaugh as someone who will very seriously take
    the vision of the reconstruction generation and the women's
    suffrage generation alongside the founding generation.
        Senator Hatch. Well, I want to compliment this whole panel.
    It has been an excellent panel. You folks are really helping us
    here on the Committee with your testimony from every one of you
    on the panel. So I am proud of you, appreciate you, and it is
    one reason why this system does work better.
        Thanks, Mr. Chairman.
        Senator Tillis. Senator Coons.
        Senator Coons. Thank you, Chairman Tillis.
        Congressman Richmond, welcome. I just wanted to follow up
    on the line of conversation with Professor Amar. Do you think
    Judge Kavanaugh is the right nominee to replace Justice
    Kennedy, particularly given Kennedy's critical voice and vote
    in Fisher v. University of Texas, where the Supreme Court
    upheld UT's race conscious admission policies and given Judge
    Kavanaugh's decisional record?
        Representative Richmond. No, and that is a very real
    concern. Look, the question has been asked now very
    consistently about affirmative action, whether it is in the
    Bakke case or other cases about whether it is still necessary,
    and I will just say this. And we will take it out of legalese
    for a minute and just take it to plain, old physics.
        If a ball is rolling down the hill, the only way to stop it
    is to apply equal and opposite force. And the ball of racism
    and discrimination in this country rolled down hills for
    centuries, and the only way to stop it is an opposite, but
    equal force. And that is what affirmative action and that is
    what those cases mean.
        And if you look at some of the decisions and if you look at
    Scalia's comments in the last case, he actually questioned the
    intellect of African Americans and their ability to succeed at
    a prestigious university. So, when you couple the other
    Justices and their opinions with Kavanaugh's record, that is
    what leads to the real concern about where we are going to go
    with affirmative action, race-based factors in admissions, and
    others.
        Senator Coons. Thank you, Congressman.
        Ms. Baker, thank you for both your testimony and your
    witness today. And thank you for bringing forward what is a
    challenging and very personal fact pattern.
        I just want to make sure I heard right. In some ways, I
    think for you the most shocking thing and the most upsetting
    thing was a decision that chooses the religious liberty
    interest of your employer, a company really--nonprofit, but a
    company--their views on what contraception you should be able
    to access versus your views about what you ought to be able to
    do in preparing for marriage and preparing for parenthood.
        Is that what sort of stuck most? As I understood your
    testimony today, that really in particular struck you as just
    baffling, that the religious liberty interest of a company
    ended up trumping yours?
        Ms. Baker. Yes, absolutely. That is something that has
    stuck with me throughout the whole process.
        Senator Coons. Thank you.
        Professor Murray, I thought you did a particularly powerful
    job of explicating the range of ways in which Judge Kavanaugh's
    writing and opinions caused some hesitation or concern. It is
    in Priests for Life, in his dissent, that he was particularly
    clear about his view that the complicity of a corporation in
    being forced to check a box should outweigh the liberty
    interest of a real, live, breathing person.
        Can you just comment on why that tension might strike you
    as novel or why, given Hobby Lobby, you might see this as a
    very difficult, long-term trend line in this Court, should
    Judge Kavanaugh be confirmed?
        Professor Murray. Thank you, Senator.
        There are a number of troubling messages that Judge
    Kavanaugh evinces in that dissent in Priests for Life. The
    first that strikes me is exactly the concern that Ms. Baker
    related. The Supreme Court has said in Eisenstadt v. Baird,
    decided in 1972, the year before Roe v. Wade, that the right of
    privacy, if it means anything, it is the right of the
    individual, whether married or unmarried, to make a decision so
    fundamentally affecting the person as whether to bear or beget
    a child. The decision about what kind of contraception a person
    uses is certainly wrapped up in that, and the Supreme Court has
    acknowledged it.
        In the Hobby Lobby case, five Justices of the Court said
    that ensuring access to contraception was a compelling
    governmental interest. What we saw in Priests for Life is that
    Judge Kavanaugh would defer substantially to the wishes of an
    employer to--based on the employer's religious beliefs and the
    employer's faulty understanding of the accommodations process,
    to deny an individual like Ms. Baker, who has made a reasonable
    contemplative choice about what is best for her and her family,
    and instead defer to the wishes of the employer. And that is
    deeply concerning.
        Senator Coons. Chairman, one last question, if I might?
        Professor, just to continue, I do not know if you got to
    see my line of questioning of Judge Kavanaugh I think fairly
    late last night about the Glucksberg test. He said all roads
    lead through Glucksberg, and I went through a line of
    examination with him about whether or not if that test, deeply
    rooted in this Nation's legal history and tradition, if that
    had been applied, whether the outcome would have been the same
    in a whole range of cases relating to marriage, to intimacy, to
    access to contraception.
        And as Justice Kennedy wrote, I think importantly, in
    Obergefell, if rights were defined by who exercised them in the
    past, then received practices could serve as their own
    continued justification and new groups could not invoke rights
    once denied. Are you concerned that Judge Kavanaugh might
    depart from Justice Kennedy's vital jurisprudence in
    substantive due process and that that might have a real impact
    on how justice is dispensed in these areas going forward?
        Professor Murray. I think it is clear from Judge
    Kavanaugh's judicial record, Senators, that he is not a jurist
    in the mold of Justice Kennedy, who frequently upheld these
    precedents like Whole Woman's Health, like Planned Parenthood
    v. Casey, in his writings. Judge Kavanaugh, in these decisions,
    has evinced a crabbed and narrow understanding of the right to
    liberty.
        The right to liberty that is enumerated in the Constitution
    is not fossilized in amber. It has changed over time to admit
    individuals who would not have been contemplated within the
    body of the people at the time of the founding or even just as
    the reconstruction amendments were being ratified.
        So decisions like the right to marry have evolved. We did
    not have a situation where individuals who wished to marry a
    person of the same sex could do so until just 2015. These
    decisions are all imperiled by a Justice who would follow
    history and tradition unfailingly toward his outcome.
        Senator Coons. Thank you. I have many more questions, but I
    am out of time.
        Thank you, Mr. Chairman.
        Senator Tillis. Senator Lee.
        Senator Lee. Thank you, Mr. Chairman. Thanks to all of you
    for being with us today.
        Mr. Olson, I would like to start with you. Your name has
    been used a lot this week in our proceedings, not necessarily
    with your whole name, but your last name has made many
    appearances with a lot of references to Morrison v. Olson. I
    was wondering if you could just tell us briefly a little bit
    about your experience with that case?
        Mr. Olson. Well, the Morrison v. Olson case, as everybody
    on this Committee knows, involved the constitutionality of the
    independent counsel statute under a statute that required the
    appointment of an independent counsel by members of the
    judiciary, prevented the removal of the independent counsel
    except under very narrow circumstances.
        The constitutionality was challenged in the United States
    Supreme Court in a case that I think of as the Morrison case,
    but other people refer to as Morrison v. Olson. And the Supreme
    Court upheld the constitutionality of that case on a 7-to-1
    vote, with, in my judgment, a very, very persuasive dissenting
    opinion by Justice Scalia.
        Over time, I have heard from a number of people in the
    academic world, the legal academic world, that Justice Scalia's
    opinion dissenting in that case, which was--he has described
    as--he did describe as one of his most important contributions
    to jurisprudence, has received much more favorable attention
    over the years.
        The importance of it is separation of powers and the extent
    to which power vested by Article II of the Constitution in the
    President shall be reserved to execution by the President or
    whether it shall be taken from the President and given to other
    individuals who are not accountable to the electorate through
    the electoral process. And, of course, I could go on and on,
    but I do not think you want me to do that. It is an important
    case, and it may be revisited someday.
        Senator Lee. And you raise a great point. In that respect,
    judicial independence, somebody's willingness to stand out,
    stand alone, at times dissenting or perhaps concurring in the
    absence of additional support, can end up having a big
    influence, as Justice Scalia's dissent in Morrison v. Olson
    made clear. Or in the case of, for example, Justice Jackson's
    concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer.
    Over time, they acquired more meaning.
        Ms. Sinzdak, I wanted to talk to you a little about your
    class with Judge Kavanaugh. What was that like, and I noticed
    that you mentioned INS v. Chadha as something that he got you
    excited about. How did he get the class excited about Chadha?
        Ms. Sinzdak. Well, I think it is naturally an exciting
    case.
        Senator Lee. I tend to agree, but I have met exactly five
    people on planet Earth who agree with me there.
        Ms. Sinzdak. Well, I mean, I think part of it was that he
    would, as I mentioned briefly in my remarks, open class talking
    about current events. So he was very much about contextualizing
    separation of powers issues as they were affecting the real
    world, which kind of took what is a lengthy, but scintillating
    opinion and kind of put it in--so it was about putting it in a
    practical context of thinking about the legislative versus the
    Executive power.
        Senator Lee. Great. Thank you.
        Professor Amar, I cannot resist the opportunity to talk to
    you about Hugo Black. You mentioned Hugo Black as someone you
    admire, someone you would look to. And yet he is someone who
    has offered a number of opinions I assume you would disagree
    with, author of Korematsu, for example.
        Tell me about your affinity for Justice Black.
        Professor Amar. Justice Black always carried a copy of the
    Constitution around with him, and I was charmed when Brett
    Kavanaugh pulled his out, and it looked pretty well worn to me
    as if he had maybe looked at it a time or two. Justice Black
    reminds us that you do not have to have gone to a fancy law
    school to be one of the greats. I know it has been a concern
    for some.
        They think, oh, it is just Professor Amar just likes the
    fellow because it is an Ivy League club or something. You come
    to my office and you see in my office Abe Lincoln, two pictures
    of Abe Lincoln, and he is a guy who had less than a year's
    formal education in his whole life. And Hugo Black did not go
    to a fancy law school. He came from the South land. He was
    actually underestimated, I think, in part because of that.
        There is a very interesting piece about country lawyering
    in The New York Times by just an op-ed yesterday about how
    folks who sometimes come from the South, and/or speak a
    slightly different way, are underestimated by fancy-pants,
    Yankee Ivy League types.
        So, Hugo Black actually--and he is a Southerner who
    really--a Southern White person who really understood the
    reconstruction amendments. He was there in Brown v. Board of
    Education, and the people from his hometown did not like what
    he did in Brown v. Board of Education. He championed
    incorporation of the Bill of Rights against the States. He
    championed the right of even indigents in Gideon v. Wainwright.
        But long before that, in a case called Johnson v. Zerbst,
    indigents to have counsel, he was the driving intellectual
    force of the Warren Court, saying all sorts of things before
    Warren and Brennan got on the Court. And this body might be
    interested just from the fact that he was a former Senator
    turned Justice, and we do not have so many of those right now,
    but maybe in the future we will. And it is a reminder that you
    do want all sorts of diversity on your Court. And it really is
    an issue maybe if they are all coming as Federal court of
    appeals judges from a few schools. That is a genuine concern to
    think about.
        Senator Lee. Thank you very much, Professor.
        Thank you, Mr. Chairman.
        Senator Tillis. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman.
        Thank you all for being here. This panel really is
    extraordinary, some really powerful advocates.
        Thank you, Congressman Richmond, for your standing so
    strong in a dark and dangerous time for our democracy. When the
    history of this era is written, my view is that the heroes will
    be our independent judiciary and our free press, and I would
    like to ask you, Mr. Olson--by the way, in the interest of full
    disclosure, you and I argued before the Supreme Court together.
    You may not remember it because it was 1 of 63 for you, but it
    was 1 of 4 for me.
        Mr. Olson. I remember it very well, Senator.
        Senator Blumenthal. Thank you. And we won 9-to-0 in
    upholding the sex offender registry case.
        Mr. Olson. Correct.
        Senator Blumenthal. I am deeply troubled by the attacks on
    our judiciary and most especially from the President of the
    United States. You are absolutely right when you say, and I am
    quoting you, ``Our courts are the envy of the world. They
    depend on the faith and confidence of the public.'' Courts do
    not command armies or police forces, and the President's
    attacks on the courts undermine that credibility.
        And so I asked yesterday, Judge Kavanaugh, about some of
    those attacks, and I was disappointed in his responses. He
    would not even go as far as Neil Gorsuch did, now Justice
    Gorsuch, in saying that attacks on the judiciary are
    disheartening and demoralizing. I also cited to him some
    remarks made by President Trump about Justice Ginsburg, saying
    ``Her mind is shot, resign. We are all embarrassed by her.''
        Do you not think that Judge Kavanaugh and members of our
    judiciary and all of us have an obligation to stand strong
    against these kinds of attacks?
        Mr. Olson. I can only speak for myself. I have the greatest
    respect for our judiciary in this country. I meant what I said.
    It is the envy of the world.
        It is the envy of the world in part because very, very fine
    people are put on our courts, and our judges and Justices
    exercise independence from the appointing authority and from
    everything in their backgrounds. They make independent
    decisions based upon individual cases. I deplore statements
    criticizing the integrity or intelligence of members of our
    judiciary across the board.
        As far as Justice Ginsburg is concerned, I have to say that
    she is someone that I have the hugest respect for. She is a
    hero in this country, a warrior. She has stood for many, many
    great things. She argued cases in the Supreme Court that broke
    ground on behalf of women and on behalf of all of us, and I
    respect her.
        I have argued before her. I lost a very significant case
    involving the Virginia Military Institute, which she decided. I
    was representing the State, the Commonwealth of Virginia. She
    is an extraordinarily talented, able person. She remains so to
    this day.
        Senator Blumenthal. Thank you.
        Ms. Garza, when Judge Kavanaugh came before our Committee
    and I asked him about the real world consequences of the delay,
    he characterized it as simply a delay in your client being able
    to terminate her pregnancy. I wonder if you could describe for
    us what the consequences were and whether those consequences
    were apparent in the record so that they would have been known
    to a member of the Court.
        And I want to thank you, by the way, for the great work
    that you are doing in Brownsville. I visited Brownsville. I
    know what you are doing to try to prevent separation of
    children from families and passports being taken away from
    American citizens and some of the other cruel and inhumane
    practices going on there.
        But if you could talk to us about some of those
    consequences, I would appreciate it.
        Ms. Garza. Thank you for your question.
        Well, I had to see Jane go through all of it. Delaying her
    further, she had already been delayed at that point for many
    weeks. You know, the coercion tactics, the pressure, and she
    never once wavered, never once. And this could have affected
    her. She could have been forced to have a child against her
    will. So that was----
        Senator Blumenthal. She had to have a surgical procedure,
    did she not, instead of having other options?
        Ms. Garza. The medical abortion. Yes. She had the option to
    do a medical abortion early on, but because she was delayed and
    constantly week after week, she had to have a surgical
    abortion.
        Senator Blumenthal. And were health risks----
        Ms. Garza. And the health--yes, and the health risks
    increased as she was being pushed further into her pregnancy.
        Senator Blumenthal. My time is expired. Thank you.
        I have a lot more questions. This is a great panel, and I
    want to thank all of you for being here today.
        Thank you.
        Senator Tillis. Senator Booker.
        Senator Booker. Thank you very much.
        So, first, I just want to ask a couple things because I was
    confused by some of the very--I guess very pointed language.
    So, Professor Murray, I would like to start with you, if I can?
        You were mentioning the standards that were not applied in
    the Garza case. And I pulled the two cases you mentioned,
    Bellotti, which discusses striking down a parental consent
    statute as unconstitutionally burdensome. So why would not a
    judge that sticks to precedent stick to this case? I do not
    understand that.
        Professor Murray. It is also something I do not understand,
    Senator. The Bellotti case is directly on point with the facts
    of the Garza case. Jane Doe had completed the required judicial
    bypass, which under Bellotti is an alternative to securing
    parental consent. And yet, despite her having done that, Judge
    Kavanaugh, in his decision before the three-judge panel and
    again in his dissent, reiterated the need for a sponsor, right,
    someone, a support network to aid her in making this decision,
    adding additional delay, something----
        Senator Booker. But I heard--can you try to put yourself in
    the shoes of the Judge? What excuse could he possibly have?
    There is a lot of bragging going on here that when it came to
    abortion cases or anything, that he would follow precedent. I
    just--I really sincerely do not understand how this was the
    binding precedent of the Court about undue burden. The story we
    heard was gut-wrenching about what this individual had to go
    through, gut-wrenching.
        And there was a clear burden, right? The more you waited,
    the more of a burden was being put on this person. I just--can
    you really help me understand this?
        Professor Murray. Well, during his testimony before this
    body, Judge Kavanaugh said that his insistence on Jane Doe
    having a sponsor was because she was a minor. She was alone in
    this country, and he viewed it as sort of a proxy for parental
    consent.
        But again, I go back to the precedent. The Supreme Court--
    --
        Senator Booker. Well, a proxy for parental consent. But
    again, I heard in the testimony from Ms. Garza here that she
    was--is it true that you were the appointed guardian?
        Ms. Garza. Yes, I was her guardian ad litem.
        Senator Booker. Right. And so that, to me, just does not
    hold water.
        Professor Murray. In addition to precedent upon precedent,
    there were guardians upon guardians. She had a guardian ad
    litem. She had gone through the judicial bypass process. A
    judge in Texas had made the determination that an abortion was
    in her best interest, that she wanted the procedure. And
    nonetheless, ORR refused to let her leave Federal custody.
        And then Judge Kavanaugh compounded that injury by refusing
    to allow her to have the abortion, instead insisting that she
    have a sponsor, adding an additional 11 days to the delay.
        Senator Booker. And so just real quick, the other case you
    mentioned, this Whole Woman's Health case, is again about
    weighing certain standards. Correct?
        Professor Murray. It is about weighing burdens and
    benefits, and again, Judge Kavanaugh made no mention of that.
    He made no mention of the burdens of an additional delay. And
    Ms. Garza has spoken movingly about the difference between
    seeking a medication abortion versus a surgical abortion, which
    admits additional risk to the woman.
        Senator Booker. Right. So this fiction that somehow--and
    what did you think of it when he used--and maybe, Ms. Garza, I
    can ask you, what did you think of it when he used this
    language like ``abortion on demand.'' All the things, Ms.
    Garza, that you just outlined to us does not sound like
    abortion on demand. It sounds like you are signaling something
    to a whole bunch of folks so you can get yourself on a list so
    that you can be considered for the Supreme Court. Would you
    agree with that?
        Ms. Garza. Yes. Simply yes.
        Senator Booker. Why use that term? Why use that term?
        Ms. Garza. I do not understand what ``abortion on demand''
    means because that was not the situation for Jane. I mean, she
    was one of the most vulnerable people in our community, one of
    the most vulnerable human beings. She was an immigrant. She did
    not speak English. She was in detention, and she was being put
    under extreme pressure.
        And I felt it was unfortunate that Judge Kavanaugh did not
    take that into consideration.
        Senator Booker. So I just want to say this is like a
    fiction that is being presented to us, that somehow there was
    not an agenda here by this judge to try out for the Supreme
    Court to a President that promised his supporters I am going to
    put somebody on there that is going to overturn Roe.
        Cedric, real quick, you said that equal and opposite force
    rolling down when it comes to racism, you were not saying that
    we should have racism against another group or bigotry toward
    other people. You are talking about equal and opposite force, a
    positive force for justice, force of life, right?
        Representative Richmond. Yes, exactly. And it was mentioned
    today all of the economic improvements in the last 2 years. But
    what we have not talked about is the increased intolerance,
    racial intolerance over the last couple of years.
        When we grew up, Senator Booker, it was well known about
    racial profiling and driving while Black and that you could be
    stopped. But it has gone to another level now. Now it is just
    living while Black. So whether you are studying at Yale,
    whether you are sitting in Starbucks, whether you are leaving
    an Airbnb that you purchased, all of a sudden, just being
    African-American makes you a criminal suspect. And that has
    happened since this President was sworn into office. So----
        Senator Booker. And I just want to get you on the record
    because we are going to use your words. But you believe you
    deal with that issue by pursuing justice, not by pushing
    anybody down.
        Representative Richmond. No.
        Senator Booker. It is just by trying to elevate folks up as
    a matter of justice.
        Representative Richmond. Yes.
        Senator Booker. I just want to say to the Chair, I have one
    more question. It is going to be mean. It is going to be a mean
    question. So please do not interrupt me, though. Let me get it
    out. And say ``potato, potato'' to you, but this is going to be
    mean. Let me get it out.
        Akhil Amar, sir, Mr. Professor, I have one question for
    you. My final question: In your Con Law class, do you regret
    passing me?
        [Laughter.]
        Professor Amar. You have a right to remain silent.
        Senator Booker. You are under oath.
        Professor Amar. I think the only thing that I ever did to
    my Wikipedia page was add your name as one of my former notable
    students because I am so proud to be associated with you, even
    if we disagree on this issue, as we may very well.
        Senator Booker. Thank you, sir. Thank you very much.
        Senator Tillis. Senator Harris.
        Senator Harris. Thank you.
        A conversation has come up--Congressman Richmond, I want to
    ask you a question. But a conversation has come up during this
    process that leads me to believe that there have been certain
    dog whistles that have been offered by this nominee, especially
    in recent years. ``Abortion on demand'' being one of them.
        Another being a term that he used, Congressman Richmond, in
    a Wall Street Journal op-ed that I asked him about, and the
    term is ``racial spoils system.'' And he referred to a racial
    spoils system, it was in reference to a Hawaiian case and the
    Office of Hawaiian Affairs. But I asked him about the meaning
    of that term and what did he mean when he used that term twice.
        And he told me, ``I am not sure what I was referring to, to
    be entirely frank,'' when I asked him what did he mean by using
    that term. And I explained to him that it is a loaded term, and
    I would like for you to share with the Committee what you
    understand that term to mean and how it has been used, based on
    your experience.
        Representative Richmond. Well, I will tell you that it is a
    very common dog whistle, especially in the South, where you are
    pitting--and I will just be as frank as I can.
        Senator Harris. Please do.
        Representative Richmond. You are pitting poor White people
    against poor Black people, and your justification to poor White
    people is that the reason why you are poor is because
    minorities are scooping up all of the benefits that should be
    going to you.
        And this country is better than that. First of all, it is
    not true. But second, those programs and those things that I
    think that he refers to are righting that very wrong history in
    this country. But just the use of the term is what we see far
    too often today, which is the dog whistle. It is not even a dog
    whistle anymore, it is just blatant pandering to a base of
    people. And I believe that it is a lot more significant than
    even you would address.
        But think of that in the case of race-based factors in
    admissions, which will come back before the Court because this
    Justice Department is investigating Harvard right now. So what
    does that mean for minorities that are applying to prestigious
    universities or universities all around the country? And that
    is why it is such a concern.
        Senator Harris. And to emphasize your point, Congressman,
    and I actually mentioned this earlier in this process, the
    Judge has been lauded for the amount of thought that he puts
    into his writings and the words that he speaks. And the fact
    that he would use such a loaded term and said he did not
    understand what it meant was troubling to me as well.
        Professor Murray, even if a Justice Kavanaugh does not vote
    outright to overrule Roe, how else could he undermine a woman's
    right to make decisions about her healthcare? What other types
    of scenarios might come before the Court short of overruling
    Roe that could impede a woman's access to reproductive
    healthcare or to an abortion?
        Professor Murray. As I said in my opening statement, it is
    not just the threat of overruling Roe, but incrementally
    gutting its protections through a death by 1,000 cuts. And
    there are at least over 10 cases currently pending at the lower
    Federal courts that all concern restrictions on the methods of
    abortion that may be used.
        Senator Harris. So if you will, can you break down for the
    American public that is watching this hearing so that you can
    speak to those people who are watching the hearing about the
    things that they are familiar with that could be impacted short
    of a Justice Kavanaugh overruling Roe.
        Professor Murray. Certainly. The restrictions that are
    pending throughout the States, and as I said, there have been
    over 400 laws passed since 2011. These laws would increase wait
    times to obtain reproductive care like an abortion. They would
    eliminate certain methods of abortion, like the dilation and
    evacuation procedure, which is the safest procedure according
    to doctors for safely evacuating a fetus from the womb.
        They would also do things like require doctors to tell
    their patients falsehoods about the abortion procedure, that it
    leads to suicidal ideation or that it leads to breast cancer.
    These have all been disproven by science. A number of these
    laws have been passed. Many of these laws have been challenged
    and those cases are pending, and certainly, there will be a
    case that may percolate and make its way to the Supreme Court.
    And if Justice Kavanaugh is on the Bench, he will be in a
    position to decide.
        Senator Harris. And to emphasize your point, all of these
    things could happen short of him overruling Roe if he were the
    deciding Justice on that case?
        Professor Murray. Again, we can make the protections of Roe
    utterly meaningless for millions of ordinary women in America
    by simply making this procedure inaccessible, by putting it out
    of reach, by making it impossible, by making women drive
    hundreds of miles to obtain abortion care, by making them wait
    hours, making them leave their jobs, leave their families in
    order to access care that is their constitutional right.
        Senator Harris. Thank you.
        Mr. Chairman, I have a document that I would ask be added
    to the record and ask for consent for that. It is from Demos
    regarding this nomination. Demos is a public policy
    organization working for both political and economic equality
    for all Americans. And the report is in opposition to Judge
    Kavanaugh's confirmation based on concerns that his
    confirmation would threaten equal justice for people of color
    and the future of racial equity.
        Senator Tillis. Without objection.
        [The information appears as a submission for the record.]
        Senator Harris. Thank you.
        Senator Tillis. Senator Coons.
        Senator Booker. Mr. Chairman, I am sorry. I just--I forgot
    to put into--or I ask unanimous consent that a letter from the
    National Latina Institute for Reproductive Health in opposition
    to Judge Kavanaugh's nomination also be entered into the
    record.
        Senator Tillis. Without objection.
        [The information appears as a submission for the record.]
        Senator Tillis. Senator Coons.
        Senator Coons. Thank you, Chairman Tillis.
        I, too, would like--would ask unanimous consent that a
    letter be entered into the record from the Leadership
    Conference on Civil and Human Rights. This letter expresses
    strong opposition to Judge Kavanaugh's nomination on behalf of
    180 different organizations involved in civil rights and human
    rights.
        Senator Tillis. Without objection.
        [The information appears as a submission for the record.]
        Senator Tillis. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman.
        Ms. Weintraub, can you talk about the dangers you see for
    Americans with disabilities and their civil rights if Judge
    Kavanaugh is confirmed to the Supreme Court?
        Ms. Weintraub. Yes, thank you, Senator.
        Senator Hirono. Hirono.
        Ms. Weintraub. Yes.
        Senator Hirono. Even the Chairman has problems pronouncing
    my name.
        [Laughter.]
        Ms. Weintraub. Well, anyway, I see as the issue about the
    Doe case, these are three women with intellectual disability,
    first in regard to myself and my friends, and we--they were not
    asked what they wanted to do nor personal decisions around
    their body, and we all deserve the right to make decisions.
        And yes, these women, they may not understand about these
    issues, but that is why we bring our friends. I would never go
    into a doctor's office myself. I would take my husband. I would
    take my supporters. I can tell you that, and it was in my
    written testimony.
        I just was diagnosed with diabetes, and I brought in my
    husband. And we did not understand. As I told you, my husband
    also has a disability, and both of us did not understand. So we
    asked my sister to help us to understand these issues.
        So what I am saying is that, ``Nothing about us without
    us.'' We need to be told. We need to be involved in these
    decisions. And Judge Kavanaugh took that away from us.
        Thank you.
        Senator Hirono. Thank you.
        There have been a lot of questions raised about Garza, and
    Judge Kavanaugh testified that--this is for Professor Murray
    and Ms. Garza. He testified that he viewed Garza as a parental
    consent case, but that was not a parental consent case. Would
    you agree, both of you?
        Professor Murray. It was not a parental consent case. The
    judicial bypass procedure had been followed and was in lieu of
    parental consent.
        Senator Hirono. So why would--I would characterize that as
    a very obvious misstatement of the question before the court.
    And when you get the issue wrong, you are likely to come up
    with the wrong answer. So I think it was so fundamental that he
    mischaracterized or misstated the issue. Would you agree with
    that, both of you, Professor Murray and Ms. Garza?
        Ms. Garza. I would agree with that for sure.
        Senator Hirono. So we could sit here--would you agree with
    that?
        Professor Murray. Yes, I agree.
        Senator Hirono. So we could sit here and talk about whether
    there should have been time for the sponsor to be found and all
    of that, but that only--that is totally irrelevant----
        Professor Murray. That is correct. It is irrelevant.
        Senator Hirono [continuing]. To what should have been the
    real issue in this case, whether or not she should have the
    right to abortion. So I think that is very troubling when
    somebody who is about to be seated on the Supreme Court
    mischaracterizes the question before the court.
        Now I did want to ask you, Professor Murray, if you can
    talk about the contradiction in Judge Kavanaugh's dissents in
    Garza and Priests for Life because I believe that he really
    wanted to reach a result in each case. They are different
    cases, but nonetheless, though, they both have to do with a
    woman's reproductive rights. And in the end, he denied the
    women involved their reproductive rights, and I believe he
    misapplied the facts to the law to get there.
        So can you talk a bit about the contradiction in the
    outcomes, the dissents in Garza and Priests for Life?
        Professor Murray. Sure. I have spoken at length about Garza
    and the way in which Judge Kavanaugh ignored existing
    precedent, such as Bellotti v. Baird, such as Casey and its
    undue burden standard, and Whole Woman's Health v. Hellerstedt,
    which requires judges to weigh both the burdens and benefits of
    a particular restriction.
        In Priests for Life--again, I have also spoken about that
    case--what we saw is such incredible deference to the employer
    and the employer's religious beliefs and the employer's view
    that doing something as simple as filling out a form to notify
    the Government of its objections to providing the necessary
    contraception is an impermissible burden on religious exercise.
    That is just a broad deference that would be meaningful, as Ms.
    Baker had testified, to many women.
        Senator Hirono. So you found undue burden in the Garza case
    and----
        Professor Murray. Substantial----
        Senator Hirono. So very--but what do you see is the
    common----
        Professor Murray. The common, the common element in all of
    that is there is no burden that is too great for the woman.
    There is a burden in Garza on Jane Doe, and in finding a
    substantial burden on the religious exercise of the employers,
    there is a burden in the absence of contraceptive coverage to
    women like Ms. Baker.
        Senator Hirono. I think that is why there are so many
    people who are very concerned about Judge Kavanaugh being on
    the Court because, as you said, there are hundreds and hundreds
    of cases that States have passed that limit the woman's right
    to choose. So for him to say that Roe v. Wade, even were he to
    say that Roe v. Wade is settled law is of little comfort to
    those of us who support women's reproductive choice.
        Thank you.
        Senator Tillis. Professor Amar----
        [Disturbance in the hearing room.]
        Senator Tillis. Professor Amar, welcome back to the
    Committee. My colleague here, Senator Coons, and I were talking
    about how much we enjoy your insights in spite of the fact that
    you hate our Special Counsel bill, and we also agreed that we
    are not going to allow you to talk about it because we would
    have to extend the hearing for 2 hours, mainly because of
    Senator Coons' commentary.
        I wanted to ask you a question about Judge Kavanaugh and
    his body of work, some 307 opinions. And could you--if you have
    studied them, and I assume you have, can you give me any
    insights into ones that you think best reflect his thought
    process in arriving at an opinion?
        Professor Amar. In the appendix to my testimony, I offer a
    snippet from The Washington Post that I wrote about the PHH
    case. I think it is the same one that Ted Olson discussed
    involving the Consumer Financial Protection Bureau and its
    structure. And what--Senator Klobuchar, I think, passingly
    mentioned it also before she--in her remarks.
        And what is impressive particularly about that case, it is
    the only case by a court of appeals that I actually assigned my
    students last year. I usually just give them Supreme Court
    cases. And what is so impressive about--and this is long before
    the nomination, of course--is it is trying to take seriously
    the founding and founding principles and the role of the
    President and the bureaucracy. The First Congress agreed that
    Presidents could fire Cabinet officers at will. It is called
    the Decision of 1789. It was very basic.
        The Supreme Court has unanimously reaffirmed that. The
    Supreme Court agreed with that in a very famous case called
    Myers that was written by--beginning of the 20th century by
    former President, Chief Justice Taft, and today's Supreme Court
    takes it very seriously. And so, Judge Kavanaugh was confronted
    with the Decision of 1789 that says Cabinet officers are
    basically fireable at will, and yet we have all these
    independent agencies--the Securities and Exchange Commission,
    the Federal Communications Commission--whose members are not
    removable at will, but only for good cause.
        And I note you are saying, ooh, this is perilously close
    to--but I am not going to talk about it, and I will not talk
    about it. But, so, how are we going to take seriously the
    founding, but also take seriously the 20th century with the
    rise of independent agencies that have been affirmed again and
    again and again by the Supreme Court? And I thought Judge
    Kavanaugh came up with a beautiful synthesis of founding first
    principles and respect for modern understandings and
    institutions.
        And I do predict that the Supreme Court, when the case
    finally goes up, will perhaps embrace something very similar to
    that approach, and he will fit in very well with John Roberts
    on one side, maybe Elena Kagan will be part of that. She
    understands Executive power also, with someone like Clarence
    Thomas or--and some of the others on the other side.
        So I think he will work for a Team of Nine, but he will
    respect the founding a lot, but he also takes seriously modern
    precedents and modern realities.
        Senator Tillis. Thank you very much.
        And thank you, everybody on the Committee.
        Mr. Olson, the only comment I will make. Senator
    Blumenthal, talking about 9-to-0 decision, I am not a Supreme
    Court expert, but that is a pretty definitive opinion. Is that
    right?
        Mr. Olson. Absolutely.
        Senator Tillis. I want to thank all those on the panel----
        Senator Coons. I take--I take complete credit for it.
        [Laughter.]
        Senator Tillis. I want to thank you all on the panel. I
    thought your opening testimony was outstanding, and with panels
    this size, it is very difficult to direct questions to
    everyone, but we do appreciate you all being here.
        Congressman, thank you for your time and for your attention
    throughout the entire hearing.
        We are going to take a 30-minute recess for lunch. That
    will give us time to transition to the next panel. So we will
    return at 1:03 p.m.
        We are in recess.
        [Whereupon, at 12:32 p.m., the Committee was recessed.]
        [Whereupon, at 1:06 p.m., the Committee reconvened.]
        Chairman Grassley. Before I introduce the panel, if nobody
    told you, that you push the red button before you speak.
    Otherwise, we will not be able to hear you. So, the next panel
    is followed by eight witnesses. Four are for the Majority and
    four are selected by the Minority. We have a Mr. Kramer, Ms.
    Eastmond, Ms. Taibleson, Mr. Corbin, Mr. Lachance, Ms. Mahoney,
    Ms. Smith, and Mr. Christmas.
        I would ask you at this point if you would stand, and I
    would like to have you take an oath.
        [Witnesses are sworn in.]
        Chairman Grassley. Thank you all very much for responding.
        Now I would like to say a little bit about each of you so
    the public watching on television or anybody in the audience
    knows. Aalayah Eastmond is a--let us see--I am going--yes,
    okay, is a student. Oh, you know why I am--I should be starting
    with Mr. Kramer.
        A.J. Kramer is Federal Public Defender for the District of
    Columbia, very important position. He has held the position
    since the creation of the Office of Federal Public Defender for
    the District of Columbia in 1991. Now, I do not know, but I
    would bet you would be one of the longest-serving people in
    that position any place in the country.
        We have Aalayah Eastmond, a student from Parkland, Florida
    and survivor of the very bad school shooting at Marjory
    Stoneman Douglas High School. Quite a tragedy you went through,
    and we will hear about it, I am sure.
        Rebecca Taibleson served as law clerk for Judge Kavanaugh
    from 2010 to 2011. Later clerked for Justice Scalia on the
    Supreme Court and was an associate at Kirkland & Ellis. She
    currently serves as Federal prosecutor in Iowa's neighboring
    State of Wisconsin.
        Jackson Corbin is a student from Hanover, Pennsylvania, and
    that is all the information I have about you, but if you want
    to tell us any more about you, we will not take it off of your
    time that you have to speak to us.
        Then we have Hunter Lachance, a student from Kennebunkport,
    Maine.
        And then we have Maureen Mahoney serving as Deputy
    Solicitor General of the United States from 1991 to 1993. She
    is a retired partner of Latham & Watkins.
        Melissa Smith is a teacher at U.S. Grant High School,
    Oklahoma City, Oklahoma.
        Kenneth Christmas is executive vice president for business
    and legal affairs, Marvista Entertainment. He is a 1991
    graduate of Yale Law School, and you were a classmate of Judge
    Kavanaugh.
        So, I welcome all of you, and I think we will proceed with
    Mr. Kramer, and then we will have our questioning.

     STATEMENT OF A.J. KRAMER, FEDERAL PUBLIC DEFENDER, OFFICE OF
                  THE FEDERAL PUBLIC DEFENDER FOR THE
                  DISTRICT OF COLUMBIA, WASHINGTON, DC

        Mr. Kramer. Thank you, Mr. Chairman, and Ranking Senator
    Whitehouse. Thank you for the opportunity to speak today on
    behalf of Judge Brett Kavanaugh's nomination to be a Justice of
    the Supreme Court. I have been, as Chairman Grassley said, the
    Federal Public Defender in Washington, DC, since 1990. Prior to
    that, and I think all you meant was that I am old when you said
    I am one of the longest. And there, I have worked in the
    Federal Public Defender's Offices in Sacramento and San
    Francisco before I came to Washington, DC, so I have spent my
    entire legal career as a Federal Public Defender.
        I do want to echo two things that were said by the prior
    panel that I, too, was dismayed that Chief Judge Garland was
    not confirmed for the Supreme Court because I think he would
    have been a great Supreme Court Justice, and also Congressman
    Richmond's remarks about race in the criminal justice system,
    which I think still pervades the criminal justice. And I--so I
    suppose you ask what I am doing here speaking on behalf of
    Judge Kavanaugh, and I will tell you why.
        I have two disclaimers I have to make. I speak only on my
    behalf, not on behalf of our office here in Washington, DC, or
    any other Federal Public Defender Office or the Federal Public
    Defender system. And also, I have read essentially none of
    Judge Kavanaugh's civil opinions, but I have read almost all of
    his criminal opinions, and I have argued in front of him
    numerous times, probably more than 20 times, in criminal cases.
    And that is what I am here to talk about, his decisions in
    criminal cases. And I have to just say that he is extremely
    well prepared in oral argument. He asks the pertinent
    questions. He asks them in an extremely nice manner. Not all
    judges are like that, but he asks the most important questions
    and zeroes in on the most important issues in the case.
        I think I was asked to talk about a couple of cases that I
    argued. One of them was a woman who was convicted of extortion,
    testified extensively at her trial about how she had been
    severely beaten by her boyfriend and forced into committing the
    offense. And I took over the case after the trial proceedings
    and argued that her lawyer had been ineffective for failing to
    present expert testimony on battered women's syndrome. It went
    up and down to the court of appeals and back, and Judge
    Kavanaugh wrote the opinion for the court of appeals saying
    that her lawyer had been ineffective for failing to retain an
    expert on battered women's syndrome. And he wrote a primer
    essentially on the defense of battered women's syndrome for
    lawyers, and over a dissent of one of his colleagues.
        In another case that I argued and tried, actually, it was a
    terrible tragedy of a person in the military who had died after
    a hazing incident involving a gang, and there were major issues
    about jury instructions in closing argument. And the case was
    reversed again in a 2-to-1 panel opinion, and Judge Kavanaugh
    wrote a concurring opinion in that case talking about how
    important it was that the jury be properly instructed on the
    mens rea for the crime, and that while--while my client had
    committed some heinous acts, he deserved to have a fair trial,
    and the trial in this case had not been fair, and he wrote a
    concurring opinion to emphasize that.
        I should add that there are a number of other cases I have
    argued and our office has argued where Judge Kavanaugh has been
    protective of making sure that mens rea has been proved in
    various cases, including a case called Burwell, where I was
    appointed amicus by the court of appeals for an en banc
    argument. Judge Kavanaugh was one of three judges that
    dissented from the en banc that adopted the views that I put
    forward.
        He has also been a major advocate on the court of appeals
    of writing about the bizarre situation where defendants who go
    to trial and are acquitted of a number of counts in a case,
    including a case where everybody was acquitted of all but one
    count, but then they are sentenced for the conduct of which
    they were acquitted. The Judge takes that all into account and
    gives them a heavier sentence, which I should add that Congress
    could end very quickly in a bill with a couple of sentences
    telling judges they should not take account of acquitted
    conduct. He has been a very--he has been very critical of that.
        I should also add that I have served on two committees with
    him, so I think the bottom line is, he has been extremely fair
    in criminal cases where it might be assumed that he would just
    reflexively affirm criminal cases. He has been extremely fair
    and thoughtful is my experience. And I have also served on a
    committee--two committees with him, one of whom provides for
    CJA lawyers, Criminal Justice Act lawyers. His concern has
    always been to provide the most effective lawyers for
    defendants and the highest quality.
        And I just want to end with one thing. He sends me emails
    occasionally talking about how he likes the good job that our
    office does in defending criminal defendants and our clients.
    And he sent me an email totally unsolicited, quoting the Chief
    Justice's dissent in a forfeiture case, and he said, ``Federal
    prosecutors when they rise in court represent the people of the
    United States, but so do defense lawyers one at a time.'' And
    Judge Kavanaugh sent that to me, that quote, and said, ``That
    is a nice line that summarizes what you and your office do so
    well.''
        So, all of that is why I am here to support the nomination
    of Judge Kavanaugh for the Supreme Court.
        [The prepared statement of Mr. Kramer appears as a
    submission for the record.]
        Chairman Grassley. Thank you.

            STATEMENT OF AALAYAH EASTMOND, PARKLAND, FLORIDA

        Ms. Eastmond. Chairman Grassley, Ranking Member Feinstein,
    and other Members of the Committee, thank you for the
    opportunity to be here today to share my experience and
    perspectives on gun violence in America. It needs to be a
    critical part of your consideration for any judge, particularly
    for the highest court in the land. My view is significantly
    impacted by my experience as a survivor of gun violence at
    Marjory Stoneman Douglas High School in Parkland, Florida just
    6 months ago, and also losing my uncle, Patrick Edwards, 15
    years ago in Brooklyn, New York.
        My name is Aalayah Eastmond, a senior at Marjory Stoneman
    Douglas High School in Parkland, Florida. I work across the
    country to help amplify the voices of young people, and
    particularly young people in communities of color whose day-to-
    day experience with gun violence is always ignored,
    mischaracterized, marginalized, and minimized by the press, the
    public, and the corporate gun lobby.
        1:02: February 14th, fourth period, Holocaust history. My
    last period of the day. The classroom door was locked today
    because of the new procedures. In the beginning of the period,
    we began presenting our hate group projects that we have been
    working on. Nicholas Dworet was in my group. Little did I know,
    79 minutes from then he would be saving my life.
        2:21: We heard a round of extremely loud pops. We had no
    idea what it was or where it was coming from. The class was in
    complete silence, and we all stared at each other in immediate
    fear. Within seconds we heard it again. We all immediately ran.
    The class split in half. Half of my class ran to the safe spot,
    which was out of view from the window that was in the classroom
    door. The other half was diagonally across from the window in
    complete view. I was not in the safe spot. As I sat down, I
    remember telling myself if I were to get shot anywhere, I
    wouldn't make it. I needed to get behind something. The only
    thing in front of me was Nicholas Dworet. Helena Ramsay began
    passing books down so we can shield ourselves from the bullets,
    but yet everyone thought it was a drill.
        2:22: I clenched the book from Helena and then looked down
    at my phone to call my mother. As I raised my finger to hit the
    green call button, the loud pops were now in my class. I
    thought to myself, what kind of senior prank is this? As I
    began to see red on the floor, I assumed it was a paintball
    gun. I looked up and saw Helena Ramsay slumped over with her
    back against the wall. I began smelling and inhaling the smoke
    and gun powder. Then Nicholas Dworet rapidly fell over in front
    of me. I followed every movement of his body. When he fell
    over, I fell over with him. I then placed myself underneath his
    lifeless body, placing his arm across my body and my head
    underneath his back.
        Bullets continued flying. I kept my eyes on the ground so I
    knew when to hold my breath and close my eyes when the shooter
    got near. I began talking to God. I told God that I knew I was
    going to die. I asked Him please make it fast. I did not want
    to feel anything. I asked for the bullet to go through my head
    so I would not endure any pain. I laid there for about 30
    seconds still protected by his lifeless body, waiting for the
    shooter to move onto the next class.
        After the shooting stopped in my class, his body began to
    be very heavy. I couldn't breathe anymore. I rolled him off of
    me and placed his head on his arm so he would not be touching
    the cold ground. I sat up and looked over. Helena was still in
    the same exact position I last saw her. I froze, still in
    absolute view of the window--of the window the shooter shot
    into. Two of my classmates then pulled me behind a filing
    cabinet. We were all crammed, some on the phone with 9-1-1,
    some on the phone with their parents.
        I immediately called my mom. I told her my last goodbyes. I
    told her how much I loved her. I apologized for all the things
    I might have done in my lifetime to upset her, and then the
    phone hung up. I then called my father, I told him how much I
    loved him. I told him to tell my brothers I love them, and I
    said my last goodbyes. I could not hear anything they were
    saying to me, but I made sure they could hear me. Not knowing
    whether it was one shooter or multiple, and not knowing whether
    they were coming back or not was an unimaginable amount of
    fear, sitting behind the filing cabinet waiting to die. I began
    hyperventilating. My classmates began breathing with me and
    trying to keep me calm and quiet. It did not work. They then
    covered my face. I felt like I was suffocating but it was to
    keep me quiet.
        2:30: Broward County Police Department was heard from
    outside the shattered glass. I thought it was the shooter
    playing a trick. Then a SWAT team member came to check the
    pulse of Helena and Nicholas. He then looked at me with
    compassion and said, ``I know.'' We all ran out passing bodies
    in the hallway on the way out. When I got outside, I was
    completely disoriented. The police then said, ``He is still on
    the loose guys, we need you to work with us.'' I was petrified.
        4:00: I finally found my friend and her mother. They
    noticed the unimaginable. They called the police over, and they
    began picking body matter from my hair. I completely broke
    down. The police took me back on campus to gather photos of me
    and collect my bloodied dress. They placed me in a chemical
    suit meant for chemical and biological exposure, then recorded
    my statement.
        9:30: At the Marriott Hotel, I was finally allowed to
    physically touch my mother. It was absolutely horrific,
    surreal, and mind-numbing. I will never forget what I saw, what
    I did, and what I experienced that day. I will never forget
    Nicholas Dworet who, even in death, helped protect and save my
    life. Days later we received news that my mother would be
    having a miscarriage because of what the shock of the shooting
    did to her body. The shooting did not only impact me on
    February 14th, it impacts me every day of my life.
        I have also lost a family member to gun violence. I lost my
    uncle, Patrick Edwards, in the streets of Brooklyn New York. He
    was shot in the back. The bullet then pierced his heart. He was
    only 18 with his whole life ahead of him, and unfortunately
    that is the same story of thousands of Black and Brown families
    across the country. Gun violence disproportionately impacts
    Black and Brown youth, whether that being police brutality,
    homicides, or domestic violence.
        As for people of color, law enforcement is the shooter in
    some cases, history of bias, brutality and racism in so many
    communities. Like many of brothers and sisters of color, I am
    not comforted by deputies with handguns, let alone assault
    rifles. I am very concerned since learning Brett Kavanaugh's
    views on guns and how he would strike down any assault weapons
    ban. Too many dangerous and prohibited people continue to be
    able to readily access and use dangerous weapons to terrorize
    Americans at home, work, church, school, concerts, and on our
    streets, and anywhere we go on our day to day life.
        As you consider what to do and who to appoint to make us
    safer from gun violence, remember my story. Remember my
    classmates who died. Remember the victims of colors who--that
    face mass shootings every day. Remember all victims of gun
    violence from Parkland, Brooklyn, Miami, Milwaukee, Oakland,
    and all over America. As you make your final decision, think
    about it as if you had to justify and defend your choice to
    those who we lost to gun violence. If Kavanaugh does not even
    have the decency to shake hands with a father of a victim, he
    definitely will not have the decency to make life-changing
    decisions that affect real people.
        The youth is urging our society to recognize the depth and
    seriousness of the gun violence epidemic in America. We are all
    here with an urgent message for you: if the youth across the
    country can fight to eradicate gun violence, why cannot judges,
    lawmakers, and Donald Trump understand that young people are
    dying from this senseless gun violence?
        Thank you.
        [The prepared statement of Ms. Eastmond appears as a
    submission for the record.]
        [Disturbance in the hearing room.]
        Chairman Grassley. Ms. Taibleson.

       STATEMENT OF REBECCA TAIBLESON, FORMER LAW CLERK, EASTERN
               DISTRICT OF WISCONSIN, FOXPOINT, WISCONSIN

        Ms. Taibleson. Thank you. Mr. Chairman, Ranking Senator
    Whitehouse, and Members of the Committee. I am honored to be
    testifying before you today. My name is Rebecca Taibleson. I am
    here today from Milwaukee, Wisconsin. I clerked for Brett
    Kavanaugh in 2010 and 2011, and I enthusiastically support his
    nomination to be an Associate Justice of the United States
    Supreme Court. I would like to talk about two things today:
    first, what Brett Kavanaugh is like as a judge, and second,
    what Brett Kavanaugh is like as a person.
        At work in his chambers, Judge Kavanaugh has a motto of
    sorts. It is, ``process protects us.'' I will admit, it is not
    very catchy, but it is true to the Judge and to his core
    judicial philosophy. What it means is that Judge Kavanaugh goes
    through an intense, step-by-step process in order to decide
    each and every case. That process starts with an open mind and
    a foundational commitment to the belief that either side might
    be right. Judge Kavanaugh then reads and analyzes every brief
    and re-reads every relevant precedent in the case, and he
    insists that his clerks find the very best version of every
    argument in the case, even when the lawyers themselves have
    not.
        In addition to the parties' arguments, Judge Kavanaugh also
    takes very seriously the views of his colleagues, the other
    judges on the case, especially when they differ from his own. I
    can remember all----
        [Disturbance in the hearing room.]
        [Audio malfunction in the hearing room.]
        Chairman Grassley. There is something wrong with the
    system. Okay.
        Ms. Taibleson. Is this okay? Okay.
        Chairman Grassley. Yes. Start over again, Rebecca.
        Ms. Taibleson. Yes, sir. Mr. Chairman, Ranking Senator
    Whitehouse, and Members of the Committee. I am honored to be
    testifying before you today. My name is Rebecca Taibleson. I am
    here today from Milwaukee, Wisconsin. I clerked for Brett
    Kavanaugh in 2010 and 2011, and I enthusiastically support his
    nomination to be an Associate Justice of the United States
    Supreme Court. I would like to talk about two things today:
    first, what Brett Kavanaugh is like as a judge, and second,
    what Brett Kavanaugh is like as a person.
        At work in his chambers, Judge Kavanaugh has a motto of
    sorts, ``process protects us.'' I will admit it is not very
    catchy, but it is true to the Judge and to his core judicial
    philosophy. What it means is that Judge Kavanaugh goes through
    an intense, step-by-step process in order to decide each and
    every case. That process starts with an open mind and a
    foundational commitment to the belief that either side might be
    right. Judge Kavanaugh then reads and analyzes every brief and
    re-reads every relevant precedent, and he insists that his
    clerks find the very best version of every argument in the
    case, even when the lawyers themselves have not.
        In addition to the parties' arguments, Judge Kavanaugh also
    takes very seriously the views of his colleagues, the other
    judges, especially when they differ from his own. I can
    remember all too clearly, being corrected by Judge Kavanaugh
    once when I, fresh out of law school, spoke too dismissively
    about a different judge's opinion on a case. I learned from
    that. Understanding Judge Kavanaugh's humility and respect for
    his colleagues is essential to understanding his identity as a
    judge.
        Judge Kavanaugh completes his entire process from scratch
    for every issue in every case. It is no coincidence he is often
    the last person at work in the courthouse each night, but it is
    worth it. This process, as he says, protects us. It protects
    against snap decisions, shortcuts, and pre-judgments. By never
    skipping a step, never giving short shrift to an argument or
    ignoring a precedent, Judge Kavanaugh ensures that his
    decisions are based on the law and the facts of each case and
    only those things. That process also protects us, American
    citizens, from having unelected judges ruling based on their
    own predispositions or preferences.
        Only after completing that process does the Judge decide
    once and for all what he thinks, and once he is decided, he is
    difficult to budge. He is independent and stubbornly so. He
    cannot be pressured by his law clerks or his colleagues, and he
    cannot be intimidated by other actors in Government. It is
    simply not part of his process.
        Politics also have no place in Judge Kavanaugh's process.
    Having known the Judge for almost 10 years, and having worked
    with him very closely, I myself do not know what his views are
    on the political issues of the day. And as a law clerk, it
    would have been unthinkable to even mention the political
    implications of a case. In fact, had we known in advance how to
    decide a case based on the parties, or the amici, or some
    policy goal, we might have skipped a few steps in the process
    and gone home a bit earlier at night, but he never did, and so
    we never did. For those reasons, if you want to know what Judge
    Kavanaugh is like as a person, his cases are not the best place
    to look because he keeps his preferences out of them. His
    process reflects his fairness, work ethic, and judicial
    temperament, but the outcomes are based on the law, not his
    personal views.
        But I can tell you that as a person, Brett Kavanaugh stands
    out. He has testified extensively this week, so I do not need
    to tell you how smart, thoughtful, and unflappable he is. When
    his guard is down, when he is not before this Committee or on
    television, he is the same way. But in my view, those are not
    his most remarkable qualities. Instead, it is his everyday,
    universal, disarming kindness. I sometimes find myself saying
    that Judge Kavanaugh is normal or approachable, but those
    cliches are not quite right. Instead, those are compliments
    designed for Federal judges, who no one expects to be normal or
    approachable. In truth, Judge Kavanaugh is far, far nicer than
    is normal, and far more approachable than almost anyone you
    will ever approach. He has an easy laugh and a great sense of
    humor. I myself am rarely funny, as Senator Booker has pointed
    out, but he laughs at all of my jokes, including, especially
    the jokes at his expense. Although his credentials are elite,
    you would never know it to talk to him. The Judge is a regular
    at his neighborhood bar, for example, where he is partial to a
    Budweiser and a hamburger, and where the long-time bartender
    did not even know Brett Kavanaugh was a lawyer until he saw his
    nomination to the United States Supreme Court. If he is
    confirmed, Judge Kavanaugh's humility, collegiality, and
    kindness will stand out on the Supreme Court.
        Judge Kavanaugh is going to stand out on the Supreme Court
    for another reason as well, which is his support for women in
    the legal profession. Elite legal circles are predominantly
    male. The year I clerked on the Supreme Court, for example, 26
    of the 39 law clerks were men, and that is typical. Just this
    morning, The New York Times ran an article about the barriers
    faced by women and people of color throughout the legal
    profession. According to that article, an ABA report found that
    in 2016--2016--only 35 percent of active American lawyers are
    women. Judge Kavanaugh, by contrast, has hired more women than
    men as law clerks. One year, all four of his clerks were women,
    which was a first for the D.C. Circuit Court of Appeals. That
    is something no Supreme Court Justice has ever done.
        After hiring us, Judge Kavanaugh goes to bat for us. As the
    Members of this Committee know, hard work and smarts are not
    always enough to reach the top of your profession. Instead, it
    takes guidance from people who have been there and advocates
    willing to fight for you. Studies have shown that women often
    are at a disadvantage on those fronts, but Judge Kavanaugh is a
    force of nature. Thanks to his sponsorship, about 85 percent of
    Judge Kavanaugh's female clerks have gone on to clerk on the
    Supreme Court. We have clerked for Justices across the Court,
    including Justices Kagan, Breyer, and Sotomayor. We have served
    in all three branches of State and Federal governments. We are
    professors, prosecutors, and nonprofit attorneys. One of us is
    now even a judge herself. I know of no Federal judge who has
    more effectively supported women in this profession than Brett
    Kavanaugh.
        Ten years after I first met Judge Kavanaugh, I am now
    figuring out how to be lawyer and a mom to three children aged
    3 and under. In fact, if you heard a baby crying outside this
    chamber earlier this morning, that is my fault. She is 3 months
    old, and she absolutely insisted on coming. I know firsthand
    how important it is to have an advocate like Brett Kavanaugh,
    and I attribute my still-vibrant legal career in large part to
    him.
        I am only one of many. A significant number of Judge
    Kavanaugh's former clerks have been here for these hearings,
    and we have uniformly recommended him for his character, his
    work ethic, and his kindness. The United States and the
    American people would be well served with Judge Kavanaugh on
    the Supreme Court.
        Thank you.
        [The prepared statement of Ms. Taibleson appears as a
    submission for the record.]
        Chairman Grassley. Mr. Corbin.

           STATEMENT OF JACKSON CORBIN, HANOVER, PENNSYLVANIA

        Mr. Corbin. Chairman Grassley, Ranking Member Feinstein,
    and distinguished Members of the Senate Judiciary Committee, I
    am privileged to represent 130 million people with pre-existing
    conditions today, and I am grateful for the invitation to
    testify before you. My name is Jackson Corbin, and I am 13
    years old. I am a lot like other teenagers. I love comic books,
    Marvel movies, and I love to play Minecraft and Fortnite with
    my friends.
        Ten years ago, my brother, mother, and I were all diagnosed
    with Noonan Syndrome, a genetic condition that affects various
    systems of the body. As a result of my Noonan Syndrome, I have
    a lot of pre-existing conditions. Noonan Syndrome affects my
    growth, so I will never be as tall or as strong as other people
    my age. I have stomach issues, reflux, and I get really bad
    headaches. My most severe condition is my Von Willebrand
    Disease, a form of hemophilia. This means that I cannot play
    contact sports or do things like roughhouse, roller skate, or
    jump on trampolines. I take medication to control my reflux and
    to clot my blood if I get hurt. Having my clotting medicine at
    home means that I do not have to go to the emergency room every
    time I lose a tooth or get a bad bruise or a cut.
        My brother, Henry, is my best friend. He is 10-and-a-half
    years old, and he has Noonan Syndrome, too. We do everything
    together, including going to our specialist visits. My mom
    always says the greatest thing she ever did was to give the two
    of us to each other. Noonan Syndrome affects everyone
    differently, so in addition to having all the same conditions
    as me, including Von Willebrand Disease, Henry has even more
    special healthcare needs than I do. When Henry was a baby, he
    had to have lifesaving stomach surgery and a blood transfusion.
    Now he has what is called gastroparesis, which means he vomits
    almost every day, sometimes even in his sleep. The medicine he
    takes helps, but not all the time. We share a room, and at
    first it was scary to see him vomit in his sleep, but now I am
    used to it. When I hear him gagging, I roll him over so he does
    not choke and run to get my parents. Henry also has heart
    problems and asthma. I worry about Henry, a lot.
        I have heard my mom and dad say that they are grateful for
    our insurance because the cost of our care is more than my
    family makes in a year. That means if the Affordable Care Act
    is repealed and Henry and I lose our insurance, my parents will
    not be able to afford to pay for our care.
        I have been fighting for healthcare for nearly 2 years.
    Last year, in the first speech I ever gave on the lawn of the
    Capitol, I compared myself to Dr. Seuss' ``The Lorax.'' The
    Lorax says, ``I am the Lorax and I speak for the trees,'' and
    so I said, ``I am Jackson, and I speak for the children.'' I
    said that because I have met so many children with special
    healthcare needs who are unable to speak for themselves. I
    wanted to be their voice. But as my journey continued and I met
    even more children and adults who have pre-existing conditions,
    and who, like me and Henry, are scared for their future, I
    realized that I don't only speak for the children anymore.
    Today, especially, I speak for everyone.
        I speak for myself, Henry, and all the other children
    across the country with special healthcare needs. I speak for
    the parents who struggle with their own health issues while
    caring--while caring for their children, including my own mom,
    who has Noonan Syndrome, too. I speak for every person with a
    disability who high fives me in the Senate hallways as they
    fight for our care. I speak for every person with a disability
    who will never be able to live independently. I even speak for
    the man who has Lupus who altered the suit that I am wearing
    today. Most importantly, I speak for every American whose life
    could change tomorrow with a new diagnosis.
        My Noonan Syndrome is a part of who I am. It has been a
    part of me since the day I was born, and will be a part of me
    for the rest of my life. If you destroy protections for pre-
    existing conditions, you will leave me and all the kids and
    adults like me without care or without the ability to afford
    our care, all because of who we are. We deserve better than
    that.
        I might be a kid, but I am still an American. The decisions
    you are making today will affect my generation's ability to
    have access to affordable healthcare. We must have Justices on
    the Supreme Court who will save the Affordable Care Act--save
    the Affordable Care Act, safeguard pre-existing conditions, and
    protect our care. Please give us the chance to be healthy, to
    grow up, and to lead this country one day. I know I want that
    chance.
        Thank you.
        [The prepared statement of Mr. Corbin appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Jackson.
        [Applause.]
        [Disturbance in the hearing room.]
        Chairman Grassley. Mr. Lachance, go ahead.

                     STATEMENT OF HUNTER LACHANCE,
                          KENNEBUNKPORT, MAINE

        Mr. Lachance. Senator Grassley, Ranking Member Feinstein,
    and Members of the Senate Judiciary Committee, my name is
    Hunter Lachance. I live in Kennebunkport, Maine, and I am a
    sophomore at Kennebunk High School. I am 15 years old, and I
    suffer from asthma.
        I live in a State that has some of the highest rates of
    asthma in the country. According to the Maine Center for
    Disease Control, nearly 12 percent of the adults in our State
    have asthma compared with 9 percent nationally. Maine children
    also suffer from a higher rate of asthma than the national
    average. I am one of those statistics. Despite Maine's many
    beauties, it has worse air quality than most people realize.
    Because Maine sits at the end of America's tailpipe, air
    pollution from upwind States is carried into Maine by
    prevailing winds.
        Air pollution makes life extremely difficult for those of
    us with asthma, and it makes it harder for me to breathe. For
    me to live a healthy life, air pollution needs to decrease, not
    increase. I am concerned that the Supreme Court could make
    major decisions in the next few years that will cause air
    pollution in Maine to increase if Brett Kavanaugh is confirmed.
        Many people in this room may have asthma, or know someone
    who does, so what I am about to describe may be familiar. Here
    is a coffee stirrer. If you have one, I encourage you to put it
    to your mouth and try breathing through it. Now, imagine only
    being able to breathe through this sized-hole this size for an
    hour, or a day, or even a week. That is what it has been like
    during an asthmatic attack. Unfortunately, I am not alone in
    having asthma impact my life. Asthma affects nearly 25 million
    Americans, including over 6 million children. Two million
    people go to an emergency room each year because of asthma. I
    am here today because my future, and my health, may depend on
    it.
        I am just your everyday kid from Maine. I play sports, like
    to swim, and love playing in the snow. But my active life
    changed when I was diagnosed with asthma at the age of 10.
    Suddenly, everything became more difficult. I was sidelined
    from sports, began missing school, and my parents constantly
    worried about my health. The year after I was diagnosed, I
    missed close to a quarter of the school year. I can vividly
    remember times when my asthma attacks were so strong and scary
    that I was removed from class by my teachers and sent to the
    nurse's office. Most of the time, the nurse sent me home or
    asked my parents to get medical attention. I remember one
    really bad attack when I was home sick for 3 straight weeks.
    Asthma is a leading reason why kids miss school, and it has
    directly impacted my ability to learn from my teachers and
    spend time with my friends.
        Although air pollution does not cause asthma, it triggers
    attacks. On ozone alert days, people across the country have
    trouble breathing, and this should worry everyone. It worries
    me. In Maine, we need strong Federal regulations on air
    pollution because pollution does not stop at State borders. If
    States upwind from Maine are allowed to pollute more because
    Federal regulations are weakened, then that is bad for me, it
    is bad for Mainers, and it is bad for anyone in America with a
    respiratory disease or asthma.
        That is why I am here. I am deeply concerned that if Judge
    Kavanaugh is on the Supreme Court, he would vote to weaken laws
    that protect my health because he already has. In a 2012
    ruling, he rejected the Cross-State Air Pollution Rule based on
    the Clean Air Act's Good Neighbor provision, which regulates
    air that crosses State lines. According to the EPA, this rule
    reduces sulfur dioxide and nitrogen oxide pollutants and will
    prevent 34,000 premature deaths. During his time on the D.C.
    Circuit Court of Appeals, Mr. Kavanaugh has repeatedly struck
    down other Clean Air Act protections. This worries me a lot
    because clean air is a life or death issue for so many people
    like me.
        We need a Supreme Court that will protect clean air because
    lives depend on it. We also need a Supreme Court that will
    uphold protections to address climate change because my
    generation's future depends on it. For me, climate change means
    that life will be even more difficult with more ozone alert
    days, more dust and soot in the air from forest fires, and more
    mold due to extreme weather and flooding.
        Here is my coffee stirrer again. Next time you have the
    chance, pick one up and try breathing through it and see how
    long you can last. This is what it is like to suffer through
    asthma--through asthma. If the Supreme Court fails to protect
    clean air, then it is failing to protect me and millions of
    other Americans. Please do not confirm someone for the Supreme
    Court with a record like Judge Kavanaugh's, a record that could
    mean more air pollution, more asthma attacks, and more
    premature deaths for the millions of Americans unfortunate
    enough to be afflicted with asthma like me.
        Thank you for letting me testify today.
        [The prepared statement of Mr. Lachance appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Mr. Lachance.
        Now, Ms. Mahoney.

             STATEMENT OF MAUREEN E. MAHONEY, FORMER DEPUTY
      SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF
                        JUSTICE, WASHINGTON, DC

        Ms. Mahoney. Thank you, Mr. Chairman, Senator Whitehouse,
    and Members of the Committee. I am honored to add my voice in
    support of Judge Kavanaugh today. I worked with him at the
    Solicitor General's Office, and I appeared before him on the
    D.C. Circuit, and it is hard for me to think of anyone who is
    more qualified.
        I would like to make two points: First, I want to share my
    view that Judge Kavanaugh has much in common with my former
    colleague, Chief Justice Roberts, whom the Senate voted to
    confirm by a wide margin. Second, I want to explain why Judge
    Kavanaugh's extraordinary record of mentoring female lawyers is
    so important to my profession.
        In 2005, I testified before this Committee in support of
    Chief Justice Roberts' confirmation, and I am struck by the
    many similarities between him and Judge Kavanaugh. Some are
    obvious. Both are extraordinary lawyers, both worked in the
    White House Counsel's Office and the Solicitor General's
    Office, and both served as judges on the D.C. Circuit. But they
    also share a civility and evenhandedness on the bench that
    reflects their genuine effort to consider all sides of an
    argument thoroughly before reaching any conclusions.
        I have had the pleasure of arguing before both men. Like
    the Chief Justice, Judge Kavanaugh asks difficult and incisive
    questions of both parties, but he is polite, and he conveys his
    thoughts with an open mind. As the ABA confirmed this morning,
    my view is widely shared by the Bar. Don Verrilli, Solicitor
    General during the Obama administration, has called Judge
    Kavanaugh a ``brilliant jurist who is a gracious person, both
    on the bench and off.'' And a bipartisan group of appellate
    practitioners praise his unfailing courtesy to counsel and to
    the other judges and his colleagues. In an era when some
    appellate judges have behaved like brusque advocates for one
    side during oral argument, Judge Kavanaugh has been a model of
    the proper judicial disposition.
        The Chief Justice and Judge Kavanaugh also understand the
    proper role of a Federal judge: to be an independent, neutral
    arbiter. During his confirmation hearing, the Chief Justice
    famously described judges as umpires who apply the rules
    without fear or favor. I think it is fair to say that the Chief
    Justice has done so. At various times, both sides of the aisle
    have denounced his rulings just like the same thing that
    happens to umpires. And Judge Kavanaugh has similarly
    demonstrated impartiality and fairness in his 12 years on the
    D.C. Circuit. He repeatedly ruled against the Bush
    administration, where he worked prior to becoming a judge, in
    his first 3 years on the bench. He has ruled in favor of an al-
    Qaeda terrorist, in favor of a pro-choice Democratic interest
    group, and against the Republican Party. And to the surprise of
    some, even the ACLU has recognized that Judge Kavanaugh has
    been ``sympathetic'' to Title VII claims. As Judge Kavanaugh
    has explained in multiple speeches over the years, a judge must
    check any prior political allegiances at the door, and I am
    confident he will stay true to that ideal.
        Second, Judge Kavanaugh also stands out as a mentor to
    women lawyers. I know you have heard the statistics a lot, but
    they are worth repeating. Over half of Judge Kavanaugh's law
    clerks have been women. Twenty-one of those 25 have been hired
    to clerk on the Supreme Court, and this is simply astounding.
    These women have gone on to serve in all three branches of
    Government, in the White House in the Solicitor General's
    Office, four Federal prosecutors. One is a Deputy Solicitor
    General of the District of Columbia. Another, as you just
    heard, serves as a judge on the Eleventh Circuit.
        It is difficult to overstate how important opportunities
    like these can be for a lawyer's career, especially in
    appellate practice. Credentials like a Supreme Court clerkship
    or a job at the Solicitor General's Office are keys that unlock
    doors at the highest levels of the legal profession. Very few
    women have historically held these elite positions. When I
    clerked for Chief Justice Rehnquist in 1979, almost 80 percent
    of the law clerks at the Court were male, and a large gender
    imbalance endures today. Almost twice as many men as women have
    been hired as Supreme Court clerks since 2005.
        In the most recent Supreme Court term, women delivered just
    12 percent of the oral arguments, and women make up only 19
    percent of law firm equity partners. I was one of the lucky
    few. I argued 21 cases before the Supreme Court, and this never
    would have happened without the mentorship of a Federal judge,
    just like Judge Kavanaugh does for his clerks. Chief Justice
    Rehnquist helped launch my appellate career by hiring me as his
    clerk, and in 1988 he then arranged for me to argue my first
    Supreme Court case. I was the first woman to receive the honor
    of being appointed by the Supreme Court to argue a case by
    invitation. With that argument under my belt, Chief Justice
    Roberts recruited me in 1991 to join him in the Solicitor
    General's Office as one of four deputies, a position that has
    rarely been held by women.
        These were the opportunities that made it possible for me
    to compete with the men who dominate the Supreme Court Bar. For
    more than a decade, Judge Kavanaugh has been instrumental in
    opening these doors for a new generation of women lawyers. He
    has been a teacher, adviser, and advocate for women in ways
    that unquestionably demonstrate his commitment to equality, and
    that will ultimately reduce persistent gender disparities in
    the legal profession. In short, Judge Kavanaugh's independence,
    his civility and open-mindedness, and his generous mentorship
    are just a few of the many characteristics that make him
    superbly qualified to serve on the Supreme Court.
        Thank you.
        [The prepared statement of Ms. Mahoney appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Ms. Mahoney.
        Now, Ms. Smith.

    STATEMENT OF MELISSA SMITH, SOCIAL STUDIES TEACHER, U.S. GRANT
                   PUBLIC HIGH SCHOOL, OKLAHOMA CITY,
                                OKLAHOMA

        Ms. Smith. Good afternoon, Mr. Chairman and Members of the
    Judiciary Committee. Thank you for this opportunity. My name is
    Melissa Smith, and I am a union member and public school
    teacher at U.S. Grant High School on the southwest side of
    Oklahoma City. I am also the very proud daughter of a police
    officer, who served his community 41 years, and who taught me
    how to use my voice. He made sure that I not only knew my
    rights, but that I knew how to exercise them.
        Because of my father, I went into juvenile justice where I
    quickly realized that most teenagers have no idea that they
    have rights. So, I became a high school social studies teacher
    where I can open my students' eyes to the concepts of equality,
    justice, and fairness. I teach them that under the U.S.
    Constitution, they do have rights. I teach them the impact of
    the law and their roles and responsibilities within the
    Government so that they can be engaged and active in our
    democracy. Today, I am honored to be able to show my students
    exactly what it means to use your voice and participate in our
    Government at the highest level. As you consider your vote to
    confirm Judge Kavanaugh to a lifetime appointment, please
    consider our experiences.
        Oklahoma City Public Schools is the State's largest
    district where almost 90 percent of our families are considered
    to be economically disadvantaged. I am a proud General at U.S.
    Grant High School General. We have the most dedicated teachers
    and incredible students. Our district has had to cut almost $40
    million from its budget in the last 2 years. Our fine arts
    budget was slashed by 50 percent, and our library media budget
    was completely eliminated. Our school building was built for
    1,200 people just 11 years ago, yet we currently have 2,200
    staff members and students.
        Classrooms that have almost 40 students rarely have enough
    desks for all of them. It is often first come, first served to
    those classrooms. Some teachers do not even have classrooms at
    all. They have all of their belongings, textbooks, and supplies
    on carts, and they push them from classroom to classroom, hour
    to hour. I am telling you about our funding crisis in Oklahoma
    for two reasons: first, because Judge Kavanaugh's stated
    position on private school vouchers would exacerbate the
    situation in Oklahoma City. Vouchers do nothing to help student
    achievement, but do everything to undermine the public schools
    that 90 percent of children in this Nation attend. Siphoning
    more funding away from public education will destroy public
    schools.
        The second reason I am telling you about our funding crisis
    is that I have seen firsthand how the collective power of
    unions allows individuals to band together to bargain for
    resources for students and teachers. Judge Kavanaugh has a
    strong history of siding with big business over the needs,
    rights, and safety of individual employees. His record shows
    that he sides with employers who do not adhere to their
    collective bargaining agreement, and he does not see the need
    for union representation in employee meetings. I can tell you
    that through my union, I have learned the power of collective
    voice. I can advocate for my own working conditions, which are
    the same learning conditions for my students. Unions give voice
    and agency to people who cannot find it otherwise. They make it
    possible for us to accomplish together what we could not do on
    our own.
        Five months ago, Oklahoma City Public Schools teachers
    walked out of our classrooms. Our legislature passed a $6,000
    pay raise in an attempt to stop that walkout, but we were
    fighting for more than just a pay raise. We were fighting for
    our students and their needs that often go well beyond what you
    would expect a teacher to have to take care of. I have
    physically picked up a teenager off the floor and carried her
    to the counselor's office. She was sobbing saying that she did
    not want to live anymore. Thank goodness our counselor was able
    to be at school that day. I have seen the terror on a
    transgender student's face when he shared that he identifies as
    male, and then that terror turn to joy when I, as a trusted
    adult, accepted him for who he is. Just last week a fellow
    teacher wrote a reference letter for a student and his family
    for their hearing to determine whether or not they can remain
    in this country. She stressed about it for days because she
    needed it to be perfect. Her student has never known anything
    but his life in Oklahoma, and he is terrified of being sent to
    a place that is not his home.
        The morning after the 2016 Presidential election was a
    tough one at U.S. Grant. Many of our students are undocumented
    or have undocumented family members. The U.S. Grant family
    rallied around all of our students more than usual on that day.
    We do not ask if they or their parents are undocumented. That
    is not our purpose. And so far, the U.S. Supreme Court agrees.
        Now why am I sharing these experiences with you? Because I
    worry about my students and who will look out for them. I worry
    that our Government is too far removed from the people it
    serves, and that the consequences of that gap are far more
    dangerous than we realize. If confirmed, Judge Kavanaugh's
    decisions will impact not just teachers and students in schools
    now, but the futures of my students and for generations to
    come. The experiences of my students and fellow staff members
    show that there is a real impact of Judge Kavanaugh's
    jurisprudence on America's future.
        Thank you for allowing me to be here today. I would like to
    end my statement the same way I end every single Friday in
    class with my students: ``Be the example, have a good weekend,
    and please make good choices.''
        [Applause.]
        [Disturbance in the hearing room.]
        [The prepared statement of Ms. Smith appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Ms. Smith.
        Now, Mr. Christmas.

        STATEMENT OF KENNETH C. CHRISTMAS, JR., EXECUTIVE VICE
    PRESIDENT, BUSINESS AND LEGAL AFFAIRS, MARVISTA ENTERTAINMENT,
                        LOS ANGELES, CALIFORNIA

        Mr. Christmas. Chairman Grassley, Ranking Member Feinstein,
    and other distinguished Members of this Committee, I am
    honored, grateful, and humbled to appear before you endorse--to
    endorse the nomination of Judge Brett Kavanaugh to sit as an
    Associate Justice of the United States Supreme Court. I have
    known this nominee for 3 decades. He is a close personal
    friend. I hope my testimony today will illuminate a side of
    Judge Kavanaugh that is not often seen in media accounts.
        I met Judge Kavanaugh in 1988 during my first year at Yale
    Law School when he was a second-year law student. In addition
    to both of us pursuing our love of the law, we watched
    SportsCenter, played pick-up basketball, and loved going to
    Yale football games. We became fast friends. The following
    year, we roomed together with six other law school students in
    a house behind the Yale gym.
        I have always admired Judge Kavanaugh's ability to create
    deep relationships with people from all walks of life,
    conservative, liberal, athlete, academic, male, female, White,
    Black. I think the one reason for this is he never assumes he
    is the smartest person in the room. Judge Kavanaugh deeply
    believes he can learn something from everyone. A wonderful
    confidant, Judge Kavanaugh has always made me feel comfortable
    speaking to him about basically anything because he genuinely
    cares how others feel and authentically tries to understand how
    they think.
        During law school, I often sought out Judge Kavanaugh's
    advice. He would implore me to first understand the issues from
    the points of view. Put yourself in their shoes, I recall him
    advising me. How would that make you feel? Then, he would
    challenge me to demand of myself that which you ask from
    others. Should he be fortunate enough to be confirmed, I
    believe Judge Kavanaugh will bring that same humility and
    compassion to the Supreme Court. It is who Judge Kavanaugh is.
        Since graduation, the same eight law school roommates have
    spent a long weekend together every year with an astonishingly
    minimal absentee rate, and Judge Kavanaugh has been no
    exception. These 26 reunions have kept all of us close, even as
    our families and careers demanded more time from each of us. I
    will never forget a long drive I took to Bucks County,
    Pennsylvania for one of our early annual reunions. Judge
    Kavanaugh listened and asked questions for the whole ride as I
    explained my bewilderment over those who deny the continuing
    effects of slavery and Jim Crow laws. While I was raised in
    California, I have deep family roots in Mississippi. I believed
    then, as I do now, that the laws of our country must remain
    responsive to historical prejudice, discrimination, oppression
    and mistreatment of African Americans. There was no doubt left
    in my mind following that ride that Judge Kavanaugh deeply
    cared, and still cares, about truly understanding my Black
    experience and point of view.
        Over the years, Judge Kavanaugh and I have traveled
    together many times in and outside the country. I drove with
    Judge Kavanaugh to Boston to watch him run his first Boston
    Marathon. Judge Kavanaugh made the trip to California for my
    wedding, and I flew back to DC for his. While our age is no
    longer conducive to pick-up basketball games, we have been able
    to commiserate over coaching our children and learning that the
    first rule of being a good youth basketball coach is
    understanding you are no longer a player. Our support for one
    another has been a steady and reliable force as we move through
    life's ups and downs.
        Earlier this year, Judge Kavanaugh and I, along with our
    other law school roommates and friends, gathered over a weekend
    for the funeral of the son of another roommate. I witnessed
    Judge Kavanaugh's love, care, and support of our friend during
    the most difficult of times. He attended dinners, participated
    in fellowship well into the night, and spent the day at the
    funeral service in support of the family. In a time of personal
    crisis, I will not need to look far for my friend because Judge
    Kavanaugh will already be there.
        So, you may ask what does coaching basketball, showing up
    at each other's wedding, listening to my experiences as a Black
    man living in America, or attending a funeral have to do with
    determining whether Judge Kavanaugh should become a Supreme
    Court Justice? The answer is it speaks directly to his
    humanity. Judge Kavanaugh cares. He is far from being an
    ideologue. He does naturally what a good judge should do, seek
    to understand before offering an opinion. Judge Kavanaugh is a
    tremendous son, friend, husband, and father. He is honest,
    empathetic and intellectually curious. That is the person I
    know.
        Over the course of my life, I have found that a true test
    of a friendship is when support for a friend is inconvenient.
    For me, from the perspective of a lifelong Democrat, it is
    inconvenient to support Judge Kavanaugh, especially during this
    time of an unprecedented partisan divide and polarization among
    Americans, but I know it is the right thing to do. As an
    American, I am quite concerned about the attacks on our
    esteemed institutions, like the judiciary. My expectation of
    any judicial nominee I support, especially when it is for the
    Supreme Court, is that he or she possess a powerful sense of
    fairness and impartiality. As an African American, I expect a
    nominee I support to have a deep sense of obligation to protect
    the interests of those disempowered, particularly those whose
    voices are too often drowned out of our political discourse and
    cannot be heard. Again, all this requires a judge who is
    compassionate, humble, and principled. Judge Kavanaugh is such
    a nominee.
        Everyone here today is well aware of Judge Kavanaugh's
    extraordinary qualifications, both educationally and
    professionally. However, it is Judge Kavanaugh's humanity that
    compelled me to come here today to testify on his behalf. For
    this reason, without equivocation or reservation, I
    respectfully urge this Committee and the Senate to confirm
    Judge Brett Kavanaugh as an Associate Justice of the United
    States Supreme Court.
        Thank you.
        [The prepared statement of Mr. Christmas appears as a
    submission for the record.]
        Chairman Grassley. Thank you. As Chairman of the Committee,
    I should thank all of you for your testimony. I know you have
    to work hard to do it. Some of you have traveled a long way, so
    just generally thank you. And then I am going to ask my
    questions, and then I will call on Senator Whitehouse, and I
    would ask for maybe 10 or 15 minutes if one of my Republican
    colleagues would moderate while I step out, and I will be close
    by.
        Senator Hatch. I would be happy to.
        Chairman Grassley. Okay. I am going to start with you, Mr.
    Christmas, and I am going to--I am going to say that for 4 days
    now we have had a lot of people exercise their public
    constitutional rights to speak, as you have heard it this day,
    afraid of Judge Kavanaugh being a Justice on the Supreme Court.
    We have three or four panel people right here that you have
    heard their own testimony. And so, there is this fear that he
    does not--might not take into consideration the needs of people
    less fortunate than he is with various problems that we have
    heard expressed here. So, I think you probably spoke a little
    bit to this in your testimony, but emphasize for us--speak not
    to me, but to the people that have these concerns.
        Mr. Christmas. Well, Senator, I understand those concerns.
    I do not share that fear. Brett is one of the most thoughtful,
    empathetic people I know. I have spent much time with him
    talking about issues that are very dear to me. He has been
    generous with his insight. He cares, and I think that empathy
    that he naturally exhibits will serve him well, and I would
    encourage people to understand this man is thoughtful, is
    humble, and thinks to understand before he makes himself
    understood.
        Chairman Grassley. From your point--I will follow up. From
    your point as a lawyer and as--you expect a judge to look at
    the facts of the case and the--what the law is, and leave their
    own personal views out of it. So, can you explain, to the
    people that have these concerns about him, those things that
    have to be taken into consideration that maybe do not deal
    exactly with a person that has special medical problems like
    you have heard here today?
        Mr. Christmas. Yes, and I recall Brett, when he came to my
    wedding--I should say, Judge Kavanaugh--and he spent time with
    my family. I recall him speaking at length with members of my
    family who had no real knowledge of what it is like to be a
    judge and be involved in DC and the way that Judge Kavanaugh
    is. And I was just struck by how easily and comfortably he was
    able to speak to everybody who he had just met during that
    wedding. There was a period where my niece graduated from
    Howard University and I had mentioned to Judge Kavanaugh that I
    may come out, and he arranged for 20 of the members of my
    family to tour the West Wing, and he showed up on a Saturday
    with a couple of his aides. That is the sort of the person he
    is.
        So, I understand the concerns, but the man I know is
    generous with his time and thought, and I love the discussion
    about process. He seeks to not be influenced by people outside,
    and he is one of the most prepared, thoughtful people I know.
        Chairman Grassley. I will end with Mr. Kramer. Not being a
    lawyer, but I can assume what public defenders do, you are
    dealing mostly, defending people that do not have resources of
    their own, and, in fact, that may be a hundred percent of your
    clientele. You have heard, several days, that my colleague from
    New Jersey has expressed concern about people that cannot
    defend themselves in court, the jury system not working the way
    it traditionally works, and mandatory minimums, all that.
        Can you give people of low-income that you represent, maybe
    other problems, that--the assurance that they are going to get
    their concerns addressed the way they ought to be through
    somebody that is on the Supreme Court?
        Mr. Kramer. Thank you, Chairman Grassley. Yes, absolutely,
    and I tried to get that out. The fact--the reason that I am
    here is because of the fairness that Judge Kavanaugh has shown.
    Our clients are without resources, and tend not to be a very
    popular group. And Judge Kavanaugh has shown through my
    experience, my numerous arguments in front of him, and the
    opinions he has written a belief in the fundamental--and I
    completely share Senator Booker's views on the criminal justice
    system. But Judge Kavanaugh has shown through his opinions in
    the criminal cases that I have argued as well as his service on
    the CJ committee that I have been involved with a concern for
    the fundamental fairness of the system and a--that people
    should be--even though they are without resources and
    represented by a public defender, that they should have the
    best representation possible. And that is why I wholeheartedly
    support his nomination.
        And I note one more thing that is, in a sense, to me
    remarkable. Usually a judge who wants to be confirmed for a
    position or another court would never have a public defender in
    the hearings talking in support of them. And I think that,
    again, shows Judge Kavanaugh's concern for the fundamental
    fairness of the system, and that is why I support him.
        Chairman Grassley. Okay.
        Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        Aalayah, may I use your first name? I could call you ``Ms.
    Eastmond,'' if you wanted.
        Ms. Eastmond. No, it is fine.
        Senator Whitehouse. Aalayah, I just wanted to tell you that
    you have had to live through an experience that no child should
    have to live through, and what you have brought into this
    hearing room from that experience has been stunning.
        Ms. Eastmond. Thank you.
        Senator Whitehouse. Your testimony was incredibly well
    delivered----
        Ms. Eastmond. Thank you.
        Senator Whitehouse [continuing]. And incredibly well
    prepared, and I hope that not only you, but your friends and
    family who are with here today are very, very proud of what you
    have been able to draw out of that horrible experience you went
    through.
        Ms. Eastmond. Thank you.
        Senator Whitehouse. Take care of yourself because these
    things do not go away.
        Ms. Eastmond. Yes.
        Senator Whitehouse. But keep doing what you are doing----
        Ms. Eastmond. Thank you.
        Senator Whitehouse [continuing]. And do it with pride and
    confidence because you really shone today.
        Ms. Eastmond. Thank you.
        Senator Whitehouse. And, Jackson, may I use your first name
    as well? I just want to thank you, as well. It may seem a
    little weird coming from an old guy across the podium, but when
    I was 13 I was about your size, and I know what it is like to
    be the small kid. And I just want you to know that when you
    spoke today, you were the biggest person in this room.
        Mr. Corbin. Thank you.
        Senator Whitehouse. And you did a wonderful, wonderful job,
    and you brought a really important message to us. So, to you
    and to your family and friends who are here, congratulations.
    Well done. Please be proud and keep your voice.
        Mr. Corbin. Thank you.
        Senator Whitehouse. Hunter, you and I have a--may I use
    your first name also? At some point, you know, you can say,
    ``no, I would prefer you call me `Mr. Lachance.' ''
        Mr. Lachance. No, ``Hunter'' is fine.
        Senator Whitehouse. Okay, ``Hunter'' is fine. You and I
    share a similar predicament. We are the inhabitants of downwind
    States. Rhode Island, like Maine, is a tailpipe State, and if
    it were not for the EPA, there is nothing that our State
    environmental officials could do to protect us from out-of-
    State pollution, very often from coal-burning plants and so
    forth. And we have the same situation you do. We have a lot of
    kids, and when the air gets bad, you often see them in the
    emergency room. You have situations in Rhode Island where we
    are--you know, you are driving into work in the morning and it
    is a beautiful day, the sun is shining. You should be out
    playing. You know these days. But on the radio you hear today
    is a bad air day, and we want little kids, we want old people,
    and we want people with breathing difficulties to stay inside
    on what would otherwise be a great day for you to be out
    swimming and playing sports and doing all those things. So, the
    voice that you brought here was very, very important.
        To each of you I would say, part of the problem that I have
    in this whole nominations process is, that you are up against
    enormously powerful forces on the other side. The National
    Rifle Association essentially has dominion over Congress with
    respect to everything that has to do with guns and the
    ammunition that tore through your friends. The--I do not know
    what you would call it, a ``mania,'' a ``fetish,'' an
    ``ideological crusade''--against providing your family with
    reliable healthcare simply makes no sense to me, and yet it is
    enormously powerful. And we came very, very close to a vote
    here where it would have been taken away from you.
        And so, and, of course, the polluters have almost as much
    dominion around here in Congress as the NRA does. They bring in
    phony scientists who quarrel with the real science because they
    are paid to quarrel even if their science is not real. And they
    do economic studies that only show the harm to the polluting
    companies and totally omit what it is like to be you on a day
    that you cannot breathe except, like, through that little
    coffee straw.
        So, this is a one-sided place, and the forces that have the
    most money and that make the most money are able to use it here
    in ways that keep very, very unbalanced. And my concern is that
    the current Republican Majority on the Supreme Court and the
    decisions of Judge Kavanaugh reflect a desire to enhance that
    power to defer decisions that the Court could make into this
    very unbalanced forum, to diminish the regulatory agencies
    where there is the actual expertise to understand and say how
    chlorophora carbons work, or what a loose guy filing should
    look like for a new stock offering, or complicated things like
    that.
        And so, that is my biggest concern, and I am not going to
    take any more time because I have burned it all already. But I
    really, really was so impressed with each of the three of you,
    and I just wanted to say thank you. Well done. Do not ever give
    up. Those other forces may be big, but this is still our
    country.
        Thank you.
        Senator Hatch [presiding]. Mr. Kramer, as a public
    defender, you have spent your career representing defendants
    who do not have the money for a fancy law firm----
        Mr. Kramer. Yes.
        Senator Hatch [continuing]. Or any kind of a law firm, who
    may have been accused of some very serious misconduct. Now,
    when appearing before Judge Kavanaugh, have you ever felt that
    your client's economic status or situation or charged conducted
    affected the Judge's treatment of your client?
        Mr. Kramer. No, I would say just the opposite, that they
    have always been treated without regard to any of those
    factors.
        Senator Hatch. How have you ever had a case where you felt
    your client's economic situation or charged conducted affect
    Judge Kavanaugh's decision in the case?
        Mr. Kramer. I do not think it has ever affected his
    decision in a case. He examines the facts and the law and
    decides based on that without regard to those circumstances.
        Senator Hatch. Well, he is a judge who is most well known
    for his jurisprudence on broad structural issues, like the
    separation of statutory interpretation or the--well, sometimes
    his jurisprudence on individual rights gets less attention. For
    example, his discussions of the importance of mens rea
    requirements, which I am very concerned about, and the
    problems, among many things, and the problems inherent in
    sentencing based on acquitted conduct. How has the--how has
    Judge Kavanaugh contributed to criminal law and the rights of
    defendants?
        Mr. Kramer. Well, in the acquitted conduct, he is bound by
    Supreme Court precedent, but he has encouraged judges as a
    matter of discretion, which they have to not use acquitted
    conduct for sentence. He has in a number of cases, some of
    which I have argued, on mens rea, he has reversed convictions
    or noted in concurrences that--or dissents that he believes
    that people should not be convicted of certain crimes without
    the proper mens rea. And he has written a number of those
    cases. So, I think in both of those areas, those are important
    individual rights for my clients.
        Senator Hatch. Well, thank you.
        Ms. Mahoney, you have known Judge Kavanaugh for over 2
    decades since both of you were in the Solicitor General's
    Office together at the Justice Department. You have also
    appeared before him in Court. Now, what kind of a jurist is he
    on the bench?
        Ms. Mahoney. Phenomenal. I----
        Senator Hatch. Do you have an advantage because you had
    served with him before?
        Ms. Mahoney. No, no, I am sure it was not an advantage.
        Senator Hatch. What is the matter of him?
        Ms. Mahoney. Yes, right, I am sure it was not an advantage.
    He is extremely careful about his work, and one of the harder--
    hardest-working judges out there, and that is the way he was in
    the Solicitor General's Office, too. He is kind of renowned for
    his work ethic, for trying to find an answer in the case. And I
    think he believes that if you look long enough and hard enough,
    in most cases the answer is going to come, and it is just a
    product of doing the work.
        Senator Hatch. Well, that is great. How many other lawyers
    have worked with Judge Kavanaugh or argued cases before him?
    You know many of them----
        Ms. Mahoney. I do not--I know most of the Appellate Bar in
    Washington, DC. Many of them have argued before him. Many of
    them know him from working with him either in the White House--
    --
        Senator Hatch. What are their opinions?
        Ms. Mahoney. I do not know anyone who does not put Judge
    Kavanaugh in just the highest category they can come up with.
    He is--he is remarkable, and people really adore him. I will
    tell you that, you know, around Washington, at least in my
    world, when people who were debating who would be appointed to
    the Supreme Court when Justice Kennedy retired, the answer from
    almost everybody that I talked to was, well, it ought to be
    Brett Kavanaugh. So, I mean, this was--you know, this is the
    Supreme Court Bar and the Appellate Bar in the Washington, DC,
    area, but there is just really deep uniform respect for him as
    a jurist and as a man.
        Senator Hatch. Everybody I know who knows him speaks very
    glowingly of him----
        Ms. Mahoney. Glowingly.
        Senator Hatch [continuing]. Just like you.
        Ms. Mahoney. Uniformly glowingly.
        Senator Hatch. Well, it seems to me he is precisely the
    type of person we want on the Bench.
        Ms. Mahoney. It would be a travesty if he does not get a
    hundred votes.
        [Laughter.]
        Senator Hatch. Well, you have put a lot of pressure----
        Ms. Mahoney. There you go. Just do that.
        [Laughter.]
        Senator Hatch. Keep it up. I appreciate that.
        Ms. Mahoney. Right.
        Senator Hatch. We are happy to have all of you here. This
    is very important, and your testimonies all will be paid--given
    serious attention. Let us--who is next on this----
        Senator Whitehouse. Senator Blumenthal.
        Senator Hatch. Senator Blumenthal, you are next.
        Senator Blumenthal. Thank you, Senator Hatch. I want to
    join in thanking all of you for being here. This is another
    great panel. I want to join my colleague, Senator Whitehouse,
    who very eloquently and powerfully thanked Aalayah Eastmond,
    and Jackson Corbin, and Hunter Lachance. You have really shown
    us how an individual voice can make such a difference. But I
    also want to thank Melissa Smith for your comments on how a
    collective voice can be impactful, and a lot of young people
    would not have their individual voices but for your service as
    a teacher.
        I have always thought that being a teacher, along with
    being police, firefighter, emergency responders, you are the
    unsung heroes, our public service employees. I want to thank
    you for your personal testimony about the importance of the
    issues that matter in real lives to real people and have real
    impact.
        Ms. Smith. Thank you.
        Senator Blumenthal. And I want to ask Aalayah Eastmond,
    since we are talking about real people and real lives, you
    know, in Connecticut we had--we had a tragedy similar to the
    one you experienced. And I lived through an afternoon and then
    a week similar to what you did in Parkland, not the same
    firsthand experience that you did, but I saw the impact on
    loved ones, and children, and parents, and teachers as you did.
    And I saw the impact on moms and dads like Fred Guttenberg, who
    was here earlier in the week, as you know, and you commented in
    your testimony about him.
        If I were Judge Kavanaugh, who, as you know, said that
    assault weapons should not be banned, cannot be banned, under
    the Second Amendment of the Constitution, what would you say to
    him?
        Ms. Eastmond. That my life, along with all the other youth,
    is more important than that gun.
        Senator Blumenthal. And if he said to you, you know, there
    is this legal principle that says unless it was a ban or one
    analogous to it at the time of our Constitution or
    traditionally in our law, what would you say about the real
    impact of that kind of assault weapon on your life?
        Ms. Eastmond. Yes, it is unimaginable. The shooter at my
    school shot 34 kids in under 6 minutes, and that gun ended 17
    lives on February 14th. That gun ended lives at Sandy Hook.
    That gun ended lives all over the country, and there are mass
    shootings that happen almost every month. And I believe that
    that gun needs to be banned, any assault rifle, and he needs to
    listen to us because our lives are just as important as any
    American's freedom to own a gun.
        Senator Blumenthal. Well, I hope that Judge Kavanaugh is
    listening to you. Thank you very much.
        Thank you, Mr. Chairman.
        Senator Hatch. Senator Lee.
        Senator Lee. Thank you, Mr. Chairman. Thanks so much to all
    of you for being here. My friend and colleague, Senator Kennedy
    from Louisiana, had to step out for a few minutes and was not
    sure whether he will back in time, but he asked me to convey to
    you his gratitude to each of you for your testimony and your
    willingness to provide insights.
        Ms. Mahoney, I would like to start with you. I heard
    mention a minute ago speculation about unfair advantage in
    court. And, Senator Hatch, I can tell you, she always has an
    unfair advantage in court because she is so good. You have
    always been one of my favorite litigators to watch argue cases
    in the Supreme Court. It is an odd little hobby of mine
    watching Supreme Court litigants, and I always enjoyed you
    arguing.
        One of the things I have appreciated about your arguments
    is that you focus on the law. You focus on what--why your
    client's case is right, and you focus--you seem to have an
    approach that echoes something that you said a minute ago,
    which is that if you are willing to go to the hard work of
    finding the right answer in a case, you can find the right
    answer. The law will normally supply a correct answer, and you
    seem to believe that Judge Kavanaugh shares this view.
        Tell me how that can instill a sense of civility among
    members of the Bar and among jurists, the belief that there is
    a right answer in the law.
        Ms. Mahoney. I think--I think there is a right answer in
    the law. I think he believes that, and it--and it should
    instill a sense of confidence in the Judiciary because there is
    sort of this pervasive view that the Justices are--or it is
    becoming more pervasive that the Justices are just partisans,
    you know, deciding for their team. And I certainly do not
    believe that is the case. I do not think that is what is going
    on. There are different ideologies, but I do not think it is
    partisanship. And I think that Justice--Judge Kavanaugh--
    Justice Kavanaugh hopefully--will perform will his role in a
    way that people will understand that he is just working to get
    the answer, the way he asks questions, the way he probes
    evenly, the way he shows respect for everyone, and the way he
    explains his decisions, and the way he surprises people
    sometimes with the way that he rules.
        You will not be happy--Republicans will not be happy every
    time. Democrats will not be happy every time. But it will be a
    product of his reasoning and his effort and his work in the
    case. And I think Americans should be grateful for that kind of
    judicial approach, whether they are Republicans or Democrats,
    and I would hope that we could get beyond some of this
    polarization.
        Senator Lee. As someone who has devoted her career to
    arguing in front of the Supreme Court, you can confirm that
    there is no aisle, there is no political aisle in the Supreme
    Court.
        Ms. Mahoney. There is no political aisle. No, there is not.
        Senator Lee. And, in fact, 5-to-4 decisions are very rare.
        Ms. Mahoney. They are very rare, yes, they are.
        Senator Lee. Ms. Taibleson, I appreciated your comments.
    Having served as a law clerk myself, I know that there is a
    special bond and relationship that develops between a law clerk
    and the judge or Justice for whom the law clerk is working. One
    of the reasons for that is, you are able to interact with the
    jurist on a day-to-day basis, not only in seeing, in your case,
    how Judge Kavanaugh interacted with his law clerks, but also
    how he interacted with his colleagues. What can you tell us
    about what you saw and what--how that would portend for how he
    would interact with colleagues regardless of their backgrounds
    and regardless of what some people might identify as their
    political ideologies?
        Ms. Taibleson. Certainly, Senator. The D.C. Circuit Court
    of Appeals is composed of many judges who have diverse views on
    the law and on judicial philosophy, more generally. But at
    least when I was there, their views of Judge Kavanaugh are not
    diverse. Instead, they uniformly respect him. They appreciate
    his collegiality, his ability, his hard work, and ultimately
    the fact that he is a straight shooter. There are certainly
    always going to be disagreements, but those are disagreements
    that he has in good faith. There is no hidden agenda, nothing
    like that. He says what he means, and he means what he says.
        I think on the Supreme Court, he is going to bring those
    same characteristics, and I think he is going to be sort of a
    uniter for that reason. I think he is going to bring out the
    best in his fellow Justices should he be fortunate enough to be
    confirmed, and is going to have great relationships with
    Justices across the ideological spectrum.
        Senator Lee. Thank you.
        Ms. Smith, I have great respect for teachers. Both my
    parents worked as educators in different capacities at
    different points in their careers, and they always taught me to
    have great respect for my teachers, especially social studies
    teachers because of the importance of the subject matter you
    teach. Can you help me understand, I understand that resources
    are scarce and resources--more resources often need to be
    devoted to public education to make sure that you as a teacher
    and your colleagues, those with whom you work, have the
    capacity to do your job, to educate people. Help me understand
    the connection between your concern for those resources and the
    jurisprudential philosophy of this Federal judge.
        Ms. Smith. One of my biggest concerns is his positions on
    public school vouchers. Taking money from public education to
    give a few select people some choice takes money from us to
    fund someone else's education. We will be left in my district
    with the majority of our--of our same students with less
    funding than we have now, so----
        Senator Lee. Well, when you say ``his position,'' you do
    not mean his policy position because he is acting not as a
    policymaker, but as a jurist deciding on whether or not
    something is lawful, deciding whether or not the policymakers
    are empowered to make that decision.
        Ms. Smith. Right, I understand----
        Senator Lee. Is there not a difference between those two
    things?
        Ms. Smith. Yes and no. We often believe that our--whether
    they be elected officials or judges are not supposed to bring
    their personal views into it and only base decisions on the
    laws, but it does not always seem like that is the case. Maybe
    not with Judge Kavanaugh, but there is always a concern that
    personal views will influence judgment. That is a concern that
    teachers have, that students have. And when he has publicly
    spoken in support of public school vouchers, that is a concern
    that we have.
        Senator Lee. I see my time has expired.
        Thank you, Mr. Chairman.
        Chairman Grassley. Thank you.
        Senator Booker.
        Senator Booker. I did not mind if he kept going. I did not
    want--I know I am the last person, I think, sir.
        Chairman Grassley. Well, we have got another panel waiting.
        Senator Booker. Oh, you do have another panel. I apologize.
        Chairman Grassley. Yes.
        Senator Booker. Okay. First of all, I just want to thank
    all the panelists for coming. I really do appreciate you
    participating in this process, and it is extraordinarily
    helpful.
        Aalayah, your testimony was really heartbreaking and
    painful to listen, but the poise with which you spoke of
    something that I know is horrific and unimaginable was
    extraordinary.
        Ms. Eastmond. Thank you.
        Senator Booker. Extraordinary.
        Ms. Eastmond. Thank you.
        Senator Booker. And there are specific policy things that
    you all are advocating for. I know--I have met with lots of the
    students from Parkland, and I am just wondering if you--just
    give you another opportunity, not just because I also think you
    are extraordinarily eloquent speaker.
        Ms. Eastmond. Thanks.
        Senator Booker. But are there any particular policy issues
    that you all are advocating for, that you can maybe speak to in
    a little more detail about what you would like to see and how
    that relates to a Supreme Court Justice?
        Ms. Eastmond. Yes. Right now we are focusing on an assault
    weapons ban because they are just unnecessary. Next year I will
    be 18, and I could get an assault rifle. Like, why I would need
    that? And also, high-capacity magazines, we want those gone,
    too. And also, my focus, I really want people from the Congress
    to focus on the youth from Black and Brown communities because
    that is often the elephant in the room that nobody wants to
    talk about, and their live are being taken away every single
    day. So, I think focusing on the entire spectrum of gun
    violence and not only mass shooting, but the shootings that
    happen every day in urban communities, are just as important.
        Senator Booker. And I guess that is what spoke to me a lot
    because I live in a community with a lot of--even though my
    incredible mayor has done a lot to lower the shootings in my
    city, we still have a lot of--I had one on my block just this
    year where someone was murdered with an assault weapon at the
    top of the hill where I live. And I appreciate your concerns
    about that, and your advocacy is extraordinary. And I think
    that for you and the other young people on this panel, you
    should know in many ways your voices can be more powerful than
    any adult. And I just really want to thank everybody, all three
    of you, for being there.
        Ms. Eastmond. Thank you.
        Senator Booker. Mr. Kramer, you said that generally you
    agree with me on criminal justice issues?
        Mr. Kramer. Yes.
        Senator Booker. That is all I wanted to hear.
        [Laughter.]
        Senator Booker. No, sir.
        Mr. Kramer. That is good enough for me.
        Senator Booker. Good enough for me as well. No, sir, the--
    can you just give me--I tried to make a point yesterday about
    the balance of power shifting in American law. I mean, we seem
    to have a right to a jury, but that seems to me, and I am not
    saying you should agree with me on this. I just want to hear
    your real opinion on it. It is really shifting dramatically
    because in a plea bargain, which is not really a fair bargain,
    but now prosecutors have a lot more of a--of a threat of
    jeopardy to offer--to offer that makes often people take a plea
    bargain because they are too afraid of going to trial. When
    they do go to trial, the chances for success are pretty low,
    and I know that public defenders often will let people know
    what the reality is. Is that shift in our American criminal
    justice system happening?
        Mr. Kramer. Senator Booker, that is a great question, and
    absolutely. I think you know the statistics. Over 97 percent of
    the cases in Federal court pleaded guilty last year, and
    similar statistics in State court, and I would not call it a
    ``plea bargain.'' I would call it a ``plea imposition.'' The
    terms are given. You take it. And you are absolutely right
    about mandatory minimum sentences skewing the power in the
    system. It is all in the prosecutor's hands.
        I have been around for a long time and seen a huge power
    shift as a result of sentencing guidelines, mandatory minimums,
    and just draconian sentences, especially of people of color. It
    has affected disproportionately. And so, yes, you are
    absolutely right, there has been a huge shift.
        Senator Booker. And that is the painful thing for me is, I
    see young kids getting caught up for drug crimes that kids in
    privileged communities. You know, I, too, went to Yale, I went
    to Stanford. Lots of drugs. Lots of drugs. I will not make any
    personal confessions right now, but lots of drugs.
        [Laughter.]
        Senator Booker. And so, here are kids getting charges for
    doing things that two of the last Presidents admitted to doing,
    and then they are presented with a plea. I have had young kids
    sit in my office and say, hey, look, I was terrified, facing 10
    years, stacked mandatory minimums. This guy told me I can get
    out right now, and then I end up with a--then I end up with a
    criminal conviction, but they do not realize that is a lifetime
    sentence.
        And so, I guess, just can you make this point for me, that
    this idea of a right to a jury trial, that is kind of being
    eroded in the United States of America. Would you agree with
    me?
        Mr. Kramer. I would call it a disappearing right, Senator
    Booker. And also, I think you are absolutely right, and since
    you did not make any confessions, I do not feel I have to make
    any either.
        [Laughter.]
        Senator Booker. You are good.
        Mr. Kramer. But you are right, there is--you are talking
    about the neighborhoods. There are tactics in various
    neighborhoods that if they were engaged in other neighborhoods
    in the cities or suburbs that would just be--they would not be
    tolerated by the population there, but because of a powerless
    population in the neighborhoods where it does occur. And so,
    you are right on both points about the tactics that occur in
    various neighborhoods, and you are absolutely right about the
    disappearance of the--of the jury trial.
        Senator Booker. Okay, thank you. My time has expired. I
    just want to say something to Mr. Christmas because I have
    met--Mr. Christmas and I know--have previous--we have met each
    other before. And I just want to testify to your character
    because it is a tough--you said something--he said something
    that was really--I think really important about the
    partisanship and the tribalism often, and how friendships are
    tested, that you were speaking to what you know of him as a
    friend, not as a judge, but as a friend, and I want to
    appreciate that.
        And I want to make an open offer for you because you
    stopped playing basketball because of your age. The Senate has
    a basketball game, and I promise you there are age-appropriate
    of us that can play, and you probably would be like Michael
    Jordan if you came and played amongst us.
        [Laughter.]
        Mr. Christmas. I will do my best.
        Senator Booker. All right. Thank you, sir.
        Chairman Grassley. We have two things left for this panel.
    Senator Kennedy, you want some time. And then Senator--well,
    now, we are going to have Senator Hirono, too. Go ahead,
    Senator Kennedy.
        Senator Kennedy. I had to step out for a few minutes, but I
    heard your testimony, each of you, and I just want to thank you
    for it. And I know you each spent a lot of time putting the
    testimony together. This stuff does not just write itself. I
    was--mentioned to the earlier panel, I enjoy this immensely. I
    learn a lot from listening to your different perspectives, and
    I just want to thank you.
        Chairman Grassley. Senator Hirono does not want to be
    recognized.
        Senator Hirono. Mr. Chairman, I have questions for the next
    panel----
        Chairman Grassley. Yes.
        Senator Hirono [continuing]. But I certainly thank this
    panel for being here.
        Chairman Grassley. Yes. Yes. I am--for courtesy to the
    Ranking Member, he wants to speak for a minute to some people
    on the panel.
        Senator Whitehouse. Yes, thank you very much, Chairman. I
    just wanted to make one point because there is so much
    discussion about mens rea, and I just wanted to provide what I
    see as some context for this. I have read Judge Kavanaugh's
    decisions on mens rea, which have focused so far on individual
    defendants, and very often individual defendants who faced very
    significant terms of incarceration. And I see no objection
    whatsoever in any of the decisions that I have read of his.
        I have also been at the center of the effort to try to
    negotiate a sentencing and reentry reform package, along with
    Senator Cornyn, Senator Grassley, and Senator Booker, and
    Senator Lee, and others. And as we did that, what began to pop
    up and what popped up through big industry-funded groups, was a
    late-arriving desire to reform mens rea. And the obvious motive
    for that is a group of offenses, a category of offenses, that
    are called ``public welfare offenses.''
        And those are offenses in which we say, particularly about
    a dangerous instrumentality, like a pollutant, or benzi, or
    dynamite, or something like that, that at some point if you are
    a big corporation and something really goes wrong--you spill
    your 10,000th barrel--that is a crime, and we do not care what
    your mens rea, what your degree of intent is. Your job as a big
    corporation that pollutes or has dangerous things is, to make
    sure that does not happen. That is why we put that marker out
    there. And it is a very well-established type of criminal
    conduct, is it not, Mr. Kramer?
        Mr. Kramer. Yes, absolutely. Public regulatory offenses
    like that, they are--there are a number of them, right, that
    have no mens rea requirement.
        Senator Whitehouse. And my worry, and I will just put this
    out, there is a marker, and this will be telling if it happens,
    is, if this body of precedent that Judge Kavanaugh is building
    up with respect to individual defendants who face significant
    terms of incarceration all of a sudden has a very big morph and
    suddenly becomes the basis for an attack on these public
    welfare offenses. I have seen that maneuver begin to happen in
    Congress, and if it starts to happen in the courts, to me, at
    least, that would be another telling sign of the big
    influencers and interests that operate so much of what happens
    in our court systems coming in to seize a prize. And I hope
    that we do not go there.
        Mr. Kramer. Did you want me to respond? If you want me to
    respond briefly, I do not want to----
        Senator Whitehouse. Go ahead and respond briefly.
        Mr. Kramer. The only thing I can say, and I know exactly
    what you are talking about, is that, Judge Kavanaugh, the
    opinions he has written are in cases that have a mens rea
    requirement, knowing, willfully. And I have never seen him
    write that it should be extended to public with--he is--in
    other words, he is going with the will of Congress and what
    Congress enacted. And I have never seen him take that step in
    an opinion----
        Senator Whitehouse. And I hope he never does.
        Mr. Kramer. Of a case--of a crime without a mens rea
    requirement.
        Chairman Grassley. Okay. Once again, even though I thanked
    you once, we know you go to a lot of work to do this for the
    people of this country and the Senate in the consideration of
    this nomination. Thank you very much, and you are dismissed.
        Before I introduce the next panel and swear the next panel,
    I want to take the opportunity to give appreciation from the
    Chairman of the Committee for all the staff work that goes into
    this. And I have been fortunate as a Senator to have an
    outstanding staff over many years, and I hope they know how
    much I appreciate them, both Committee staff and Personal
    Office.
        Before closing this hearing today, I would like to name
    staffers specifically assigned to work on this nomination
    hearing. Some are my permanent staff, led by Chief Counsel for
    Nominations Mike Davis, and including Lauren Mehler, Steve
    Kenney, Jessica Vu, and Katharine Willey.
        And then others are here only temporarily because we get
    additional resources when we have a Supreme Court nominee, so I
    want to name them and say thank you for their extraordinary
    work and commitment to public service. The special counsels
    added specifically for this Supreme Court nomination were led
    by Andrew Ferguson and included Tyler Badgley, Lucas Croslow,
    Colleen Ernst, Megan McGlynn, and Collin White. The law clerks
    were Camille Peeples, Abby Hollenstein, Tim Rodriguez, Dario
    Camacho, Elizabeth Donald, Bob Minchin, Nathan Williams, Sam
    Adkisson, Nick Gallagher, Michael Talent, Asher Perez, Garrett
    Ventry, as did Jacob Ramer as an intern.
        So I thank the legal team for their important part in the
    Senate's consideration of Judge Kavanaugh.
        I think before I introduce you, I would ask that you stand
    so I can swear you, please.
        [Witnesses are sworn in.]
        Chairman Grassley. Thank you all very much. I know a lot of
    you here, names I recognize, you are famous around town and
    famous in history, so I probably will not do justice to your
    introduction.
        Monica Mastal is a real estate agent in Washington, DC. She
    has known Judge Kavanaugh for 25 years.
        John Dean, who I have known not as a person but I have
    known since before I even got to Congress by his reputation,
    served as Richard Nixon's White House Counsel from 1970 to
    1973.
        And then, of course, famous lawyer Paul Clement is a
    partner of Kirkland & Ellis, served as Solicitor General of the
    United States 2005 to 2008 and has argued over 90 cases before
    the Supreme Court. Judge Kavanaugh and Mr. Clement clerked at
    the same time on the Supreme Court. Judge Kavanaugh clerked for
    Justice Kennedy--and the Justice's whose big shoes Judge
    Kavanaugh is nominated to fill--when Mr. Clement clerked for
    the late Justice Scalia.
        Professor Rebecca Ingber--I hope that is right--is an
    assistant professor of law, Boston University School of Law.
        Professor Adam White has had me on panels with an
    organization he is with, and he is also from Iowa, not right
    now from Iowa but was born in Dubuque, Iowa. By the way, I
    talked about you in my opening statement this morning.
    Professor Adam White is assistant professor at George Mason
    University Antonin Scalia Law School and is executive director
    of C. Boyden Gray Center for the Study of Administrative State.
    He is also a research fellow at the Hoover Institution and a
    member of the Administrative Conference of the United States.
    And I also had a chance to meet your parents about an hour ago,
    and they came out just especially for you.
        Professor Lisa Heinzerling, is that right? Is a Justice
    William J. Brennan, Jr., Professor of Law at Georgetown
    University Law Center.
        Professor Jennifer Mascott served as a law clerk for Judge
    Kavanaugh from 2006 to 2007 and went on to clerk for Justice
    Clarence Thomas, Supreme Court. She is an assistant professor
    of law at George Mason University Antonin Scalia Law School and
    is counsel to the law firm Consovoy McCarthy Park.
        Professor Peter Shane is the Jacob E. Davis and Jacob E.
    Davis II Chair in Law at the Ohio State University Moritz
    College of Law.
        So will you proceed, Ms. Mastal?

     STATEMENT OF MONICA MASTAL, REAL ESTATE AGENT, WASHINGTON, DC

        Ms. Mastal. Thank you, Mr. Chairman.
        Mr. Chairman Grassley, Ranking Member Whitehouse, and
    Members of the Senate Judiciary Committee, I am honored to be
    here today to address you in support of my friend and my
    daughter's favorite coach, the Honorable Brett Kavanaugh. My
    testimony today will not be from a legal perspective but from a
    personal and parental perspective. Consider it more about the
    person than the nominee.
        I have known Judge Kavanaugh for many years, but in recent
    years have seen him on a regular basis thanks to his position
    as the coach of the CYO girls fifth and sixth grade basketball
    team at Blessed Sacrament School. In our house, he is not known
    as Judge Kavanaugh but as Coach K. He was my daughter's coach
    for 2 years. Our first year, his daughter was in fourth grade
    and therefore ineligible for the team. He still coached. In my
    book, that alone qualifies him for sainthood.
        As a high school and college player, Coach K had the job
    prerequisite of basketball knowledge. More importantly,
    however, he had the other necessary attributes of patience,
    fairness, and diplomacy, and he had them in spades. Fairness
    with young players and opposing teams, patience with boisterous
    parents, and diplomacy with referees who are on their fifth
    game of the day and making some questionable calls.
        In the few hours a week of practices and games, Judge
    Kavanaugh teaches much more than the fundamentals of
    basketball. All of the other important concepts were there,
    too: teamwork, hard work, commitment, setting and achieving
    goals, and striving to be your best. It is an enormous task to
    communicate all of that to young girls in so little time, but
    his calm demeanor got the message across. No yelling or gavel
    was necessary.
        Of course, the Kavanaugh's contribution to our community
    extends beyond basketball. School auctions, food drives, and
    service projects are abundant at Blessed Sacrament, and Brett
    and Ashley are always there to participate.
        This leads me to another personal perspective: Brett is
    relatable to everyday Americans. In the public eye, Supreme
    Court Justices are strictly cerebral, ethical, humble, and
    courageous. He is all of those things, but I am one of the
    everyday Americans who sees him getting his children to
    practice, managing four games a weekend, serving as a lector at
    church, running on the high school track, and socializing with
    friends.
        As my final note today, I would like to read Coach
    Kavanaugh's ``final note'' to my daughter, from his end-of-the-
    season player evaluation. I share this with the utmost
    confidence that every player on the team received the same
    honest, appreciative, supportive, heartfelt, and confidence-
    building message. It stated: ``Thanks, Mary Grace. You are an
    excellent athlete and were a great contributor to the team. We
    loved your spirit and attitude. We really enjoyed coaching you
    and wish you all the best. We look forward to having you on the
    team next year. Keep up your great spirit, attitude, and work
    ethic and you will be a big success in all you do.'' It kind of
    makes me want to go back to fifth-grade basketball.
        Thank you for the opportunity to share this personal
    perspective. As the great UCLA basketball coach John Wooden
    said, ``Young people need models, not critics.'' I think this
    final note says it all as to the model Coach Kavanaugh has been
    to our children. I know the parents of his players feel as
    fortunate as I do that our girls had such a wonderful mentor.
    Through basketball, he taught them the skills they will need
    not only for a season, but for a lifetime.
        Thank you.
        [The prepared statement of Ms. Mastal appears as a
    submission for the record.]
        Chairman Grassley. Mr. Dean.

      STATEMENT OF JOHN W. DEAN, FORMER COUNSEL TO THE PRESIDENT,
         PRESIDENT RICHARD M. NIXON, BEVERLY HILLS, CALIFORNIA

        Mr. Dean. Mr. Chairman, Ranking Member, Members of the
    Committee, thank you for the invitation. In my allotted time, I
    would like to take a few points from the statement I have
    submitted for the record.
        I have made two overriding points in that submitted
    statement. First, if Judge Kavanaugh joins the Court, it will
    be the most Presidential-power-friendly court in the modern
    era. Republicans and conservatives only a few years ago, I know
    well, fought the expansion of Presidential power and Executive
    powers. That is no longer true.
        Judge Kavanaugh has a very broad view of Presidential
    powers. For example, he would have the Congress immunize
    sitting Presidents from both civil and criminal liability.
    Under Judge Kavanaugh's recommendation, if a President shot
    somebody in cold blood on Fifth Avenue, that President could
    not be prosecuted while in office. Also, it is not clear to me
    listening to the testimony that he really believes U.S. v.
    Nixon was correctly decided.
        A second general point from my submission, a very vital, I
    think, process point, Ranking Member Dianne Feinstein stated on
    the morning of September 4 just before the hearings opened that
    after participating in nine Supreme Court confirmations, it had
    never been so difficult to get access to background documents
    relating to a nominee as in the current proceedings.
    Unsuccessfully, the Minority sought to postpone these hearings
    until all the requested documents were provided. The Chair,
    however, declined to consider the motion that would make review
    possible.
        This Committee is deeply involved in the final phase of
    vetting Supreme Court nominees. Based on personal experiences
    with the confirmation, for example, of William Rehnquist and
    studying the confirmation of Clarence Thomas, it is clear there
    was an across-the-board failure to fully vet the nominees, and
    it has haunted their careers on the Court, it has hurt the
    Court and the American people. Because of the withholding of
    documents, Judge Kavanaugh may be traveling the same path as
    Rehnquist and Thomas.
        When writing a book that I did several years ago, ``The
    Rehnquist Choice,'' I explained how Rehnquist was selected by
    Nixon as one of the two--for two openings that occurred in
    1971. I also reported my sad discovery that Rehnquist had
    dissembled during his confirmation proceedings. He did,
    however, notwithstanding false statements, become an Associate
    Justice.
        When Ronald Reagan nominated him to be Chief Justice in
    1986, again, he was not vetted, and in those hearings he was
    confronted not only with his early false statements but new
    material that resulted in new false statements. All the Court
    historians that I have examined as well as Court scholars find
    clear and convincing evidence that Mr. Rehnquist lied in his
    two confirmation proceedings. This hurt him and it hurt the
    Court.
        Because Justice Thomas was not fully vetted, his career on
    the Court has been under a cloud as well. Justice Thomas'
    truthfulness vis-a-vis Professor Anita Hill's claims of sexual
    harassment have never been fully resolved, nor has the
    controversy ever ended. A definitive study of this controversy
    was undertaken in 1994 by journalists Jane Mayer and Jill
    Abramson, ``Strange Justice: The Selling of Clarence Thomas.''
    They found a preponderance of evidence that supported Anita
    Hill's claims. This controversy has received renewed attention
    with the #MeToo movement, which is growing stronger and it is
    not going to disappear. In fact, Justice Thomas' truthfulness
    is an issue in this year's midterm elections. A Democratic
    candidate in Massachusetts has made impeachment of Thomas for
    his false claims during his confirmation one of the planks of
    her campaign.
        In closing, Judge Kavanaugh's nomination has raised issues
    about the truthfulness of his confirmation to become a judge on
    the D.C. Circuit. His answers to this Committee have not
    resolved the issue. Frankly, I am surprised that Judge
    Kavanaugh is not demanding that every document that he has ever
    handled be reviewed by this Committee unless, of course, there
    is something to hide.
        Thank you.
        [The prepared statement of Mr. Dean appears as a submission
    for the record.]
        Chairman Grassley. Thank you, Mr. Dean.
        Now, Mr. Clement.

     STATEMENT OF HON. PAUL D. CLEMENT, PARTNER, KIRK-LAND & ELLIS
                   LLP, AND FORMER SOLICITOR GENERAL
           OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE,
                             WASHINGTON, DC

        Mr. Clement. Thank you, Chairman Grassley, Senator
    Whitehouse, and Members of the Committee. It is a great
    pleasure and honor to return to the Senate Judiciary Committee
    where I served as a staffer some two decades ago. It is an even
    greater pleasure and honor to be here today to testify in
    support of the confirmation of Judge Kavanaugh's nomination to
    the Supreme Court of the United States.
        Judge Kavanaugh and I first met some 25 years ago when we
    clerked at the Supreme Court together during the same term for
    different Justices. Although the law clerks were an impressive
    bunch, Brett immediately stood out. Unlike most of the rest of
    us whose legal experience consisted of a single appellate
    clerkship, Brett came to his Supreme Court clerkship with two
    clerkships under his belt already on the Ninth and Third
    Circuits, and he had also served as a Bristow Fellow in the
    Office of the Solicitor General, where he spent a year
    following the Court closely and working on briefs in opposition
    and other Supreme Court filings.
        As a result, while the rest of us were feeling our way
    rather blindly through the process of preparing our first pool
    memos and sorting through our first sets of briefs, Brett was
    already fully versed in the Court's certiorari criteria, rules,
    and even stood ready to handicap the likely quality of upcoming
    oral arguments by members of the Supreme Court bar. Brett
    quickly came to be seen by his fellow law clerks as a resource
    on everything from the minutia of Supreme Court practice to
    matters of high constitutional doctrine.
        But what really stood out about Brett was not just his
    knowledge of the Court and the law, but the undeniable fact
    that he was a well-rounded, likable, and unpretentious person.
    You expect a Supreme Court law clerk to have a first-rate legal
    mind. You do not necessarily expect a Supreme Court law clerk
    to have a sweet jump shot. I can tell you from firsthand
    experience that Brett had both. He was as comfortable talking
    about how to break a full-court press as he was discussing the
    Rooker-Feldman doctrine.
        For all these reasons, Brett was admired by fellow clerks
    from all chambers and across ideological lines. None of us was
    the least surprised to see him become the first of our ranks to
    argue a Supreme Court case and the first to become a Federal
    appellate court judge, beating out Justice Gorsuch by a nose.
        Judge Kavanaugh and I became friends during our clerkship
    year and have remained friends ever since. But I am not here
    today testifying out of friendship. Rather, I am testifying
    today because of what I have seen in observing Judge Kavanaugh
    in his over 12 years of service on the Federal appellate bench.
        By happenstance, I was in the courtroom to witness one of
    Judge Kavanaugh's first oral arguments as an appellate judge.
    He was incredibly well-prepared. He demonstrated a mastery of
    the record and asked penetrating questions of both sides. He
    carefully listened to the arguing attorneys' answers, as well
    as the questions emanating from his more seasoned colleagues.
    None of this surprised me, but I was struck by the fact that he
    was expressing this mastery of the record and a profound
    interest in the legal arguments in the context of a petition
    for review from a decision of the Federal Energy Regulatory
    Commission, or ``FERC.''
        Now, at least in my days as a law clerk on the D.C.
    Circuit, FERC cases were not among the most coveted by the law
    clerks or the judges. FERC cases were notoriously complex, with
    long administrative records filled with strange acronyms and
    doctrines unknown in other areas of the law. I feared for my
    friend Judge Kavanaugh that he would be saddled with the
    assignment of the FERC case while his more senior colleagues
    authored opinions in higher-profile cases addressing more
    readily accessible doctrines.
        While my fears were realized, I am quite sure that Judge
    Kavanaugh did not mind. As I have seen in the ensuing 12 years,
    he approaches every case with the same thorough approach,
    regardless to the amount in controversy, the degree of
    notoriety, or the agency involved. He recognizes that each case
    is the most important case for the clients and lawyers involved
    and treats each case accordingly.
        Let me close with just a few words about judicial
    temperament. The concept has been much discussed in the course
    of other judicial confirmation hearings, but the topic has
    received less attention in the course of these particular
    hearings because Judge Kavanaugh has so plainly demonstrated
    the requisite judicial temperament over his years on the D.C.
    Circuit.
        That said, I believe it is a mistake to think of judicial
    temperament as if it is a binary characteristic, something a
    judicial candidate either has or lacks. Instead, there are
    degrees of judicial temperament. And I am here to tell you,
    based on my own experience arguing in front of Judge Kavanaugh
    that Judge Kavanaugh has judicial temperament in spades. He is
    respectful of counsel in both his demeanor and in his level of
    preparation and engagement.
        Nothing is more discouraging to litigants or their clients
    than a cold or underprepared bench. There is no fear of that
    with Judge Kavanaugh. He understands that appellate cases are
    serious business for the parties involved and prepares
    accordingly. So I think based on my experience knowing him not
    just as a friend but also as a judicial officer, by any
    conventional measure, I believe he is enormously qualified to
    serve on the Nation's highest court. I am confident he will
    serve with distinction, and I urge you to vote for his
    confirmation.
        [The prepared statement of Mr. Clement appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Mr. Clement.
        Now, Professor Ingber.

    STATEMENT OF REBECCA INGBER, ASSOCIATE PROFESSOR OF LAW, BOSTON
            UNIVERSITY SCHOOL OF LAW, BOSTON, MASSACHUSETTS

        Professor Ingber. Thank you, Chairman Grassley, Ranking
    Member Whitehouse, and distinguished Committee Members. It is
    an honor to testify before you today.
        My name is Rebecca Ingber. I am an associate professor at
    the Boston University School of Law, and previously, I served
    in the State Department Office of the Legal Advisor, where I
    worked with colleagues at the Departments of Justice and
    Defense, in the intelligence community, and at the White House
    on matters involving international law and war and Executive
    power, so my testimony today will focus on Judge Kavanaugh's
    jurisprudence in these areas.
        Judge Kavanaugh has clearly had an exceptional career and
    has many obvious strengths, but I believe there are concerns
    his jurisprudence raises that should be addressed before final
    consideration of his nomination.
        In particular, and as I explore in more detail in my
    written remarks, Judge Kavanaugh's opinions reveal that he is
    exceedingly reluctant to impose checks on the President's
    powers in the national security sphere.
        Now, this is not an area where Judge Kavanaugh has merely
    followed precedent with his hands tied.
        To take one prominent example, in a case involving the
    President's authority over detainees at Guantanamo Bay, Judge
    Kavanaugh wrote an 87-page separate opinion to argue that the
    Court should not look to international law to inform the
    President's war powers, a position that is contrary to over two
    centuries of settled precedent. In fact, all three branches of
    Government have long looked to international law to define war
    powers over the entire course of this Nation's history. When
    Congress authorizes the President to use all necessary and
    appropriate force, it does so against the backdrop of that
    history.
        The Supreme Court has ratified this understanding
    repeatedly, including in opinions that look to international
    law both to read the President's powers expansively and to
    interpret the outer limits on those powers. They did just that
    in Hamdi v. Rumsfeld, which Justice Kennedy joined, which
    looked to international law to find that the 2001 statute
    authorizing the President to use military force also authorizes
    detention, as well as limits on that detention.
        Perhaps because these rules have always guided our
    understanding, international law is one of the only tools the
    courts and the political branches have for interpreting war
    powers. Thus, it is often the only limiting principle for
    interpreting the outer bounds of the President's wartime
    authorities.
        Now, I want to clarify a misconception about international
    law. These are not rules imposed on us by some outside source.
    The international laws of war, for example, are rules that we
    have affirmatively chosen to be bound by, specifically in
    wartime, and which the United States, including the U.S.
    military, has always played a principal role in shaping. These
    are rules that benefit our military, as well as all of us.
        These rules are so built into the national ethos that we
    may forget they derive from international law. For example, we
    know that it is unlawful for the President to kill families of
    terrorism suspects. Why? Because the international laws of war
    prohibit the targeting of civilians. And we have always
    interpreted the President's authority to wage war in light of
    those rules.
        If the Supreme Court were to adopt Judge Kavanaugh's
    position on this or other areas where he has invoked national
    security to dismiss the Court's role in checking the President,
    the result would be that the President could wield nearly
    unreviewable discretion when he invokes war or national
    security.
        For my time in Government, I know there is a great deal of
    thoughtful decisionmaking and robust process that happens
    inside the national security apparatus, but I also saw
    firsthand the importance of the Court's role in checking
    Presidential power, even when the President invokes war or
    national security. Mistakes happen. Bad decisions may come
    about through incompetence, through insufficiency of facts,
    exigency, and even, yes, through the intentional abuse of
    power. Even a robust process can lead to Presidential
    overreach. After all, the premise of the separation of powers
    is that each branch will seek to enhance its own authority and
    the other branches, including the courts, are there to impose
    limits.
        Moreover, while Judge Kavanaugh would have the courts defer
    broadly to the President in this area, the reality is that the
    executive branch looks to the courts to understand the
    parameters of its authority. When a judge defers broadly to the
    position that the Government takes in court, a position taken
    not under the best view of the law standard but rather that of
    a defensive litigant trying to win its case, the court's
    deference often has the result of a merits decision, and that
    becomes the law for the executive branch going forward. If the
    courts never----
        [Disturbance in the hearing room.]
        Professor Ingber. If the courts never push back on the
    Government's litigation positions, the result is a one-way
    ratchet of expanding Executive power.
        And because so much of executive branch decisionmaking in
    this realm happens in secret, accountability through public
    scrutiny alone is often insufficient. Judicial review is at
    times the only means of holding the President accountable.
        For these reasons, and those in my written testimony, I
    urge you to consider the dangers in a judicial approach that
    cedes to the President unreviewable discretion in this realm.
        Thank you for inviting me to testify today. I would be
    pleased to answer any questions the Committee has.
        [The prepared statement of Professor Ingber appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Professor.
        Now, Professor White.

     STATEMENT OF ADAM J. WHITE, PROFESSOR AND EXECUTIVE DIRECTOR,
     THE C. BOYDEN GRAY CENTER FOR THE STUDY OF THE ADMINISTRATIVE
       STATE, GEORGE MASON UNIVERSITY ANTONIN SCALIA LAW SCHOOL,
                          ARLINGTON, VIRGINIA

        Professor White. Thank you. Chairman Grassley, Ranking
    Member Whitehouse, Members of the Committee, thank you for
    inviting me to testify in support of Judge Kavanaugh's
    nomination.
        Chairman Grassley, as you very kindly mentioned, my first
    education in civics and history came from the teachers in
    Dubuque, Iowa, and the University of Iowa, so it is a real
    pleasure to be here today, a great honor to discuss Judge
    Kavanaugh's own deep appreciation for our Constitution and the
    rule of law, as exemplified by his 12 years of service on the
    D.C. Circuit, 300-plus judicial opinions, and a deep record of
    legal scholarship.
        His record is particularly impressive on questions of
    administrative law; that is, the body of law that governs
    administrative agencies and defines the agencies' relationships
    with Congress, with the courts, with the President, and with
    the people. In my longer written testimony, I focus on four
    important aspects of Judge Kavanaugh's approach to
    administrative law. Today, I would like to highlight two issues
    in particular.
        The first involves doctrines of judicial deference to
    administrative agencies' legal interpretations. Not long ago,
    skeptics of judicial deference were found primarily on the
    left. Now, increasingly, judicial deference also finds critics
    on the right. I would like to echo a lot of Professor Ingber's
    comments toward the end of her testimony on the inherent
    challenges and problems of excessive judicial deference to the
    executive branch, not just in matters of foreign policy and
    national security but also with respect to executive regulatory
    agencies.
        Throughout his time on the D.C. Circuit, Judge Kavanaugh
    has faithfully applied the Supreme Court's increasingly complex
    approach to judicial deference, including Chevron deference,
    especially in recent cases involving agencies claiming immense
    new regulatory powers under the guise of decades-old statutes.
        My second point today goes to the design of administrative
    agencies. From time to time, Congress has passed laws giving a
    certain degree of independence to the leadership of Federal
    regulatory commissions or to other officers by limiting the
    President's ability to fire those officers at will. Making
    officers independent from the President raises profound
    constitutional questions because, as Professor Amar explained
    this morning, the Constitution vests the President with
    Executive power. The Constitution obligates the President to
    take care that the laws are faithfully executed, and when you
    break that link of accountability between officers and the
    President, you undermine both of those constitutional
    commitments.
        So on the limited occasions where the Supreme Court has
    affirmed statutes giving regulatory commissions or other
    officers a measure of independence, it has done so carefully
    and subject to crucial limits. Judge Kavanaugh has followed
    those judicial precedents very carefully in cases where
    Congress improperly attempted to vest even greater independence
    in newly created regulatory agencies beyond the limits
    previously allowed by the Supreme Court. And this includes the
    PHH case, as Professor Amar noted this morning.
        In applying those Supreme Court precedents, Judge Kavanaugh
    has attracted criticism from those who would like to see
    administrative agencies be made even less accountable to the
    courts, the President, and the Congress. Now, in an era when
    agencies are often eager to enact policies that Congress has
    not legislated, some of Judge Kavanaugh's critics favor those
    energetic agencies over Congress. And in a system where an
    elected President might disagree with the policy preferences of
    an administrative agency, some of Judge Kavanaugh's critics
    favor making the agencies independent from the President rather
    than accountable to the President. And in an era when
    administrative agencies have been increasingly eager to impose
    unprecedented and immense regulatory programs despite the lack
    of clear legislative authorization, some of Judge Kavanaugh's
    critics favor judges becoming more deferential to agencies, not
    less.
        I think Judge Kavanaugh, in applying the Supreme Court's
    precedents under the Constitution, has the better of these
    arguments. His approach in my opinion is administrative law at
    its best, empowering agencies to administer the laws
    efficiently and effectively but always subject to the deeper
    fundamental commitments of our Constitution's structure and
    rights. For that reason, I hope that you will give your advice
    and consent to the appointment of Judge Kavanaugh to the
    Supreme Court.
        Thank you for this opportunity to testify.
        [The prepared statement of Professor White appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Professor White.
        Now, Professor Heinzerling.

    STATEMENT OF LISA HEINZERLING, JUSTICE WILLIAM J. BRENNAN, JR.,
    PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON,
                                   DC

        Professor Heinzerling. Thank you, Chairman Grassley.
        Chairman Grassley. Push the red button or whatever color
    the button is.
        Professor Heinzerling. Thank you, Chairman Grassley and
    Ranking Member Whitehouse, for inviting me to testify here
    today. My name is Lisa Heinzerling, and I am the Justice
    William J. Brennan, Jr., Professor of Law at Georgetown
    University. I will testify about Judge Kavanaugh's views on
    administrative law. They are somewhat different from the views
    we have just heard.
        Administrative agencies are at the heart of administrative
    law. These agencies are the institutions you know by their
    initials: the EPA, the FDA, the FTC, the FCC, and so on. They
    are the institutions that do the day-to-day work of Government,
    staffed by experts, created and set in motion by Congress, and
    subject to requirements of public input and reason-giving.
        Administrative agencies combine expertise, politics, and
    deliberation in a way other institutions do not. They are
    responsible for everything from addressing air pollution to
    enforcing rules against financial fraud. They are essential to
    the daily business of Government.
        Judge Kavanaugh would limit the ability of Congress to
    structure and empower administrative agencies to do this
    important work. He would eliminate Congress' power to provide
    agencies with some measure of independence from the President
    by protecting their top officials from being fired for
    political reasons. He would also erase Congress' power to give
    agencies legal authority to deal with the most important
    problems we face unless Congress speaks with precise and
    crystalline clarity. His opinions stating these views read as
    if they are addressed to the administrative agencies
    themselves, but make no mistake, Judge Kavanaugh's sights are
    trained on Congress and its power to structure and empower
    administrative agencies.
        Judge Kavanaugh believes that the basic problem with the
    structure of government today is that the President has too
    little power and that Congress has too much. Judge Kavanaugh
    believes that one of the constitutionally guaranteed powers of
    the President is the power to fire agency officials for any
    reason he deems sufficient, even where Congress has made a
    different choice. Yet longstanding Supreme Court precedent
    confirms Congress' constitutional power to create agencies that
    are relatively independent from the President. Judge
    Kavanaugh's approach to this precedent has been to treat it
    grudgingly and read it narrowly. Once on the Supreme Court,
    Judge Kavanaugh would be able to cast this precedent aside, and
    in doing so, restructure modern government.
        The result would be a super-powerful President, a
    diminished Congress, and a corrosion of the checking and
    balancing that the Constitution contemplates. Under Judge
    Kavanaugh's constitutional theory, the President would be able
    to exercise undiluted control over all of the administrative
    agencies. Ironically, Judge Kavanaugh has thus taken an
    instrument that is aimed at checking concentrated power--that
    is, the separation of powers--and turned it into an instrument
    calibrated to increase the power of the already most powerful
    person in the Government.
        Judge Kavanaugh also has a cramped view of Congress' power
    to delegate crucial jobs to administrative agencies. He has
    indicated that his preference would be to discard or
    drastically pare back longstanding precedent giving agencies
    deference when they interpret statutes that Congress has
    charged them with implementing. The result would be uncertainty
    and disruption as agencies, citizens, and courts adjusted to a
    wholly new approach to statutory interpretation.
        Even more damaging, however, is Judge Kavanaugh's view that
    Congress may not empower an agency to issue a major rule--that
    is, a rule that has great political and economic significance--
    without giving the agency a precise and crystal-clear
    instruction to that effect. This interpretive approach would
    perversely disable agencies in the very circumstances in which
    we need them the most. It would skew statutory interpretation
    against agencies' power to undertake protective regulatory
    programs that run counter to Judge Kavanaugh's own political
    preferences. And it demands a legislative clarity that Judge
    Kavanaugh himself has said is difficult to achieve.
        Worst of all, it is quite clear that Judge Kavanaugh would
    apply his strict new principle of interpretation only to
    affirmative regulatory initiatives and not to deregulation or
    failure to regulate. This is not a neutral principle.
        Judge Kavanaugh often says that his motivating force is the
    protection of individual liberty, but the liberty Judge
    Kavanaugh embraces is badly skewed and terribly small. It is
    the liberty of powerful groups to do their business unhindered
    by Government rather than the liberty that comes from
    meaningful Government protections against harmful human
    behavior. In the name of liberty, Judge Kavanaugh has rejected
    rules addressing toxic air pollution, climate change, workplace
    safety, and financial fraud without acknowledging that in such
    cases liberty sits on both side of the legal question. There is
    on one side the liberty of regulated groups to go about their
    business unimpeded by Federal law. There is on the other the
    liberty of the rest of us to go about our lives at home, at
    work, at school, and in our communities with the reasonable
    assurance that the Government has our back in protecting us
    against coming to harm at other people's hands.
        Thank you.
        [The prepared statement of Professor Heinzerling appears as
    a submission for the record.]
        Chairman Grassley. Thank you, Professor.
        Now, Professor Mascott.

    STATEMENT OF JENNIFER MASCOTT, FORMER LAW CLERK, AND ASSISTANT
                     PROFESSOR OF LAW, GEORGE MASON
       UNIVERSITY ANTONIN SCALIA LAW SCHOOL, ARLINGTON, VIRGINIA

        Professor Mascott. Mr. Chairman, Ranking Member Whitehouse,
    and Members of the Committee, thank you for the opportunity to
    testify today. I am honored to speak in support of my mentor
    and former boss, Judge Kavanaugh, and to share with you why I
    believe he would be an outstanding Supreme Court Justice. So my
    testimony will highlight three aspects of Judge Kavanaugh's
    character and judicial service: first, his commitment to
    mentorship and consideration of diverse perspectives; next, his
    fair-minded and careful consideration of legal questions; and
    then finally, his commitment to following the law, independent
    of personal policy preferences. These are qualities that I have
    witnessed firsthand as Judge Kavanaugh's law clerk and then as
    a student of his opinions over the years.
        I served as a law clerk to Judge Kavanaugh during his first
    year on the bench, and already at that time Judge Kavanaugh
    demonstrated a commitment to seeking out diverse perspectives.
    Our group of four clerks came from different parts of the
    country, had diverse racial backgrounds, grew up among distinct
    religious traditions, and graduated from ivy-league, as well as
    non-ivy-league law schools.
        Judge Kavanaugh's decision to hire our group of clerks
    showed his value for perspectives of people from different
    walks of life, and the Judge values hard work, achievement, and
    determination, not any specific pedigree.
        We routinely had lively discussions in the Judge's chambers
    as he prepared each month for oral arguments. The Judge
    encouraged us to ask tough questions of him as he prepared and
    to debate legal issues with him and with each other. The Judge
    wanted to hear and consider all sides of an issue, apply the
    law fairly, and help train us to bring more rigor and precision
    to our legal analysis, skills that have stayed with me
    throughout my career so far. And now, as a law professor, I
    view it as part of my job to pass along those skills to another
    generation of students.
        In addition to training us professionally, the Judge also
    mentored us on a more personal level. We had regular lunches
    with the Judge where we would discuss our families, our
    professional aspirations, sports. Judge and Mrs. Kavanaugh had
    us in their home for dinner during the holiday season, a
    tradition that continued for many years. And Judge Kavanaugh's
    devotion to training and mentoring female and male leaders in
    the legal professional does not conclude at the end of a
    clerkship in his chambers. He has remained a close mentor to
    me, providing advice at every major point in my career since
    the end of my clerkship more than 11 years ago.
        And Judge Kavanaugh also branches out to assist young
    lawyers far beyond the four corners of his clerk community. He
    presides over student moot court proceedings. He speaks to
    students associations and regularly teaches courses to students
    in law school campuses.
        Judge Kavanaugh's record of mentoring young lawyers and his
    practice of hiring law clerks with diverse life experiences
    demonstrate his commitment to giving back to the legal
    profession and show that he has an open mind. Judge Kavanaugh
    knows the impact that members of the judiciary can have on the
    legal profession, the state of the law, and individuals in the
    real world.
        Judges take an oath to decide cases according to the law
    and the Constitution, but care for people and the legal system
    in its entirety can make a jurist a more careful, modest, and
    thoughtful judge.
        Judge Kavanaugh's determination to consider all relevant
    issues and hear discussions from all sides also shows his
    humility and his commitment to equal justice under the law.
    During my clerkship, he approached each case with the same
    level of care, regardless of the identity of the litigants or
    the legal issues presented. He considered all relevant
    statutes, precedent, and history, and he was conscientious when
    writing his opinions. He would work through scores of drafts,
    wanting his opinions to be precise, clearly written, and
    accessible to litigants and the public.
        In the years since clerking for the Judge, I have become a
    professor who teaches and writes in the areas of administrative
    law and the constitutional separation of powers, and serving as
    a clerk for Judge Kavanaugh prepared me to analyze issues
    rigorously, write carefully, consider all sides of an issue.
        Judge Kavanaugh's fair application of the law, his
    mentorship of young lawyers, and his commitment to
    constitutional principles and an independent judiciary
    demonstrate I believe that he would be an excellent Supreme
    Court Justice, and I strongly support his confirmation.
        Thank you.
        [The prepared statement of Professor Mascott appears as a
    submission for the record.]
        Chairman Grassley. Professor Shane.
        Thank you, Professor Mascott.

    STATEMENT OF PETER M. SHANE, JACOB E. DAVIS AND JACOB E. DAVIS
     II CHAIR IN LAW, OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW,
                             COLUMBUS, OHIO

        Professor Shane. Thank you. Chairman Grassley, Senator
    Whitehouse, and distinguished Committee Members, thank you for
    the opportunity to address you today.
        This Committee's consideration of any potential Supreme
    Court Justice inevitably immerses you in profound
    constitutional issues. No issue before you now is more
    important than Judge Brett Kavanaugh's approach to questions of
    Presidential power and accountability. One straightforward
    constitutional principle frames any sound analysis of these
    questions. That principle is that no one, including the
    President, is above the law.
        My concern is that Judge Kavanaugh, both on and off the
    bench, has crusaded for an extreme interpretation of the
    President's constitutional powers that could effectively
    undermine a President's accountability to law and to this
    Congress. It is by no means the view historically associated
    with conservative constitutionalism.
        In the coming years, the Supreme Court may face a host of
    issues, testing the Justices' commitment to a Presidency
    subject to effective checks and balances. Some issues may arise
    because our President and some of his closest associates stand
    at the center of an ongoing investigation of an election
    campaign tainted by covert foreign involvement and multiple
    potential crimes. Some issues have already emerged because this
    President has refused to distance the performance of his public
    duties from those commercial activities that enrich his private
    fortunes. Let me list some of these questions for you.
        One is, whether a President is potentially liable for
    obstruction of justice if he, and I am quoting the statute,
    ``corruptly endeavors to influence, obstruct, or impede the due
    and proper administration of the law,'' unquote, to an official
    act. The President's lawyers say no, which is almost certainly
    both wrong and dangerous.
        Another is, whether a President may relieve himself of
    criminal liability through self-pardon, a power that President
    Trump has said he ``absolutely'' has.
        A third is, whether an incumbent President may be indicted
    while in office.
        A fourth issue is, whether Congress or a court may subpoena
    Presidential records and even Presidential testimony in
    connection with investigations into the 2016 campaign.
        A fifth is, whether a President is constitutionally
    entitled to personally direct the activities of all Federal
    criminal prosecutors, including Special Counsel Robert Mueller.
        With regard to the President's business dealings, a case is
    already underway concerning the President's attempt to exempt
    himself from the reach of the Constitution's Emoluments
    Clauses. The President takes the position that unless a payment
    is made to him personally for services rendered, the profits he
    pockets from foreign and State governments patronizing his
    properties are not the business of this Congress.
        I am fearful of Judge Kavanaugh refereeing these questions
    for three reasons: First, he explicitly adheres to the tenets
    of a theory of the Constitution called unitary executive
    theory. This extreme theory could give the President total
    control over the actions and decisions of any executive branch
    official. If it became law, Congress would be unable, for
    example, to enact statutory limits on a scope of Presidential
    supervisory power over an independent prosecutor. It is a
    theory subversive of effective checks and balances, which
    misreads our constitutional history and which the Supreme Court
    has so far wisely rejected.
        Second, Judge Kavanaugh's service in the George W. Bush
    White House coincided with that administration's advocacy of a
    host of dangerous and unprecedented claims for the reach of
    Presidential power. During his first 6 years in office,
    President Bush raised nearly 1,400 constitutional reservations
    regarding roughly 1,000 provisions of over 100 statutes, more
    than three times the total number of objections raised by his
    42 predecessors combined.
        After Judge Kavanaugh left his role as staff secretary, the
    pace of Bush signing statements slacked off. This fact raises
    the question to what degree Judge Kavanaugh was responsible for
    urging unfounded claims of Presidential power.
        Finally, while on the bench, Judge Kavanaugh has approached
    issues of Executive power with an advocate's agenda. His most
    important opinions on the D.C. Circuit rooted in unitary
    Executive theory appear in cases where the court had no need to
    reach constitutional issues at all. He has shown himself
    willing to craft constitutional doctrine from whole cloth in
    order to advance his pre-commitment to extreme Presidentialism.
        Our current President daily expresses his contempt for the
    democratic institutions and the rule of law. He believes that
    all three branches of Government, not to mention the press and
    the private sector, should heel to his personal command. He
    chafes at the Constitution's constraints on his power. Now is a
    dangerous moment to elevate to the Supreme Court any Justice
    who would weaken the President's accountability to law. I have
    elaborated on these points in my written testimony and would be
    happy to discuss them further in response to your questions.
        Thank you so much.
        [The prepared statement of Professor Shane appears as a
    submission for the record.]
        Chairman Grassley. Before I take my 5 minutes, I would like
    to, since this is--I am going to turn this over to Senator
    Kennedy to finish the meeting. He will moderate. But I thought
    I ought to, first of all, thank the whole panel for
    participating, and then I want to thank all my colleagues on
    the Committee, both Republican and Democrat, for their
    cooperation throughout these 4 days of hearings. And except for
    the first hour and 15 minutes on Tuesday, they all went very
    well.
        Senator Whitehouse. Even that went well.
        Chairman Grassley. In the end.
        Senator Kennedy. He is looking at you, Senator Whitehouse.
        [Laughter.]
        Chairman Grassley. So anyway, I do appreciate the
    cooperation that we have had for the last 31-and-a-half hours.
        My first question is to Professor Heinzerling and Professor
    Shane. This is not a question that I had my staff prepare, but
    both of you spoke very highly of the fear of Presidential power
    and what he thinks about that. So I am asking you more of a
    process question than a substance question.
        Is it because you fear having a voice like that on the
    Supreme Court under any conditions, or is it because you think
    that his being on the Supreme Court may make a majority,
    understanding the present eight members of the committee, that
    that would make a majority and make it more dangerous than just
    having one voice?
        Professor Heinzerling. I have been worried about
    Presidential power for decades and across administrations. And
    so it is not just the present moment, although the present
    moment does make me more fearful of Presidential power. It is
    striking, I will say--even having said that, I will say that
    there will be a clear five-Justice majority for what I consider
    to be quite extreme views about Presidential power.
        Chairman Grassley. And would you have anything to add,
    Professor Shane, to what she said?
        Professor Shane. My views would be very similar, and I
    would echo what Mr. Dean said, that I am worried about having
    the most Executive-power-indulgent Supreme Court since the end
    of World War II.
        Chairman Grassley. Okay. Professor White, I think you heard
    a question I asked the last panel. We have had people express
    their constitutional rights in demonstrating at this hearing.
    You have had my colleagues ask views about whether or not Judge
    Kavanaugh has any concern about people of less means, and you
    heard it specifically from people on the previous panel. So how
    do you feel his experience shows or does not show that he would
    take those concerns into mind?
        Professor White. Sure. Well, the challenge for any judge is
    to see the case at hand through the eyes of all parties to the
    case and those who are affected by the case. In administrative
    law, a real challenge--I teach it, and before that I practiced
    it, and a real challenge is to see administrative law through
    the eyes of those who are regulated as much as through the eyes
    of the regulator.
        It is easy to be a professor or to be a high-powered lawyer
    and see yourself as someday wielding the power of an agency,
    and, of course, you want to be independent, of course, you want
    the courts to defer to you. But knowing that regulatory power
    has significant impacts on not just big corporations but on
    landowners, homeowners, farmers, that is important as well.
        So when the Supreme Court in recent cases became more
    critical of the EPA's impositions on landowners, claiming
    authority to regulate wetlands, when Judge Kavanaugh took pause
    at the impacts the EPA's unprecedented program for greenhouse
    gas regulations could have on small businesses and churches
    that fell within the regulatory ambit the EPA was claiming,
    those too I think deserve to be part of this conversation about
    the impact of Government power on people without the means to
    fight back against it.
        Chairman Grassley. Thank you.
        And, Mr. Clement, since you appear so much before courts,
    and I guess I said 90 cases you have argued before the Supreme
    Court, tell me what type of a judge you see Judge Kavanaugh
    being during the times of oral arguments.
        Mr. Clement. Senator Grassley, I think he has been an
    exemplary judge on the bench. I think I would describe him as
    an active judge, but he actively questions both sides. I think
    as an active questioner he is going to fit right in, were he
    confirmed, to the Supreme Court. I think the Supreme Court
    right now is about the hottest bench that the Supreme Court has
    ever been. I think each of the last Justices that have been
    confirmed by this Committee have tended to ask more questions
    than the Justice they replaced.
        So I think he will fit right in to what he referred to as
    the Team of Nine, and I think from an advocate's perspective,
    that is what you want. You want somebody who is going to push
    you but is going to push your adversary in the argument and ask
    the hard questions of both sides, and I think that is what you
    would get--that is what you are already getting with Judge
    Kavanaugh on the D.C. Circuit, and I think that is what you
    would see on the Supreme Court of the United States.
        Chairman Grassley. Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        Mr. Dean, I do not know if you have been watching the
    hearings, but my take on what we have seen is that, for a
    number of very good reasons, including that Minnesota Law
    Review article in which Judge Kavanaugh expressed a policy
    desire that the President be immunized from law enforcement
    investigation, and the Kavanaugh comment that U.S. v. Nixon was
    wrongly decided, and the Georgetown Law Journal episode in
    which he was asked as a matter of law can a President be
    indicted and put up his hand ``no,'' with those who agreed that
    a President was beyond indictment, it was a very live issue
    through these hearings about whether the President could
    properly be the subject of an ongoing criminal investigation.
    Of course, we know that this President is the subject of an
    ongoing criminal investigation, and we further know a separate
    criminal investigation in which this President has been
    identified as a named director of the criminal activity.
        So in that circumstance, what I heard over and over was
    Judge Kavanaugh citing his assertion that U.S. v. Nixon was one
    of his top four cases. And all other facts being equal you
    would say, okay, these other things do not matter very much.
    But since he said U.S. v. Nixon was one of his top four cases,
    then obviously that will overwhelm all these other things and
    we can count on him to do the right thing.
        But a little bell kept ringing in my mind, because whenever
    he said that, he seemed to just drop in very quietly that it
    was a trial court subpoena in U.S. v. Nixon. He never raised
    that point. He never said this would be very different and
    separated the two arguments. But it strikes me that if his
    famous top-four U.S. v. Nixon decision is limited to a trial
    court subpoena and does not protect the ability of law
    enforcement to proceed through, for instance, a grand jury
    subpoena, he played a little game with us to try to have the
    best of both worlds, to reserve a little escape hatch for
    himself to be able to shut down, for instance, the Mueller
    investigation or the Southern District of New York
    investigation subpoenas while still purporting to uphold U.S.
    v. Nixon as a big favorite decision of his. Would you respond
    to that?
        Mr. Dean. I would agree with your analysis. And as I said
    in my opening statement, I was not clear at all that he had
    reversed his position on U.S. v. Nixon when he said that he was
    not sure it was properly decided.
        He also used it in the 2016 Law Journal article, along with
    Marbury v. Madison, Youngstown, and Brown v. Board of
    Education, in the context of a judge needing a backbone. He did
    not say it was rightly decided, and he repeated that several
    times during the hearings.
        So, I do not think he has informed this Committee of his
    real position on that very important case.
        Senator Whitehouse. Yes, and actually through a rather
    clever subterfuge, which I think is a shame, if that is the
    case. We will pursue the question further.
        Ms. Heinzerling, you have made some powerful statements
    today, perhaps the best of which was that there is liberty on
    both sides of the regulatory equation. As you know, we usually
    see in politics the polluter big-money side heavily engaged,
    and then good luck to the individual victim, like Hunter
    Lachance here earlier with his asthma, and we very often see
    phony-baloney studies that are put together that look at the
    cost/benefit of regulation, but only look at the cost to the
    polluter, to the regulated industry, and totally omit what
    happens on the other side.
        Could you speak a little bit more about the liberty side of
    the beneficiary of the regulation and how they stand up on the
    political side in terms of the balance of political power on
    this question?
        Senator Kennedy [presiding]. If you could give us about 30
    seconds, Professor.
        Professor Heinzerling. Yes, I would be happy to.
        The laws that engage the administrative agencies in
    protecting against the kind of harm I mentioned range across a
    very broad area, and the people who are protected by those
    rules are the ones who are left unprotected when Judge
    Kavanaugh says that Congress has no authority to grant that
    broad a power or to give the power, for example, to an
    independent agency. And we do not hear about that in his
    opinions at all. We only hear about the liberty of the
    regulated group.
        So I wonder to what extent he thinks about the people on
    the other side. And if you think about it and you think about
    the witnesses who were on the panel before this one, it is
    basic things like going outside, being able to go to school on
    certain days and so forth. Those are basic elements of liberty
    that I think weigh just as heavily in the legal equation.
        Senator Whitehouse. Or ought to.
        Professor Heinzerling. Yes.
        Senator Kennedy. Thank you. Thank you, Professor.
        Senator Coons.
        My order says Coons and then Klobuchar.
        Senator Whitehouse. We have Klobuchar, Coons, Hirono, and
    Blumenthal as our order.
        Senator Kennedy. Well, I would never argue with you,
    Senator.
        [Laughter.]
        Senator Kennedy. Senator Klobuchar.
        Senator Whitehouse. In that case, let's talk about some
    things.
        [Laughter.]
        Senator Kennedy. Okay.
        Senator Klobuchar. All right. Thank you very much.
        Thank you to all of you. I think I will sort of start where
    we were ending over there.
        I spoke, of course, in my questions with Judge Kavanaugh at
    length about the 2009 article in the Minnesota Law Review,
    given it is from my State, in which he argued that a President
    should not be subject to investigations while in office. Judge
    Kavanaugh actually, Mr. Dean, suggested that Congress can
    always impeach the President if there is evidence of
    wrongdoing, because I asked similar questions that you raised
    in your testimony: Well, what if she committed a murder, the
    President? What if she did this? And he has a differentiating
    word of a ``dastardly'' crime, which I did not get to the
    bottom of, really. But then also said that, well, you can
    always impeach the President.
        And one of the questions that I asked was, well, in the
    modern day, these investigations have been done not by Congress
    but with the special counsel, the independent counsel. And
    could you talk about the difficulty, if we do not actually have
    an ability to have an investigation, in terms of an impeachment
    proceeding?
        Mr. Dean. I was one who believed very strongly in the
    independent counsel law. I think that was when Congress did
    express itself that indeed a sitting President could be
    investigated, and that withstood several tests on its
    constitutionality.
        We are currently, with the expiration of the sunset clause
    of the independent counsel law, putting an end to that. We now
    do it through the regulations of the Department of Justice, and
    there are certainly no restrictions other than a policy right
    now at the Department of Justice that prohibits investigation
    of a President.
        The history of that policy, people seem to forget why it
    was written. It happened in 1973 when a Vice President was
    under investigation by a Maryland grand jury and defending
    himself by saying you cannot indict me, you can only impeach
    me. An opinion was requested of Office of Legal Counsel, and
    they concluded, and I think it was a predetermined solution to
    a problem, that indeed the Vice President could be indicted but
    the President could not be indicted, and that policy has stood
    since then.
        Senator Klobuchar. And you have previously drawn parallels
    between Watergate and where we are today. How important was the
    independence of the Federal judiciary in helping our country to
    weather the Watergate scandal? Just really quickly because I
    have one other question.
        Mr. Dean. It was vital. Let me put it that way.
        Senator Klobuchar. Okay. I would assume that it was.
        Professor Heinzerling, thank you for being here. I had
    asked Judge Kavanaugh about how the White House noted that he
    has overturned agency action 75 times. When they announced his
    nomination, they said he was a leader in overturning these
    agency decisions. And when I asked him about it, he responded
    to me by stating that he has also ruled in favor of agencies at
    times.
        What did you think of his response, and how do you view his
    record in this area of law overall?
        Professor Heinzerling. It would be astonishing if he ruled
    against the agency in every case. That would be a sign of
    something seriously amiss. So if there is a handful of cases--I
    think he may have mentioned about six cases, something like
    that, in which he ruled in favor of environmentalists. I think
    most of them were not brought by environmentalists. But if
    there were a handful of cases, there would be nothing
    surprising about that, and also nothing about it that would
    indicate that he was evenhanded, quite frankly, about the
    environment.
        He has issued a number of major decisions narrowing the
    environmental laws, requiring a cost/benefit balancing in the
    face of either clear or arguably ambiguous language, and he has
    forwarded this message from case after case in the big cases.
    In the little easy cases, it is no surprise if an agency might
    win some of them, or if the environmentalists might win some of
    them if it is an easy case on a procedural matter. But in the
    big cases, the big environmental cases, he has been all on the
    other side. And I will just say, the Supreme Court only takes
    big cases.
        Senator Klobuchar. Thank you very much.
        Senator Kennedy. Senator Crapo, you are not interested in
    asking questions? Okay.
        Senator Coons.
        Senator Coons. Thank you, Senator Kennedy.
        I would like to ask unanimous consent to enter into the
    record a report on the nomination of Judge Kavanaugh by the
    Lawyers Committee for Civil Rights Under Law, and by the NAACP
    Legal Defense and Educational Fund.
        Senator Kennedy. Without objection.
        [The information appears as submissions for the record.]
        Senator Coons. Mr. Dean, thank you for your written
    testimony and for appearing before us today. You alone in this
    panel have the unique historical experience that I think is
    directly relevant to the question of what happens when
    Presidential power is unchecked and the President is not
    accountable.
        Based on your experience, what are the dangers of a
    Presidency that does not face strong checks in the Supreme
    Court and Congress? And what would have happened in Watergate
    if President Nixon had been able to avoid compliance with a
    subpoena or if he had been able to fire the special prosecutor
    without some consequential response by Congress?
        Mr. Dean. Well, of course, when he fired the special
    prosecutor, he reacted to the negative publicity it had
    generated and the interest of Congress suddenly in impeachment.
    So he thought he could possibly stem that tide by bringing a
    new, he thought initially, favorable and maybe not as
    aggressive investigation with the appointment of Leon Jaworski.
    The second special prosecutor, however, was equally as
    effective as the original one, Archibald Cox, which I do not
    think the White House had anticipated.
        As far as the courts and the rulings, we would have had a
    very different history had the Supreme Court not dealt with the
    tapes case as they did. It would have resulted in Nixon
    surviving. Without the tapes, it was my word against his, and
    in the polling, while I was out-polling him at times, it was
    not enough to resolve the problem.
        Senator Coons. So without the smoking gun, which was made
    possible by the Supreme Court's decision in U.S. v. Nixon,
    Presidential accountability might not have occurred. We might
    not really know what role the President had played, and we
    might not have avoided the constitutional crisis of confidence,
    and we might not have removed a criminal President.
        Professor Shane, I questioned Judge Kavanaugh fairly
    aggressively on his view of the scope of Presidential
    authority. Based on his writings, his speeches, his opinions as
    a judge, I am concerned he has a view of Presidential power
    that is dangerously unbounded.
        You have had a chance to review his work. Do you share my
    concerns? And what do you make of his enthusiastic and repeated
    embrace of Scalia's dissent in Morrison?
        Professor Shane. There is a lot to that question, Senator,
    so I will try to keep it brief.
        What most concerns me about Judge Kavanaugh's position is
    not just that he has embraced the tenets of the unitary
    executive theory but that he has gone to such lengths to try to
    create a kind of legal foundation for it in the D.C. Circuit in
    cases that had nothing to do with unitary executive theory.
        There was much discussion during Mr. Olson's panel about
    the case of Morrison v. Olson, and Judge Kavanaugh, of course,
    has famously said that he would like to put the final nail in
    that case. But in the PHH case that was being discussed--this
    was a case that the D.C. Circuit unanimously resolved on purely
    statutory grounds--Judge Kavanaugh saw fit to write an
    extensive opinion for the panel on the constitutional issue
    that later got overturned en banc. The opinion he issued for
    the panel pulled out of thin air this completely unmoored
    theory about why a single-headed independent agency was
    unconstitutional. It was full of arguments that would be
    perfectly fine for Congress to entertain as a matter of policy,
    but they had nothing to do with the Constitution.
        With regard to Morrison v. Olson, it is still good law in
    the Supreme Court that independent agencies are constitutional.
    Whether they are a good or a bad idea is up to Congress, which
    has the power to make all laws necessary and proper not only
    for carrying into execution the powers of Congress but the
    powers of all officers and offices of the United States
    Government.
        Senator Coons. Thank you, Professor.
        If I might, a last question to Professor Heinzerling. Since
    we went around and around about this several times, Judge
    Kavanaugh and myself, in trying to explain his reliance on or
    his interest in, or I would say his fixation with Scalia's
    dissent in Morrison, Judge Kavanaugh tried to describe it as a
    sort of one-off case about a now-expired independent counsel
    statute, and I kept coming back to this dissent in PHH which
    Professor Shane was just referencing.
        Do you think that dissent lays out the unitary executive
    theory and displays some significant enthusiasm for it that is
    a well-founded justification for my having concerns about Judge
    Kavanaugh's views on Presidential power?
        Professor Heinzerling. Absolutely.
        Senator Kennedy. Professor, just to be fair to everybody,
    if you could give us about 30 seconds?
        Professor Heinzerling. Yes. Absolutely, yes. He would have
    struck down a major Federal statute that was very new that set
    up the Consumer Financial Protection Bureau in which Congress
    had made a judgment about the degree of independence and the
    structure of the agency that was necessary in order to
    counterbalance the power of the financial industry, and he
    wrote a dissent from an en banc denial in that case. So, yes,
    absolutely, you are right to be concerned.
        Senator Coons. I would like to thank the whole panel and
    just conclude by pointing out that the reason I raised these
    concerns in pressing Judge Kavanaugh was that it is exactly his
    quotes about U.S. v. Nixon, his enthusiasm for the dissent in
    Morrison, his dissent in PHH, that leads me to still have
    concerns that he would not hold the President accountable to an
    investigation tied to a subpoena or to testimony in a way that
    we need in our current environment.
        Thank you, Mr. Chairman.
        Senator Kennedy. Senator Hirono.
        Thank you, Senator.
        Senator Hirono. Thank you, Mr. Chairman.
        Welcome to the panelists.
        Mr. Dean, in your written statement you explain that if
    Judge Kavanaugh is confirmed, we will have the most pro-
    Presidential-powers Supreme Court in the modern era. Most
    recently in Trump v. Hawaii, the Court upheld the President's
    basically bald assertion of national security as a way to
    sustain his Muslim ban. At least one Justice, Justice
    Sotomayor, said that she saw parallels to Korematsu. So that is
    already pretty far down the road as far as Presidential power.
        So what current controversies do you think might come
    before this Court that you have serious concerns as to how
    Judge Kavanaugh, if he gets on the Court, will support the
    President?
        Mr. Dean. In answer to your question, I must say that one
    of the things I did before I came to Washington was talk to
    some academic friends that I think know an awful lot about
    Presidential powers, the people I turn to with whom I have
    discussed these things at great length. They cited that case as
    one of the examples of how things quickly are slipping out of
    bounds and where we are headed.
        The fact that we have a President who is unchecked right
    now by other branches makes it particularly timely to be
    worried afresh given the Kavanaugh positions on so many cases
    that would enhance Presidential power. I could see him as the
    leader of the 5-to-4 that would enhance Presidential powers.
        Senator Hirono. And he did not respond affirmatively to any
    questions as to whether he would recuse himself should these
    kind of questions come before this Supreme Court.
        Mr. Dean. Exactly.
        Senator Hirono. Professor Heinzerling, I found your
    testimony really interesting because in my review of Judge
    Kavanaugh's decisions there are various patterns, and I do
    think he creates some new, novel ways to decide agency action
    cases, for example. When Judge Gorsuch came before us, there
    were a lot of questions regarding what we would call, ``the
    frozen trucker case,'' in which Judge Gorsuch, in my view, his
    decision or dissent was just outrageous and defied common
    sense. I would look at the SeaWorld of Florida case as Judge
    Kavanaugh's frozen trucker case.
        Are you familiar with----
        Professor Heinzerling. Yes, yes.
        Senator Hirono. So do you think that this is an example of
    how far Judge Kavanaugh would go to protect the corporate
    interest over an individual?
        Professor Heinzerling. Yes, I do. Thank you for that
    question. In SeaWorld, he took a clear statute, a statute that
    really fit the situation like a glove, and held that it did not
    fit that situation because he could imagine that the single
    enforcement action based on a single day at a single amusement
    park might be deployed, that theory might be deployed to rule
    out tackles in football, and that cannot be what Congress
    meant.
        And so he took clear language about assuring a reasonable
    workplace against recognized harms that were avoidable and that
    the agency had held in an evidentiary hearing all of those
    circumstances were met in that case, and he said no. In
    dissent, he said no, I do not believe this is covered by the
    statute because I cannot believe Congress meant to rule out
    tackles in football.
        That was not what the case was about, and it was
    absolutely, in my opinion, a departure from both the language
    of the statute and the interpretation by the agency, and common
    sense.
        Senator Hirono. I think there is a pattern of that kind of
    decisionmaking by Judge Kavanaugh. Let me cite a couple of
    other examples.
        Standing is one of the threshold issues. If you do not have
    standing, you are out of court. So, for example, in Public
    Citizen v. National Highway Traffic Safety Administration,
    there was a public interest group challenging the adequacy of
    tire safety standards because they thought that this may
    increase the risk of harm, and he found that that was way too
    speculative an interest to articulate, so this public interest
    group was out.
        On the other hand, in Grocery Manufacturers Association v.
    EPA, where the grocery manufacturers' food processing people
    challenged EPA action saying what you are making us do might
    increase prices for them and that would just be too much, he
    said that was not just speculative. So when a business interest
    comes forward and says this is going to cost us money maybe,
    but when a public interest group comes out and says this is
    going to harm people, he finds that too speculative.
        Have you seen this kind of pattern in his decisionmaking?
        Professor Heinzerling. Yes, and I will say this is a
    pattern I think across standing cases, where the courts have,
    in my opinion, wrongly made it very difficult for public
    interest groups and particular groups like environmental groups
    to come to court to complain about violations of Federal law,
    and they make it very easy for business groups to do that. So
    that is a very, in some ways, subtle way of loading the dice
    against the public interest groups that we have been talking
    about.
        Senator Hirono. The Roberts Court is already heading
    toward--they are much more oriented toward protecting corporate
    interests over individual rights. We do not need another
    Justice going in that direction.
        Thank you, Mr. Chairman.
        Senator Kennedy. Thank you, Senator.
        Senator Blumenthal.
        Senator Blumenthal. Thank you, Senator Kennedy.
        Welcome to you all, and thank you for being here. I know
    some of you have come from a far distance, but you recognize,
    as we do, the importance of this decision for us.
        I want to begin by perhaps asking Mr. Dean a couple of
    questions.
        Sir, when you came forward, which was before the United
    States v. Nixon case, you did not write an anonymous op-ed, did
    you?
        Mr. Dean. No, I did not.
        Senator Blumenthal. You came forward----
        Mr. Dean. Actually, I did send--my only discussion with the
    media was having my secretary read a quickly dictated line to
    get to my superiors that they were making a mistake if they
    were going to make me the scapegoat of their activities.
        Senator Blumenthal. In effect, you announced to the world
    what you were going to do.
        Mr. Dean. I did.
        Senator Blumenthal. And to your superiors.
        Mr. Dean. Yes.
        Senator Blumenthal. And the result was a bombshell.
        Mr. Dean. Yes.
        Senator Blumenthal. And the United States v. Nixon case
    produced evidence that corroborated the evidence that you had
    provided. Correct?
        Mr. Dean. Well, I had testified that I believed I had been
    recorded. That prompted the Senate staff to ask Mr. Butterfield
    if that was possible. He said it is very possible and very
    likely. The Special Counsel filed immediately for those tapes.
    The tape cases and the fight in the Court started. The whole
    dynamics of Watergate changed and it became all about obtaining
    the tapes and whether they would corroborate or not my
    testimony.
        Senator Blumenthal. And I can remember vividly the picture
    of Alexander Butterfield revealing those tapes, and it was also
    a bombshell. Correct?
        Mr. Dean. July 16th, 1973. It was.
        Senator Blumenthal. And we could go through the history
    here, but where I am going with my point is that it was not
    just, or maybe even primarily, the United States Supreme Court
    in United States v. Nixon. It was a number of individuals who
    had the backbone and guts to come forward, whatever motives at
    the time, and speak that truth to power. Correct?
        Mr. Dean. Yes.
        Senator Blumenthal. So we tend here to talk about the law,
    about U.S. v. Nixon, about a unitary President, about all kinds
    of concepts that mean little to the American people, but we are
    talking about basic courage to stop a constitutional crisis.
        Mr. Dean. The system is important to those who do want to
    rely on it.
        Senator Blumenthal. There is now arguably a cancer on the
    Presidency as malignant and metastasizing as there was then.
    Correct?
        Mr. Dean. Yes, I would agree with that.
        Senator Blumenthal. And the only way to really stop it is
    not by relying on laws alone but on people respecting the laws,
    taking acts of personal courage, and coming forward to speak
    that truth to power. Would you agree?
        Mr. Dean. Even with anonymous op-eds.
        Senator Blumenthal. Even with anonymous op-eds, which could
    lead others to come forward----
        Mr. Dean. Yes.
        Senator Blumenthal [continuing]. Non-anonymously.
        Mr. Dean. Yes.
        Senator Blumenthal. But cases are not built on anonymous
    sources. Eventually, there have to be witnesses willing to
    testify----
        Mr. Dean. True.
        Senator Blumenthal [continuing]. And speak that truth to
    power. You have said that your belief is that President Trump
    would never resign because he--I am going to paraphrase--is
    shameless. I think you said something like that.
        Mr. Dean. Yes.
        Senator Blumenthal. Would you give us, in your view, your
    analysis, knowing Richard Nixon as you did, the reasons why he
    resigned? I suspect it had something to do with the fact that
    he saw impeachment coming and he was told by Hugh Scott and
    Everett Dirksen that he lacked the votes in the Senate to avoid
    conviction. But let me ask you your----
        Mr. Dean. It was very much the fact that he was going to
    lose in an impeachment battle, that the House would impeach and
    the Senate would find him guilty and remove. That appeared to
    be the case. But I think also Richard Nixon had done something
    that made it very awkward for him. He had pulled people aside
    and told them a falsehood that he had had nothing to do with
    the cover-up until I had told him about it, which was a flat-
    out lie, and he had been caught in that by the release of the
    so-called smoking-gun tape. But even more basically, I think he
    left because the man at his core had a respect for the rule of
    law. That is one of the differences I find today in Mr. Trump
    and the reason I do not think he would resign. He could care
    less about the rule of law.
        Senator Kennedy. Thank you. If you could begin to wrap up.
    Yes sir, Senator, one more.
        Senator Blumenthal. Ultimately, also it was those
    Republicans in the United States Senate who delivered the
    message, ``We won't stand for it.''
        Mr. Dean. That is correct.
        Senator Blumenthal. Thank you.
        Senator Kennedy. Okay. Thank you.
        I am going to ask a few questions. I would love to be able
    to ask all of you questions. I just do not know if I have time.
        Let me start with Ms. Mastal. Did I say your name----
        Ms. Mastal. Yes, that is correct.
        Senator Kennedy. I am going to be sure I understand. Judge
    Kavanaugh coached your daughter?
        Ms. Mastal. Yes.
        Senator Kennedy. And his daughter was not on the team at
    that time?
        Ms. Mastal. Correct.
        Senator Kennedy. And when he finished coaching the kids, at
    the end of the season he wrote them all personal notes?
        Ms. Mastal. Yes, a detailed evaluation of things to work
    on, things you did well, and then the final note, which is what
    I read.
        Senator Kennedy. Does he generally do that for his teams,
    or do you know?
        Ms. Mastal. I think he does it for everybody on the team
    for every team he has coached.
        Senator Kennedy. Okay. I want to switch gears. I think I
    heard Professor White and--is it Professor ``Henserling''?
        Professor Heinzerling. ``Heinzerling.''
        Senator Kennedy. ``Heinzerling.'' My apologies. Talk a
    little bit about a transfer of power from Congress to the
    President, and thinking of it in terms of the Chevron doctrine.
    I would like you to each quickly help me out on this.
        Here is my problem with the Chevron deference: I just do
    not understand how it is constitutional, and here is why. I
    look at the APA, which, of course, Congress passed, and
    Congress says this is the law. The reviewing court, not the
    agency, the reviewing court shall decide all relevant questions
    of the law, interpret constitutional and statutory provisions,
    and determine the meaning or applicability of the terms of an
    agency action. That is a statute, 5 USC Section 706, as I am
    sure both of you know better than I do.
        So how can the courts construe that congressional directive
    as giving the power to an agency? I mean, that was clearly not
    Congress' intent.
        Could you each give me about 30 seconds on that?
        Professor Heinzerling. This is a great question, and it is
    a puzzle in administrative law a little bit. The text of the
    Administrative Procedure Act says what you say it says, and it
    has been sort of hidden from view, in a way, for a number of
    years.
        But I think the answer would be that even where a court
    defers to an administrative agency on the interpretation it is
    offering, it is still making the legal judgments, the relevant
    legal judgments. It is deciding, in the first instance, is the
    statute so clear that it should not defer at all? And in the
    second instance, even if the statute is not clear, it is making
    the judgment about whether that interpretation is permissible.
        Senator Kennedy. Not to interrupt you, but I have to keep
    us on schedule.
        Professor Heinzerling. That is fine.
        Senator Kennedy. So you think that Chevron deference is
    unconstitutional here?
        Professor Heinzerling. No, I think it is consistent with
    the language of the Administrative Procedure Act. I do not
    think it is unconstitutional, no.
        Senator Kennedy. Okay.
        Professor White.
        Professor White. One of the interesting things about
    Chevron and its relatively short history is that you had
    critics and proponents on both sides of the aisle. The most
    eloquent case for Chevron's constitutionality and propriety
    came from Justice Scalia in a 1989 Duke Law Journal article.
        That said, there has been an increasing awareness, I think,
    on both sides that in the biggest cases, Chevron deference
    illustrates either a delegation of judicial power to an agency,
    or it respects a delegation of legislative power to an agency.
    That is why you see, I think most recently in the King v.
    Burwell case, where Chief Justice Roberts, with Justices----
        Senator Kennedy. I have to stop you----
        Professor White. I was going to say with Ginsburg, Breyer,
    and others, set aside Chevron.
        Senator Kennedy. Okay. I got it. You have helped me a lot
    there.
        Professor ``Mascott''--did I say it correctly?
        Professor Mascott. Yes, Senator.
        Senator Kennedy. Did you ever see Judge Kavanaugh take
    politics into consideration in deciding a case?
        Professor Mascott. No. Judge Kavanaugh spent his time
    learning the record inside out, looking at the law, statutes,
    and principles.
        Senator Kennedy. But you were with him a year?
        Professor Mascott. Yes, sir.
        Senator Kennedy. You never saw him take politics----
        Professor Mascott. No.
        Senator Kennedy. Ever.
        Professor Mascott. No.
        Senator Kennedy. Not once.
        Professor Mascott. No.
        Senator Kennedy. Okay, fair enough.
        Mr. Clement, should the Supreme Court televise oral
    arguments?
        Mr. Clement. Well, that is an excellent question.
        Senator Kennedy. We have 42 seconds.
        Mr. Clement. Sure. I think that that is an excellent
    question. It is a question that the Justices are ultimately
    going to have to answer at some point, unless Congress forces
    their hands by passing a statute, and then there will be a very
    interesting question whether that statute is constitutional.
        My own view, for what it is worth, is that televising
    Supreme Court arguments makes an awful lot of sense. It is one
    of the odd realities that everybody seems to think that, until
    they become a Supreme Court Justice, and then they tend to have
    a different view.
        But as I sit here as a Supreme Court advocate, I honestly
    do not see a particularly compelling argument why the public
    should not get to see the proceedings televised. And I think if
    they did, they would have a very high opinion of the Supreme
    Court of the United States.
        Senator Kennedy. Well, I appreciate that. You are a hell of
    a lawyer.
        All right. I let Senator Hirono go over, so I am going to
    go over 20 seconds.
        Mr. Dean, I do not care about your politics, I really do
    not. I have friends on both sides of the aisle. Like Senator
    Blumenthal, I remember vividly the early 1970s as well, when
    you worked in the White House. I think you and your co-
    conspirators hurt my country. I believe in second chances, and
    you did the right thing ultimately, but you only did it when
    you were cornered like a rat.
        It is hard for me to take your testimony seriously, and I
    am going to give you a chance to respond. But I could not sleep
    tonight if I did not tell you that. I am going to give you a
    chance to respond.
        Mr. Dean. The President has also called me a rat, and I do
    not think you understand----
        Senator Kennedy. I am not calling you a rat, though, in the
    sense----
        Mr. Dean. No.
        Senator Kennedy [continuing]. Of what you did with the
    prosecutor. That is not what I mean. But I honestly feel that
    way as an American. I think you hurt our country.
        Mr. Dean. I wrote a book based on all the Watergate
    conversations that were secretly recorded, learned a lot that I
    had not known. Out of the thousand conversations that Nixon had
    on Watergate, I was involved in 39 of them. I think every
    conversation I had with him I am trying to warn him, alert him,
    find out how much he does know or does not know.
        I tried internally to end the cover-up. I did not succeed.
    That is the day I think I met Richard Nixon. I did not know the
    man and had not had dealings with him. There is a great
    misconception about what an early 30s White House Counsel could
    do around a White House.
        So maybe you want to--I will send you a copy of that book,
    and it might give you some insights into what really did happen
    in there.
        Senator Kennedy. Okay.
        All right. Well, we are done. I want to thank this panel
    very much. I am going to say what I said to the earlier panels.
    I know this testimony does not just write itself, and you all
    spent a lot of time on it, and I really want to thank you. I
    think all of us get a lot out of this part of the confirmation
    process.
        The record will remain open until noon on Monday, and that
    is consistent with other Supreme Court nominee practices.
        With that, thanks to everyone.
        These hearings are adjourned.
        [Whereupon, at 4:15 p.m., the Committee was recessed.]
        [Additional material submitted for the record for Day 4
    follows Day 5 of the hearing.]

                              CONTINUATION OF THE
                          CONFIRMATION HEARING ON THE
                     NOMINATION OF HON. BRETT M. KAVANAUGH
                       TO BE AN ASSOCIATE JUSTICE OF THE
                       SUPREME COURT OF THE UNITED STATES

                                  ----------

                          THURSDAY, SEPTEMBER 27, 2018

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:05 a.m., in
    Room SD-226, Dirksen Senate Office Building, Hon. Charles E.
    Grassley, Chairman of the Committee, presiding.
        Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
    Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
    Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
    Booker, and Harris.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Chairman Grassley. This morning, we continue our hearing on
    the nomination of Judge Brett Kavanaugh to serve as Associate
    Justice on our Supreme Court.
        We will hear from two witnesses, Dr. Christine Blasey Ford
    and Judge Kavanaugh. Thanks, of course, to Dr. Ford and Judge
    Kavanaugh for accepting our Committee's invitation to testify
    and also thank them for their volunteering to testify before we
    even invited.
        Both Dr. Ford and Judge Kavanaugh have been through a
    terrible couple weeks. They and their families have received
    vile threats. What they have endured ought to be considered by
    all of us as unacceptable and a poor reflection on the state of
    civility in our democracy. So I want to apologize to you both
    for the way you have been treated, and I intend, hopefully, for
    today's hearing to be safe, comfortable, and dignified for both
    of our witnesses. I hope my colleagues will join me in this
    effort of a show of civility.
        With that said, I lament that this hearing--how this
    hearing has come about. On July 9, 2018, the President
    announced Judge Kavanaugh's nomination to serve on the Supreme
    Court. Judge Kavanaugh has served on the most important Federal
    appellate court for 12 years. Before that, he held some of the
    most sensitive positions in the Federal Government. The
    President added Judge Kavanaugh to his short list of Supreme
    Court more than 9 months ago in November 2017.
        As part of Judge Kavanaugh's nomination to the Supreme
    Court, the FBI conducted its sixth full-field background
    investigation of Judge Kavanaugh since 1993, 25 years ago.
    Nowhere in any of these six FBI reports, which Committee
    investigators have reviewed on a bipartisan basis, was there a
    whiff of any issue, any issue at all, related in any way to
    inappropriate sexual behavior.
        Dr. Ford first raised her allegations in a secret letter to
    the Ranking Member nearly 2 months ago in July. This letter was
    secret from July 30th, September 13th to--no, July 30th until
    September 13th when I first heard about it. The Ranking Member
    took no action. The letter was not shared with me, our
    colleagues, or my staff. These allegations could have been
    investigated in a way that maintained the confidentiality that
    Dr. Ford requested.
        Before his hearing, Judge Kavanaugh met privately with 65
    Senators, including the Ranking Member. But the Ranking Member
    did not ask Judge Kavanaugh about the allegations when she met
    with him privately in August.
        The Senate Judiciary Committee held its 4-day public
    hearing from September 4th to September 7th. Judge Kavanaugh
    testified for more than 32 hours in public. We held a closed
    session for Members to ask sensitive questions on the last
    evening, which the Ranking Member did not attend.
        Judge Kavanaugh answered nearly 1,300 written questions
    submitted by Senators after the hearing, more than all prior
    Supreme Court nominees. Throughout this period, we did not know
    about the Ranking Member's secret evidence.
        Then, only at an eleventh hour, on the eve of Judge
    Kavanaugh's confirmation vote, did the Ranking Member refer the
    allegations to the FBI. And then, sadly, the allegations were
    leaked to the press, and that is where Dr. Ford was mistreated.
    This is a shameful way to treat our witness, who insisted on
    confidentiality, and, of course, Judge Kavanaugh, who has had
    to address these allegations in the midst of a media circus.
        When I received Dr. Ford's letter on September the 13th, my
    staff and I recognized the seriousness of these allegations and
    immediately began our Committee's investigation, consistent
    with the way the Committee has handled such allegations in the
    past. Every step of the way, the Democratic side refused to
    participate in what should have been a bipartisan
    investigation. As far as I know on all of our judgeships
    throughout at least the last 4 years--or 3 years, that has been
    the way it has been handled.
        After Dr. Ford's identity became public, my staff contacted
    all the individuals she said attended the 1982 party described
    in The Washington Post article. Judge Kavanaugh immediately
    submitted to an interview under penalty of felony for any
    knowingly false statements. He denied the allegations
    categorically. Democratic staff was invited to participate and
    could have asked any questions they wanted to, but they
    declined, which leads me then to wonder. If they are really
    concerned with going to the truth, why would you not want to
    talk to the accused?
        The process and procedure is what the Committee always does
    when we receive allegations of wrongdoing. My staff reached out
    to other individuals allegedly at the party--Mark Judge,
    Patrick Smyth, Leland Keyser. All three submitted statements to
    the Senate under penalty of felony denying any knowledge of the
    events described by Dr. Ford. Dr. Ford's lifelong friend, Ms.
    Keyser, stated she does not know Judge Kavanaugh and does not
    recall ever attending a party with him.
        My staff made repeated requests to interview Dr. Ford
    during the past 11 days, even volunteering to fly to California
    to take her testimony. But her attorneys refused to present her
    allegations to Congress. I, nevertheless, honored her request
    for a public hearing, so Dr. Ford today has the opportunity to
    present her allegations under oath.
        As you can see, the Judiciary Committee was able to conduct
    thorough investigations into allegations--or thorough
    investigations into allegations. Some of my colleagues,
    consistent with their stated desires to obstruct Kavanaugh's
    nomination by any means precisely--by any means necessary,
    pushed for FBI investigations into the allegations. But I have
    no authority to force the executive branch agency to conduct an
    investigation into a matter it considers to be closed.
    Moreover, once the allegations became public, it was easy to
    identify all the alleged witnesses and conduct our own
    investigations.
        Contrary to what the public has been led to believe, the
    FBI does not perform any credibility assessments or verify the
    truth of any events in these background investigations. I will
    quote then-Chairman Joe Biden during Justice Thomas'
    confirmation hearing. This is what Senator Biden said: ``The
    next person who refers to an FBI report as being worth anything
    obviously does not understand anything. The FBI explicitly does
    not, in this or any other case, reach a conclusion, period.
    They say `he said, she said, they said,' period. So when people
    wave an FBI report before you, understand they do not, they do
    not, they do not reach conclusions. They do not make
    recommendations,'' end of Senator Biden's quote.
        The FBI provided us with the allegations. Now it is up to
    the Senate to assess their credibility, which brings us to this
    very time. I look forward to a fair and respectful hearing.
    That is what we promised Dr. Ford.
        Some of my colleagues have complained about the fact that
    an expert on this side investigating sex crimes will be
    questioning the witness. I see no basis for complaint other
    than just plain politics.
        The testimony we will hear today concerns allegations of
    sexual assault, very serious allegations. This is an incredibly
    complex and sensitive subject to discuss, and it is not an easy
    one to discuss. That is why the Senators on this side of the
    dais believe an expert who has deep experience and training in
    interviewing victims of sexual assault and investigating sexual
    assault-led allegations should be asking questions. This will
    be a stark contrast to the grandstanding and chaos that we saw
    from the other side during the previous 4 days in this hearing
    process.
        I can think of no one better equipped to question the
    witnesses than Rachel Mitchell. Ms. Mitchell is a career
    prosecutor, civil servant with decades of experience
    investigating and prosecuting sex crimes. She has dedicated her
    career to seeking justice for survivors of sex-related
    felonies.
        Most recently, Rachel was a Division Chief of the Special
    Victims Division, Maricopa County Attorney's Office, which
    prosecutes sex crimes and family violence. Then-Democratic
    Governor Janet Napolitano previously recognized her as the
    Outstanding Arizona Sexual Assault Prosecutor of the Year, and
    she has spent years instructing prosecutors, detectives, and
    child protection workers on how to properly interview victims
    of sexual assault and abuse. With her aid, I look forward to a
    fair and productive hearing.
        I understand that there are two other public allegations.
    Today's hearing was scheduled in close consultation with Dr.
    Ford's attorneys, and her testimony will be the subject of this
    hearing.
        We have been trying to investigate other allegations. At
    this time, we have not had cooperation from attorneys
    representing other clients, and they have made no attempt to
    substantiate their claims. My staff has tried to secure
    testimony and evidence from attorneys for both Deborah Ramirez
    and Julie Swetnick.
        My staff made eight requests--yes, eight requests--for
    evidence from attorneys for Ms. Ramirez and six requests for
    evidence for attorneys for Ms. Swetnick. Neither attorney has
    made their clients available for interview. The Committee
    cannot do an investigation if attorneys are stonewalling. I
    hope you all understand that we have attempted to seek
    additional information, as we do a lot of times when there are
    holes in what we call the ``BI reports.''
        Additionally, all the witnesses should know--by when I say
    ``all the witnesses,'' I mean Dr. Ford and I mean Judge
    Kavanaugh. All the witnesses should know that they have the
    right under Senate Rule 26.5 to ask that the Committee to go
    into closed session if a question requires an answer that is a
    clear invasion of their right to privacy. If either Dr. Ford or
    Judge Kavanaugh feel that Senate Rule 26.5 ought to be
    involved, they should simply say so.
        Senator Feinstein.

              OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
              A U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Senator Feinstein. Thank you very much, Mr. Chairman.
        I will make just a brief comment on your references to me.
    Yes, I did receive a letter from Dr. Ford. It was conveyed to
    me by a Member of Congress, Anna Eshoo. The next day, I called
    Dr. Ford. We spoke on the phone. She reiterated that she wanted
    this held confidential, and I held it confidential up to a
    point where the witness was willing to come forward.
        And I think as I make my remarks, perhaps you will see why.
    Because how women are treated in the United States with this
    kind of concern is really wanting a lot of reform, and I will
    get to that for a minute.
        But in the meantime, good morning, Dr. Ford. Thank you for
    coming forward and being willing to share your story with us. I
    know this was not easy for you.
        But before you get to your testimony, and the Chairman
    chose not to do this, I think it is important to make sure you
    are properly introduced. And I have to----
        Chairman Grassley. By the way, I was going to introduce
    her. But if you want to introduce her, I will be glad to have
    you do that. But I want you to know I did not forget to do it,
    because I would do that just as she was about to speak.
        Senator Feinstein. Thank you.
        I have to say when I saw your CV, I was extremely
    impressed. You have a bachelor's degree from the University of
    North Carolina-Chapel Hill; two master's degrees, one from
    Stanford and one Pepperdine; and a Ph.D. from the University of
    Southern California, better known to Senator Harris and I as
    USC. You are a professor affiliated with both Stanford
    University and Palo Alto University. You have published over 65
    peer-reviewed articles and have received numerous awards for
    your work and research.
        And as if that were not enough, you are a wife, a mother of
    two sons, and a constituent from California. So I am very
    grateful to you for your strength and your bravery in coming
    forward. I know it is hard.
        But before I turn it over, I want to say something about
    what is to be discussed today and where we are as a country.
    Sexual violence is a serious problem and one that largely goes
    unseen. In the United States, it is estimated by the Centers
    for Disease Control, one in three women and one in six men will
    experience some form of sexual violence in their lifetime.
        According to the Rape, Abuse, and Incest National Network,
    60 percent of sexual assaults go unreported. In addition, when
    survivors do report their assaults, it is often years later due
    to the trauma they suffered and fearing their stories will not
    be believed.
        Last week, I received a letter from a 60-year-old
    California constituent who told me that she survived an
    attempted rape at age 17. She described as being terrified and
    embarrassed. She never told a soul until much later in life.
    The assault stayed with her for 43 years.
        I think it is important to remember these realities as we
    hear from Dr. Ford about her experience. There has been a great
    deal of public discussion about the #MeToo movement today
    versus the Year of the Woman almost 27 years ago. But while
    young women are standing up and saying ``no more,'' our
    institutions have not progressed in how they treat women who
    come forward. Too often, women's memories and credibility come
    under assault. In essence, they are put on trial and forced to
    defend themselves and often revictimized in the process.
        Twenty-seven years ago, I was walking through an airport
    when I saw a large group of people gathered around the TV to
    listen Anita Hill tell her story. What I saw was an attractive
    woman in a blue suit before an all-male Judiciary Committee
    speaking of her experience of sexual harassment. She was
    treated badly, accused of lying, attacked, and her credibility
    put to the test throughout the process.
        Today, Dr. Christine Blasey Ford has come forward to tell
    her story of being assaulted and fearing for her life when she
    was a teenager. Initially, as I said, Dr. Ford did not want to
    make her story public.
        Then, within 36 hours of coming forward, Republicans
    scheduled a hearing without talking to her or even inviting her
    to testify. She was told she had to show up or the Committee
    would move forward with a vote. It took a public outcry for the
    Majority to back down and give her even a few days to come
    before the Committee.
        Republicans also scheduled this hearing with Dr. Ford
    without having her allegations investigated by the FBI. In
    1991, Anita Hill's allegations were reviewed by the FBI, as is
    the normal process and squarely within its jurisdiction.
        However, despite repeated requests, President Trump and the
    Republicans have refused to take this routine step and direct
    the FBI to conduct an impartial investigation. This would
    clearly be the best way to ensure a fair process to both Judge
    Kavanaugh and to Dr. Ford.
        In 1991, the Senate heard from 22 witnesses over 3 days.
    Today, while rejecting an FBI investigation, Republicans are
    refusing to hear testimony from any other witness, including
    Mark Judge, who Dr. Ford identified as being in the room when
    the attack took place. And we believe Judge should be
    subpoenaed so the Committee can hear from him directly.
        Republicans have also refused to call anyone who could
    speak to the evidence that would support or refute Dr. Ford's
    claim, and not one witness who could address credibility and
    character of either Ford or Kavanaugh has been called. What I
    find most inexcusable is this rush to judgment, the
    unwillingness to take these kinds of allegations at face value
    and look at them for what they are, a real question of
    character for someone who is asking for a lifetime appointment
    on the Supreme Court.
        In 1991, Republicans belittled Professor Hill's experience,
    saying, and I quote, ``It will not make a bit of difference in
    the outcome.'' And the burden of proof was on Professor Hill.
    Today, our Republican colleagues are saying this is a hiccup.
    Dr. Ford is mixed up and declaring, ``I will listen to the
    lady, but we are going to bring this to a close.''
        What is worse, many of our colleagues on the other side of
    the aisle have also made it clear that no matter what happens
    today, the Senate will plow right through and ensure Judge
    Kavanaugh would be elevated within a week. In fact, on Tuesday,
    the Majority went ahead and scheduled a vote on the nomination
    before we heard one word of testimony regarding allegations of
    sexual assault and misconduct by Brett Kavanaugh.
        Republican leadership even told Senators they should plan
    to be in over this weekend so the nomination can be pushed
    through without delay. This is despite the fact that in the
    last few days, two more women have come forward with their own
    serious allegations of sexual assault involving Brett
    Kavanaugh.
        This past Sunday, we learned about Debbie Ramirez, who was
    a student at Yale with Brett Kavanaugh. She, too, did not want
    to come forward. But after being approached by reporters, she
    told her story.
        She was at a college party, where Kavanaugh exposed himself
    to her. She recalls pushing him away and then seeing him
    laughing and pulling his pants up.
        Then yesterday, Julie Swetnick came forward to say that she
    had experiences of being at house parties with Brett Kavanaugh
    and Mark Judge. She recounted seeing Kavanaugh engage, and I
    quote, ``in abusive and physically aggressive behavior toward
    girls,'' including attempts to ``remove or shift girls'
    clothing,'' not taking ``no for an answer,'' grabbing girls
    ``without their consent,'' and targeting ``particular girls so
    that they could be taken advantage of.''
        Each of these stories are troubling on their own, and each
    of these allegations should be investigated by the FBI. All
    three women have said they would like the FBI to investigate.
    Please do so. All three have said they have other witnesses and
    evidence to corroborate their accounts, and yet Republicans
    continue to blindly push forward.
        So today, we are moving forward with a hearing and being
    asked to assess the credibility of Brett Kavanaugh. He has made
    several statements about how his focus was on school,
    basketball, service projects, and going to church. He declared
    that he ``never'' drank so much he could not remember what
    happened and he has ``always treated women with dignity and
    respect.''
        And while he has made these declarations, more and more
    people have come forward challenging his characterization of
    events and behaviors. James Roche, his freshman roommate at
    Yale, stated Kavanaugh was, and I quote again, ``frequently
    incoherently drunk,'' and that was ``when he became aggressive
    and belligerent,'' when he was drunk.
        Liz Swisher, a friend of his from Yale, said, and I quote,
    ``There is no medical way I can say that he was blacked out,
    but it is not credible for him to say that he has no memory
    lapses in the nights that he drank to excess.''
        Lynne Brookes, a college classmate, said the picture
    Kavanaugh is trying to paint does not match her memories of
    him. And I quote, ``He is trying to paint himself as some kind
    of choir boy. You cannot lie your way onto the Supreme Court.
    And with that statement out, he has gone too far. It is about
    the integrity of the institution.''
        Ultimately, Members and ladies and gentlemen, I really
    think that is the point. We are here to decide whether to
    evaluate this nominee to the most prestigious Court in our
    country. It is about the integrity of that institution and the
    integrity of this institution.
        The entire country is watching how we handle these
    allegations. I hope the Majority changes their tactics, opens
    their mind, and seriously reflects on why we are here. We are
    here for one reason, to determine whether Judge Kavanaugh
    should be elevated to one of the most powerful positions in our
    country.
        This is not a trial of Dr. Ford. It is a job interview for
    Judge Kavanaugh. Is Brett Kavanaugh who we want on the most
    prestigious Court in our country? Is he the best we can do?
        Thank you, Mr. Chairman.
        Chairman Grassley. Yes. I am sorry you brought up about the
    unsubstantiated allegations of other people because we are here
    for the sole purpose of listening to Dr. Ford and will consider
    other issues at other times.
        I would like to have you rise so I can swear you.
        Now, do you swear that the testimony you are about to give
    before this Committee will be the truth, the whole truth, and
    nothing but the truth, so help you God?
        Dr. Ford. I do.
        Chairman Grassley. Thank you very much. Please be seated.
        And before you give your statement, I want to say to
    everybody that she has asked for--any time you ask for a break,
    you get a break. Anytime there is something that you need you
    do not have, just ask us, and you can have as much time for
    your opening statement as you want. And just generally let us
    know if there is any issues.
        Proceed, please.

        STATEMENT OF CHRISTINE BLASEY FORD, Ph.D., PROFESSOR OF
     PSYCHOLOGY, PALO ALTO UNIVERSITY, PALO ALTO, CALIFORNIA, AND
                    RESEARCH PSYCHOLOGIST, STANFORD
          UNIVERSITY SCHOOL OF MEDICINE, STANFORD, CALIFORNIA

        Dr. Ford. Thank you, Senator Grassley. I think, after I
    read my opening statement, I anticipate needing some caffeine,
    if that is available.
        Chairman Grassley. Okay. Can you pull the microphone just a
    little bit closer to you, please? Can the whole box go a little
    bit closer?
        Mr. Bromwich. That is what I am trying, Senator. No.
        Chairman Grassley. Okay. Well, then----
        Dr. Ford. I'll lean forward.
        Chairman Grassley. Thank you. Thank you.
        Dr. Ford. Is this good?
        Chairman Grassley. Yes.
        Dr. Ford. Okay. Thank you, Chairman Grassley and Ranking
    Member Feinstein, Members of the Committee.
        My name is Christine Blasey Ford. I am a professor of
    psychology at Palo Alto University and a research psychologist
    at the Stanford University School of Medicine. I won't detail
    my educational background since it has already been summarized.
        I have been married to Russell Ford since 2002, and we have
    two children.
        I am here today not because I want to be. I am terrified. I
    am here because I believe it is my civic duty to tell you what
    happened to me while Brett Kavanaugh and I were in high school.
    I have described the events publicly before. I summarized them
    in my letter to Ranking Member Feinstein and again in a letter
    to Chairman Grassley. I understand and appreciate the
    importance of your hearing from me directly about what happened
    to me and the impact that it has had on my life and on my
    family.
        I grew up in the suburbs of Washington, DC. I attended the
    Holton-Arms School in Bethesda, Maryland, from 1978 to 1984.
    Holton-Arms is an all-girls school that opened in 1901.
        During my time at the school, girls at Holton-Arms
    frequently met and became friendly with boys from all-boys
    schools in the area, including the Landon School, Georgetown
    Prep, Gonzaga High School, as well as our country clubs and
    other places where kids and families socialized. This is how I
    met Brett Kavanaugh, the boy who sexually assaulted me.
        During my freshman and sophomore school years, when I was
    14 and 15 years old, my group of friends intersected with Brett
    and his friends for a short period of time. I had been friendly
    with a classmate of Brett's for a short time during my freshman
    and sophomore year, and it was through that connection that I
    attended a number of parties that Brett also attended. We did
    not know each other well, but I knew him, and he knew me.
        In the summer of 1982, like most summers, I spent most
    every day at the Columbia Country Club in Chevy Chase,
    Maryland, swimming and practicing diving. One evening that
    summer, after a day of diving at the club, I attended a small
    gathering at a house in the Bethesda area. There were four boys
    I remember specifically being at the house--Brett Kavanaugh,
    Mark Judge, a boy named P.J., and one other boy whose name I
    cannot recall. I also remember my friend Leland attending.
        I do not remember all of the details of how that gathering
    came together, but like many that summer, it was almost surely
    a spur of the moment gathering. I truly wish I could be more
    helpful with more detailed answers to all of the questions that
    have and will be asked about how I got to the party and where
    it took place and so forth. I don't have all the answers, and I
    don't remember as much as I would like to. But the details
    that--about that night that bring me here today are the ones I
    will never forget. They have been seared into my memory and
    have haunted me episodically as an adult.
        When I got to the small gathering, people were drinking
    beer in a small living room/family room-type area on the first
    floor of the house. I drank one beer. Brett and Mark were
    visibly drunk.
        Early in the evening, I went up a very narrow set of stairs
    leading from the living room to a second floor to use the
    restroom. When I got to the top of the stairs, I was pushed
    from behind into a bedroom across from the bathroom. I couldn't
    see who pushed me.
        Brett and Mark came into the bedroom and locked the door
    behind them. There was music playing in the bedroom. It was
    turned up louder by either Brett or Mark once we were in the
    room. I was pushed onto the bed, then Brett got on top of me.
        He began running his hands over my body and grinding into
    me. I yelled, hoping that someone downstairs might hear me, and
    I tried to get away from him, but his weight was heavy. Brett
    groped me and tried to take off my clothes. He had a hard time
    because he was very inebriated and because I was wearing a one-
    piece bathing suit underneath my clothing.
        I believed he was going to rape me. I tried to yell for
    help. When I did, Brett put his hand over my mouth to stop me
    from yelling. This is what terrified me the most, and this had
    the most lasting impact on my life. It was hard for me to
    breathe, and I thought that Brett was accidentally going to
    kill me.
        Both Brett and Mark were drunkenly laughing during the
    attack. They seemed to be having a very good time. Mark seemed
    ambivalent, at times urging Brett on and at times telling him
    to stop. A couple of times, I made eye contact with Mark and
    thought he might try to help me, but he did not.
        During this assault, Mark came over and jumped on the bed
    twice while Brett was on top of me. Then the last time that he
    did this, we toppled over, and Brett was no longer on top of
    me. I was able to get up and run out of the room. Directly
    across from the bedroom was a small bathroom. I ran inside the
    bathroom and locked the door.
        I waited until I heard Brett and Mark leave the bedroom
    laughing and loudly walk down the narrow stairway, pinballing
    off the walls on the way down. I waited, and when I did not
    hear them come back up the stairs, I left the bathroom, went
    down the same stairwell, through the living, and left the
    house. I remember being on the street and feeling an enormous
    sense of relief that I had escaped that house and that Brett
    and Mark were not coming outside after me.
        Brett's assault on me drastically altered my life. For a
    very long time, I was too afraid and ashamed to tell anyone
    these details. I did not want to tell my parents that I, at age
    15, was in a house without any parents present, drinking beer
    with boys. I convinced myself that because Brett did not rape
    me, I should just move on and just pretend that it didn't
    happen.
        Over the years, I told very, very few friends that I had
    this traumatic experience. I told my husband before we were
    married that I had experienced a sexual assault. I had never
    told the details to anyone, the specific details, until May
    2012 during a couples counseling session.
        The reason this came up in counseling is that my husband
    and I had completed a very extensive, very long remodel of our
    home, and I insisted on a second front door, an idea that he
    and others disagreed with and could not understand. In
    explaining why I wanted a second front door, I began to
    describe the assault in detail.
        I recall saying that the boy who assaulted me could someday
    be on the U.S. Supreme Court and spoke a bit about his
    background at an elitist all-boys school in Bethesda, Maryland.
    My husband recalls that I named my attacker as Brett Kavanaugh.
        After that May 2012 therapy session, I did my best to
    ignore the memories of the assault because recounting them
    caused me to relive the experience and cause panic and anxiety.
    Occasionally, I would discuss the assault in an individual
    therapy session, but talking about it caused more reliving of
    the trauma. So I tried not to think about it or discuss it.
        But over the years, I went through periods where I thought
    about the attack. I had confided in some close friends that I
    had had an experience with sexual assault. Occasionally, I
    stated that my assailant was a prominent lawyer or judge, but I
    did not use his name. I do not recall each person I spoke to
    about Brett's assault, and some friends have reminded me of
    these conversations since the publication of The Washington
    Post story on September 16, 2018, but until July 2018, I had
    never named Mr. Kavanaugh as my attacker outside of therapy.
        This changed in early July 2018. I saw press reports
    stating that Brett Kavanaugh was on the short list of a list of
    very well-qualified Supreme Court nominees. I thought it was my
    civic duty to relay the information I had about Mr. Kavanaugh's
    conduct so that those considering his nomination would know
    about this assault.
        On July 6th, I had a sense of urgency to relay the
    information to the Senate and the President as soon as possible
    before a nominee was selected. I did not know how specifically
    to do this. I called my congressional Representative and let
    her receptionist know that someone on the President's short
    list had attacked me.
        I also sent a message to the encrypted Washington Post
    confidential tip line. I did not use my name, but I provided
    the names of Brett Kavanaugh and Mark Judge. I stated that Mr.
    Kavanaugh had assaulted me in the 1980s in Maryland. This was
    an extremely hard thing for me to do, but I felt that I
    couldn't not do it.
        Over the next 2 days, I told a couple of close friends on
    the beach in Aptos, California, that Mr. Kavanaugh had sexually
    assaulted me. I was very conflicted as to whether to speak out.
        On July 9th, I received a return phone call from the office
    of Congresswoman Anna Eshoo after Mr. Kavanaugh had become the
    nominee. I met with her staff on July 18th and with her on July
    20th, describing the assault and discussing my fears about
    coming forward.
        Later, we discussed the possibility of sending a letter to
    Ranking Member Feinstein, who is one of my State Senators,
    describing what occurred. My understanding is that
    Representative Eshoo's office delivered a copy of my letter to
    Senator Feinstein's office on July 30th. The letter included my
    name, but also a request that it be kept confidential.
        My hope was that providing the information confidentially
    would be sufficient to allow the Senate to consider Mr.
    Kavanaugh's serious misconduct without having to make myself,
    my family, or anyone's family vulnerable to the personal
    attacks and invasions of privacy that we have faced since my
    name became public.
        In a letter dated August 31st, Senator Feinstein wrote that
    she would not share the letter without my explicit consent, and
    I appreciated this commitment. Sexual assault victims should be
    able to decide for themselves when and whether their private
    experience is made public.
        As the hearing date got closer, I struggled with a terrible
    choice. Do I share the facts with the Senate and put myself and
    my family in the public spotlight? Or do I preserve our privacy
    and allow the Senate to make its decision without knowing the
    full truth of his past behaviors?
        I agonized daily with this decision throughout August and
    September 2018. The sense of duty that originally motivated me
    to reach out confidentially to The Washington Post and to Anna
    Eshoo's office when there was still a list of extremely
    qualified candidates and to Senator Feinstein was always there,
    but my fears of the consequences of speaking out started to
    exponentially increase.
        During August 2018, the press reported that Mr. Kavanaugh's
    confirmation was virtually certain. Persons painted him as a
    champion of women's rights and empowerment, and I believed that
    if I came forward, my single voice would be drowned out by a
    chorus of powerful supporters. By the time of the confirmation
    hearings, I had resigned myself to remaining quiet and letting
    the Committee and the Senate make their decision without
    knowing what Mr. Kavanaugh had done to me.
        Once the press started reporting on the existence of the
    letter I had sent to Senator Feinstein, I faced mounting
    pressure. Reporters appeared at my home and at my workplace,
    demanding information about the letter in the presence of my
    graduate students. They called my bosses and coworkers and left
    me many messages, making it clear that my name would inevitably
    be released to the media.
        I decided to speak out publicly to a journalist who had
    originally responded to the tip I had sent to The Washington
    Post and who had gained my trust. It was important for me to
    describe the details of the assault in my own words.
        Since September 16th, the date of The Washington Post
    story, I have experienced an outpouring of support from people
    in every State of this country. Thousands and thousands of
    people who have had their lives dramatically altered by sexual
    violence have reached out to share their experience and have
    thanked me for coming forward.
        We have received tremendous support from our friends and
    our community. At the same time, my greatest fears have been
    realized, and the reality has been far worse than what I
    expected. My family and I have been the target of constant
    harassment and death threats, and I have been called the most
    vile and hateful names imaginable.
        These messages, while far fewer than the expressions of
    support, have been terrifying and have rocked me to my core.
    People have posted my personal information and that of my
    parents online on the Internet. This has resulted in additional
    emails, calls, and threats. My family and I were forced to move
    out of our home.
        Since September 16th, my family and I have been visiting in
    various secure locales, at times separated and at times
    together, with the help of security guards. This past Tuesday
    evening, my work email was hacked, and messages were sent out
    trying to recant my description of the sexual assault.
        Apart from the assault itself, these past couple of weeks
    have been the hardest of my life. I've had to relive this
    trauma in front of the world, and I've seen my life picked
    apart by people on television, on Twitter, other social media,
    other media, and in this body who have never met me or spoken
    with me.
        I have been accused of acting out of partisan political
    motives. Those who say that do not know me. I am an independent
    person, and I am no one's pawn. My motivation in coming forward
    was to be helpful and to provide facts about how Mr.
    Kavanaugh's actions have damaged my life so that you could take
    into a serious consideration as you make your decision about
    how to proceed.
        It is not my responsibility to determine whether Mr.
    Kavanaugh deserves to sit on the Supreme Court. My
    responsibility is to tell you the truth.
        I understand that a professional prosecutor has been hired
    to ask me questions, and I'm committed to doing my very best to
    answer them. I have never been questioned by a prosecutor, and
    I will do my best.
        At the same time, because the Committee Members will be
    judging my credibility, I do hope to be able to engage directly
    with each of you, and at this point, I will do my best to
    answer your questions--and would request some caffeine.
        Mr. Bromwich. A Coke or something?
        Dr. Ford. That sounds good. That would be great.
        Thank you.
        [The prepared statement of Dr. Christine Blasey Ford
    appears as a submission for the record.]
        Chairman Grassley. Thank you very much.
        Before I use my 5 minutes of questioning, I thought that I
    would try to remind my colleagues and, in this case, Ms.
    Mitchell as well, that 5 minutes, the way I traditionally have
    done, if you ask a question before your time runs out and even
    though you go over your time, as long as you are not
    filibustering, I will let you ask your question.
        And I am going to make sure that both Dr. Ford and Judge
    Kavanaugh--as Chairman of the Committee, I know that they are
    going to get a chance to answer the questions fully beyond that
    5 minutes. But when that--when either Dr. Ford or Judge
    Kavanaugh gets done, then we immediately go to the next person.
    So I hope that that will be done in a--and Dr. Ford, I am told
    that you want a break right now, and if you do, that is fine.
        Dr. Ford. I am okay. I got the coffee. Thank you very much.
    I think I can proceed and sip on the coffee.
        Chairman Grassley. Nobody can mix up my coffee right. So
    I----
        [Laughter.]
        Chairman Grassley. So you are pretty fortunate.
        So now, with that, Ms. Mitchell, you have my 5 minutes to
    ask questions.
        [For Chairman Grassley.]
        Ms. Mitchell. Thank you, Mr. Chairman.
        Good morning, Dr. Ford. We have not met. My name is Rachel
    Mitchell.
        Dr. Ford. Nice to meet you.
        Ms. Mitchell. I just wanted to tell you the first thing
    that struck me from your statement this morning was that you
    were terrified, and I just wanted to let you know I am very
    sorry. That is not right.
        I know this is stressful, and so I would like to set forth
    some guidelines that maybe will alleviate that a little bit. If
    I ask you a question that you do not understand, please ask me
    to clarify it or ask it in a different way.
        When I ask questions, sometimes I will refer back to other
    information you have provided. If I do that and I get it wrong,
    please correct me.
        Dr. Ford. Okay.
        Ms. Mitchell. I am not going to ask you to guess. I know it
    was a long time ago. If you do estimate, please let me know
    that you are estimating, okay?
        Dr. Ford. Fair.
        Ms. Mitchell. We have put before you, and I am sure you
    have copies of them anyway, five pieces of information, and I
    wanted to go over them. The first is a screen shot of a
    WhatsApp texting between you and somebody at The Washington
    Post. Do you have that in front of you?
        Dr. Ford. Yes.
        Ms. Mitchell. The first two texts were sent by you on July
    6th. Is that correct?
        Dr. Ford. Correct.
        Ms. Mitchell. And then the last one sent by you was on July
    10th?
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. Are those three comments accurate?
        Dr. Ford. I will read them.
        Mr. Bromwich. Take your time.
        Dr. Ford. Yes.
        Mr. Bromwich. Take your time.
        Dr. Ford. So there is one correction.
        Ms. Mitchell. Okay.
        Dr. Ford. I've misused the word ``bystander'' as an
    adjective.
        Ms. Mitchell. Okay.
        Dr. Ford. Bystander means someone that is looking at an
    assault, and the person named P.J. was not technically a
    bystander. I was writing very quickly and with a sense of
    urgency. So I would not call him a bystander. He was
    downstairs, and you know, what I remember of him was he was a
    tall and very nice person. I didn't know him well, but that he
    was downstairs, not anywhere near the event.
        Ms. Mitchell. Okay. Thank you for----
        Dr. Ford. I'd like to take that word out if it's possible.
        Ms. Mitchell. Okay. Thank you for clarifying that.
        The second is the letter that you wrote to Senator
    Feinstein dated July 30th of this year.
        Dr. Ford. Yes.
        Ms. Mitchell. Did you write the letter yourself?
        Dr. Ford. I did.
        Ms. Mitchell. And since it is dated July 30th, did you
    write it on that date?
        Dr. Ford. I believe so. It sounds right. I was in Rehoboth,
    Delaware, at the time. I could look into my calendar and try to
    figure that out.
        Ms. Mitchell. Was it written on or about that date?
        Dr. Ford. Yes. Yes. I traveled, I think, the 26th of July
    to Rehoboth, Delaware. So that makes sense because I wrote it
    from there.
        Ms. Mitchell. Okay. Is the letter accurate?
        Dr. Ford. I'll take a minute to read it.
        Ms. Mitchell. Okay.
        Dr. Ford. I can read fast.
        Mr. Bromwich. Take your time.
        [Witness reads the letter.]
        Dr. Ford. Okay. So I have three areas that I'd like to
    address.
        Ms. Mitchell. Okay.
        Dr. Ford. In the second paragraph, where it says, ``The
    assault occurred in a suburban Maryland area home.''
        Ms. Mitchell. Yes.
        Dr. Ford. ``At a gathering that included me and four
    others,'' I can't guarantee that there weren't a few other
    people there, but they are not in my purview of my memory.
        Ms. Mitchell. Would it be fair to say there were at least
    four others?
        Dr. Ford. Yes.
        Ms. Mitchell. Okay. What's the second correction?
        Dr. Ford. Oh, okay. The next sentence begins with,
    ``Kavanaugh physically pushed me into the bedroom.'' I would
    say I can't promise that Mark Judge didn't assist with that. I
    don't know. I was pushed from behind. So I don't want to put
    that solely on him.
        Ms. Mitchell. Okay.
        Dr. Ford. Okay.
        Chairman Grassley. Ms. Mitchell, I do not know whether this
    is fair for me to interrupt, but I want to keep people within 5
    minutes. Is that a--is that a major problem for you in the
    middle of a question? Because we have got to--I have got to
    treat everybody the same.
        Ms. Mitchell. I understand that.
        Chairman Grassley. Can I go to Senator Feinstein, or do
    you----
        Ms. Mitchell. Yes, sir. Sorry. I did not see the light was
    red. Please do.
        Chairman Grassley. Okay. Senator Feinstein.
        [Pause.]
        Chairman Grassley. For the benefit of Dr. Ford, I think she
    will continue that after the 5 minutes here.
        Dr. Ford. Okay.
        Senator Feinstein. Mr. Chairman, I would like to begin by
    putting some letters in the record.
        Chairman Grassley. Without objection, so ordered.
        [The letters appear as submissions for the record.]
        Senator Feinstein. Thank you.
        Chairman Grassley. Do you want to tell me what----
        Senator Feinstein. One hundred forty letters from friends
    and neighbors of the witness and 1,000 female physicians across
    the country. Those are what the letters are.
        Senator Feinstein. I want to thank you very much for your
    testimony. I know how very, very hard it is.
        Why--why have you held it to yourself all these years? As
    you look back, can you indicate what the reasons are?
        Dr. Ford. Well, I haven't held it in all these years. I did
    disclose it in the confines of therapy, where I felt like it
    was an appropriate place to cope with the sequelae of the
    event.
        Senator Feinstein. Well, can you tell us what impact the
    events had on you?
        Dr. Ford. Well, I think that the sequelae of sexual assault
    varies by person. So, for me personally, anxiety, phobia, and
    PTSD-like symptoms are the types of things that I've been
    coping with. So more specifically, claustrophobia, panic, and
    that type of thing.
        Senator Feinstein. Is that the reason for the second door,
    front door----
        Dr. Ford. Correct.
        Senator Feinstein [continuing]. Is claustrophobia?
        Dr. Ford. Correct. It doesn't--our house does not look
    aesthetically pleasing from the curb.
        Senator Feinstein. I see. And do you have that second front
    door?
        Dr. Ford. Yes.
        Senator Feinstein. It prevailed, yes?
        Dr. Ford. And it now is a place to host Google interns
    because we live near Google. So we get to have--and other
    students can----
        Senator Feinstein. Can you tell us, is there any other way
    this has affected your life?
        Dr. Ford. The primary impact was in the initial 4 years
    after the event. I struggled academically. I struggled very
    much in Chapel Hill in college. When I was 17 and went off to
    college, I had a very hard time, more so than others, forming
    new friendships and especially friendships with boys, and I had
    academic problems.
        Senator Feinstein. What were the--when we spoke and it
    became very clear how deeply you felt about this and the need
    that you wanted to remain confidential, can you talk a little
    bit about that?
        Dr. Ford. Yes. So I was watching carefully throughout the
    summer. Well, my original intent, I just want to remind, was to
    communicate with everyone when there was still a list of
    candidates who all seemed to be, just from my perspective from
    what I could read, equally qualified, and I was in a hurry to
    try to get the information forward but didn't quite know how to
    do that.
        However, once he was selected, and it seemed like he was
    popular and was a sure vote, I was calculating daily the risk-
    benefit for me of coming forward and wondering whether I would
    just be jumping in front of a train that was headed to where it
    was headed anyway and that I would just be personally
    annihilated.
        Senator Feinstein. How did you decide to come forward?
        Dr. Ford. Ultimately, because reporters were sitting
    outside of my home and trying to talk to my dog through the
    window to calm the dog down. And a reporter appeared in my
    graduate classroom, and I mistook her for a student. And she
    came up to ask me a question, and I thought that she was a
    student, and it turned out that she was a reporter.
        So at that point, I felt like enough was enough. People
    were calling my colleagues at Stanford and leaving messages on
    their voicemails and on their emails saying that they knew my
    name. Clearly, people knew my address because they were out in
    front of my house, and it just--the mounting pressure seemed
    like it was time to just say what I needed to say.
        Senator Feinstein. I want--I am sorry. I want to ask you
    one question about the attack itself. You were very clear about
    the attack. Being pushed into the room, you say you do not know
    quite by whom, but that it was Brett Kavanaugh that covered
    your mouth to prevent you from screaming, and then you escaped.
        How are you so sure that it was he?
        Dr. Ford. The same way that I'm sure that I'm talking to
    you right now, just basic memory functions and also just the
    level of norepinephrine and epinephrine in the brain that sort
    of, as you know, encodes--that neurotransmitter encodes
    memories into the hippocampus, and so the trauma-related
    experience then is kind of locked there, whereas other details
    kind of drift.
        Senator Feinstein. So what you are telling us is this could
    not be a case of mistaken identity?
        Dr. Ford. Absolutely not.
        Senator Feinstein. Thank you, Mr. Chairman.
        Chairman Grassley. Ms. Mitchell for Senator Hatch.
        [For Senator Hatch.]
        Ms. Mitchell. Thank you, Mr. Chairman.
        When we were stopped, you were going to tell us a third
    correction that you wanted to make on that statement--or, I am
    sorry, the letter to Senator Feinstein?
        Dr. Ford. It's--it wasn't a correction, but I just wanted
    to comment on it since we were looking at this letter, that I
    did see Mark Judge once at the Potomac Village Safeway after
    the time of the attack. And it would be helpful with anyone's
    resources if--to figure out when he worked there, if people are
    wanting more details from me about when the attack occurred. If
    we could find out when he worked there, then I could provide a
    more detailed timeline as to when the attack occurred.
        Ms. Mitchell. Okay. And so that is not a correction in your
    statement?
        Dr. Ford. It's just--no.
        Ms. Mitchell. Okay. You also wrote out a handwritten
    statement for the polygrapher when you took your polygraph
    test. Is that correct?
        Dr. Ford. Yes.
        Ms. Mitchell. Okay. And I see corrections on that where you
    crossed out. So I will go on to The Washington Post article----
        Dr. Ford. Okay.
        Ms. Mitchell [continuing]. That was originally published on
    September 16th of this year.
        Dr. Ford. Then should I just not look at this for accuracy,
    or we're just going to leave that be?
        Ms. Mitchell. We may come back to it if you need to refer
    to it.
        Dr. Ford. Okay, okay.
        Ms. Mitchell. On The Washington Post article, did you
    submit to an interview by a reporter with The Washington Post
    for that article to be written?
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. And then finally was the statement that
    you provided this morning. I assume that to the best of your
    recollection, that that was accurate?
        Dr. Ford. That this whole article is accurate?
        Ms. Mitchell. No, no, no. The statement that you made this
    morning.
        Dr. Ford. Yes.
        Ms. Mitchell. Okay. I want to talk to you about the day
    that this happened leading up to the gathering.
        Dr. Ford. Okay.
        Ms. Mitchell. In your statement this morning, have you told
    us everything that you remember about the day leading up to
    that?
        Dr. Ford. Yes.
        Ms. Mitchell. Let me ask just a few questions to make sure
    that you have thought of everything, okay? You indicated that
    you were at the country club swimming that day?
        Dr. Ford. That's my best estimate of how this could have
    happened.
        Ms. Mitchell. Okay. And when you say ``best estimate,'' is
    that based on the fact that you said you went there pretty much
    every day?
        Dr. Ford. Mm-hmm.
        Ms. Mitchell. Is that a ``yes''?
        Dr. Ford. Yes.
        Ms. Mitchell. Okay. Do you recall prior to getting there--
    so I am only talking about up to the gathering----
        Dr. Ford. Okay.
        Ms. Mitchell [continuing]. Had you had anything to drink?
        Dr. Ford. Not at all.
        Ms. Mitchell. Were you on any sort of medication?
        Dr. Ford. None.
        Ms. Mitchell. Okay. Do you recall knowing before you went
    who was going to be at that gathering?
        Dr. Ford. I recall that expecting that Mark Judge and
    Leland would be at that gathering.
        Ms. Mitchell. Okay. Do you recall an expectation that Brett
    Kavanaugh would be there?
        Dr. Ford. I don't recall whether or not I expected that.
        Ms. Mitchell. Okay. Now let us talk about the gathering up
    from the time you arrived until right when you went up the
    stairs, just that period of time, okay? What was the atmosphere
    like at the gathering?
        Dr. Ford. Mr. Kavanaugh and Mr. Judge were extremely
    inebriated. They had clearly been drinking prior, and the other
    people at the party were not. The living room----
        Ms. Mitchell. Can I ask you, just to follow up on that,
    when you said it was clear that they had been drinking prior,
    do you mean prior to the time you had gotten there or prior to
    the time they had arrived?
        Dr. Ford. Prior to the time that they arrived. I don't
    recall who arrived first, though, whether it was me or them.
        Ms. Mitchell. Okay. Please continue.
        Dr. Ford. Okay. So I recall that I can--I can sketch a
    floor plan. I recall that it was a sparsely furnished, fairly
    modest living room, and it was not really a party, like the
    news has made it sound. It was not--it was just a gathering
    that I assumed was going to lead to a party later on that those
    boys would attend because they tended to have parties later at
    night than I was allowed to stay out. So it was kind of a pre-
    gathering.
        Ms. Mitchell. Was it loud?
        Dr. Ford. No. Not in the living room.
        Ms. Mitchell. Besides the music that you have described
    that was playing in the bedroom, was there any other music or
    television or anything like that that was adding?
        Dr. Ford. No.
        Ms. Mitchell. Okay. So there was not a stereo playing
    downstairs?
        Dr. Ford. No.
        Chairman Grassley. Senator Leahy.
        Senator Leahy. Dr. Ford, thank you for being here.
        Mr. Chairman, you know, the way to make this inquiry truly
    credible is to do what we have always done when new information
    about a nominee comes to light. To use your words this morning,
    you want to reach the truth. The easy way to do that, ask the
    FBI to investigate. It is what we have always done.
        Let them investigate, report back to us. The same applies
    to the serious allegations made by Deborah Ramirez and Julie
    Swetnick. Let us have a nonpartisan, professional investigation
    and then take the time to have these witnesses testify.
        Chairman, you and I were both here 27 years ago. At that
    time, the Senate failed Anita Hill. I said I believed her, but
    I am concerned that we are doing a lot less for these three
    women today. That is my personal view.
        Now, Dr. Ford, no matter what happens with this hearing
    today, no matter what happens to this nomination, I know and I
    hear from so many in my own State of Vermont, there are
    millions of victims and survivors out there who have been
    inspired by your courage. I am.
        Bravery is contagious. Indeed, that is the driving force
    behind the #MeToo movement, and you sharing your story is going
    to have a lasting positive impact on so many survivors in our
    country. We owe you a debt of gratitude for that, Doctor.
        Now some Senators have suggested you were simply mixed up
    about who assaulted you. An ally of Judge Kavanaugh in the
    White House even promoted a wild theory about a Kavanaugh look-
    alike. You immediately rejected that theory. As did the
    innocent man who had been called that look-alike.
        In fact, he sent a letter to this Committee forcefully
    rejecting this absurd theory. I ask consent to enter that in
    the record.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as a submission for the record.]
        Senator Leahy. Now how did you know Brett Kavanaugh and
    Mark Judge, and is it possible that you would mix them up with
    somebody else?
        Dr. Ford. No, it is not. And the person that was blamed for
    the incident is actually the person who introduced me to them
    originally. So he was a member of Columbia Country Club, and I
    don't want to talk about him because I think it's unfair. But
    he is the person that introduced me to them.
        Senator Leahy. But you--you would not mix up somebody else
    with Brett Kavanaugh. Is that correct?
        Dr. Ford. Correct.
        Senator Leahy. Or Mark Judge?
        Dr. Ford. Correct.
        Senator Leahy. Well, then let us go back to the incident.
    What is the strongest memory you have? The strongest memory of
    the incident, something that you cannot forget. Take whatever
    time you need.
        Dr. Ford. Indelible in the hippocampus is the laughter, the
    uproarious laughter between the two and their having fun at my
    expense.
        Senator Leahy. You have never forgotten that laughter. You
    have never forgotten them laughing at you?
        Dr. Ford. They were laughing with each other.
        Senator Leahy. And you were the object of the laughter?
        Dr. Ford. I was, you know, underneath one of them while the
    two laughed. Two friends having a really good time with one
    another.
        Senator Leahy. Let me enter into the record a statement by
    the National Task Force to End Domestic Violence.
        Chairman Grassley. Without objection, so ordered.
        [The statement appears as a submission for the record.]
        Senator Leahy. And a letter from 24 Members of the House of
    Representatives urging the Committee to use the NTF's trauma-
    informed approach in questioning Dr. Ford.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as a submission for the record.]
        Senator Leahy. And a letter from another 116 Members of the
    House asking to delay until all this has been heard.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as a submission for the record.]
        Senator Leahy. And Dr. Ford has at times been criticized
    for what she does not remember from 36 years ago, but we have
    numerous experts, including a study by the U.S. Army Military
    Police School of Behavior Sciences Education, that lapses of
    memory are wholly consistent with severe trauma and stress of
    assault. I would ask consent that be entered.
        Chairman Grassley. Without objection, so ordered.
        [The information appears as submissions for the record.]
        Senator Leahy. And Dr. Ford, I will just conclude with
    this. You do remember what happened, do you not?
        Dr. Ford. Very much so.
        Senator Leahy. Thank you. Thank you, Mr. Chairman.
        Now Ms. Mitchell for Senator Graham, and then it is my
    understanding that that is where you would like to take a
    break?
        Dr. Ford. If that works for you? Does that work for you as
    well?
        Chairman Grassley. We are here to accommodate you, not you
    accommodate us.
        Dr. Ford. Oh, thank you. I'm used to being collegial. So--
    --
        [Laughter.]
        Chairman Grassley. Okay. Go ahead. Ms. Mitchell for Senator
    Graham.
        [For Senator Graham.]
        Ms. Mitchell. Thank you, Mr. Chairman.
        You told Senator Feinstein in your letter that you and four
    others were present. You have corrected that today to say it
    was at least four others.
        When you were interviewed by The Washington Post, you said
    that there were four boys present at the party, and then in
    your polygraph statement, you said there were four boys and two
    girls. When you say ``two girls,'' was that you and another, or
    was that two other girls?
        Dr. Ford. That was me and one other girl.
        Ms. Mitchell. And that other girl's name?
        Dr. Ford. Leland.
        Ms. Mitchell. Leland Keyser now?
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. So, then, would it be fair to say at
    least P.J., Brett Kavanaugh, Mark Judge, Leland--Ingham at the
    time--and yourself were present, and possibly others?
        Dr. Ford. And one--one other boy. So there were four, there
    were four boys. I just don't know the name of the other boy.
        Ms. Mitchell. Have you been contacted by anybody saying,
    ``Hey, I was at that party, too''?
        Dr. Ford. No, I haven't talked with anyone from that party.
        Ms. Mitchell. Okay. Now you have been detailed about what
    happened once you got up the stairs, and so I do not need to go
    through that again. I am sorry. Go ahead.
        Dr. Ford. You know, I'm sorry. I just realized that I said
    something that was inaccurate. I said I hadn't spoke with
    anyone from the party since that--I've spoken with Leland.
        Ms. Mitchell. Thank you for correcting that. I appreciate
    that.
        You have gone into detail about what happened once you went
    up the stairs. So I do not feel like it is necessary to go over
    those things again.
        Dr. Ford. Okay. Thank you.
        Ms. Mitchell. Have you told us everything that you do
    remember about it?
        Dr. Ford. I believe so, but if there are other questions, I
    will--I can attempt to answer them.
        Ms. Mitchell. Okay. You said that the music was solely
    coming from that room. Is that correct?
        Dr. Ford. Correct.
        Ms. Mitchell. And it was turned up once the three of you
    were inside that room. Is that correct?
        Dr. Ford. Yes.
        Ms. Mitchell. Okay. At some point, do you recall it being
    turned down?
        Dr. Ford. I don't remember if it was turned down once I was
    leaving the house. I don't remember.
        Ms. Mitchell. Okay.
        Dr. Ford. Likely, since I could hear them walking down the
    stairs very clearly from the bathroom.
        Ms. Mitchell. Okay. And the bathroom was--door was closed
    when you heard this. Is that correct?
        Dr. Ford. I could hear them very clearly hitting the walls
    going down the stairwell.
        Ms. Mitchell. In fact, in your letter, you said that they
    went down the stairs, and they were talking with other people
    in the house.
        Dr. Ford. Mm-hmm. Correct.
        Ms. Mitchell. Were you able to hear that conversation?
        Dr. Ford. I was not able to hear that conversation, but I
    was aware that they were downstairs and that I would have to
    walk past them to get out of the house.
        Ms. Mitchell. Now let me make sure we are on the same page.
    Were you not able to hear the conversation or not able to
    understand the conversation?
        Dr. Ford. I couldn't hear the conversation. I was upstairs.
        Ms. Mitchell. Okay. How do you know there was a
    conversation?
        Dr. Ford. I'm just assuming since it was a social
    gathering, people were talking. I don't know.
        Ms. Mitchell. Okay. In your letter, you----
        Dr. Ford. I could hear them talking as they went down the
    stairwell. They were laughing and----
        Ms. Mitchell. Okay. In your letter, you wrote, ``Both
    loudly stumbled down the stairwell, at which point other
    persons at the house were talking with them.'' Does that ring a
    bell?
        Dr. Ford. Yes, I had to walk past everyone to leave the
    house.
        Ms. Mitchell. Your letter----
        Dr. Ford. Maybe I'm not understanding, I'm sorry.
        Ms. Mitchell. Okay. Your next sentence, let me try to
    clarify this. After you said other persons at the house were
    talking with them, the letter goes on with the very next
    sentence, ``I exited the bathroom, ran outside of the house,
    and went home.''
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. You said that you do not remember how
    you got home. Is that correct?
        Dr. Ford. I do not remember.
        Ms. Mitchell. Okay.
        Dr. Ford. Other than I did not drive home.
        Ms. Mitchell. Okay. I am going to show you, if somebody
    could provide to you, a map of the various people's houses at
    the time, and if you could verify that this is where you were
    living at the time?
        Dr. Ford. Where I was living at the time?
        Ms. Mitchell. Yes.
        Dr. Ford. Okay.
        Senator Harris. Mr. Chairman, do we have a copy of these
    documents?
        Chairman Grassley. You do not have a copy, but I suppose if
    you want one, we can get you one.
        Senator Harris. Yes. Before the questions begin. So we can
    follow the testimony.
        Chairman Grassley. Okay. My staff says that we should not
    provide the copy.
        [Voice off microphone.] No, we will provide the copy. We
    will provide the copy.
        Chairman Grassley. Oh. Well, speak plainly with me, please.
        Senator Harris. Oh, sure. I would like to see what she is
    looking at.
        Chairman Grassley. Not you.
        [Laughter.]
        Chairman Grassley. You have another 30 seconds now because
    I was rudely interrupted.
        Ms. Mitchell. Okay. Mr. Chairman, Senator Harris, we do
    have a blown-up copy of this for the Members to view, if that
    is helpful?
        Dr. Ford. Okay. I'm going to put checkmarks next to homes
    that I can confirm are the correct locations and then an ``X''
    or a ``?'' when I don't know where these people live.
        Ms. Mitchell. I am only asking you to confirm if that map
    accurately shows where you were living at the time.
        Dr. Ford. Where I lived at the time. So I can't see the
    street name, but I'm happy to refer to the address or the
    neighborhood.
        Ms. Mitchell. Okay. Could you tell us that?
        Dr. Ford. Yes. It's River Falls.
        Ms. Mitchell. Okay.
        Dr. Ford. Near the--what is the place called, the Naval
    Research Center on Clara Barton Parkway.
        Ms. Mitchell. Okay. Was that a house or an apartment?
        Dr. Ford. It was my parents' home.
        Ms. Mitchell. Okay.
        Chairman Grassley. Senator Durbin.
        Senator Durbin. Mr. Chairman, I ask consent to enter into
    the record letters of support for Dr. Ford from her classmates
    at Holton-Arms School; 1,200 alumni of the school; 195 of your
    colleagues, students, and mentors; 1,400 women and men who
    attended DC schools; and 15 members of the Yale Law School
    faculty who are calling for a full FBI investigation. I ask
    consent to enter these into the record.
        Chairman Grassley. Without objection, so ordered.
        [The letters appear as submissions for the record.]
        Senator Durbin. Dr. Ford, as difficult as this experience
    must be, I want you to know that your courage in coming forward
    has given countless Americans the strength to face their own
    life-shattering past and begin to heal their wounds. By
    example, you have brought many families into an honest and
    sometimes painful dialogue that should have occurred a long
    time ago.
        I am sorry for what this has done to you and your family.
    No one, no one should face harassment, death threats, and
    disparaging comments by cheap-shot politicians simply for
    telling the truth. You and your family should know that for
    every scurrilous charge and every pathetic tweet, there have
    been thousands of Americans, women and men, who believe you,
    support you, and thank you for your courage.
        Watching your experience, it is no wonder that many sexual
    assault survivors hide their past and spend their lives
    suffering in pained silence. You had absolutely nothing to gain
    by bringing these facts to the Senate Judiciary Committee. The
    fact that you are testifying here today, terrified though you
    may be, the fact that you have called for an FBI investigation
    of this incident, the fact that you are prepared to name both
    Judge Kavanaugh and eyewitness Mark Judge stands in sharp
    contrast to the obstruction we have seen on the other side.
        The FBI should have investigated your charges, as they did
    in the Anita Hill hearing, but they did not. Mark Judge should
    be subpoenaed from his Bethany Beach hideaway and required to
    testify under oath, but he has not. Judge Kavanaugh, if he
    truly believes there is no evidence, no witnesses that can
    prove your case, should be joining us in demanding a thorough
    FBI investigation, but he has not.
        Today, you come before this Committee and before this
    Nation alone. I know you are joined by counsel and family. The
    prosecutor on the Republican side will continue to ask
    questions to test your memory and veracity. After spending
    decades trying to forget that awful night, it is no wonder your
    recollection is less than perfect.
        A polished liar can create a seamless story, but a trauma
    survivor cannot be expected to remember every painful detail.
    That is what Senator Leahy has mentioned earlier.
        One question is critical. In Judge Kavanaugh's opening
    testimony, which we will hear after you leave, this is what he
    says, ``I never had any sexual or physical encounter of any
    kind with Dr. Ford. I am not questioning that Dr. Ford may have
    been sexually assaulted by some person in some place at some
    time.''
        Last night, the Republican staff of this Committee released
    to the media a timeline that shows that they have interviewed
    two people who claim they were the ones who actually assaulted
    you. I am asking you to address this new defense of mistaken
    identity directly.
        Dr. Ford, with what degree of certainty do you believe
    Brett Kavanaugh assaulted you?
        Dr. Ford. One hundred percent.
        Senator Durbin. One hundred percent. In the letter which
    you sent to Senator Feinstein, you wrote, ``I have not
    knowingly seen Kavanaugh since the assault. I did see Mark
    Judge once at the Potomac Village Safeway, where he was
    extremely uncomfortable in seeing me.''
        Would you please describe that encounter at the Safeway
    with Mark Judge and what led you to believe he was
    uncomfortable?
        Dr. Ford. Yes. I was going to the Potomac Village Safeway.
    This is the one on the corner of Falls and River Road, and I
    was with my mother, and I was a teenager. So I wanted her to go
    in one door and me go in the other. So I chose the wrong door
    because the door I chose was the one where Mark Judge was--
    looked like he was working there and arranging the shopping
    carts.
        And I said hello to him, and his face was white and very
    uncomfortable saying hello back. And we had previously been
    friendly at the times that we saw each other over the previous
    2 years, albeit not very many times. We had always been
    friendly with one another. I wouldn't characterize him as not
    friendly. He was just nervous and not really wanting to speak
    with me. And he looked a little bit ill.
        Senator Durbin. How long did this occur after the incident?
        Dr. Ford. I would estimate 6 to 8 weeks.
        Senator Durbin. Thank you, Mr. Chairman.
        Chairman Grassley. Before we take a break, I cannot let
    what Durbin, Senator Durbin said--by the way, he is my friend.
    We work on a lot of legislation together. But you talked about
    the obstruction from the other side. I cannot let it go by what
    you have heard me say so many times that between July 30th and
    September 13th, there were 45 days this Committee could have
    been investigating this situation, and her privacy would have
    been protected.
        So something happened here in between on your side that the
    whole country--well, not the whole country should have known
    about it--no, not know about. We should have investigated it.
        We will take a break now for 15 minutes.
        [Whereupon, at 11:27 a.m., the Committee was recessed.]
        [Whereupon, at 11:47 a.m., the Committee reconvened.]
        Chairman Grassley. Dr. Ford, let me ask you a process
    question here. We were going to schedule a break for 12:05.
    This last break came just a little bit later. I did not call it
    at the right time. We are going to have a vote at 12:40, so
    would it be possible for you to go from now until 12:40 without
    a break?
        Dr. Ford. Yes.
        Chairman Grassley. Okay. Now it is Senator Cornyn's time,
    so proceed, Ms. Mitchell.
        [For Senator Cornyn.]
        Ms. Mitchell. Thank you, Senator.
        I have a blow-up here to my right of the map that was shown
    to you. The address that's indicated on here as belonging to
    your family is what all the property tax records showed as
    being your address.
        Dr. Ford. Okay.
        Ms. Mitchell. Just to put it in perspective, I'd like to
    show you a further-out, a zoomed-out picture so that we can put
    it in perspective, so we can show the greater Washington area.
    Of course, you can see the Beltway on that, the Beltway area.
        Dr. Ford. Okay.
        Ms. Mitchell. And then, number 3, if we could look at that.
    We drew a 1-mile radius around the country club, and then we
    calculated from the furtherest point----
        Senator Harris. Mr. Chairman, again, we do not have these
    documents.
        Chairman Grassley. You are looking at them.
        Senator Harris. No, we are not. That is why she showed
    three different documents, because they depict three different
    things. So we would like to see all three documents, please, so
    we can follow along.
        Chairman Grassley. Proceed, please.
        Ms. Mitchell. Okay. Looking at the third thing here, we
    calculated the distance from the closest point to your house
    from a mile radius of the country club and then the fartherest
    point. You can see it's 6.2 and, of course, 8.2 miles. And
    you've described this as being near the country club, wherever
    this house was. Is that right?
        Dr. Ford. I would describe it as somewhere between my house
    and the country club, in that vicinity that's shown in your
    picture.
        Ms. Mitchell. Okay.
        Dr. Ford. And the country club is about a 20-minute drive
    from my parents' home.
        Ms. Mitchell. A 20-minute drive. And, of course, I've
    marked as the crow flies.
        Dr. Ford. Yes.
        Ms. Mitchell. Would it be fair to say that somebody drove
    you somewhere, either to the party or home from the party?
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. Has anyone come forward to say to you,
    ``Hey, remember, I was the one that drove you home''?
        Dr. Ford. No.
        Ms. Mitchell. Okay. In your July 6th text to The Washington
    Post that you looked at earlier, you said that this happened in
    the mid-'80s. In your letter to Senator Feinstein, you said it
    occurred in the early '80s.
        In your polygraph statement, you said it was high school
    summer in '80s, and you actually had written in--and this is
    one of the corrections I referred to--``early,'' and then you
    crossed that out.
        Later in your interview with The Washington Post, you were
    more specific. You believed it occurred in the summer of 1982,
    and you said the end of your sophomore year.
        Dr. Ford. Yes.
        Ms. Mitchell. You said the same thing, I believe, in your
    prepared statement. How were you able to narrow down the
    timeframe?
        Dr. Ford. I can't give the exact date, and I would like to
    be more helpful about the date. And if I knew when Mark Judge
    worked at the Potomac Safeway, then I would be able to be more
    helpful in that way. So I'm just using memories of when I got
    my driver's license. I was 15 at the time, and I did not drive
    home from that party or to that party. And once I did have my
    driver's license, I liked to drive myself, so----
        Ms. Mitchell. I assume the legal driving age was 16?
        Dr. Ford. Yes.
        Ms. Mitchell. Okay. Now, you've talked about attending
    therapy. In your text to The Washington Post dated 7/6--so
    that's the very first statement we have from you--you put in
    there, ``Have therapy records, talking about it.'' I want to
    make sure I understand that. Did you already have your therapy
    records at that time?
        Dr. Ford. I had looked at them online to see if they
    existed, yes.
        Ms. Mitchell. Okay. So this was something that was
    available to you via a computer, like a patient portal?
        Dr. Ford. Actually, no. It was in the office of a provider.
        Ms. Mitchell. Okay.
        Dr. Ford. She helped me go through the record to locate
    whether I had had a record of this conversation that I had
    remembered.
        Ms. Mitchell. Did you show a full or partial set of those
    marriage therapy records to The Washington Post?
        Dr. Ford. I don't remember. I remember summarizing for her
    what they said, so I'm not quite sure if I actually gave her
    the record.
        Ms. Mitchell. Okay. So it's possible that the reporter did
    not see these notes?
        Dr. Ford. I don't know if she--I can't recall whether she
    saw them directly or if I just told her what they said.
        Ms. Mitchell. Okay. Have you shown them to anyone else
    besides your counsel?
        Dr. Ford. Just the counsel.
        Ms. Mitchell. Okay. Would it be fair to say that Brett
    Kavanaugh's name is not listed in those notes?
        Dr. Ford. His name is not listed in those notes.
        Ms. Mitchell. Would it also be fair to say that the
    therapist notes that we've been talking about, say that there
    were four boys in the room?
        Dr. Ford. It describes the sexual assault, and it says
    ``erroneously by four boys,'' so the therapist got the content
    of it wrong.
        Ms. Mitchell. And you corrected that to The Washington Post
    reporter, correct?
        Dr. Ford. Correct.
        Chairman Grassley. Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman. Thank you, Dr.
    Blasey Ford. A lot of people are proud of you today.
        From a prosecutor's view, one of the hardest things that we
    have to do is to speak to somebody who has come forward with an
    allegation of sexual assault and let them know that we cannot
    provide the evidence to go forward to trial. It is a hard day
    for the prosecutor to do that. And so, both because making a
    sincere and thorough investigative effort is such an important
    consolation to the victim in that circumstance, and because it
    is what you are obliged to do professionally. Sincere and
    thorough investigation is critical to these claims in a
    prosecutor's world. It may be the most basic thing that we owe
    a victim or a witness coming forward, is to make sure that we
    give them a full, thorough, and sincere investigation.
        You have met all of the standards of what I might call
    ``preliminary credibility'' with your initial statement. You
    have vivid, specific, and detailed recollections, something
    prosecutors look for. Your recollections are consistent with
    known facts. You made prior consistent statements, something
    else prosecutors and lawyers look for. You were willing to and
    did take a lie detector test. And you were willing to testify
    here--here you are--subject to professional cross-examination
    by a prosecutor.
        So you have met any condition any prosecutor could expect
    to go forward, and yet there has been no sincere or thorough
    investigation of your claims.
        You specifically asked for an FBI investigation, did you
    not?
        Dr. Ford. Yes.
        Senator Whitehouse. And are you aware that when the FBI
    begins investigating, they might find corroborative evidence
    and they might find exculpatory evidence?
        Dr. Ford. I don't know what exculpatory evidence is.
        Senator Whitehouse. Not helpful to your recollection and
    version of events, helpful to the accused.
        Dr. Ford. Understood, yes.
        Senator Whitehouse. So it could go either way?
        Dr. Ford. Yes.
        Senator Whitehouse. And you were still not just willing but
    insistent that the FBI should investigate your recollection and
    your claim?
        Dr. Ford. Yes, I feel like it would--I could be more
    helpful if that was the case in providing some of the details
    that maybe people are wanting to know about.
        Senator Whitehouse. And as we know, they did not. And I
    submit that never, never in the history of background
    investigations, has an investigation not been pursued when new,
    credible derogatory information was brought forward about the
    nominee or the candidate. I do not think this has ever happened
    in the history of FBI background investigations. Maybe somebody
    can prove me wrong, but it is wildly unusual and out of
    character. And in my view, it is a grave disservice to you, and
    I want to take this moment to apologize to you for that and to
    report to anybody who might be listening that, when somebody is
    willing to come forward, even under those circumstances, even
    having been not given the modicum of courtesy and support of a
    proper investigation, you have shown yourself particularly
    proud in doing that. And the responsibility for the decision to
    have this be, I think, the only background investigation in
    history to be stopped as derogatory information came forward
    belongs with 13 men: the President, Director Wray of the FBI,
    and the 11 Members of the Majority of this Committee.
        As to the Committee's investigation, the fact that Mr.
    Kavanaugh's alleged accomplice has not been subpoenaed, has not
    been examined and cross-examined under oath, has not been
    interviewed by the FBI, tells you all you need to know about
    how credible this performance is.
        The very bare minimum that a person who comes from is owed
    is sincere and thorough investigation--and you have been denied
    that. And I will make a personal pledge to you here that,
    however long it takes, in whatever forum I can do it, whenever
    it is possible, I will do whatever is in my power to make sure
    that your claims get a full and proper investigation and not
    just this.
        Thank you for being here.
        Dr. Ford. Thank you.
        Chairman Grassley. Since this issue has come up so many
    times, I would like to comment. The New Yorker published an
    anonymous account of allegations September the 14th. Two days
    later Dr. Ford identified herself as the victim in The Post
    article detailing her allegations. I immediately directed my
    staff to investigate. September the 17th, Dr. Ford's counsel
    went on several television shows requesting that her client
    have an opportunity to tell her story. The same day I scheduled
    a hearing for Monday, September the 24th, giving Dr. Ford a
    week to prepare her testimony and come to Washington, DC.
        On September the 17th, Committee investigative staff
    reached out to Dr. Ford and Judge Kavanaugh to schedule follow-
    up interviews with Republican and Democrat investigators. Judge
    Kavanaugh accepted the opportunity to speak to the
    investigators under criminal penalty. Dr. Ford declined. In his
    interview on September the 17th, Judge Kavanaugh denied the
    allegations and requested a hearing as soon as possible.
    Democratic staff refused to participate in that interview.
        The next day, September the 18th, Committee investigative
    staff contacted Mark Judge requesting an interview. Committee
    staff also learned the identity of two other alleged party-
    goers and requested interviews. Mark Judge submitted a
    statement under penalty of felony, denying knowledge of the
    party described by Dr. Ford, and states that he never saw Brett
    in the manner described by Dr. Ford. And I can go on and on
    about that, but we have got to realize that what we have done
    in this case, all the time you go through a background
    investigation by the FBI, then it comes to us, and there are
    always some holes in it that we have to follow up on. And,
    besides----
        Senator Klobuchar. Mr. Chairman?
        Chairman Grassley [continuing]. We are responding to Dr.
    Ford's request to tell her story. That is why we are here.
        Senator Klobuchar. Mr. Chairman? Mr. Chairman?
        Chairman Grassley. Ms. Mitchell, go for Senator----
        Senator Klobuchar. Mr. Chairman, I just want to point out
    that, to support what Senator Whitehouse said, in the Anita
    Hill case----
        Senator Cornyn. Could we hear from Dr. Ford?
        Senator Klobuchar [continuing]. George Bush ordered that
    the investigation be opened again.
        Chairman Grassley. Ms. Mitchell, will you proceed for
    Senator Lee.
        [For Senator Lee.]
        Ms. Mitchell. Thank you, Mr. Chairman.
        Dr. Ford, The Washington Post reported in their September
    16th article that you did show them therapist notes. Is that
    incorrect?
        Dr. Ford. I don't remember physically showing her a note.
        Ms. Mitchell. Okay.
        Dr. Ford. Perhaps my counsel did. I don't remember
    physically showing her my copy of the note.
        Ms. Mitchell. Okay.
        Dr. Ford. But I just don't remember. I'm sorry. I have
    retrieved a physical copy of those medical records.
        Ms. Mitchell. Okay. Thank you.
        You also attended individual therapy. Did you show any of
    those notes to the reporter from The Washington Post?
        Dr. Ford. Again, I don't remember if I showed her like
    something that I summarized or if I just spoke about it or if
    she saw it in my counsel's office. I can't--I don't know for
    sure. But I certainly spoke with her about the 2013 record with
    the individual therapist.
        Ms. Mitchell. And Brett Kavanaugh's name is not in those
    notes. Is that correct?
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. In reading The Washington Post article,
    it mentions that this incident that we're here about
    contributed to anxiety and PTSD problems with which you have
    struggled. The word ``contributed,'' does that mean that there
    are other things that have happened that have also contributed
    to anxiety and PTSD?
        Dr. Ford. I think that's a great question. I think the
    etiology of anxiety and PTSD is multifactorial, so that was
    certainly a critical risk that--we would call it a ``risk
    factor'' in science, so that would be a predictor of the
    symptoms that I now have. It doesn't mean that other things
    that have happened in my life would have--would make it worse
    or better if there are other risk factors as well.
        Ms. Mitchell. So have there been other things then that
    have contributed to the anxiety and PTSD that you suffered?
        Dr. Ford. Well, I think there's sort of biological
    predispositions that everyone in here has for particular
    disorders, so I can't rule out that I would have some
    biological predisposition to be an anxious-type person.
        Ms. Mitchell. What about environmental?
        Dr. Ford. Environmentally, not that I can think of.
        Ms. Mitchell. Okay.
        Dr. Ford. Certainly nothing as striking as that event.
        Ms. Mitchell. Okay. In your interview with The Washington
    Post, you said that you told your husband early in your
    marriage that you had been a victim of, and I quote, ``physical
    abuse.'' In your statement you said that before you were
    married, you told him that you had experienced ``a sexual
    assault.'' Do these two things refer to the same incident?
        Dr. Ford. Yes.
        Ms. Mitchell. And at either point on these two times, did
    you use any names?
        Dr. Ford. No.
        Ms. Mitchell. Okay. May I ask, Dr. Ford, how did you get to
    Washington?
        Dr. Ford. In an airplane.
        Ms. Mitchell. Okay. I ask that because it's been reported
    by the press that you would not submit to an interview with the
    Committee because of your fear of flying. Is that true?
        Dr. Ford. Well, I was willing--I was hoping that they would
    come to me, but then realized that was an unrealistic request.
        Ms. Mitchell. It would have been a quicker trip for me.
        [Laughter.]
        Dr. Ford. Yes. So that was certainly what I was hoping, was
    to avoid having to get on an airplane. But I eventually was
    able to get up the gumption with the help of some friends and
    get on the plane.
        Ms. Mitchell. When you were here in the Mid-Atlantic area
    back in August--end of July, August, how did you get here?
        Dr. Ford. Also by airplane. I come here once a year during
    the summer to visit my family.
        Ms. Mitchell. Okay.
        Dr. Ford. I'm sorry. Not here. I go to Delaware.
        Ms. Mitchell. Okay. In fact, you fly fairly frequently for
    your hobbies and you've had to fly for your work. Is that true?
        Dr. Ford. Correct, unfortunately.
        Ms. Mitchell. You were a consulting biostatistician in
    Sidney, Australia. Is that right?
        Dr. Ford. I've never been to Australia, but the company
    that I worked for is based in Australia, and they have an
    office in San Francisco, California.
        Ms. Mitchell. Okay.
        Dr. Ford. I don't think I'll make it to Australia.
        Ms. Mitchell. It is long. I also saw in your C.V. that you
    list the following interests of surf travel and you, in
    parentheses, put Hawaii, Costa Rica, South Pacific Islands, and
    French Polynesia. Have you been all to those places?
        Dr. Ford. Correct.
        Ms. Mitchell. By airplane?
        Dr. Ford. Yes.
        Ms. Mitchell. And your interests also include oceanography,
    Hawaiian and Tahitian culture. Did you travel by air as a part
    of those interests?
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. Thank you very much.
        Dr. Ford. Easier for me to travel going that direction when
    it is a vacation.
        Chairman Grassley. Senator Klobuchar.
        Senator Klobuchar. Thank you, Mr. Chairman. Thank you for
    being here, Dr. Ford.
        You know, in my old job as a prosecutor, we investigated
    reports like this, so it gave me a window on the types of cases
    that hurt women and hurt all of us. And I would always tell the
    women that came before us that they were going to have to tell
    their story before a jury box of strangers. And you have had to
    tell your story before the entire Nation.
        For so many years, people swept cases like yours under the
    rug. They would say what happens inside a house did not belong
    in the courthouse. Well, the times have changed, so I just want
    to thank you for coming forward today and for sharing your
    report with us.
        Now, I understand that you have taken a polygraph test, Dr.
    Ford, that found that you were being truthful when you
    described what happened to you. Can you tell us why you decided
    to take that test?
        Dr. Ford. I was meeting with attorneys, I was interviewing
    various attorneys, and the attorneys asked if I was willing to
    take it, and I said absolutely. That said, it was almost as
    anxiety-provoking as an airplane flight.
        Senator Klobuchar. Okay. And you have talked about your
    recollections and seeing Mark Judge at that Safeway. If there
    had been an appropriate reopening of this background check and
    FBI interviews, would that have helped you find the time period
    if you knew when he worked at that Safeway?
        Dr. Ford. I feel like I could be much more helpful if I
    could be provided with that date through employment records or
    the IRS or something, anything that would help.
        Senator Klobuchar. Thank you. I would assume that is true.
        Dr. Ford, under Federal law--and I do not expect you to
    know this, but statements made to medical professionals are
    considered to be more reliable. There is a Federal Rule of
    Evidence about this. You told your counselor about this back in
    2012. Is that right?
        Dr. Ford. My therapist?
        Senator Klobuchar. Yes.
        Dr. Ford. My individual therapist, correct.
        Senator Klobuchar. Right. And I understand that your
    husband was also present when you spoke about this incident in
    front of a counselor, and he recalls you using Judge
    Kavanaugh's name. Is that right?
        Dr. Ford. Yes. I just have to slow down a minute because I
    might have been confusing. So there were two separate incidents
    where it's reflected in my medical record. I had talked about
    it more than those two times. But therapists don't typically
    write down content as much as they write down process. They
    usually are tracking your symptoms and not your story and the
    facts. I just happened to have it in my record twice. So the
    first time is in 2012 with my husband in couples therapy with
    the quibbling over the remodel, and then in 2013 with my
    individual therapist.
        Senator Klobuchar. Okay. So if someone had actually done an
    investigation, your husband would have been able to say that
    you named his name at that time?
        Dr. Ford. Correct.
        Senator Klobuchar. Okay. I know you have been concerned----
        Dr. Ford. 2012.
        Senator Klobuchar [continuing]. With your privacy
    throughout the process, and you first requested that your
    account be kept confidential. Can you briefly tell us why?
        Dr. Ford. Yes. So as I stated before, once I was
    unsuccessful in getting my information to you before the
    candidate was chosen, my original intent was to get the
    information when there was still a list of other candidates
    available. And once that was not successful and I saw that
    persons were very supportive of the nominee, I tracked it----
        Senator Klobuchar. Okay.
        Dr. Ford [continuing]. All summer and realized that when I
    was calculating that risk/benefit ratio, that it looked like I
    was going to just, you know, suffer only for no reason.
        Senator Klobuchar. Okay. You know, from my experience with
    memory, I remember distinctly things that happened to me in
    high school or happened to me in college, but I do not exactly
    remember the date. I do not exactly remember the time. I
    sometimes may not even remember the exact place where it
    occurred, but I remember the interaction. And many people are
    focused today on what you are not able to remember about that
    night. I actually think you remember a lot. I am going to
    phrase it a little differently. Can you tell us what you do not
    forget about that night?
        Dr. Ford. The stairwell; the living room; the bedroom, the
    bed on the right side of the room--as you walk into the room,
    there was a bed to the right; the bathroom in close proximity;
    the laughter, the uproarious laughter; and the multiple
    attempts to escape, and the final ability to do so.
        Senator Klobuchar. Thank you very much, Dr. Ford.
        Chairman Grassley. Dr. Ford, I want to correct the record,
    but it is not something that I am saying that you stated
    wrongly, because you may not know the fact that when you said
    that you did not think it was possible for us to go to
    California as a Committee or our investigators to go to
    California to talk to you, we did, in fact, offer that to you,
    and we had the capability of doing it, and we would have done
    it anywhere or anytime.
        Dr. Ford. Thank you.
        Senator Klobuchar. And, Mr. Chairman, could I put the
    polygraph results on the record, please? The polygraph results
    in the record. Is there any objection?
        Chairman Grassley. Well, let us see the chart.
        Senator Klobuchar. The polygraph? You want to all see it?
        Chairman Grassley. Would you hold just a minute, please?
        Senator Klobuchar. I think you may have it.
        Chairman Grassley. Can we have the underlying charts, too?
        Senator Klobuchar. The underlying charts? I have the
    polygraph results that I would just like to put in the record.
    I will deal with the charts after that. Could I put the
    polygraph test in the record?
        Mr. Bromwich. Mr. Chairman, we were----
        Chairman Grassley. Go ahead.
        Mr. Bromwich. We had proposed having the polygraph examiner
    testify, as you know. If that had happened, the full panoply of
    materials that he had supporting his examination would have
    been provided. You rejected that request, so what we did
    provide was the polygraph report, which is what Members of the
    Committee currently have.
        Senator Klobuchar. And on September 26th, Mr. Chairman,
    this was actually sent to your Chief Counsel, and I just want
    to share it with America so that they have this report as well.
        Chairman Grassley. Okay. We will accept, without objection,
    what you have asked us to include, but we are also requesting
    and expect the other materials that I have just stated.
        [The polygraph report appears as a submission for the
    record.]
        Senator Klobuchar. But, Mr. Chairman, you would not allow
    the underlying witness who performed the polygraph test to
    testify, nor would you allow Mark Judge to testify. And so I
    would just like to point out--thank you for allowing this
    report in the record, but that is the reason that we do not
    have the underlying information for you.
        Chairman Grassley. You got what you wanted. I think you
    would be satisfied.
        Senator Klobuchar. I am satisfied with that. Thank you.
        Senator Graham. Mr. Chairman?
        Chairman Grassley. Senator, go ahead.
        Senator Graham. When was the polygraph administered?
        Senator Klobuchar. It was administered on August 7, 2018--
    --
        Senator Graham. When was it----
        Senator Klobuchar [continuing]. And it was--the date of the
    report is August 10, 2018.
        Senator Graham. When was it provided to the Committee?
        Chairman Grassley. Let us just see if we cannot do this in
    a more orderly way.
        Senator Klobuchar. Well, he was asking, and I have it right
    here, and you have it as well. It was----
        Chairman Grassley. We have accepted----
        Senator Klobuchar [continuing]. September 26th.
        Chairman Grassley. We have accepted it.
        Senator Klobuchar. All right.
        Chairman Grassley. Ms. Mitchell for Senator Cruz.
        [For Senator Cruz.]
        Ms. Mitchell. Thank you.
        Dr. Ford, we have talked about the day and the night that
    you have described in the summer of 1982, and thank you for
    being willing to do that. I know it is difficult. I would like
    to shift gears and discuss the last several months.
        Dr. Ford. Okay.
        Ms. Mitchell. In your statement you said that on July 6th,
    you had a ``sense of urgency'' to relay the information to the
    Senate and the President. Did you contact either the Senate or
    the President on or before July 6th?
        Dr. Ford. No, I did not. I did not know how to do that.
        Ms. Mitchell. Okay. Prior to July 6th, had you spoken to
    any Member of Congress--and when I say Congress, I mean the
    Senate or the House of Representatives--or any congressional
    staff members about your allegations?
        Dr. Ford. No.
        Ms. Mitchell. Why did you contact The Washington Post then
    on July 6th?
        Dr. Ford. So I was panicking because I knew the timeline
    was short for the decision, and people were giving me advice on
    the beach, people who don't know about the processes but they
    were giving me advice, and many people told me, ``You need to
    hire a lawyer.'' And I didn't do that. I didn't understand why
    I would need a lawyer. As somebody said, ``Call The New York
    Times.'' ``Call The Washington Post.'' ``Put in an anonymous
    tip.'' ``Go to your Congressperson.'' And when I weighed those
    options, I felt like the best option was to try to do the civic
    route, which is to go to my Congressperson, who happens to be
    Anna Eshoo. So I called her office, and I also put in the
    anonymous tip to The Washington Post. And neither--
    unfortunately, neither got back to me before the selection of
    the nominee.
        Ms. Mitchell. You testified that Congresswoman Eshoo's
    office contacted you on July 9th. Is that right?
        Dr. Ford. They contacted me the date that the nominee was
    announced, so that seems likely.
        Ms. Mitchell. Had you talked about your allegations with
    anyone in her office before the date of July 9th?
        Dr. Ford. I told the receptionist on the phone.
        Ms. Mitchell. Okay. On July 10th, you texted The Washington
    Post again--which was really the third time. Is that right?
    Second date, third time.
        Dr. Ford. Let's see. Correct.
        Ms. Mitchell. And you texted, ``Been advised to contact
    Senators or New York Times. Haven't heard back from Washington
    Post.'' Who advised you to contact Senators or The New York
    Times?
        Dr. Ford. Beach friends, coming up with ideas of how I
    could try to get to people, because people weren't responding
    to me very quickly. So very quickly, they responded to that
    text for what unknown reason, that once I sent that encrypted
    text, they responded very quickly.
        Ms. Mitchell. Did you contact The New York Times?
        Dr. Ford. No.
        Ms. Mitchell. Why not?
        Dr. Ford. I wasn't interested in pursuing the media route
    particularly, so I felt like one was enough, The Washington
    Post, and I was nervous about doing that. My preference was to
    talk with my Congressperson.
        Ms. Mitchell. Okay. The Washington Post texted back that
    someone would get in touch--get you in touch with a reporter.
    Did you subsequently talk to a reporter with The Washington
    Post?
        Dr. Ford. Yes, under the encrypted app and off the record.
        Ms. Mitchell. Okay. Who was that reporter?
        Dr. Ford. Emma Brown.
        Ms. Mitchell. Okay. The person who ultimately wrote the
    story on September 16th?
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. Did you talk to any Member of
    Congress--and, again, remember, Congress includes the Senate or
    the House of Representatives--or any congressional staff
    members about your allegations between July 10th and July 30th,
    which was the date of your letter to Senator Feinstein?
        Dr. Ford. Yes. I met with Congresswoman Eshoo's staff, and
    I think that's July 18th, the Wednesday, and then on the Friday
    I met with the Congresswoman herself.
        Ms. Mitchell. Okay. When you met with her, did you meet
    with her alone or did someone come with you?
        Dr. Ford. I was alone. She had a staff person.
        Ms. Mitchell. Okay. What did you talk about with
    Congresswoman Eshoo and her staff on July 18th and the 20th?
        Dr. Ford. I described the night of the incident, and we
    spent time speaking about that. And I asked her how to--what my
    options were in terms of going forward and how to get that
    information relayed forward, and also talked to her about fears
    of whether this was confidential information, and she discussed
    the constituent confidentiality principle.
        Ms. Mitchell. Thank you.
        Chairman Grassley. Senator Coons.
        Senator Coons. Thank you, Chairman Grassley.
        I would like to ask unanimous consent to submit for the
    record five articles, including one titled, ``Why Sexual
    Assault Memories Stick,'' and one entitled, ``Why didn't
    Kavanaugh accuser come forward earlier? Police often ignore
    sexual assault allegations.''
        Chairman Grassley. Without objection, so ordered.
        [The information appears as submissions for the record.]
        Senator Coons. Dr. Ford, I want to begin by thanking you
    for coming to testify in front of us today. You came forward
    with very serious and relevant information about a nominee for
    a lifetime position on our Supreme Court. You did not have to,
    and I know you have done it at great personal cost. This is a
    public service, and I want you to know that I am grateful to
    have the opportunity to hear from you directly today.
        I would like to just first follow up on that line of
    questioning Ms. Mitchell was following, because I think a lot
    of people do not realize that you chose to come forward with
    your concerns about Judge Kavanaugh before he was nominated to
    the Supreme Court.
        Do I understand correctly that when you first reached out
    to Congresswoman Eshoo and to The Washington Post tipline, that
    was when he was on the short list but before he was nominated
    to the Supreme Court. Is that correct?
        Dr. Ford. Correct.
        Senator Coons. And if I understood your testimony earlier,
    it is that you were motivated by a sense of civic duty and,
    frankly, a hope that some other highly qualified nominee might
    be picked, not out of a motivation at a late stage to have an
    impact on the final decision?
        Dr. Ford. Correct. I felt it was very important to get the
    information to you, but I did not know how to do it while there
    was still a short list of candidates.
        Senator Coons. Thank you, Doctor.
        According to Justice Department data, about two-thirds of
    sexual assault survivors do not report their assaults. Based on
    your experience, I would be interested in hearing from you
    about this because you bore this alone. You bore this alone for
    a very long time, and it would be helpful for us to better
    understand the ways that that has impacted your whole life.
        Dr. Ford. Well, it's impacted me at different stages of the
    development of my life, so the immediate impact was probably
    the worst, so the first 4 years--I think I described earlier a
    fairly disastrous first 2 years of undergraduate studies at
    University of North Carolina where I was finally able to pull
    myself together. And then once coping with the immediate
    impacts, the short-term impacts, I experienced like longer-term
    impacts of anxiety and relationship challenges.
        Senator Coons. Thank you for sharing that. And yet you went
    on to get a Ph.D. from USC. Is that correct?
        Dr. Ford. Correct.
        Senator Coons. As you predicted, there was a wide range of
    responses to your coming forward. Some thousands of survivors
    have been motivated and inspired by your courage. Others have
    been critical, and as I have reviewed the wide range of
    reactions, I have been really troubled by the excuse offered by
    too many that this was a high school incident and boys will be
    boys. To me that is just far too low a standard for the conduct
    of boys and men in our country.
        If you would, I would appreciate your reaction to the
    excuse that boys will be boys.
        Dr. Ford. I can only speak for how it has impacted me
    greatly for the last 36 years even though I was 15 years old at
    the time, and I think the younger you are when these things
    happen, it can possibly have worse impact than when you are a
    full--than when your brain is fully developed and you have
    better coping skills that you have developed.
        Senator Coons. You know, experts have written about how it
    is common for sexual assault survivors to remember some facts
    about the experience very sharply and very clearly but not
    others, and that has to do with the survival mode that we go
    into in experiencing trauma. Is that your experience and is
    that something you can help the lay person understand?
        Dr. Ford. Yes, I was definitely experiencing the fight or
    flight mode. Is that what you're referring to? Yes, so I was
    definitely experienced the surge of adrenaline and cortisol and
    norepinephrine and credit that a little bit for my ability to
    get out of the situation, but also some other lucky events that
    occurred that allowed me to get out of the event.
        Senator Coons. Dr. Ford, we are grateful that you came
    through it and that you shared your account with us and the
    American people, and I think you have provided important
    information, and I would like to thank you for meeting your
    civic duty. I wish we could have provided for you a more
    thorough hearing today. I think asking for the FBI to
    investigate this matter thoroughly was not asking too much. I
    think asking to have the other individual involved in your
    assault, Mark Judge, appear before us today was not asking too
    much.
        I am grateful you came forward, and I am thankful for your
    courage, which set an important example. Thank you, Dr. Ford.
        Chairman Grassley. Ms. Mitchell for Senator Sasse.
        [For Senator Sasse.]
        Ms. Mitchell. Dr. Ford, we were talking about you meeting
    in July with Congresswoman Eshoo. Did you talk about your
    allegations with any Republican Member of Congress or
    congressional staff?
        Dr. Ford. I did not. Where I live, the Congressman is a
    Democrat.
        Ms. Mitchell. Okay. Was it communicated to you by your
    counsel or someone else that the Committee had asked to
    interview you and that they offered to come out to California
    to do so?
        Mr. Bromwich. We are going to object, Mr. Chairman, to any
    call for privileged conversations between counsel and Dr. Ford.
    It was a privileged conversation we had.
        Senator Graham. Could you validate the fact that the offer
    was made without her saying a word?
        Senator Leahy. Wait a minute.
        Chairman Grassley. Is it possible for that question to be
    answered without violating any counsel relationships?
        Dr. Ford. Can I say something to you--do you mind if I say
    something to you directly?
        Chairman Grassley. Yes.
        Dr. Ford. I just appreciate that you did offer that. I
    wasn't clear on what the offer was. If you were going to come
    out to see me, I would have happily hosted you and had you--
    been happy to speak with you out there. I just did not--it
    wasn't clear to me that that was the case.
        Chairman Grassley. Okay. Does that take care of your
    question?
        Ms. Mitchell. Yes. Thank you, Mr. Chairman.
        Chairman Grassley. Proceed then.
        Ms. Mitchell. Before July 30th, the date on your letter to
    Senator Feinstein, had you retained counsel with regard to
    these allegations?
        Dr. Ford. No. I didn't think--I didn't understand why I
    would need lawyers, actually. I just didn't know.
        Ms. Mitchell. A lot of people have that feeling.
        Let's talk about the letter that you wrote on July 30th.
    You asked Senator Feinstein to maintain confidentiality, quote,
    ``until''----
        Mr. Bromwich. Wait until she retrieves it.
        Ms. Mitchell. Oh, I'm sorry.
        Dr. Ford. I'm just trying to look for it.
        Chairman Grassley. Stop the clock, will you?
        Dr. Ford. Oh, I found it. Sorry.
        Ms. Mitchell. Okay. You asked Senator Feinstein to maintain
    confidentiality, ``until we have had further opportunity to
    speak,'' and then said you were available to speak further,
    vacationing in the Mid-Atlantic until August 7th. Is that
    correct?
        Dr. Ford. The last line, is that what you're--I'm now just
    catching up with you. Sorry. I'm a little slower. My mind is
    getting a little tired. ``I am available to speak further
    should you wish to discuss''--yes, I was in Delaware until
    August 7th.
        Ms. Mitchell. Okay.
        Dr. Ford. And after that I went to New Hampshire and then
    back to California.
        Ms. Mitchell. Did you talk with anybody about this letter
    before you sent it?
        Dr. Ford. I talked with Anna Eshoo's office.
        Ms. Mitchell. Okay. And why did you talk to Congresswoman
    Eshoo's office about that letter?
        Dr. Ford. Because they were willing to hand-deliver it to
    Senator Feinstein.
        Ms. Mitchell. Okay. Did anyone help you write the letter?
        Dr. Ford. No.
        Ms. Mitchell. Okay. After you sent your letter, did you, or
    anyone on your behalf, speak to Senator Feinstein personally or
    with any Senate staffer?
        Dr. Ford. Yes. I had a phone call with Senator Feinstein.
        Ms. Mitchell. Okay. And when was that?
        Dr. Ford. That was while I was still in Delaware, so before
    August 7th.
        Ms. Mitchell. Okay. And how many times did you speak with
    Senator Feinstein?
        Dr. Ford. Once.
        Ms. Mitchell. Okay. What did you talk about?
        Dr. Ford. She asked me some questions about the incident,
    and I answered those questions.
        Ms. Mitchell. Okay. Was that the extent of the gist of the
    conversation?
        Dr. Ford. Yes. It was a fairly brief phone call.
        Ms. Mitchell. Okay. Did you ever give Senator Feinstein or
    anyone else the permission to release that letter?
        Dr. Ford. Not that I know of, no.
        Ms. Mitchell. Okay. Between the letter date, July 30th, and
    August the 7th, did you speak with any other person about your
    allegations?
        Dr. Ford. Could you say the dates again?
        Ms. Mitchell. Between the letter date of July 30th and
    August 7th, so while you were still in Delaware, did you speak
    with any other person about your allegations?
        Dr. Ford. I'm just trying to remember what dates that . . .
        Chairman Grassley. Stop the----
        Mr. Bromwich. You're asking her, with the exclusion of any
    lawyers that she may have----
        Chairman Grassley. Stop the clock.
        Mr. Bromwich. Spoken with. Correct?
        Ms. Mitchell. Correct.
        Dr. Ford. Correct. I think correct then. I was interviewing
    lawyers, but I was not----
        Chairman Grassley. Start the clock.
        Ms. Mitchell. Okay.
        Dr. Ford [continuing]. Speaking personally about it.
        Ms. Mitchell. Aside from lawyers that you were seeking to
    possibly hire to represent you, did you speak to anybody else
    about it during that period of time?
        Dr. Ford. No.
        Ms. Mitchell. Okay.
        Dr. Ford. I was staying with my parents at the time.
        Ms. Mitchell. Did you talk to them about it?
        Dr. Ford. Definitely not.
        Ms. Mitchell. Okay. So would it be fair to say that you
    retained counsel during that time period of July 30th to August
    7th?
        Dr. Ford. I can't remember the exact date, but it was--I
    was interviewing lawyers during that period of time sitting in
    the car in the driveway and in the Walgreens parking lot in
    Rehoboth, Delaware, and trying to figure out how the whole
    system works of interviewing lawyers and how to pick one, et
    cetera.
        Ms. Mitchell. You testified earlier that you had--you
    didn't see the need for lawyers, and now you're trying to hire
    them. What made you change your mind?
        Dr. Ford. It seemed like most of the individuals that I had
    told, which didn't--the total number, the total was not very
    high, but those persons advised me to at this point get a
    lawyer for advice about whether to push forward or to stay
    back.
        Ms. Mitchell. Did that include Congresswoman Eshoo and
    Senator Feinstein?
        Dr. Ford. No.
        Ms. Mitchell. Okay.
        Chairman Grassley. I want to thank Dr. Ford for what you
    said about acknowledging that we had said we would come to
    California.
        Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman.
        I want to join in thanking you for being here today and
    just tell you I have found your testimony powerful and
    credible, and I believe you. You are a teacher, correct?
        Dr. Ford. Correct.
        Senator Blumenthal. Well, you have given America an amazing
    teaching moment, and you may have other moments in the
    classroom, but you have inspired and you have enlightened
    America. You have inspired and given courage to women to come
    forward, as they have done to every one of our offices and many
    other public places. You have inspired and you have enlightened
    men in America to listen respectfully to women survivors, and
    men, who have survived sexual attack. And that is a profound
    public service, regardless of what happens with this
    nomination. And so the teachers of America, people of America,
    should be really proud of what you have done.
        Let me tell you why I believe you, not only because of the
    prior consistent statements and the polygraph test and your
    request for an FBI investigation and your urging that this
    Committee hear from other witnesses who could corroborate, or
    dispute, your story; but also you have been very honest about
    what you cannot remember. And someone composing a story can
    make it all come together in a seamless way, but someone who is
    honest--I speak from my experience as a prosecutor as well--is
    also candid about what she or he cannot remember.
        The Senators on the other side of the aisle have been
    silent. This procedure is unprecedented in a confirmation
    hearing. But I want to quote one of my colleagues, Senator
    Lindsey Graham, in a book that he wrote in 2015 when he was
    describing his own service and very distinguished and able
    service as a trial lawyer----
        Senator Graham. Air Force.
        Senator Blumenthal. I am not under oath.
        [Laughter.]
        Senator Blumenthal. He said, of his prosecutions of rape
    cases, ``I learned how much unexpected courage from a deep and
    hidden place it takes for a rape victim or sexually abused
    child to testify against their assailant.''
        ``I learned how much . . . courage from a deep and hidden
    place it takes for a rape victim or sexually abused child to
    testify against their assailant.''
        If we agree on nothing else today, I hope on a bipartisan
    basis we can agree on how much courage it has taken for you to
    come forward. And I think you have earned America's gratitude.
        Now, there has been some talk about your requesting an FBI
    investigation, and you mentioned a point just a few minutes ago
    that you could better estimate the time that you ran into Mark
    Judge if you knew the time that he was working at that
    supermarket. That is a fact that could be uncovered by an FBI
    investigation that would help further elucidate your account.
    Would you like Mark Judge to be interviewed in connection with
    the background investigation and the serious credible
    allegations that you have made?
        Dr. Ford. That would be my preference. I'm not sure it's
    really up to me, but I certainly would feel like I could be
    more helpful to everyone if I knew the date that he worked at
    the Safeway so that I could give a better--a more specific date
    of the assault.
        Senator Blumenthal. Well, it is not up to you. It is up to
    the President of the United States, and his failure to ask for
    an FBI investigation, in my view, is tantamount to a cover-up.
        Thank you, Mr. Chairman.
        Chairman Grassley. Now it is time for Senator Flake. Ms.
    Mitchell for Senator Flake.
        [For Senator Flake.]
        Ms. Mitchell. Thank you.
        We've heard this morning several times that you did take a
    polygraph, and that was on August the 7th. Is that right?
        Dr. Ford. I believe so. It was the day I was flying from
    BWI to Manchester, New Hampshire.
        Ms. Mitchell. Okay. Why did you decide to take a polygraph?
        Dr. Ford. I didn't see any reason not to do it.
        Ms. Mitchell. Were you advised to do that?
        Mr. Bromwich. Again, you are seeming to call for
    communications between counsel and client. I do not think you
    mean to do that. If you do, she should not have to answer that.
        Chairman Grassley. Counsel, could you let her answer the
    extent to which it does not violate the relationship between
    you and Dr. Ford?
        [Counsel confers with the witness.]
        Dr. Ford. Based on the advice of the counsel, I was happy
    to undergo the polygraph test, although I found it extremely
    stressful, much longer than I anticipated. I told my whole life
    story, I felt like, but I endured it. It was fine.
        Ms. Mitchell. I understand they can be that way.
        Have you ever taken any other polygraphs in your life?
        Dr. Ford. Never.
        Ms. Mitchell. Okay. You went to see a gentleman by the name
    of Jeremiah Hannifin to serve as the polygrapher. Did anyone
    advise you on that choice?
        Dr. Ford. Yes. I believe his name was Jerry.
        Ms. Mitchell. Jerry Hannifin.
        Dr. Ford. Yes.
        Ms. Mitchell. Okay. Did anyone advise you on that choice?
        Dr. Ford. I didn't choose him myself. He was the person
    that came to do the polygraph test.
        Ms. Mitchell. Okay. He actually conducted the polygraph not
    in his office in Virginia but actually at the hotel next to
    Baltimore-Washington Airport. Is that right?
        Dr. Ford. Correct.
        Ms. Mitchell. Why was that location chosen for the
    polygraph?
        Dr. Ford. I had left my grandmother's funeral at Fort
    Lincoln Cemetery that day and was on a tight schedule to get a
    plane to Manchester, New Hampshire, so he was willing to come
    to me, which was appreciated.
        Ms. Mitchell. So he administered a polygraph on the day
    that you attended your grandmother's funeral?
        Dr. Ford. Correct. Or it might have been the next day. I
    spent the night in a hotel. I don't remember the exact day.
        Ms. Mitchell. Have you ever had discussions with anyone
    besides your attorneys on how to take a polygraph?
        Dr. Ford. Never.
        Ms. Mitchell. And I don't just mean counter-measures, but I
    mean just any sort of tips or anything like that.
        Dr. Ford. No. I was scared of the test itself, but was
    comfortable that I could tell the information and the test
    would reveal whatever it was going to reveal. I didn't expect
    it to be as long as it was going to be, so it was a little bit
    stressful.
        Ms. Mitchell. Have you ever given tips or advice to
    somebody who was looking to take a polygraph test?
        Dr. Ford. Never.
        Ms. Mitchell. Did you pay for the polygraph yourself?
        Dr. Ford. I don't--I don't think so.
        Ms. Mitchell. Okay. Do you know who did pay for the
    polygraph?
        Dr. Ford. Not yet, no.
        Ms. Mitchell. You have the handwritten statement that you
    wrote out. Did anyone assist you in writing that statement?
        Dr. Ford. No, but you can tell how anxious I was by the
    terrible handwriting.
        Ms. Mitchell. Did you--we touched on it earlier. Did you
    know that the Committee has requested not only the charts from
    the polygraph test but also any audio or video recording of the
    polygraph test?
        Dr. Ford. No.
        Ms. Mitchell. Were you audio and video recorded when you
    were taking that test?
        Dr. Ford. Okay, so I remember being hooked up to a machine,
    like, being placed onto my body and being asked a lot of
    questions and crying a lot. That's my primary memory of that
    test. I don't know--I know he took laborious detail into
    explaining what he was going to be doing, but I was just
    focused on kind of what I was going to say and my fear about
    that. I wasn't listening to every detail about whether it was
    audio or video recorded.
        Ms. Mitchell. Well, you were in a hotel room, right?
        Dr. Ford. Correct.
        Ms. Mitchell. Regular hotel room with a bed and bathroom?
        Dr. Ford. No, no, no. It was a conference room, so I was
    sitting in a chair and he was behind me.
        Ms. Mitchell. Did you note any cameras in the room?
        Dr. Ford. Well, he had a computer set up, so I guess I
    assumed that he was somehow taping and recording me.
        Ms. Mitchell. Okay. So you assumed you were being video and
    audio recorded?
        Dr. Ford. Correct.
        Ms. Mitchell. But you don't know for sure?
        Dr. Ford. I don't know for sure.
        Ms. Mitchell. Okay. Thank you.
        Chairman Grassley. We're going to recess now for a half-
    hour for lunch. Thank you, Dr. Ford.
        [Whereupon, at 12:42 p.m., the Committee was recessed.]
        [Whereupon, at 1:12 p.m., the Committee reconvened.]
        Chairman Grassley. Dr. Ford, you tell me when you're ready.
        Dr. Ford. I'm just organizing my papers. I'll be ready in
    20 seconds.
        Chairman Grassley. Take as long as you need.
        Dr. Ford. Thank you.
        [Brief pause.]
        Dr. Ford. I'm ready.
        Chairman Grassley. Okay. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman. Mr. Chairman, is
    it your intent to cede all Republican Senators' time to your
    prosecutor rather than they themselves ceding their time to
    her?
        Chairman Grassley. Yes.
        Senator Hirono. We all know that the prosecutor, even
    though this clearly is not a criminal proceeding, is asking Dr.
    Ford all kinds of questions about what happened before and
    after, but basically not during the attack. The prosecutor
    should know that sexual assault survivors often do not remember
    peripheral information, such as what happened before or after
    the traumatic event. And yet she will persist in asking these
    questions, all to undermine the memory and basically the
    credibility of Dr. Ford. But we all know Dr. Ford's memory of
    the assault is very clear.
        Dr. Ford, the Republican's prosecutor has asked you all
    kinds of questions about who you called and when, asking
    details that would be asked in a cross-examination of a witness
    in a criminal trial, but this is not a criminal proceeding.
    This is a confirmation proceeding. I think I know what she's
    trying to get at, so I'll just ask you very plainly. Dr. Ford,
    is there a political motivation for your coming forward with
    your account of the assault by Brett Kavanaugh?
        Dr. Ford. No, and I'd like to reiterate that, again, I was
    trying to get the information to you while there was still a
    list of other--thank you--what looked like equally qualified
    candidates.
        Senator Hirono. And yet they're not here to testify. Dr.
    Ford, I'd like to join my colleagues who have thanked you for
    coming forward today, and I--and we all admire you for what
    you're doing. And I understand why you have come forward. You
    wanted us and the American people to know what you knew about
    the character, the character of the man we are considering for
    a lifetime appointment to the Supreme Court.
        I want to take a moment also to note the significant
    personal sacrifices you've made to come forward to share your
    traumatic experience with us and the American people. You've
    had to move. You've had death threats. All manner of basically
    re-victimization experiences have come your way. But by coming
    forward, you have inserted the question of character into this
    nomination and hopefully back into American life, and rightly
    so. We should be made to face the question of who it is we are
    putting in positions of power and decisionmaking in this
    country.
        We should look the question square in the face: Does
    character matter? Do our values, our real values about what is
    right and what is wrong and about whether we treat our fellow
    human beings with dignity and respect, do they matter anymore?
    I believe they do, and I believe the reaction we have seen to
    this coverage right now and your courage all over this country
    shows us that we're not alone, you're not alone, that women and
    men all across America are disgusted and sick and tired of the
    way basic human decency has been driven from our public life.
        The President admits on tape to assaulting women. He
    separates children from their parents. He takes basic
    healthcare protections from those who need them most. He
    nominates and stands behind a man who stands credibly accused
    of a horrible act. I again, want to thank you for coming
    forward.
        Mr. Chairman, I ask unanimous consent that six items,
    consisting of various statements, letters, fax sheet posts, are
    inserted into the record.
        Chairman Grassley. Is that one request, or do you want me
    to wait for six?
        Senator Hirono. Well, I have six separate items.
        Chairman Grassley. Okay.
        Senator Hirono. Because I can go over them for you.
        Chairman Grassley. Well, okay, no.
        Senator Hirono. I would like to----
        Chairman Grassley. Let me not interrupt you. Your request
    is requested without objection.
        Senator Hirono. Thank you.
        [The information appears as submissions for the record.]
        Senator Hirono. And I would like to read from an item that
    has already been entered into the record, but this is from a
    letter from the National Task Force to End Sexual and Domestic
    Violence. The letter states, and I quote this letter: ``This
    moment has become a crucible. It's a test of our progress. Do
    we start by believing victims of sexual assault and treating
    them with dignity or don't we? So far, Senate leaders are
    failing that test: pre-judging the outcome of a hearing,
    sympathizing with her perpetrator, attacking her credibility.
    They send a message to every victim of sexual violence that
    their pain doesn't matter, that they do not deserve justice,
    and that for them fair treatment is out of reach. This will
    only serve to drive victims into the shadows and further
    embolden abusers.''
        Once again, Dr. Ford, thank you very much. This is a moment
    for our country. Mahalo.
        Chairman Grassley. Ms. Mitchell for Senator Crapo.
        [For Senator Crapo.]
        Ms. Mitchell. Good afternoon.
        Dr. Ford. Hi.
        Ms. Mitchell. When we left off, we were still talking about
    the polygraph, and I believe you said it hasn't been paid for
    yet. Is that correct?
        Ms. Katz. Let me put an end to this mystery. Her lawyers
    have paid for her polygraph.
        Mr. Bromwich. As is routine.
        Ms. Katz. As is routine.
        Ms. Mitchell. Dr. Ford, do you expect the price of that
    polygraph to be passed on to you?
        Dr. Ford. I'm not sure yet. I haven't taken a look at all
    of the costs involved in this. We've relocated now twice, so I
    haven't kept track of all of all that paperwork, but I'm sure I
    have a lot of work to do to catch up on all of that later.
        Ms. Mitchell. I get you have a lot going on and you've had
    that for several months. But is it your understanding that
    someone else is going to assist you with some of these fees,
    including the cost for your polygraph?
        Dr. Ford. I'm aware that there's been several GoFundMe
    sites, but I haven't had a chance to figure out how to manage
    those because I've never had one.
        Ms. Mitchell. And I'm sorry, several what?
        Dr. Ford. Go----
        Mr. Bromwich. GoFundMe.
        Dr. Ford. GoFundMe sites that have raised money, primarily
    for our security detail. So, I'm not even quite sure how to
    collect that money or how to distribute it yet. I haven't been
    able to focus on that.
        Ms. Mitchell. Okay. In your testimony this morning, you
    stated that Senator Feinstein sent you a letter on August 31st
    of this year. Is that right?
        Dr. Ford. Let me see.
        Chairman Grassley. Stop the clock.
        Dr. Ford. I sent her a letter on July 30th, and I don't
    have the date. I'd have to pull up my email to find out the
    date of her email to me saying that--it was right before the
    hearings that she was going to maintain the confidentiality of
    the--of the letter.
        Ms. Mitchell. Say that again. It was until right before the
    hearing that what?
        Dr. Ford. That's my memory, but I can look it up for you.
    If you would like the exact date, I could pull it up on my
    email.
        Ms. Mitchell. Oh, yes, I just--I want to make sure----
        Mr. Bromwich. Do you have the date, Counsel?
        Ms. Mitchell. I want to make sure I understood what she--
    you said.
        Ms. Katz. That document has been turned over to--in
    response to request for documents. You have it.
        Ms. Mitchell. Thank you, Counsel. I want to make sure I
    understood what you said. Was it your understanding it was
    going to be kept confidential up until right before the
    hearing?
        Dr. Ford. It was my understanding that it was going to be
    kept confidential, period.
        Ms. Mitchell. Period? Okay. Between your polygraph on
    August the 7th and your receipt of the letter from Senator
    Feinstein, did you or anyone on your behalf speak to any Member
    of Congress or congressional staff about these allegations?
        Dr. Ford. I personally did not.
        Ms. Mitchell. So, my question was did you or anybody on
    your behalf?
        Dr. Ford. I don't--what do you mean? Did someone speak for
    me?
        Ms. Mitchell. Somebody that worked--is working with your or
    helping you. Did somebody at your behest, on your behalf speak
    to somebody in Congress or staff?
        Dr. Ford. I'm not sure.
        Ms. Mitchell. Okay.
        Dr. Ford. I'm not sure how those exchanges went, but I
    didn't speak to anyone.
        Ms. Mitchell. Okay. Is it possible that somebody did?
        Dr. Ford. I think so. It would be possible. I'm guessing it
    would be possible, but I don't know.
        Ms. Katz. Excuse me. You've asked her not to guess, and now
    you're asking her what's possible. So, I think if you want to
    ask her what she knows, you should ask her what she knows.
        Ms. Mitchell. Is that an objection, Counsel?
        Ms. Katz. It is an objection.
        Ms. Mitchell. I'll have the Chair rule on that.
        Dr. Ford. I don't know--I don't understand.
        Chairman Grassley. You should--you should answer the
    question unless there's a legal reason for not answering it on
    advice of your counsel.
        Dr. Ford. So, I don't totally understand the question, but
    I didn't speak with anyone during that timeframe other than my
    counsel.
        Ms. Mitchell. Okay. You've said repeatedly that you did not
    think that that letter that you wrote on July 30th was going to
    be released to the public. Is that correct?
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. And is it true that you did not
    authorize it to be released at any time?
        Dr. Ford. Correct.
        Ms. Mitchell. Okay. Besides your attorneys, did you
    provide--you provided that letter to Senator Feinstein. Is that
    correct?
        Dr. Ford. I provided her a letter on July 30th.
        Ms. Mitchell. We're talking about the July 30th letter.
        Dr. Ford. Okay. Okay.
        Ms. Mitchell. Did you--and you provided that letter to
    Senator Feinstein, correct?
        Dr. Ford. Mm-hmm.
        Ms. Mitchell. Is that a ``yes''?
        Dr. Ford. Yes.
        Ms. Mitchell. And you provided the letter to Representative
    Eshoo to deliver it to Senator Feinstein.
        Dr. Ford. Yes.
        Ms. Mitchell. Besides those two individuals, Representative
    Eshoo, and Senator Feinstein, and your attorneys, did you
    provide that letter to anyone else?
        Dr. Ford. No.
        Ms. Mitchell. Okay. Do you know how that letter became
    public?
        Dr. Ford. No.
        Ms. Mitchell. Okay. After that letter was made public or
    leaked, did you reach back out to The Washington Post?
        Dr. Ford. I reached out to the Washington--well, they were
    continuously reaching out to me, and I was not responding. But
    the time that I did respond and agreed to do the sit down was
    once the reporters started showing up at my home and at my
    workplace.
        Ms. Mitchell. Okay.
        Chairman Grassley. Senator Booker.
        Senator Booker. Thank you, Mr. Chairman. Dr. Ford, thank
    you for being here. I just want to remind everyone that this is
    not a courtroom. This is not a legal proceeding. You are here
    under your volition. And though a prosecutor has been engaged
    here to represent my colleagues, you're here, as you said, out
    of a civic duty. And I want to join my colleagues that it's
    really more than that, you know.
        Our founding documents talk about civic duty or the
    Declaration of Independence talks about for this country,
    pledging your lives, your fortunes, and your sacred honor. And
    anybody who's read your testimony knows what you've had to
    sacrifice by coming forward. Your life has been upended. You
    have received vicious, hateful threats, death threats. You've
    had to move out of your family home to some expense, I imagine,
    to you and your family. You've had to engage security to some
    expense. You've had to deal with incredible challenges.
        And what's amazing, and I want to join my colleagues in
    thanking you for your courage and bravery in coming forward,
    all to help us deal with one of the most important obligations
    a Senator has, to advise and consent on one of the branches of
    our Government, the highest courts in the land, an individual
    going before a lifetime appointment. And you even said that the
    President had a lot of folks on that list, and your fear was
    that this individual, who assaulted you, would ascend to that
    seat. That's correct, right?
        Dr. Ford. Correct.
        Senator Booker. Yes, and it is correct that you have given
    a lot of resources, taken a lot of threats to come forward,
    correct?
        Dr. Ford. Correct.
        Senator Booker. Assaults on your dignity and your humanity?
        Dr. Ford. Absolutely.
        Senator Booker. How has it affected your children?
        Dr. Ford. They're doing fairly well considering. Thank you
    for asking.
        Senator Booker. And your husband?
        Dr. Ford. Doing fairly well, considering. Yes. Thank you.
    We have a very supportive community.
        Senator Booker. That's good to hear. I want to use a
    different word for your courage because this is more--as much
    as this hearing is about a Supreme Court Justice, the reality
    is by you coming forward, your courage, you are affecting the
    culture of our country. We have a wonderful Nation, an
    incredible culture, but there are dark elements that allow
    unconscionable levels of--unacceptable levels of sexual assault
    and harassment that are affecting girls and boys and affecting
    men and women, from big media outlets, to corporations, to
    factory floors, to servers in restaurants, to our intimate
    spaces in homes and apartments all around this country.
        I stepped out during the break and was deluged with notes
    from friends all around the country, social media posts, that
    there are literally hundreds of thousands of people watching
    your testimony right now. And note after note that I got,
    people in tears, feeling pain and anguish, not just feeling
    your pain, but feeling their own, who have not come forward.
    You are opening up to open air hurt and pain that goes on
    across this country.
        And for that, the word I would use, it's nothing short of
    ``heroic.'' Because what you're doing for our Nation right now,
    besides giving testimony germane to one of the most sacred
    obligations of our offices, is, you are speaking truth that
    this country needs to understand. And how we deal with
    survivors who come forward right now is unacceptable, and the
    way we deal with this unfortunately allows for the continued
    darkness of this culture to exist. And your brilliance in
    shining a light under this, speaking your truth, is nothing
    short of heroic.
        But to the matter at hand, one of my colleagues who I have
    a lot of respect for, and I do consider him a friend, went to
    the Senate floor and spoke truth to both sides of the political
    aisle. Senator Flake said yesterday, ``This is a lifetime
    appointment, and this is said to be a deliberative body. In the
    interest of due diligence and fairness, her claims must be
    fully aired and considered.'' I agree with him. But you've
    asked for things that would give a full airing from
    corroborating witnesses to be called. You've submitted to an
    intrusive polygraph test.
        Can you answer for me how do you feel that all the things
    that could have been done thoroughly to help this deliberative
    body have not been honored in this so-called investigation?
        Dr. Ford. I wish that I could be more helpful and that
    others could be more helpful, and that we could collaborate in
    a way that would get at more information.
        Senator Booker. Thank you very much. Mr. Chairman, I'd just
    like to introduce for the record seven letters by--from Lambda
    Legal, from Mormon Women for Ethical Government, youth-led
    organizations around this country, the international unions,
    bricklayers, allied craft workers, a letter from 295 survivors
    of sexual violence in support of Dr. Ford, and a letter from
    1,600 men--it's a campaign in support of Dr. Ford--and those
    who want to assert, men and women, that survivors of sexual
    violence are not opportunists, do not have political axes to
    grind, but are coming forward with courage and with heart to
    speak their truth and try to end the scourge of sexual assault
    and violence in our country.
        Chairman Grassley. Without objection, so ordered.
        [The letters appear as submissions for the record.]
        Chairman Grassley. Ms. Mitchell for Senator Tillis.
        [For Senator Tillis.]
        Ms. Mitchell. Dr. Ford, in choosing attorneys, did anyone
    help you with the choice on who to choose?
        Dr. Ford. Various people referred me to lawyers that they
    knew in the Washington, DC, area. So, as you know, I grew up in
    this area, so I asked some family members and friends, and they
    would--they referred me to, like, divorce attorneys that might
    know somebody, that might know somebody. And I ended up
    interviewing several law firms from the DC area.
        Ms. Mitchell. And did anybody besides friends and family
    refer you to any attorneys?
        Dr. Ford. I think that the staff of Diane Feinstein's
    office suggested the possibility of some attorneys.
        Ms. Mitchell. Okay. Including the two that are sitting on
    either side of you?
        Dr. Ford. Not both of them, no.
        Ms. Mitchell. Okay. We've heard a lot of about FBI
    investigations.
        Dr. Ford. Mm-hmm.
        Ms. Mitchell. When did you personally first request an FBI
    investigation?
        Dr. Ford. How many weeks ago? I guess when we first started
    talking about the possibility of a hearing. I was hoping that
    there would be a more thorough investigation.
        Ms. Mitchell. Would that investigation have been something
    that you would've submitted to an interview?
        Dr. Ford. I would be happy to cooperate with the FBI, yes.
        Ms. Mitchell. Would you have been happy to submit to an
    interview by staff members from this Committee?
        Dr. Ford. Absolutely.
        Ms. Mitchell. Okay. Besides--you mentioned some GoFundMe
    accounts. Besides those, are there any other efforts outside of
    your own personal finances to pay for your legal fees or any of
    the costs occurred--incurred?
        Dr. Ford. It's my understanding that some of my team is
    working on a pro bono basis, but I don't know the exact
    details, and there are members of the community in Palo Alto
    that have the means to contribute to help me with the security
    detail, et cetera.
        Ms. Mitchell. Okay. Have you been provided----
        Mr. Bromwich. I think I can help you with that. Both her
    counsel are doing this pro bono. We are not being paid, and we
    have no expectation of being paid.
        Ms. Mitchell. Thank you, Counsel. Have you seen any of the
    questions that I was going to ask you today?
        Dr. Ford. No.
        Ms. Mitchell. Have you--you've been asked a few questions
    by other people as well. Have you seen any of those questions
    in advance?
        Dr. Ford. No.
        Ms. Mitchell. Have you been told them in advance?
        Dr. Ford. No.
        Ms. Mitchell. And likewise with my questions, have you been
    told my questions in advance?
        Dr. Ford. Definitely not.
        Ms. Mitchell. Okay. You mentioned about some possible
    information, such as when Mark Judge worked at the supermarket.
    I want to ask you about someone else. You mentioned that there
    was a classmate who was really sort of the connection between
    you and Brett Kavanaugh. Who was this person?
        Dr. Ford. I think that that case with Mr. Whalen, who was
    looking at my LinkedIn page and then trying to blame the
    person, I just don't feel like it's right for us to be talking
    about that.
        Ms. Mitchell. I'm not trying to blame anybody. I just want
    to know who the common friend that you and----
        Dr. Ford. The person that Mr. Whalen was trying to say
    looked like Mr. Kavanaugh.
        Ms. Mitchell. Okay. How long did you know this person?
        Dr. Ford. Mm-hmm, maybe for a couple of months we
    socialized, but he also was a member of the same country club,
    and I knew his younger brother as well.
        Ms. Mitchell. Okay. So, a couple of months before this took
    place?
        Dr. Ford. Yes.
        Ms. Mitchell. Okay. How would you characterize your
    relationship with him both before and after this took place,
    this person?
        Dr. Ford. He was somebody that, we used the phrase, ``I
    went out with''--I wouldn't say ``date''--I went out with for a
    few months. That was how we termed it at the time. And after
    that, we were distant friends and ran into each other
    periodically at Columbia Country Club. But I didn't see him
    often.
        Ms. Mitchell. Okay.
        Dr. Ford. But I saw his brother and him several times.
        Ms. Mitchell. Was this person the only common link between
    you and Mr.--Judge Kavanaugh?
        Dr. Ford. He's the only one that I would be able to name
    right now that I would like to not name, but you know who I
    mean, and--but there are certainly other members of Columbia
    Country Club that were common friends, or they were more
    acquaintances of mine and friends of Mr. Kavanaugh.
        Ms. Mitchell. Okay. Can you describe all of the other
    social interactions that you had with Mr. Kavanaugh?
        Dr. Ford. Briefly, yes, I can. There were--during freshman
    and sophomore, particularly my sophomore year, which would've
    been his junior year of high school, four to five parties that
    my friends and I attended that were attended also by him.
        Ms. Mitchell. Okay. Did anything happen at these events
    like we're talking about, besides the time we're talking about?
        Chairman Grassley. You can answer that question, then I'll
    go to Senator Harris. Go ahead and answer that question.
        Dr. Ford. There was no sexual assault at any of those
    events. Is that what you're asking?
        Ms. Mitchell. Yes, I am.
        Dr. Ford. Yes, those were just parties.
        Ms. Mitchell. Or anything inappropriate is what I'm asking.
        Dr. Ford. Yes. Well, maybe we can go into more detail when
    there's more time. I feel time pressure on that question.
        Ms. Mitchell. Okay.
        Dr. Ford. Yes.
        Chairman Grassley. Senator Harris.
        Dr. Ford. I'm happy to answer in further detail if you want
    me to.
        Chairman Grassley. I'm sorry. Go ahead and finish answering
    your question.
        Dr. Ford. Oh, okay. Did you want me to describe those
    parties or----
        Ms. Mitchell. One----
        Mr. Bromwich. Should we leave this to the next round, Mr.
    Chairman?
        Chairman Grassley. Answer the question.
        Dr. Ford. I'm just happy to describe them if you wanted me
    to, and I'm happy to not. Just whatever you want.
        Ms. Mitchell. Maybe this will----
        Dr. Ford. Whatever is your preference.
        Ms. Mitchell [continuing]. Cut to the chase. My question
    is, Was there anything else that was sexually inappropriate,
    any inappropriate sexual behavior on the part of Mr. Kavanaugh
    toward you at any of these other functions.
        Dr. Ford. No.
        Ms. Mitchell. Okay.
        Chairman Grassley. Okay. Senator Harris.
        Senator Harris. Dr. Ford, first of all, just so we can
    level set, you know you are not on trial. You are not on trial.
    You are sitting here before Members of the United States
    Senate's Judiciary Committee because you have the courage to
    come forward because, as you have said, you believe it was your
    civic duty. I was struck in your testimony by what you
    indicated as your intention when you first let anyone
    associated with these hearings know about it.
        And what you basically said is you reached out to your
    Representative in the United States Congress hoping that person
    would inform the White House before Judge Kavanaugh had been
    named. That's extremely persuasive about your motivation for
    coming forward, and so, I want to thank you. I want to thank
    you for your courage, and I want to tell you I believe you. I
    believe you, and I believe many Americans across this country
    believe you.
        And what I find striking about your testimony is you
    remember key, searing details of what happened to you. You told
    your husband and therapist, two of the most personal of your
    confidants, and you told them years ago about this assault. You
    have shared your experience with multiple friends years after
    that and before these hearings ever started.
        I know having personally prosecuted sexual assault cases
    and child sexual assault cases that study after study shows
    trauma, shame, and the fear of consequences almost always cause
    survivors to, at the very least, delay reporting if they ever
    report at all. Police recognize that. Prosecutors recognize
    that. Medical and mental health professionals recognize that.
        The notes from your therapy sessions were created long
    before this nomination and corroborate what you have said
    today. You have passed a polygraph and submitted the results to
    this Committee. Judge Kavanaugh has not. You have called for
    outside witnesses to testify and for expert witnesses to
    testify. Judge Kavanaugh has not. But most importantly, you
    have called for an independent FBI investigation into the
    facts. Judge Kavanaugh has not. And we owe you that. We owe the
    American people that.
        And let's talk about why this is so important. Contrary to
    what has been said today, the FBI does not reach conclusions.
    The FBI investigates. It interviews witnesses, gathers facts,
    and then presents that information to the United States Senate
    for our consideration and judgment. This Committee knows that,
    in spite of what you have been told.
        In 1991 during a similar hearing, one of my Republican
    colleagues in this committee stated, ``These claims were taken
    seriously by having the Federal Bureau of Investigation launch
    an inquiry to determine their validity. The FBI fulfilled its
    duty and issued a confidential report.'' Well, that could have
    and should have been done here.
        This morning it was said that this could have been
    investigated confidentially back in July, but this also could
    have been investigated in the last 11 days since you came
    forward, yet that has not happened. The FBI could've
    interviewed Mark Judge, Patrick Smyth, Leland Keyser, you, and
    Judge Kavanaugh on these issues. The FBI could've examined
    various maps that have been presented by the prosecutor who
    stands in for the United States Senators on this Committee. The
    FBI could have gathered facts about the music, or the
    conversation, or any other details about the gathering that
    occurred that evening. That is standard procedure in a sexual
    assault case.
        In fact, the manual that is--was signed off by Ms.
    Mitchell, the manual that is posted on the Maricopa County
    Attorney's website as a guiding principle and best practices
    for what should happen with sexual assault cases, highlights
    the details of what should happen in terms of the need for an
    objective investigation into any sexual assault case. It says,
    ``Effective investigation requires cooperation with a
    multidisciplinary team that includes medical professionals,
    victim advocates, dedicated forensic interviewers,
    criminalists, and other law enforcement members.'' The manual
    also stresses the importance of obtaining outside witness
    information.
        You have bravely come forward. You have bravely come
    forward, and I want to thank you because you clearly have
    nothing to gain for what you have done. You have been a true
    patriot in fighting for the best of who we are as a country. I
    believe you are doing that because you love this country, and I
    believe history will show that you are a true profile in
    courage at this moment in time in the history of our country,
    and I thank you.
        Chairman Grassley. Senator Kennedy now. So, proceed, Ms.
    Mitchell.
        [For Senator Kennedy.]
        Ms. Mitchell. Dr. Ford, we're almost done.
        Dr. Ford. Thank you.
        Ms. Mitchell. Just a couple of clean-up questions first of
    all. Which of your two lawyers did Senator Feinstein's office
    recommend?
        Dr. Ford. The Katz----
        Ms. Mitchell. I'm sorry?
        Dr. Ford. The Katz Firm.
        Ms. Mitchell. Okay. And when you--when you did leave that
    night, did Leland Keyser--now Keyser--ever follow up with you
    and say, hey, what happened to you?
        Dr. Ford. I've had communications with her recently.
        Ms. Mitchell. Mm-hmm. I'm talking about, like, the next day
    or----
        Dr. Ford. Oh no, she didn't know about the event. She was
    downstairs during the event, and I did not share it with her.
        Ms. Mitchell. Have you been--are you aware that the three
    people at the party besides yourself and Brett Kavanaugh have
    given statements under penalty of felony to the Committee?
        Dr. Ford. Yes.
        Ms. Mitchell. And are you aware of what those statements
    say?
        Dr. Ford. Yes.
        Ms. Mitchell. Are you aware that they say that they have no
    memory or knowledge of such a party?
        Dr. Ford. Yes.
        Ms. Mitchell. Do you have any particular motives to ascribe
    to Leland?
        Dr. Ford. I guess we could take those one at a time. Leland
    has significant health challenges, and I'm happy that she's
    focusing on herself and getting the health treatment that she
    needs. And she let me know that she needed her lawyer to take
    care of this for her, and she texted me right afterward with an
    apology and good wishes, and et cetera. So, I'm glad that she's
    taking care of herself.
        I don't expect that P.J. and Leland would remember this
    evening. It was a very unremarkable party. It was not one of
    their more notorious parties because nothing remarkable
    happened to them that evening. They were downstairs. And Mr.
    Judge is a different story. I would expect that he would
    remember that this happened.
        Ms. Mitchell. Understood. Senator Harris just questioned
    you from the ``Maricopa County Protocol on Sexual Assault.''
    That's the paper she was holding out. Are you aware that--and,
    you know, I've been really impressed today because you've
    talked about norepinephrine, and cortisol, and what we call in
    the profession basically the neurobiological effects of trauma.
    Have you also educated yourself on the best way to get to
    memory and truth in terms of interviewing victims of trauma?
        Dr. Ford. For me interviewing victims of trauma?
        Ms. Mitchell. No.
        Dr. Ford. Oh.
        Ms. Mitchell. The best way to do it, the best practices for
    interviewing victims of trauma.
        Dr. Ford. No.
        Ms. Mitchell. Okay. Would you believe me if I told you that
    there is no study that says that this setting in 5-minute
    increments is the best way to do that?
        [Laughter.]
        Mr. Bromwich. We'll stipulate to that.
        Ms. Katz. We could stipulate to that.
        [Laughter.]
        Ms. Mitchell. Thank you, Counsel.
        Ms. Katz. Agreed.
        Ms. Mitchell. Did you know that the best way to do it is to
    have a trained interviewer talk to you one-on-one in a private
    setting and to let you do the talking, just let you do a
    narrative? Did you know that?
        Dr. Ford. That makes a lot of sense.
        Ms. Mitchell. It does make a lot of sense, doesn't it?
        Dr. Ford. Yes.
        Ms. Mitchell. And then to follow up, obviously to fill in
    the details and ask for clarification. Does that make sense as
    well?
        Dr. Ford. Yes.
        Ms. Mitchell. And the research is done by a lot of people
    in the child abuse field. Two of the more prominent ones in the
    sexual assault field are Geisel and Fisher who've talked about
    it, and it's called a cognitive interview. This is not a
    cognitive interview. Did anybody ever advise you from Senator
    Feinstein's office or from Representative Eshoo's office to go
    get a forensic interview?
        Dr. Ford. No.
        Ms. Mitchell. Instead you were advised to get an attorney
    and take a polygraph. Is that right?
        Dr. Ford. Many people advised me to get an attorney. Once I
    had an attorney, my attorney and I discussed using the
    polygraph.
        Ms. Mitchell. And instead of submitting to an interview in
    California, we're having a hearing here today in 5-minute
    increments. Is that right?
        Dr. Ford. I agree that's what was agreed upon by the
    collegial group here.
        Ms. Mitchell. Thank you. I have no further questions.
        Chairman Grassley. Okay. I have something to submit for the
    record. We received three statements under penalty of felony
    from three witnesses identified by Dr. Ford: Mark Judge, Leland
    Keyser, and Patrick Smyth. All three denied any knowledge of
    the incident or gathering described by Dr. Ford. Without
    objection, I'll enter in the record.
        [The information appears as submissions for the record.]
        Senator Blumenthal. Mr. Chairman, I have something for the
    record as well, a number of letters from the witness' family,
    friends, including her husband.
        Chairman Grassley. Okay. I'll get to you just as soon as
    the Ranking Member.
        Senator Feinstein. Mr. Chairman, I have three letters
    addressed to both you and the Ranking Member, and I'd ask that
    they be entered into the record.
        Chairman Grassley. Without objection.
        [The information appears as submissions for the record.]
        Senator Feinstein. And it's also my understanding that Mr.
    Judge is not willing to come forward to answer our questions.
    As a result, we can't test his memory or make any assessment of
    his thoughtfulness or character, and I think that's why the
    failure to call him to testify is so very critical. And I hope
    the Majority would reconsider that.
        Chairman Grassley. Senator Blumenthal.
        Senator Blumenthal. Mr. Chairman, I ask if you have sworn
    statements that you're submitting for the record that we have
    those individuals come before us so that we can ask them
    questions about those statements. I think that the nature of
    this proceeding would be compromised if we lack an opportunity
    to ask them questions about sworn statements that will be part
    of the record. So, frankly, Mr. Chairman, I would object to
    entering them in the record.
        Senator Kennedy. Mr. Chairman?
        Chairman Grassley. Okay. Senator Whitehouse.
        Senator Whitehouse. I have a number of letters that I would
    ask to be submitted into the record that relate to the
    importance of proper investigation by trained professionals in
    pulling these kind of investigations together, from the
    Leadership Conference on Civil and Human Rights, the National
    Women's Law Center, the National Organization for Women, and so
    forth.
        Chairman Grassley. Without objection, so ordered.
        [The letters appear as submissions for the record.]
        Chairman Grassley. Senator Kennedy.
        Senator Kennedy. Mr. Chairman, I have a question for our
    Chairman. The statements that Senator Blumenthal talked about,
    those were statements taken by our Majority staff? Is that----
        Chairman Grassley. They're already in the record.
        Senator Kennedy. Yes, sir, but those statements were taken
    by Majority staff?
        Chairman Grassley. Yes.
        Senator Kennedy. Did Minority staff participate?
        Chairman Grassley. No.
        Senator Kennedy. Why not?
        Chairman Grassley. You'll have to ask them.
        Senator Kennedy. Well, were they instructed not to
    participate?
        Chairman Grassley. No.
        Senator Kennedy. They chose not to?
        Chairman Grassley. That's right.
        Senator Feinstein. If I may, Mr. Chairman, I was told the
    Minority staff was not notified.
        Senator Kennedy. If I could, I still think I have the
    floor, Mr. Chairman.
        Chairman Grassley. Let's listen to Senator Feinstein.
        Mr. Bromwich. Can we be excused?
        Senator Feinstein. I am told by staff----
        Mr. Bromwich. The witness is quite tired, and she'd like to
    be excused.
        Chairman Grassley. I'd like to--if you'd wait just a
    minute, I'd like to thank Dr. Ford.
        Mr. Bromwich. All right.
        Chairman Grassley. In fact, we're going to continue this
    meeting, and we can--so let's just be nice to her.
        [Laughter.]
        Chairman Grassley. Dr. Ford. Dr. Ford, I can only speak as
    one of 21 Senators here, but I thank you very much for your
    testimony, more importantly, for your bravery coming out and
    trying to answer our questions as best you could remember.
    Thank you very much.
        We will recess for 45 minutes.
        [Whereupon, at 2:14 p.m., the Committee was recessed.]
        [Whereupon, at 3:08 p.m., the Committee reconvened.]
        Chairman Grassley. Judge Kavanaugh, we welcome you. Are you
    ready?
        Judge Kavanaugh. I am.
        Chairman Grassley. I have something I want to clear up from
    the last meeting that doesn't affect you. So before I swear
    you, I would like to explain my response to Senator Kennedy
    right after the break.
        At that time, I entered into the record the statements of
    three witnesses Dr. Ford said were also at the party. These
    statements were provided to us under penalty of felony by lying
    to--if you lie to Congress. As soon as my team learned the
    names of these three potential witnesses, we immediately
    reached out to them requesting an interview. In response, all
    three submitted statements to us denying any knowledge of the
    gathering Dr. Ford described.
        If we had calls with them, we would have invited the
    Minority to join. Every time that we've received any
    information regarding Judge Kavanaugh, we've sought to
    immediately follow through and investigate. The Minority staff
    sat on Dr. Ford's letter for weeks, and staff told us that they
    believed it is ``highly inappropriate to have these follow-up
    calls before the FBI finishes its investigation,'' even though
    the FBI had completed its background information.
        When we followed up with Judge Kavanaugh after we received
    Dr. Ford's allegations, the Ranking Member staff didn't join us
    even though these calls are usually done on a bipartisan basis.
    They joined other calls with the Judge, but they didn't
    participate or ask any question.
        Would you please rise, sir?
        Judge Kavanaugh. Yes.
        Chairman Grassley. Do you affirm that the testimony you're
    about to give before the Committee will be the truth, the whole
    truth, and nothing but the truth, so help you God?
        Judge Kavanaugh. I do.
        Chairman Grassley. Like we offered to Dr. Ford, you can
    take whatever time you want now for your opening statement.
    Then we'll go to questions. So, proceed.

     STATEMENT OF HON. BRETT M. KAVANAUGH, NOMINEE TO SERVE AS AN
      ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

        Judge Kavanaugh. Mr. Chairman, Ranking Member Feinstein,
    Members of the Committee, thank you for allowing me to make my
    statement. I wrote it myself yesterday afternoon and evening.
    No one has seen a draft, or it, except for one of my former law
    clerks. This is my statement.
        Less than 2 weeks ago, Dr. Ford publicly accused me of
    committing wrongdoing at an event more than 36 years ago, when
    we were both in high school. I denied the allegation
    immediately, categorically, and unequivocally. All four people
    allegedly at the event, including Dr. Ford's longtime friend,
    Ms. Keyser, have said they recall no such event. Her longtime
    friend, Ms. Keyser, said under penalty of felony that she does
    not know me and does not believe she ever saw me at a party,
    ever.
        Here's the quote from Ms. Keyser's attorney's letter.
    Quote, ``Simply put, Ms. Keyser does not know Mr. Kavanaugh,
    and she has no recollection of ever being at a party or
    gathering where he was present, with or without Dr. Ford.''
    Think about that fact.
        The day after the allegation appeared, I told this
    Committee that I wanted a hearing as soon as possible to clear
    my name. I demanded a hearing for the very next day.
    Unfortunately, it took the Committee 10 days to get to this
    hearing, and those 10 long days, as was predictable and as I
    predicted, my family and my name have been totally and
    permanently destroyed by vicious and false additional
    accusations. The 10-day delay has been harmful to me and my
    family, to the Supreme Court, and to the country.
        When this allegation first arose, I welcomed any kind of
    investigation--Senate, FBI, or otherwise. The Committee now has
    conducted a thorough investigation, and I have cooperated
    fully. I know that any kind of investigation--Senate, FBI,
    Montgomery County Police, whatever--will clear me.
        Listen to the people I know. Listen to the people who have
    known me my whole life. Listen to the people I've grown up
    with, and worked with, and played with, and coached with, and
    dated, and taught, and gone to games with, and had beers with.
        Listen to the witnesses who allegedly were at this event 36
    years ago. Listen to Ms. Keyser. She does not know me. I was
    not at the party described by Dr. Ford.
        This confirmation process has become a national disgrace.
    The Constitution gives the Senate an important role in the
    confirmation process. But you have replaced advice and consent
    with search and destroy.
        Since my nomination in July, there's been a frenzy on the
    left to come up with something, anything, to block my
    confirmation. Shortly after I was nominated, the Democratic
    Senate Leader said he would, quote, ``oppose me with everything
    he's got.'' A Democratic Senator on this Committee publicly
    referred to me as evil, evil--think about that word--and said
    that those who supported me were, quote, ``complicit in evil.''
    Another Democratic Senator on this Committee said, quote,
    ``Judge Kavanaugh is your worst nightmare.'' A former head of
    the Democratic National Committee said, quote, ``Judge
    Kavanaugh will threaten the lives of millions of Americans for
    decades to come.''
        I understand the passions of the moment, but I would say to
    those Senators, your words have meaning. Millions of Americans
    listen carefully to you. Given comments like those, is it any
    surprise that people have been willing to do anything, to make
    any physical threat against my family, to send any violent
    email to my wife, to make any kind of allegation against me and
    against my friends, to blow me up and take me down? You sowed
    the wind for decades to come. I fear that the whole country
    will reap the whirlwind.
        The behavior of several of the Democratic Members of this
    Committee in my hearing a few weeks ago was an embarrassment.
    But at least it was just a good, old-fashioned attempt at
    Borking. Those efforts didn't work. When I did at least okay
    enough at the hearings that it looked like I might actually get
    confirmed, a new tactic was needed. Some of you were lying in
    wait and had it ready.
        This first allegation was held in secret for weeks by a
    Democratic Member of this Committee and by staff. It would be
    needed only if you couldn't take me out on the merits. When it
    was needed, this allegation was unleashed and publicly deployed
    over Dr. Ford's wishes.
        And then, and then, as no doubt was expected, if not
    planned, came a long series of false, last-minute smears
    designed to scare me and drive me out of the process before any
    hearing occurred. Crazy stuff--gangs, illegitimate children,
    fights on boats in Rhode Island--all nonsense, reported
    breathlessly and often uncritically by the media. This has
    destroyed my family and my good name, a good name built up
    through decades of very hard work in public service at the
    highest levels of the American Government.
        This whole 2-week effort has been a calculated and
    orchestrated political hit fueled with apparent pent-up anger
    about President Trump and the 2016 election, fear that has been
    unfairly stoked about my judicial record, revenge on behalf of
    the Clintons, and millions of dollars in money from outside
    left-wing opposition groups.
        This is a circus. The consequences will extend long past my
    nomination. The consequences will be with us for decades. This
    grotesque and coordinated character assassination will dissuade
    competent and good people of all political persuasions from
    serving our country. And as we all know, in the United States
    political system of the early 2000s, what goes around comes
    around.
        I am an optimistic guy. I always try to be on the sunrise
    side of the mountain, to be optimistic about the day that is
    coming. But today I have to say that I fear for the future.
        Last time I was here, I told this Committee that a Federal
    judge must be independent, not swayed by public or political
    pressure. I said I was such a judge, and I am. I will not be
    intimidated into withdrawing from this process. You've tried
    hard. You've given it your all. No one can question your
    effort. But your coordinated and well-funded effort to destroy
    my good name and destroy my family will not drive me out. The
    vile threats of violence against my family will not drive me
    out. You may defeat me in the final vote, but you'll never get
    me to quit. Never.
        I'm here today to tell the truth. I've never sexually
    assaulted anyone, not in high school, not in college, not ever.
    Sexual assault is horrific. One of my closest friends to this
    day is a woman who was sexually abused and who in the 1990s,
    when we were in our thirties, confided in me about the abuse
    and sought my advice. I was one of the only people she
    consulted. Allegations of sexual assault must always be taken
    seriously, always. Those who make allegations always deserve to
    be heard.
        At the same time, the person who is the subject of the
    allegations also deserves to be heard. Due process is the
    foundation of the American rule of law. Due process means
    listening to both sides.
        As I told you in my hearing 3 weeks ago, I'm the only child
    of Martha and Ed Kavanaugh. They are here today. When I was 10,
    my mom went to law school, and as a lawyer she worked hard and
    overcame barriers, including the workplace sexual harassment
    that so many women faced at the time and still face today. She
    became a trailblazer, one of Maryland's earliest women
    prosecutors and trial judges. She and my dad taught me the
    importance of equality and respect for all people, and she
    inspired me to be a lawyer and a judge.
        Last time I was here I told you that when my mom was a
    prosecutor and I was in high school, she used to practice her
    closing arguments at the dining room table on my dad and me. As
    I told you, her trademark line was ``Use your common sense,
    what rings true, what rings false.'' Her trademark line is a
    good reminder as we sit here today, some 36 years after the
    alleged event occurred, when there is no corroboration, and
    indeed it is refuted by the people allegedly there.
        After I have been in the public arena for 26 years without
    even a hint, a whiff of an allegation like this, and when my
    nomination to the Supreme Court was just about to be voted on,
    at a time when I'm called evil by a Democratic Member of this
    Committee, while Democratic opponents of my nomination say
    people will die if I am confirmed, this onslaught of last-
    minute allegations does not ring true.
        I'm not questioning that Dr. Ford may have been sexually
    assaulted by some person in some place at some time, but I have
    never done this to her or to anyone. That's not who I am. It is
    not who I was. I am innocent of this charge.
        I intend no ill will to Dr. Ford and her family. The other
    night Ashley and my daughter, Liza, said their prayers, and
    little Liza, all of 10 years old, said to Ashley, ``We should
    pray for the woman.'' That's a lot of wisdom from a 10-year-
    old. We mean no ill will.
        First, let's start with my career. For the last 26 years,
    since 1992, I have served in many high-profile and several
    sensitive Government positions for which the FBI has
    investigated my background six separate times, six separate FBI
    background investigations over 26 years, all of them after the
    event alleged here. I have been in the public arena and under
    extreme public scrutiny for decades. In 1992, I worked for the
    Office of Solicitor General and the Department of Justice. In
    1993, I clerked on the Supreme Court for Justice Anthony
    Kennedy. I spent 4 years at the Independent Counsel's Office
    during the 1990s. That office was the subject of enormous
    scrutiny from the media and the public.
        During 1998, the year of the impeachment of President
    Clinton, our office generally and I personally were in the
    middle of an intense national media and political spotlight. I
    and other leading members of Ken Starr's office were opposition
    researched from head to toe, from birth through the present
    day. Recall all the people who were exposed that year of 1998
    as having engaged in some sexual wrongdoing or indiscretions in
    their past. One person on the left even paid $1 million for
    people to report evidence of sexual wrongdoing, and it worked.
    It exposed some prominent people. Nothing about me.
        From 2001 to 2006, I worked for President George W. Bush in
    the White House. As staff secretary, I was by President Bush's
    side for 3 years and was entrusted with the Nation's most
    sensitive secrets. I traveled on Air Force One all over the
    country and the world with President Bush. I went everywhere
    with him, from Texas to Pakistan, from Alaska to Australia,
    from Buckingham Palace to the Vatican, 3 years in the West
    Wing, five-and-a-half years in the White House.
        I was then nominated to be a judge on the D.C. Circuit. I
    was thoroughly vetted by the White House, the FBI, the American
    Bar Association, and this Committee. I sat before this
    Committee for two thorough confirmation hearings in 2004 and
    2006. For the past 12 years, leading up to my nomination for
    this job, I've served in a very public arena as a Federal judge
    on what is often referred to as the second most important court
    in the country. I've handled some of the most significant and
    sensitive cases affecting the lives and liberties of the
    American people. I have been a good judge.
        And for this nomination, another FBI background
    investigation, another American Bar Association investigation,
    31 hours of hearings, 65 Senator meetings, 1,200 written
    questions, more than all previous Supreme Court nominees
    combined. Throughout that entire time, throughout my 53 years
    and 7 months on this earth, until last week, no one ever
    accused me of any kind of sexual misconduct. No one, ever, a
    lifetime, a lifetime of public service and a lifetime of high-
    profile public service, at the highest levels of American
    Government, and never a hint of anything of this kind. And
    that's because nothing of this kind ever happened.
        Second, let's turn to specifics. I categorically and
    unequivocally deny the allegation against me by Dr. Ford. I
    never had any sexual or physical encounter of any kind with Dr.
    Ford. I never attended a gathering like the one Dr. Ford
    describes in her allegation. I've never sexually assaulted Dr.
    Ford or anyone. Again, I'm not questioning that Dr. Ford may
    have been sexually assaulted by some person in some place at
    some time, but I've never done that to her or to anyone.
        Dr. Ford's allegation stems from a party that she alleges
    occurred during the summer of 1982, 36 years ago. I was 17
    years old, between my junior and senior years of high school at
    Georgetown Prep, a rigorous, all-boys Catholic Jesuit high
    school in Rockville, Maryland. When my friends and I spent time
    together at parties on weekends, it was usually with friends
    from nearby Catholic all-girls high schools--Stone Ridge, Holy
    Child, Visitation, Immaculata, Holy Cross. Dr. Ford did not
    attend one of those schools. She attended an independent
    private school named Holton Arms, and she was a year behind me.
    She and I did not travel in the same social circles. It is
    possible that we met at some point at some events, although I
    do not recall that.
        To repeat, all of the people identified by Dr. Ford as
    being present at the party have said they do not remember any
    such party ever happening. Importantly, her friend, Ms. Keyser,
    has not only denied knowledge of the party. Ms. Keyser said,
    under penalty of felony, she does not know me, does not recall
    ever being at a party with me, ever.
        And my two male friends who were allegedly there, who knew
    me well, have told this Committee under penalty of felony that
    they do not recall any such party, and that I never did or
    would do anything like this.
        Dr. Ford's allegation is not merely uncorroborated, it is
    refuted by the very people she says were there, including by a
    long-time friend of hers, refuted.
        Third, Dr. Ford has said that this event occurred in a
    house near Columbia Country Club, which is at the corner of
    Connecticut Avenue and East-West Highway in Chevy Chase,
    Maryland. In her letter to Senator Feinstein, she said that
    there were four other people at the house, but none of those
    people nor I lived near Columbia Country Club.
        As of the summer of 1982, Dr. Ford was 15 and could not
    drive yet, and she did not live near Columbia Country Club. She
    says confidently that she had one beer at the party, but she
    does not say how she got to the house in question, or how she
    got home, or whose house it was.
        Fourth, I've submitted to this Committee detailed calendars
    recording my activities in the summer of 1982. Why did I keep
    calendars? My dad started keeping detailed calendars of his
    life in 1978. He did so as both a calendar and a diary. He was
    a very organized guy, to put it mildly. Christmas time, we sit
    around and he regales us with old stories, old milestones, old
    weddings, old events from his calendars.
        In ninth grade in 1980, I started keeping calendars of my
    own. For me also, it's both a calendar and a diary. I've kept
    such calendars/diaries for the last 38 years. Mine are not as
    good as my dad's in some years. And when I was a kid, the
    calendars are about what you would expect from a kid, some
    goofy parts, some embarrassing parts.
        But I did have the summer of 1982 documented pretty well.
    The event described by Dr. Ford presumably happened on a
    weekend, because I believe everyone worked and had jobs in the
    summers. In any event, a drunken early evening event of the
    kind she describes presumably happened on a weekend. If it was
    a weekend, my calendars show that I was out of town almost
    every weekend night before football training camp started in
    late August. The only weekend nights that I was in DC were
    Friday, June 4, when I was with my dad at a pro golf tournament
    and had my high school achievement test at 8:30 the next
    morning.
        I also was in DC on Saturday night, August 7th, but I was
    at a small gathering at Becky's house in Rockville with Matt,
    Denise, Laurie, and Jenny. Their names are all listed on my
    calendar. I won't use their last names here.
        And then on the weekend of August 20th to 22nd, I was
    staying at the Garrets with Pat and Chris as we did final
    preparations for football training camp that began on Sunday
    the 22nd. As the calendars confirm, that weekend before a
    brutal football training camp schedule was no time for parties.
        So let me emphasize this point: If the party described by
    Dr. Ford happened in the summer of 1982 on a weekend night, my
    calendar shows all but definitively that I was not there.
        During the weekdays in the summer of 1982, as you can see,
    I was out of town for 2 weeks of the summer for a trip to the
    beach with friends and at the legendary five-star basketball
    camp in Honesdale, Pennsylvania. When I was in town, I spent
    much of my time working, working out, lifting weights, playing
    basketball, or hanging out and having some beers with friends
    as we talked about life and football and school and girls.
        Some have noticed that I didn't have church on Sundays on
    my calendars. I also didn't list brushing my teeth. And for me,
    going to church on Sundays was like brushing my teeth,
    automatic. Still is.
        In the summer of 1981, I had worked construction. In the
    summer of 1982, my job was cutting lawns. I had my own business
    of sorts. You see some specifics about the lawn cutting listed
    on the August calendar page. When I had the time, the last lawn
    cuttings of the summer of various lawns before football
    training camp. I played in a lot of summer league basketball
    games for the Georgetown Prep team at night at Blair High
    School in Silver Spring. Many nights I worked out with other
    guys at Tobin's house. He was the great quarterback on our
    football team, and his dad ran workouts or lifted weights at
    Georgetown Prep in preparation for the football season.
        I attended and watched many sporting events, as is my habit
    to this day. The calendars show a few weekday gatherings at
    friends' houses after a workout or just to meet up and have
    some beers. But none of those gatherings included the group of
    people that Dr. Ford has identified. As my calendars show, I
    was very precise about listing who was there, very precise. And
    keep in mind, my calendars also were diaries of sorts, forward-
    looking and backward-looking, just like my dad's. You can see,
    for example, that I crossed out missed workouts and the
    canceled doctors' appointments, and that I listed the precise
    people who had shown up for certain events.
        The calendars are obviously not dispositive on their own.
    But they are another piece of evidence in the mix for you to
    consider.
        Fifth, Dr. Ford's allegation is radically inconsistent with
    my record and my character from my youth to the present day. As
    students at an all-boys Catholic Jesuit school, many of us
    became friends, and remain friends to this day, with students
    at local Catholic all-girls schools. One feature of my life
    that has remained true to the present day is that I've always
    had a lot of close female friends. I'm not talking about
    girlfriends. I'm talking about friends who are women. That
    started in high school. Maybe it was because I'm an only child
    and had no sisters.
        But anyway, we had no social media or text or email and we
    talked on the phone. I remember talking almost every night, it
    seemed, to my friends Amy or Julie or Kristin or Karen or
    Suzanne or Maura or Megan or Nikki. The list goes on, friends
    for a lifetime, built on a foundation of talking through school
    and life, starting at age 14. Several of those great women are
    on the seats right behind me today.
        My friends and I sometimes got together and had parties on
    weekends. The drinking age was 18 in Maryland for most of my
    time in high school, was 18 in DC for all of my time in high
    school. I drank beer with my friends. Almost everyone did.
    Sometimes I had too many beers. Sometimes others did. I liked
    beer. I still like beer. But I do not drink beer to the point
    of blacking out, and I never sexually assaulted anyone.
        There is a bright line between drinking beer, which I
    gladly do, and which I fully embrace, and sexually assaulting
    someone, which is a violent crime. If every American who drinks
    beer or every American who drank beer in high school is
    suddenly presumed guilty of sexual assault, we will be in an
    ugly new place in this country. I never committed sexual
    assault.
        As high school students, we sometimes did goofy or stupid
    things. I doubt we are alone in looking back at high school and
    cringing at some things. For one thing, our yearbook was a
    disaster. I think some editors and students wanted the yearbook
    to be some combination of ``Animal House,'' ``Caddy Shack,''
    and ``Fast Times at Ridgemont High,'' which were all recent
    movies at that time. Many of us went along in the yearbook to
    the point of absurdity. This past week, my friends and I have
    cringed when we read about it and talked to each other.
        One thing in particular we're sad about, one of our good
    female friends who we admired and went to dances with had her
    name used on a yearbook page with the term ``alumnus.'' That
    yearbook reference was clumsily intended to show affection and
    that she was one of us. But in this circus, the media is
    interpreting the term as related to sex. It was not related to
    sex. As the woman herself noted in the media, on the record,
    she and I never had any sexual interaction at all. I'm so sorry
    to her for that yearbook reference.
        This may sound a bit trivial given all that we are here
    for, but one thing I want to try to make sure of in the future
    is my friendship with her. She was and is a great person.
        As to sex, this is not a topic I ever imagined would come
    up in a judicial confirmation hearing, but I want to give you a
    full picture of who I was. I never had sexual intercourse or
    anything close to it during high school or for many years after
    that. In some crowds I was probably a little outwardly shy
    about my inexperience, tried to hide that. At the same time, I
    was also inwardly proud of it. For me and the girls who I was
    friends with, that lack of major rampant sexual activity in
    high school was a matter of faith and respect and caution.
        The Committee has a letter from 65 women who knew me in
    high school. They said that I always treated them with dignity
    and respect. That letter came together in one night, 35 years
    after graduation, while a sexual assault allegation was pending
    against me in a very fraught and public situation where they
    knew, they knew they'd be vilified if they defended me. Think
    about that. They put themselves on the line for me. Those are
    some awesome women, and I love all of them.
        You also have a letter from women who knew me in college.
    Most were varsity athletes. They described that I treated them
    as friends and equals and supported them in their sports at a
    time when women sports was emerging in the wake of Title IX. I
    thank all them for all their texts and their emails and their
    support.
        One of those women friends from college, a self-described
    liberal and feminist, sent me a text last night that said,
    quote, ``Deep breaths. You're a good man, a good man, a good
    man.''
        A text yesterday from another of those women friends from
    college said, quote, ``Brett, be strong, pulling for you to my
    core.''
        A third text yesterday from yet another of those women I'm
    friends with from college said, ``I'm holding you in the light
    of God.''
        As I said in my opening statement the last time I was with
    you, cherish your friends, look out for your friends, lift up
    your friends, love your friends. I felt that love more over the
    last 2 weeks than I ever have in my life. I thank all my
    friends. I love all my friends.
        Throughout my life I've devoted huge efforts to encouraging
    and promoting the careers of women. I will put my record up
    against anyone's, male or female. I am proud of the letter from
    84 women, 84 women who worked with me at the Bush White House
    from 2001 to 2006 and described me as, quote, ``a man of the
    highest integrity.''
        Read the op-ed from Sarah Day from Yarmouth, Maine. She
    worked in the Oval Office operations outside of President
    Bush's office. Here's what she recently wrote in
    centralmaine.com. And today she stands by her comments. Quote,
    ``Brett was an advocate for young women like me. He encouraged
    me to take on more responsibility and to feel confident in my
    role. In fact, during the 2004 Republican National Convention,
    Brett gave me the opportunity to help with the preparation and
    review of the President's remarks, something I never would have
    had the chance to do if he had not included me. And he didn't
    just include me in the work. He made sure I was at Madison
    Square Garden to watch the President's speech instead of back
    at the hotel watching on TV.''
        As a judge since 2006, I've had the privilege of hiring
    four recent law school graduates to serve as my law clerks each
    year. The law clerks for Federal judges are the best and
    brightest graduates of American law schools. They work for 1-
    year terms for judges after law school, and then they move on
    in their careers. For judges, training these young lawyers is
    an important responsibility. The clerks will become the next
    generation of American lawyers and leaders, judges, and
    senators.
        Just after I took the bench in 2006, there was a major New
    York Times story about the low numbers of women law clerks at
    the Supreme Court and Federal Appeals Courts. I took notice,
    and I took action. A majority of my 48 law clerks over the last
    12 years have been women. In a letter to this Committee, my
    women law clerks said that I was one of the strongest advocates
    in the Federal judiciary for women lawyers. And they wrote that
    the legal profession is fairer and more equal because of me. In
    my time on the bench, no Federal judge, not a single one in the
    country, has sent more women law clerks to clerk on the Supreme
    Court than I have.
        Before this allegation arose 2 weeks ago, I was required to
    start making certain administrative preparations for my
    possible transfer to the Supreme Court, just in case I was
    confirmed. As part of that I had to, in essence, contingently
    hire a first group of four law clerks who could be available to
    clerk at the Supreme Court for me on a moment's notice. I did
    so, and contingently hired four law clerks. All four are women.
    If confirmed, I will be the first Justice in the history of the
    Supreme Court to have a group of all women law clerks. That is
    who I am. That is who I was.
        Over the past 12 years I have taught constitutional law to
    hundreds of students, primarily at Harvard Law School, where I
    was hired by then Dean and now Justice Elena Kagan. One of my
    former women students, a Democrat, testified to this committee
    that I was an even-handed professor who treats people fairly
    and with respect.
        In a letter to this Committee, my former students, male and
    female alike, wrote that I ``displayed a character that
    impressed us all.''
        I love teaching law. But thanks to what some of you on this
    side of the Committee have unleashed, I may never be able to
    teach again.
        For the past 7 years I've coached my two daughters'
    basketball teams. You saw many of those girls when they came to
    my hearing for a couple of hours. You have a letter from the
    parents of the girls I coach that describes my dedication,
    commitment, and character. I coach because I know that a girl's
    confidence on the basketball court translates into confidence
    in other aspects of life.
        I love coaching more than anything I've ever done in my
    whole life. But thanks to what some of you on this side of the
    Committee have unleashed, I may never be able to coach again.
        I've been a judge for 12 years. I have a long record of
    service to America and to the Constitution. I revere the
    Constitution. I am deeply grateful to President Trump for
    nominating me. He was so gracious to my family and me on the
    July night he announced my nomination at the White House. I
    thank him for his steadfast support.
        When I accepted the President's nomination, Ashley and I
    knew this process would be challenging. We never expected that
    it would devolve into this. Explaining this to our daughters
    has been about the worst experience of our lives. Ashley has
    been a rock. I thank God every day for Ashley and my family.
        We live in a country devoted to due process and the rule of
    law. That means taking allegations seriously. But if the mere
    allegation, the mere assertion of an allegation, a refuted
    allegation from 36 years ago, is enough to destroy a person's
    life and career, we will have abandoned the basic principles of
    fairness and due process that define our legal system and our
    country.
        I ask you to judge me by the standard that you would want
    applied to your father, your husband, your brother, or your
    son.
        My family and I intend no ill will toward Dr. Ford or her
    family. But I swear today under oath, before the Senate and the
    Nation, before my family and God, I am innocent of this charge.
        [The prepared statement of Judge Brett M. Kavanaugh appears
    as a submission for the record.]
        Chairman Grassley. Thank you, Judge Kavanaugh.
        Before we start questions, I won't repeat what I said this
    morning, but we'll do it the same way as we did for Dr. Ford,
    5-minute rounds. So we will start with Ms. Mitchell.
        [For Chairman Grassley.]
        Ms. Mitchell. Good afternoon, Judge Kavanaugh. We have not
    met. My name is Rachel Mitchell. I'd like to go over a couple
    of guidelines for our question-and-answer session today.
        If I ask a question----
        Judge Kavanaugh. Yes, I'm ready.
        Ms. Mitchell. Okay. If I ask a question----
        Judge Kavanaugh. Thank you.
        Ms. Mitchell. If I ask a question that you do not
    understand, please ask me to clarify it or ask it in a
    different way.
        I may ask a question where I incorporate some information
    you've already provided. If I get it wrong, please correct me.
        I'm not going to ask you to guess. If you do estimate,
    please let me know you're estimating.
        Now, I want to make sure that all of the Committee Members
    have gotten a copy of the definition of ``sexual behavior.''
        Chairman Grassley. Yes, at least I have one.
        Ms. Mitchell. Okay. And you have that as well, Judge
    Kavanaugh?
        Judge Kavanaugh. Yes.
        Ms. Mitchell. First of all, have you been given or reviewed
    a copy of the questions that I will be asking you?
        Judge Kavanaugh. No.
        Ms. Mitchell. Has anyone told you the questions that I will
    be asking you?
        Judge Kavanaugh. No.
        Ms. Mitchell. I want you to take a moment to review the
    definition that's before you of ``sexual behavior.''
        [Pause.]
        Ms. Mitchell. Have you had a chance to review it?
        Judge Kavanaugh. I have. I may refer back to it, if I can?
        Ms. Mitchell. Yes, please. I'd like to point out two
    specific parts. Among the examples of sexual behavior, it
    includes rubbing or grinding your genitals against somebody,
    clothed or unclothed. And I would also point out that the
    definition applies whether or not the acts were sexually
    motivated or, for example, horseplay.
        Do you understand the definition I've given you?
        Judge Kavanaugh. I do.
        Ms. Mitchell. And again, if at any time you need to review
    that, please let me know.
        Dr. Ford has stated that somewhere between five or six
    people were present at the gathering on this date: you, Mark
    Judge, Leland Ingham at the time, or Leland Keyser now, Patrick
    P.J. Smith, Dr. Ford, and an unnamed boy.
        Do you know Mark Judge?
        Judge Kavanaugh. I do.
        Ms. Mitchell. How do you know him?
        Judge Kavanaugh. He was a friend at Georgetown Prep
    starting in ninth grade. He's a--someone in our group of
    friends. We were a very friendly group in class. You saw the
    letter that's been sent by my friends from Georgetown Prep. A
    funny guy, great writer, popular, developed a serious addiction
    problem that lasted decades, near death a couple of times from
    his addiction, suffered tremendously from----
        Ms. Mitchell. What is your relationship with him like now?
        Judge Kavanaugh. Haven't talked to him in a couple of
    years. We probably have been on mass emails or group emails
    that can go around among my high school friends.
        Ms. Mitchell. Okay. And how did you know Patrick Smith?
        Judge Kavanaugh. Also ninth grade, Georgetown Prep. He went
    by ``P.J.'' then. He and I lived close to one another, played
    football together. He was defensive tackle. I was a
    quarterback, wide receiver. We carpooled to school along with
    Dee Davis every year, the three of us for 2 years. I didn't
    have a car, so one of the two of them would drive every day,
    and I'd be in the--you know, they'd pick me up.
        Ms. Mitchell. What's your relationship like with him now?
        Judge Kavanaugh. He lives in the area. I see him once in a
    while. I haven't seen him since this, this thing.
        Ms. Mitchell. Do you know Leland Ingham or Leland Keyser?
        Judge Kavanaugh. I know of her. It's possible I saw her,
    met her in high school at some point at some event. Yes, I know
    her, I know of her. And again, I don't want to rule out having
    crossed paths with her in high school.
        Ms. Mitchell. Similar to your statements about knowing Dr.
    Ford?
        Judge Kavanaugh. Correct.
        Chairman Grassley. Senator Feinstein.
        Senator Feinstein. Judge Kavanaugh, it's my understanding
    that you have denied the allegations by Dr. Ford, Ms. Ramirez,
    and Ms. Swetnick. Is that correct?
        Judge Kavanaugh. Yes.
        Senator Feinstein. All three of these women have asked the
    FBI to investigate their claims. I listened carefully to what
    you said. Your concern is evident and clear, and if you're very
    confident of your position, and you appear to be, why aren't
    you also asking the FBI to investigate these claims?
        Judge Kavanaugh. Senator, I'll do whatever the Committee
    wants. I wanted a hearing the day after the allegation came up.
    I wanted to be here that day. Instead, 10 days passed where all
    this nonsense is coming out, you know, that I'm in gangs, I'm
    on boats in Rhode Island, I'm in Colorado. You know, I'm
    sighted all over the place. And these things are printed and
    run breathlessly by cable news. You know, I wanted a hearing
    the next day.
        My family has been destroyed by this, Senator, destroyed.
        Senator Feinstein. And I----
        Judge Kavanaugh. And whoever wants--you know, whatever the
    Committee decides, I'm all in, immediately.
        Senator Feinstein. The question is----
        Judge Kavanaugh. I'm all in immediately.
        Senator Feinstein. And the terrible and hard part of this
    is when we get an allegation, we're not in a position to prove
    it or disprove it. Therefore, we have to depend on some outside
    authority for it. And it would just seem to me, then, when
    these allegations came forward, that you would want the FBI to
    investigate those claims and clear it up once and for all.
        Judge Kavanaugh. Senator, the Committee investigates. It's
    not for me to say how to do it. But just so you know, the FBI
    doesn't reach a conclusion. They would give you a couple of
    302s that just tell you what we said. So, I'm here. I wanted to
    be here, I wanted to be here the next day. It's an outrage that
    I was not allowed to come and immediately defend my name and
    say I didn't do this and give you all this evidence. I'm not
    even in DC on the weekends in the summer of 1982. This happened
    on a weekday? I'm not at Blair High School for a summer league
    game? I'm not at Tobin's house working out? I'm not at a movie
    with Suzanne? You know, I wanted to be here right away.
        Senator Feinstein. Well, the difficult thing is that these
    hearings are set, and set by the Majority. But I'm talking
    about getting the evidence and having the evidence looked at,
    and I don't understand. You know, we hear from the witnesses,
    but the FBI isn't interviewing them and isn't giving us any
    facts, so all we have is what they say.
        Judge Kavanaugh. You're interviewing me. You're
    interviewing me. You're doing it, Senator. I'm sorry to
    interrupt, but you're doing it. That's the--there's no
    conclusions reached.
        Senator Feinstein. And what you're saying, if I understand
    it, is that the allegations by Dr. Ford, Ms. Ramirez, and Ms.
    Swetnick are wrong.
        Judge Kavanaugh. That is emphatically what I'm saying,
    emphatically. The Swetnick thing is a joke. That is a farce.
        Senator Feinstein. Would you like to say more about it?
        Judge Kavanaugh. No.
        [Laughter.]
        Senator Feinstein. Okay. That's it.
        Thank you, Mr. Chairman.
        Chairman Grassley. Ms. Mitchell.
        [For Senator Hatch.]
        Ms. Mitchell. Dr. Ford has described you as being
    intoxicated at a party. Did you consume alcohol during your
    high school years?
        Judge Kavanaugh. Yes, we drank beer, my friends and I, boys
    and girls. Yes, we drank beer. I liked beer, still like beer.
    We drank beer.
        The drinking age, as I noted, so the seniors were legal.
    Senior year in high school, people were legal to drink. And
    we--yes, we drank beer. And I said sometimes--sometimes
    probably had too many beers, and sometimes other people had too
    many beers.
        We drank beer. We liked beer.
        Ms. Mitchell. What do you consider to be too many beers?
        Judge Kavanaugh. I don't know. You know, whatever the chart
    says, blood alcohol chart.
        Ms. Mitchell. When you talked to Fox News the other night,
    you said that there were times in high school when people might
    have had too many beers on occasion. Does that include you?
        Judge Kavanaugh. Sure.
        Ms. Mitchell. Okay. Have you ever passed out from drinking?
        Judge Kavanaugh. Passed out would be no, but I've gone to
    sleep. But I've never blacked out. That's the--that's the
    allegation, and that's wrong.
        Ms. Mitchell. So let us talk about your time in high
    school. In high school after drinking, did you ever wake up in
    a different location than you remembered passing out or going
    to sleep?
        Judge Kavanaugh. No, no.
        Ms. Mitchell. Did you ever wake up with your clothes in a
    different condition or fewer clothes on than you remembered
    when you went to sleep or passed out?
        Judge Kavanaugh. No. No.
        Ms. Mitchell. Did you ever tell--did anyone ever tell you
    about something that happened in your presence that you did not
    remember during a time that you had been drinking?
        Judge Kavanaugh. No. We drank beer, and you know, so did, I
    think, the vast majority of people our age at the time. But in
    any event, we drank beer and--and still do. So whatever--yes.
        Ms. Mitchell. During the time in high school when you would
    be drinking, did anyone ever tell you about something that you
    did not remember?
        Judge Kavanaugh. No.
        Ms. Mitchell. Dr. Ford described a small gathering of
    people at a suburban Maryland home in the summer of 1982. She
    said that Mark Judge, P.J. Smyth, and Leland Ingham also were
    present, as well as an unknown male, and that the people were
    drinking to varying degrees. Were you ever at a gathering that
    fits that description?
        Judge Kavanaugh. No, as I've said in my opening
    statements--opening statement.
        Ms. Mitchell. Dr. Ford described an incident where she was
    alone in a room with you and Mark Judge. Have you ever been
    alone in a room with Dr. Ford and Mark Judge?
        Judge Kavanaugh. No.
        Ms. Mitchell. Dr. Ford described an incident where you were
    grinding your genitals on her. Have you ever ground or rubbed
    your genitals against Dr. Ford?
        Judge Kavanaugh. No.
        Ms. Mitchell. Dr. Ford described an incident where you
    covered her mouth with your hand. Have you ever covered Dr.
    Ford's mouth with your hand?
        Judge Kavanaugh. No.
        Ms. Mitchell. Dr. Ford described an incident where you
    tried to remove her clothes. Have you ever tried to remove her
    clothes?
        Judge Kavanaugh. No.
        Ms. Mitchell. Referring back to the definition of sexual
    behavior that I have given you, have you ever at any time
    engaged in sexual behavior with Dr. Ford?
        Judge Kavanaugh. No.
        Ms. Mitchell. Have you ever engaged in sexual behavior with
    Dr. Ford, even if it was consensual?
        Judge Kavanaugh. No.
        Ms. Mitchell. I want to talk about your calendars. You
    submitted to the Committee copies of the handwritten calendars
    that you have talked about for the months of May, June, July,
    and August 1982. Do you have them in front of you?
        Judge Kavanaugh. I do.
        Ms. Mitchell. Did you create these calendars in the sense
    of all the handwriting that is on them?
        Judge Kavanaugh. Yes.
        Ms. Mitchell. Okay. Is it exclusively your handwriting?
        Judge Kavanaugh. Yes.
        Ms. Mitchell. When did you make these entries?
        Judge Kavanaugh. In 1982.
        Ms. Mitchell. Has anything been changed for those since
    1982?
        Judge Kavanaugh. No.
        Ms. Mitchell. Do these calendars represent your plans for
    each day, or do they document--in other words, prospectively,
    or do they document what actually occurred, more like a diary?
        Judge Kavanaugh. They're both forward-looking and backward-
    looking, as you can tell by looking at them, because I cross
    out certain doctor's appointments that didn't happen, or one
    night where I supposed to lift weights, I crossed that out
    because I obviously didn't make it that night.
        So you can see things that I didn't do crossed out in
    retrospect. And also when I list the specific people who I was
    with, that is likely backward-looking.
        Ms. Mitchell. You explained that you kept these calendars
    because your father started keeping them in 1978, I believe you
    said.
        Judge Kavanaugh. Mm-hmm.
        Ms. Mitchell. That is why you kept them. In other words,
    you wrote on them, but why did you keep them up until this
    time?
        Judge Kavanaugh. Oh, well, he's kept them, too, since 1978.
    So he's a good role model.
        Chairman Grassley. Ms. Mitchell, you will have to stop.
        Ms. Mitchell. Oh, I am sorry.
        Chairman Grassley. Judge Kavanaugh has asked for a break.
    So we will take a 15-minute break.
        [Whereupon, at 4:11 p.m., the Committee was recessed.]
        [Whereupon, at 4:27 p.m., the Committee reconvened.]
        Chairman Grassley. Senator Leahy.
        Senator Leahy. Thank you, Mr. Chairman.
        Judge, you have said before, and again today, that Mark
    Judge was a close friend of yours in high school. Now Dr. Ford,
    as you know, has said that he was in the room when she was
    attacked. She also says you were, too.
        Unfortunately, the FBI has never interviewed him. We have
    not been able to have his attendance here. The Chairman refuses
    to call him. If she is saying Mark Judge was in the room then,
    then he should be in the room here today. Would you want him
    called as a witness?
        Judge Kavanaugh. Senator, this allegation came into the
    Committee----
        Senator Leahy. No, no. I am just asking the question, would
    you want him to be here as a witness?
        Judge Kavanaugh. He's already provided sworn testimony to
    the Committee. This allegation has been hidden by the
    Committee, by Members of the--Members----
        Senator Leahy. No, it has not been--it has not been
    investigated by the FBI. The Committee has refused to allow it
    to be----
        Judge Kavanaugh. It was dropped on us. It was sprung.
        Senator Leahy. It was not investigated by the FBI, and he
    has not been called. We might be under----
        Judge Kavanaugh. It should have been handled in the due
    course, Senator, when it came in.
        Senator Leahy. I would--I would disagree with that. I have
    been on this Committee 44 years, both Republicans and
    Democrats. I have never seen somebody that critical and not
    allowed to be here to--called to be testifying or an FBI
    background.
        But let me----
        Judge Kavanaugh. He's provided sworn testimony, and
    Senator----
        Senator Leahy. He has----
        Judge Kavanaugh. Senator, let me finish. He--the allegation
    came in weeks ago, and nothing was done with it by the Ranking
    Member, and then it's sprung on me----
        Senator Leahy. Judge Kavanaugh, I have heard your line, and
    you stated it over and over again. And I have that well in
    mind, but let me ask you this.
        He authored a book titled, ``Wasted: Tales of a GenX
    Drunk.'' He references a Bart O'Kavanaugh vomiting in someone's
    car during Beach Week and then passing out. Is that you that he
    is talking about?
        Judge Kavanaugh. Senator, Mark Judge was----
        Senator Leahy. To your knowledge, is that you that he is
    talking about?
        Judge Kavanaugh. I'll explain if you let me.
        Chairman Grassley. Proceed, please.
        Judge Kavanaugh. Mark Judge was a friend of ours in high
    school who developed a very serious drinking problem and
    addiction problem that lasted decades and was very difficult
    for him to escape from. And he nearly died. And then he
    developed--then he had leukemia as well on top of it.
        Now, as part of his therapy or part of his coming to grips
    with sobriety, he wrote a book that is a fictionalized book and
    an account. I think he picked out names of friends of ours to
    throw them in as kind of close to what--for characters in the
    book. So, you know, we can sit here----
        Senator Leahy. So we do not know--we do not know whether
    that is you or not?
        Judge Kavanaugh. We can sit here and----
        Senator Leahy. Is that what you are saying?
        Judge Kavanaugh [continuing]. You know, like make fun of
    some guy who has an addiction.
        Senator Leahy. I am not making fun of anybody, Judge
    Kavanaugh.
        Judge Kavanaugh. But I don't think that really makes--is
    really good.
        Senator Leahy. I am trying to get a straight answer from
    you under oath. Are you the Bart O'Kavanaugh that he is
    referring to, ``yes'' or ``no''? That is----
        Judge Kavanaugh. You'd have to ask him.
        Senator Leahy. Well, I agree with you there, and that is
    why I wish that the Chairman had him here under oath.
        Now you talked about your yearbook. In your yearbook, you
    talked about drinking and sexual exploits, did you not?
        Judge Kavanaugh. Senator, let me--let me take a step back
    and explain high school. I was number one in the class----
        Senator Leahy. And I thought only----
        Judge Kavanaugh. No, no.
        Senator Leahy. I thought only the Senate could filibuster.
        Judge Kavanaugh. No, no, no, no. You got this up. I'm going
    to talk about my high school----
        Senator Leahy. I thought only the Senate could filibuster.
        Judge Kavanaugh. No, no. I'm going to----
        Senator Hatch. Let him answer.
        Judge Kavanaugh. I'm going to talk about my high school
    record, if you're going to sit here and mock me.
        Chairman Grassley. We were--I think we were all very fair
    to Dr. Ford. Should we not be just as fair to Judge Kavanaugh?
        Senator Hatch. Just saying.
        Judge Kavanaugh. I busted my butt in academics. I always
    tried to do the best I could. As I recall, I finished one in
    the class, first in freshman and junior year, right up at the
    top with Steve Clark and Eddie Ayala. We were always kind of in
    the mix.
        I played sports. I was captain of the varsity basketball
    team. I was wide receiver and defensive back on the football
    team. I ran track in the spring of '82 to try to get faster.
        I did my service projects at the school, which involved
    going to the soup kitchen downtown--let me finish--and going to
    tutor intellectually disabled kids at the Rockville library. I
    went to church. And yes, we got together with our friends.
        Senator Leahy. Does this reflect what you are? Does this
    yearbook reflect your focus on academics and your respect for
    women? That is easy, ``yes'' or ``no.'' You do not have to
    filibuster the answer. Does it reflect your focus on----
        Judge Kavanaugh. I already said the yearbook--in my opening
    statement, the yearbook obviously----
        Chairman Grassley. Judge? Just wait a minute. He has asked
    the question. I will give you time to answer it.
        Judge Kavanaugh. The yearbook, as I said in my opening
    statement, was something where the students and editors made a
    decision to treat some of it as farce and some of it as
    exaggeration, some of it celebrating things that don't reflect
    the things that were really the central part of our school.
        Yes, we went to parties, though. Yes, of course, we went to
    parties, and the yearbook page describes that and kind of makes
    fun of it. And you know, if we want to sit here and talk about
    whether a Supreme Court nomination should be based on a high
    school yearbook page, I think that's taking us to a new level
    of absurdity.
        Chairman Grassley. Ms. Mitchell.
        Senator Leahy. Well, we got a filibuster, but not a single
    answer.
        Chairman Grassley. Ms. Mitchell.
        [For Senator Graham.]
        Ms. Mitchell. Judge, do you still have your calendars
    there?
        Judge Kavanaugh. I do.
        Ms. Mitchell. I would like you to look at the July 1st
    entry.
        Judge Kavanaugh. Yes.
        Ms. Mitchell. The entry says, and I quote, ``Go to Timmy's
    for skis with Judge, Tom, P.J., Bernie, and--Squi''?
        Judge Kavanaugh. ``Squi.'' It's a nickname.
        Ms. Mitchell. Okay. To what does this refer and to whom?
        Judge Kavanaugh. So it first says, ``Tobin's house
    workout.'' So that's one of the football workouts that we would
    have that Dr. Finizio would run for guys on the football team
    during the summer. So we would be there. That's usually 6 p.m.
    to 8 p.m. or so, kind of until near dark.
        Then it looks like we went over to Timmy's. Do you want to
    know their last names, too? I'm happy to do it.
        Ms. Mitchell. If you could just identify, is ``Judge'' Mark
    Judge?
        Judge Kavanaugh. It is.
        Ms. Mitchell. And is ``P.J.'' P.J. Smyth?
        Judge Kavanaugh. It is. So it's Tim Gaudette, Mark Judge,
    Tom Kane, P.J. Smyth, Bernie McCarthy, Chris Garrett.
        Ms. Mitchell. Chris Garrett is ``Squi''?
        Judge Kavanaugh. He is.
        Ms. Mitchell. Did you in your calendar routinely document
    social gatherings like house parties or gatherings of friends
    in your calendar?
        Judge Kavanaugh. Yes. It certainly appears that way. That's
    what I was doing in the summer of 1982, and you can see that
    reflected on several of the--several of the entries.
        Ms. Mitchell. If a gathering like Dr. Ford has described
    had occurred, would you have documented that?
        Judge Kavanaugh. Yes, because I documented everything of
    those kinds of events, even small get-togethers. August 7th is
    another good example where I documented a small get-together
    that summer. So, yes.
        Ms. Mitchell. August 7th. Could you read that?
        Judge Kavanaugh. I think that's ``Go to Becky's. Matt,
    Denise, Laurie, Jenny.''
        Ms. Mitchell. Have you reviewed every entry that is in
    these calendars of May, June, July, and August 1982?
        Judge Kavanaugh. I have.
        Ms. Mitchell. Is there anything that could even remotely
    fit what we are talking about in terms of Dr. Ford's
    allegations?
        Judge Kavanaugh. No.
        Ms. Mitchell. As a lawyer and a judge, are you--we have
    talked about the FBI. Are you aware that this type of offense
    would actually be investigated by local police?
        Judge Kavanaugh. Yes, I mentioned Montgomery County Police
    earlier. Yes.
        Ms. Mitchell. Are you aware that in Maryland, there is no
    statute of limitations that would prohibit you being charged,
    even if this happened in 1982?
        Judge Kavanaugh. That's my understanding.
        Ms. Mitchell. Have you at any time been contacted by any
    members of local police agencies regarding this matter?
        Judge Kavanaugh. No, ma'am.
        Ms. Mitchell. Prior to your nomination for Supreme Court,
    you have talked about all of the female clerks you have had and
    the women that you have worked with, I am not just talking
    about them. I am talking about globally. Have you ever been
    accused, either formally or informally, of unwanted sexual
    behavior?
        Judge Kavanaugh. No.
        Ms. Mitchell. And when I say informally, I mean just a
    female complains. It does not have to be to anybody else, but
    you.
        Judge Kavanaugh. No.
        Ms. Mitchell. Since Dr. Ford's allegation was made public,
    how many times have you been interviewed by the Committee?
        Judge Kavanaugh. It's been three or four. I'm--I'm trying
    to remember now. It's been several times. Each of these new
    things, absurd as they are, we'd get on the phone and kind of
    go through them.
        Ms. Mitchell. So have you submitted to interviews
    specifically about Dr. Ford's allegation?
        Judge Kavanaugh. Yes.
        Ms. Mitchell. And what about Deborah Ramirez's allegation--
    --
        Judge Kavanaugh. Yes.
        Ms. Mitchell [continuing]. That you waved your penis in
    front of her?
        Judge Kavanaugh. Yes.
        Ms. Mitchell. What about Julie Swetnick's allegation that
    you repeatedly engaged in drugging and gang raping or allowing
    women to be gang raped?
        Judge Kavanaugh. Yes. Yes, I've been interviewed about it.
        Ms. Mitchell. Okay. Were your answers to my questions today
    consistent with the answers that you gave to the Committee in
    these various interviews?
        Judge Kavanaugh. Yes, ma'am.
        Ms. Mitchell. Okay. I see I am out of time.
        Chairman Grassley. Senator Durbin.
        Senator Durbin. Thank you, Mr. Chairman.
        Judge Kavanaugh, earlier today, Dr. Christine Ford sat in
    that same chair, and under oath, she said clearly and
    unequivocally that she was the victim of sexual assault at your
    hands. She answered our questions directly, and she did not
    flinch at the prospect of submitting herself to an FBI
    investigation of these charges. We know, and I am sure she has
    been advised by her attorneys, that a person lying to the FBI
    can face criminal prosecution.
        You have clearly and unequivocally denied that you
    assaulted Dr. Ford. With that statement, you must believe that
    there is no credible evidence or any credible witness that
    could prove otherwise.
        You started off with an impassioned statement at the
    beginning, and I can imagine--try to imagine what you have been
    through or your family has been through, and I am sure I would
    not get close to it. But it was an impassioned----
        Judge Kavanaugh. No, you wouldn't.
        Senator Durbin. I am sure I would not. It was an
    impassioned statement. And in the course of it, you said, ``I
    welcome any kind of investigation.'' I quote you, ``I welcome
    any kind of investigation.''
        I have got a suggestion for you. Right now, turn to your
    left in the front row to Don McGahn, counsel to President
    Donald Trump. Ask him to suspend this hearing and nomination
    process until the FBI completes its investigation of the
    charges made by Dr. Ford and others and goes to bring the
    witnesses forward and provides that information to this
    hearing.
        I am sure that the Chairman at that point will understand
    that that is a reasonable request to finally put to rest these
    charges if they are false or to prove them if they are not. You
    spent 2 years in the White House office that approved judicial
    nominees. You turned to the FBI over and over and over again
    for their work.
        Let us bring them in, here and now. Turn to Don McGahn and
    tell him it is time to get this done. An FBI investigation is
    the only way to answer some of these questions.
        Judge Kavanaugh. Senator----
        Chairman Grassley. Stop the clock. This Committee is
    running this hearing. Not the White House, not Don McGahn, not
    even you as a nominee.
        We are here today because Dr. Ford asked for an opportunity
    to hear her. I know you did, too, as well. In fact, maybe even
    before she did. We are here because people wanted to be heard
    from charges that they all thought were unfair or activities,
    like sexual assault, was unfair.
        So I want to assure Senator Durbin, regardless of what you
    say to Senator--Don McGahn, we are not suspending this hearing.
        Proceed to answer the question or whatever--if the
    gentleman----
        Senator Durbin. I would just say this. If you, Judge
    Kavanaugh, turn to Don McGahn and to this Committee and say for
    the sake of my reputation, my family name, and to get to the
    bottom of the truth of this, I am not going to be an obstacle
    to an FBI investigation, I would hope that all the Members of
    the Committee would join me in saying we are going to abide by
    your wishes, and we will have that investigation.
        Judge Kavanaugh. I welcome whatever the Committee wants to
    do because I'm telling the truth.
        Senator Durbin. I want to know what you want to do.
        Judge Kavanaugh. I'm telling the truth.
        Senator Durbin. I want to know what you want to do, Judge.
        Judge Kavanaugh. I'm innocent. I'm innocent of this charge.
        Senator Durbin. Then you are prepared for an FBI
    investigation?
        Judge Kavanaugh. They don't reach conclusions. You reach
    the conclusion, Senator.
        Senator Durbin. No, but they do investigate questions.
        Judge Kavanaugh. I mean, this is----
        Senator Durbin. And you cannot have it both ways, Judge.
    You cannot say here at the beginning----
        Judge Kavanaugh. I wanted a hearing----
        Senator Durbin [continuing]. In an impassioned moment, ``I
    welcome any kind of investigation''----
        Judge Kavanaugh. Look, this thing was sprung on me.
        Senator Durbin [continuing]. And then walk away from this.
        Judge Kavanaugh. This thing was sprung at the last minute
    after being held by staff, you know? And I called for----
        Senator Durbin. Judge, if there is no truth----
        Judge Kavanaugh. I called for a hearing immediately.
        Senator Durbin. If there is no truth to her charges, the
    FBI investigation will show that. Are you afraid that they
    might not? Come on. Gee whiz.
        Judge Kavanaugh. The FBI does not reach--you know, you know
    this is--you know that's a phony question because the FBI
    doesn't reach conclusions. They just provide the 302s. The 302,
    so I can explain to people who don't know what that is, they
    just go and do what you're doing, ask questions and then type
    up a report. They don't reach the bottom-line conclusion.
        Senator Durbin. This morning--this morning, I asked Dr.
    Ford. I asked her about this incident where she ran into Mark
    Judge at a Safeway. And she said, sure, I remember. It was 6 or
    8 weeks after this occurrence.
        Well, someone at The Washington Post went in and took a
    look at Mr. Judge's book and has been able to--the one that he
    wrote about his addiction and his alcoholism. And they have
    narrowed it down to what they think was a period of time 6 or 8
    weeks after the event, and he would have been working at the
    Safeway at that point.
        So the point I am getting to is, we at least can connect
    some dots here and get some information. Why would you resist
    that kind of investigation?
        Judge Kavanaugh. There's the dots.
        Senator Durbin. Why would you resist that kind of
    investigation?
        Judge Kavanaugh. Senator, I welcome--I wanted the hearing
    last week.
        Senator Durbin. I am asking about the FBI investigation.
        Judge Kavanaugh. The Committee figures out how to ask the
    questions. I'll do whatever. I've been on the phone multiple
    times with Committee Counsel. I'll talk to----
        Senator Durbin. Judge Kavanaugh, will you support an FBI
    investigation right now?
        Judge Kavanaugh. I will do whatever the Committee wants----
        Senator Durbin. Personally, do you think that is the best
    thing for us to do? You will not answer?
        Judge Kavanaugh. Look, Senator, I've said I wanted a
    hearing, and I said I would welcome anything. I'm innocent.
    This thing was held, held when it could have been presented in
    the ordinary way. It could have been held and handled
    confidentially at first, which was what Dr. Ford's wishes were,
    as I understand it, and wouldn't have caused this, like
    destroyed my family like this effort has.
        Senator Durbin. I think an FBI investigation will help all
    of us on both sides of the issue.
        Chairman Grassley. Senator Graham asked for the floor. But
    before he does, it seems to me that if you want to know
    something, you have got the witness right here to ask him. And
    second, if you want an FBI report, you can ask for it yourself.
    I have asked for FBI reports in the past, in the 38 years I
    have been in the Senate.
        Senator Graham.
        Senator Graham. Are you aware that at 9:23 on the night of
    July the 9th, the day you were nominated to the Supreme Court
    by President Trump, Senator Schumer said, 23 minutes after your
    nomination, ``I will oppose Judge Kavanaugh's nomination with
    everything I have.'' I have a bipartisan--``and I hope a
    bipartisan majority will do the same. The stakes are simply too
    high for anything less.''
        Well, if you were not aware of it, you are now. Did you
    meet with Senator Dianne Feinstein on August 20th?
        Judge Kavanaugh. I did meet with Senator Feinstein.
        Senator Graham. Did you know that her staff had already
    recommended a lawyer to Dr. Ford?
        Judge Kavanaugh. I did not know that.
        Senator Graham. Did you know that her and her staff had
    these allegations for over 20 days?
        Judge Kavanaugh. I did not know that at the time.
        Senator Graham. If you wanted an FBI investigation, you
    could have come to us. What you want to do is destroy this
    guy's life, hold this seat open, and hope you win in 2020. You
    have said that, not me.
        You have got nothing to apologize for.
        When you see Sotomayor and Kagan, tell them that Lindsey
    said hello because I voted for them. I would never do to them
    what you have done to this guy. This is the most unethical sham
    since I have been in politics. And if you really wanted to know
    the truth, you sure as hell would not have done what you have
    done to this guy.
        Are you a gang rapist?
        Judge Kavanaugh. No.
        Senator Graham. I cannot imagine what you and your family
    have gone through.
        Boy, you all want power. God, I hope you never get it. I
    hope the American people can see through this sham that you
    knew about it and you held it. You had no intention of
    protecting Dr. Ford, none. She is as much of a victim as you
    are.
        God, I hate to say it because these have been my friends.
    But let me tell you, when it comes to this, you are looking for
    a fair process, you came to the wrong town at the wrong time,
    my friend.
        Do you consider this a job interview?
        Judge Kavanaugh. The Advice and Consent role is like a job
    interview.
        Senator Graham. Do you consider that you have been through
    a job interview?
        Judge Kavanaugh. I've been through a process of advice and
    consent under the Constitution, which----
        Senator Graham. Would you say you have been through hell?
        Judge Kavanaugh. I have been through hell and then some.
        Senator Graham. This is not a job interview. This is hell.
        Judge Kavanaugh. This is----
        Senator Graham. This is going to destroy the ability of
    good people to come forward because of this crap. Your high
    school yearbook. You have interacted with professional women
    all your life, not one accusation.
        You are supposed to be Bill Cosby when you are a junior and
    senior in high school, and all of a sudden, you got over it. It
    has been my understanding that if you drugged women and raped
    them for 2 years in high school, you probably do not stop.
        Here is my understanding. If you lived a good life, people
    will recognize it, like the American Bar Association has the
    gold standard: ``His integrity is absolutely unquestioned. He
    is the very circumspect in his personal conduct. Harbors no
    biases or prejudices. He is entirely ethical. Is a really
    decent person. He is warm, friendly, unassuming. He is the
    nicest person.'' The ABA.
        The one thing I can tell you, you should be proud of is--
    Ashley, you should be proud of this. That you raised a daughter
    who had the good character to pray for Dr. Ford.
        To my Republican colleagues, if you vote no, you are
    legitimizing the most despicable thing I have seen in my time
    in politics. You want this seat? I hope you never get it.
        I hope you are on the Supreme Court. That is exactly where
    you should be. And I hope that the American people will see
    through this charade, and I wish you well. And I intend to vote
    for you, and I hope everybody who is fair-minded will.
        Chairman Grassley. Senator Whitehouse.
        Senator Whitehouse. Should we let things settle a little
    bit after that?
        Chairman Grassley. Do you want a--we will take a 60-second
    break?
        Senator Whitehouse. No, I am good. I am good.
        Chairman Grassley. Okay. Go ahead.
        Senator Whitehouse. One of the reasons, Mr. Kavanaugh, that
    we are looking at the yearbook is that it is relatively
    consistent in time with the events at issue here and because it
    appears to be your words. Is it, in fact, your words on your
    yearbook page?
        Judge Kavanaugh. We submitted things to the editors, and I
    believe they took them. I don't know if they changed things or
    not, but----
        Senator Whitehouse. You are not aware of any changes?
        Judge Kavanaugh. I don't know. I'm not aware one way----
        Senator Whitehouse. As far as you know, these are your
    words?
        Judge Kavanaugh. I'm not aware one way or the other, but
    I'm not going to sit here and contest that. Have at it, if you
    want to go through my yearbook.
        Senator Whitehouse. Yes, I am actually interested. You
    know, lawyers should be working off of common terms and
    understand the words that we are using. I think that is a
    pretty basic principle among lawyers. Would you not agree?
        Judge Kavanaugh. It is. If you're worried about my
    yearbook, have at it, Senator.
        Senator Whitehouse. So let us look at ``Beach Week Ralph
    Club Biggest Contributor.'' What does the word ``ralph'' mean
    in that instance?
        Judge Kavanaugh. That probably refers to throwing up. I'm
    known to have a weak stomach and always have. In fact, the last
    time I was here, you asked me about having ketchup on
    spaghetti. I always have had a weak stomach.
        Senator Whitehouse. I do not know that I asked about
    ketchup on spaghetti, but----
        Judge Kavanaugh. You didn't. Someone did.
        Senator Whitehouse. Okay.
        Judge Kavanaugh. And this is well known. Anyone who's known
    me, like a lot of these people behind me have known me my whole
    life, know, you know, I got a weak stomach, whether it's with
    beer or with spicy food or anything.
        Senator Whitehouse. So the vomiting that you reference in
    the ``Ralph Club'' reference related to the consumption of
    alcohol?
        Judge Kavanaugh. Senator, I was at the top of my class
    academically, busted my butt in school, captain of the varsity
    basketball team, got into Yale College. When I got into Yale
    College, got into Yale Law School. Worked my tail off.
        Senator Whitehouse. And, did the word ``ralph'' you used in
    your yearbook relate to alcohol?
        Judge Kavanaugh. I already said--I already answered the
    question. If you're----
        Senator Whitehouse. Did it relate to alcohol?
        Judge Kavanaugh. I like beer.
        Senator Whitehouse. You have not answered that.
        Judge Kavanaugh. I like beer. I don't know if you do. Do
    you like beer, Senator, or not?
        Senator Whitehouse. Okay.
        Judge Kavanaugh. What do you like to drink?
        Senator Whitehouse. The next one is----
        Judge Kavanaugh. Senator, what do you like to drink?
        Senator Whitehouse [continuing]. Judge, have you--I do not
    know if it is ``boofed'' or ``bufed''--how do you pronounce
    that?
        Judge Kavanaugh. That refers to flatulence. We were 16.
        [Laughter.]
        Senator Whitehouse. Okay. And so, when your friend Mark
    Judge said the same--put the same thing in his yearbook page
    back to you, he had the same meaning, it was flatulence?
        Judge Kavanaugh. I don't know what he did, but that's my
    recollection. We want to talk about flatulence at age 16 on a
    yearbook page, I'm game.
        Senator Whitehouse. You mentioned, I think, the ``Renate''
    or ``Renate,'' ``Renata''--I do not know how you pronounce
    that. That is the proper name of an individual you know?
        Judge Kavanaugh. ``Renate.''
        Senator Whitehouse. ``Renate.'' It is spelled with an ``e''
    at the end, R-e-n-a-t-e. Is that----
        Judge Kavanaugh. Correct.
        Senator Whitehouse. Okay. And then after that is the word
    ``alumnius.'' What does the word ``alumnius'' mean in that
    context?
        Judge Kavanaugh. I explained that in my opening statement.
    We--she was a great friend of ours. A bunch of us went to
    dances with her. She hung out with us as a group. The media
    circus that has been generated by this thought and reported
    that it referred to sex. It did not.
        Never had any--as she herself said on the record, any kind
    of sexual interaction with her. And I'm sorry how that's been
    misinterpreted and I'm sorry about that, as I explained in my
    opening statement. Because she's a good person, and to have her
    name dragged through this hearing is a joke and really an
    embarrassment.
        Senator Whitehouse. ``Devil's triangle''?
        Judge Kavanaugh. Drinking game.
        Senator Whitehouse. How is it played?
        Judge Kavanaugh. Three glasses in a triangle.
        Senator Whitehouse. And?
        Judge Kavanaugh. You ever played quarters?
        Senator Whitehouse. No.
        Judge Kavanaugh. Okay. It's a quarters game.
        Senator Whitehouse. ``Anne Dougherty's.''
        Judge Kavanaugh. As you can tell from my calendar, she had
    a party on the Fourth of July in--the beach in Delaware.
        Senator Whitehouse. And there are like one, two, three,
    four, five, six, seven ``Fs'' in front of the Fourth of July,
    what does that signify, if anything?
        Judge Kavanaugh. One of our friends, Squi, when he said the
    ``F'' word, starting at a young age, had kind of a wind-up to
    the ``F'' word, kind of a ``f-f-f-'' and then the word would
    come out. And when we were 15, we thought that was funny, and
    it became an inside joke for that, how he would say--and I
    won't repeat it here--for the ``F'' word.
        Senator Whitehouse. Referring to ``Georgetown versus
    Louisville'' and----
        Judge Kavanaugh. Do you want any more on the ``Fs''?
        Senator Whitehouse. No. And the ``Orioles versus Red Sox,''
    in both, you respond, ``Who won anyway?'' Or, ``Who won that
    game anyway?'' Should we draw any conclusion that a loss of
    recollection associated with alcohol was involved in you not
    knowing who won the games that you attended?
        Judge Kavanaugh. No. First of all, the Georgetown-
    Louisville was watching it on TV, a party, and the----
        Senator Whitehouse. That is not inconsistent with drinking
    and not remembering what happened.
        Judge Kavanaugh. I'm aware. And the point of both was, we,
    in essence, were having a party and didn't pay attention to the
    game, even though the game was the excuse we had for getting
    together. I think that's very common.
        I don't know if you've been to a Super Bowl party, for
    example, Senator, and not paid attention to the game and just
    hung out with your friends. I don't know if you've done that or
    not. But that's what we were referring to in those--those two
    occasions.
        Chairman Grassley. Senator Cornyn.
        Senator Cornyn. Judge, I cannot think of a more
    embarrassing scandal for the United States Senate since the
    McCarthy hearings when the comment was about the cruelty of the
    process toward the people involved, and the question was asked,
    ``Have you no sense of decency?'' And, I am afraid we have lost
    that, at least for the time being.
        Do you understand you have been accused of multiple crimes?
        Judge Kavanaugh. I'm painfully aware, for my family and me
    to read about this----
        Senator Cornyn. And----
        Judge Kavanaugh [continuing]. Breathless reporting.
        Senator Cornyn [continuing]. Of course, the sexual assault
    that Dr. Ford claims that you have denied, then the claims of
    Ms. Ramirez that not even The New York Times would report
    because it could not corroborate it. And then Stormy Daniels'
    lawyer released a bombshell accusing you of gang rape. All of
    those are crimes, are they not?
        Judge Kavanaugh. They are, and I'm--I'm never going to get
    my reputation back. My life is totally and permanently altered.
        Senator Cornyn. Well, Judge, do not give up.
        Judge Kavanaugh. I'm not giving up. I will----
        Senator Cornyn. The American people----
        Judge Kavanaugh. I will----
        Senator Cornyn. The American people are listening to this,
    and they will make their decision, and I think you will come
    out on the right side of that decision.
        Judge Kavanaugh. Well, I always be a good person and try to
    be a good judge, whatever happens. But----
        Senator Cornyn. So this is not a job interview. You have
    been accused of a crime. If you have lied to the Committee and
    the investigators, that is a crime, in and of itself. Correct?
        Judge Kavanaugh. That is correct.
        Senator Cornyn. So in order to vote against your
    nomination, we would have to conclude that you are a serial
    liar, and you have exposed yourself to legal jeopardy in the
    way in your interaction with this Committee and the
    investigators. Is that not correct?
        Judge Kavanaugh. That's my understanding.
        Senator Cornyn. You talked in your interview on--with
    Martha MacCallum the other night about a fair process. Some of
    my colleagues across the aisle say, well, the burden is not on
    the accuser because this is a job interview. The burden is on
    you.
        But you said you were not there, and it did not happen. It
    is impossible for you to prove a negative. So I would just
    suggest that you have been accused of a crime and that a fair
    process under the United States Constitution, under our notion
    of fair play, means that the people who make an accusation
    against you have to come forward with some evidence. Is that
    not part of a fair process?
        Judge Kavanaugh. Yes, sir, Senator.
        Senator Cornyn. And part of that means that if you are
    going to make an allegation, there needs to be corroboration.
    In other words, you are not guilty because somebody makes an
    accusation against you in this country. We are not a police
    state. We do not give the Government that kind of power. We
    insist that those charges be proven by competent evidence.
        And I know we are not in a court. I have told my colleagues
    if we were in court, half of them would be in contempt of
    court. But you have been accused of a crime, and I believe
    fundamental notions of fair play and justice in our
    constitutional system require that if somebody is going to make
    that accusation against you, then they need to come forward
    with some corroboration, not just allegations.
        And you are right to be angry about the delays in your
    ability to come here and protect your good name because, in the
    interim, it just keeps getting worse. If it is not Dr. Ford, it
    is this story that not even The New York Times would report,
    the allegation of Ms. Ramirez. And then Stormy Daniels' lawyer
    comes up with this incredible story accusing you of the most
    sordid and salacious conduct.
        It is outrageous, and you are right to be angry. But this
    is your chance to tell your story, and I hope you have a chance
    to tell us everything you want to tell us. But the burden is
    not on you to disprove the allegations made. The burden under
    our system, when you accuse somebody of criminal conduct, is on
    the person making the accusation.
        Now I understand we are not--this is not a trial, like I
    said. But I just wanted to make sure that we understood. It is
    hard to reconstruct what happened 36 years ago, and I
    appreciate what you said about Dr. Ford, that perhaps she has
    had an incident at some point in her life, and you are
    sympathetic to that.
        And--but your reputation is on the line, and I hope people
    understand the gravity of the charges made against you and what
    a fair process looks like.
        Chairman Grassley. Senator Klobuchar.
        Senator Klobuchar. Thank you, Mr. Chairman.
        Judge, we are talking here about decency, and you
    understand we have this constitutional duty to advise and
    consent. And for me, when this evidence came forward, I decided
    that I needed to look at this, and I needed to find out about
    it, and I needed to ask you questions about it, as well as
    others that were involved.
        So, again, I am not going to take quite the same approach
    as my colleagues here and talk about Don McGahn or any of this.
    Why do you not just ask the President? Mrs.--Dr. Ford cannot do
    this. We clearly have not be able to do this. But just ask the
    President to re-open the FBI investigation.
        Judge Kavanaugh. I think the Committee is doing--you're
    doing the investigation. I'm here to answer your questions. And
    I should say one thing, Senator Klobuchar, which is I
    appreciate our meeting together, and I appreciate how you
    handled the prior hearing, and I have a lot of respect for you.
        Senator Klobuchar. Well, thank you.
        All of that aside, here is the thing. You could actually
    just get this open so that we can talk to these witnesses, and
    the FBI can do it instead of us. And you have come before us,
    but we have people like Mark Judge, who Dr. Ford says was a
    witness to this. We have this polygraph expert that my
    colleagues were raising issues about the polygraph. We would
    like to have that person come before us.
        And I just think if we could open this up----
        Judge Kavanaugh. I don't mean--I don't mean to interrupt,
    but I guess I am, but Mark Judge has provided sworn statement
    saying this didn't happen and that I never did or would do----
        Senator Klobuchar. But we would like the FBI to be able to
    follow up and ask him questions. You know, we talked about past
    nomination processes, and you talked about those. And I note
    that President George Bush in the Anita Hill Justice Thomas
    case, he opened up the FBI investigation and let questions be
    asked. And I think it was helpful for people. So was his
    decision reasonable?
        Judge Kavanaugh. I don't know the circumstances of that.
    What I know, Senator, is I'm----
        Senator Klobuchar. That he just--the circumstances are that
    he opened up the investigation so the FBI could ask some
    questions. That what he--he opened up the background check.
        Judge Kavanaugh. I'm here to answer questions about my
    yearbook or about, you know, what I--and my sports or, you
    know, summer basketball----
        Senator Klobuchar. Okay, that is--okay, I am not going to
    ask--okay. I am not going to ask about the yearbook.
        So most people have done some drinking in high school and
    college, and many people even struggle with alcoholism and
    binge drinking. My own dad struggled with alcoholism most of
    his life, and he got in trouble for it, and there were
    consequences. But he is still in AA at age 90, and he is sober.
    And in his words, he was pursued by grace, and that is how he
    got through this.
        So in your case, you have said here and other places that
    you never drank so much that you did not remember what
    happened. But yet we have heard, not under oath, but we have
    heard your college roommate say that you did drink frequently--
    these are in news reports--that you would sometimes be
    belligerent.
        Another classmate said it is not credible for you to say
    you did not have memory lapses. So drinking is one thing.
        Judge Kavanaugh. I don't--I actually don't think that's--
    the second quote is correct. On the first quote, if you wanted,
    I provided some material that's still redacted about the
    situation with the freshman year roommate, and I don't really
    want to repeat that in a public hearing. But just so you know,
    there were three people in a room--Dave White, Jamie Roche, and
    me--and it was a contentious situation, where Jamie did not
    like Dave White at all. And, I mean, this----
        Senator Klobuchar. Okay. I just----
        Judge Kavanaugh. So Dave White came back from home one
    weekend, and Jamie Roche had moved all his furniture out into
    the--out into the courtyard.
        Senator Klobuchar. Okay.
        Judge Kavanaugh. And so he walks in, and so that's your
    source on that. So there's some old----
        Senator Klobuchar. So, drinking is one thing----
        Judge Kavanaugh. And there's much more. Look at the
    redacted portion of what I said. I don't want to repeat that in
    a public hearing, but there's----
        Senator Klobuchar. I will. I will. Could I just ask one
    more question?
        Judge Kavanaugh [continuing]. Redacted information about
    that.
        Senator Klobuchar. Okay. Drinking is one thing, but the
    concern is about truthfulness, and in your written testimony,
    you said sometimes you had too many drinks. Was there ever a
    time when you drank so much that you could not remember what
    happened, or part of what happened, the night before?
        Judge Kavanaugh. No. I remember what happened. And, I think
    you've probably had beer, Senator, and so----
        Senator Klobuchar. So, you are saying there has never been
    a case where you drank so much that you did not remember what
    happened the night before, or part of what happened?
        Judge Kavanaugh. It's--you're asking about blackout. I
    don't know, have you?
        Senator Klobuchar. Could you answer the question, Judge?
    So, you--that has not happened? Is that your answer?
        Judge Kavanaugh. Yes. And, I'm curious if you have.
        Senator Klobuchar. I have no drinking problem, Judge.
        Judge Kavanaugh. Yes, nor do I.
        Senator Klobuchar. Okay. Thank you.
        Chairman Grassley. Before I go to Senator Hatch, since this
    FBI thing keeps coming up all the time, let us get back to
    basics. First of all, anybody, including any Senator, that has
    brought up this issue, could ask for an FBI investigation. What
    the FBI does is gather information for the White House, then
    the file is sent to the Committee for us to make our own
    evaluations. We are capable of making our own determination
    about the accuracy of any of those allegations.
        The FBI has put out a statement over, now I suppose it is a
    month ago, clearly stating this matter is closed as far as the
    letter being sent to them, and there is no Federal crime to
    investigate. If Senate Democrats hope for the FBI to draw any
    conclusions on this matter, I am going to remind you what Joe
    Biden said. Now I said this in my statement, but maybe--maybe
    people are not listening when I say, and maybe they will not
    even hear this.
        Joe Biden, quote: ``The next person who refers to an FBI
    report as being worth anything obviously does not understand
    anything. The FBI explicitly does not--does not, in this or any
    other case, reach a conclusion, period. They say `he said, she
    said, they said,' period. So when people wave an FBI report
    before you''--or even bring it up now as something
    prospectively, that was not in his quote--``understand they do
    not, they do not, they do not reach conclusions. They do not
    make recommendations.''
        Senator Hatch.
        Senator Whitehouse. Mr. Chairman? Mr. Chairman, may I say
    for the record that actually we have asked. You said that
    nobody has asked the FBI or we could ask the FBI. I actually
    have. I think others have, and I think that the issue is that
    part of what an FBI report does is to investigate and seek
    either corroborating or exculpatory evidence. It is not so much
    the conclusion that it draws as the breadth of the evidence
    that is sought out through the investigation and the difference
    between what somebody might say to an FBI agent when they are
    being examined and, for instance, Mr. Judge's letter signed by
    his lawyer sent in.
        It is just a different thing, and I believe still that this
    is the first background investigation in the history of
    background investigations that has not been reopened when new
    credible derogatory information was raised about the subject,
    about the nominee.
        So, you know, I just did not want to let the point you made
    stand without referencing what we have tried to do.
        Chairman Grassley. Well, pardon me, but I will just add to
    the point you made. The letter was sent to the FBI. The FBI
    sent it to the White House with a letter saying the case is
    closed.
        We are taking a break now. Senator, we are taking a break
    now. A 15-minute break.
        [Whereupon, at 5:09 p.m., the Committee was recessed.]
        [Whereupon, at 5:28 p.m., the Committee reconvened.]
        Chairman Grassley. Judge, are you ready?
        Judge Kavanaugh. I am ready. And can I say one thing?
        Chairman Grassley. Yes.
        Judge Kavanaugh. I was just going to say, I started my last
    colloquy by saying to Senator Klobuchar how much I respect her
    and respected what she did at the last hearing, and she asked
    me a question at the end that I responded by asking her a
    question, and I'm sorry I did that. This is a tough process.
    I'm sorry about that.
        Senator Klobuchar. I appreciate that. I would like to add,
    when you have a parent that is an alcoholic, you are pretty
    careful about drinking. And the second thing is, I was truly
    just trying to get to the bottom of the facts and the evidence,
    and I, again, believe we do that by opening up the FBI
    investigation, and I would call it a ``background check''
    instead of ``investigation.''
        Thank you.
        Judge Kavanaugh. I appreciate that.
        Chairman Grassley. Senator Hatch.
        Senator Hatch. Well, thank you. Judge, welcome. We are
    happy to have you here. I would just like to say a few words.
        My friend from Arizona emphasized yesterday that we have
    before us today two human beings: Dr. Ford and Judge Kavanaugh.
    They deserve, each of you deserves, to be treated fairly and
    respectfully. We tried to do that with Dr. Ford earlier, and I
    think we succeeded. It is important that we treat Judge
    Kavanaugh fairly now, and it remains to be seen how that is
    going to work out.
        Judge Kavanaugh has been a Federal judge for 12 years, and
    he has been a great Federal judge on the second highest court
    in the Nation. He has earned a reputation for fairness and
    decency. His clerks love him. His students he teaches in law
    school as well, his students love him. His colleagues love him.
    This man is not a monster, nor is he what has been represented
    here in these hearings. We are talking today about Judge
    Kavanaugh's conduct in high school, and even then, and as a
    freshman in college, I guess as well.
        Serious allegations have been raised that if Judge
    Kavanaugh committed sexual assault, he should not serve on the
    Supreme Court. I think we would all agree with that. But the
    circus atmosphere that has been created since my Democratic
    colleagues first leaked Dr. Ford's allegations to the media 2
    weeks ago, after sitting on them for 6 weeks, I might add, has
    brought us the worst in our politics. It certainly has brought
    us no closer to the truth. Anonymous letters with no name and
    no return address are now being treated as national news. Porn
    star lawyers with facially implausible claims are driving the
    news cycle.
        I hate to say this, but this is worse than Robert Bork, and
    I did not think it could get any worse than that. This is worse
    than Clarence Thomas. I did not think it could get any worse
    than that. This is a national disgrace the way you are being
    treated.
        And in the middle of it all, we have Judge Kavanaugh, a man
    who until 2 weeks ago was a pillar of the legal community, and
    there has been no whisper of misconduct by him in the time he
    has been a judge. What we have are uncorroborated,
    unsubstantiated claims from his teenage years, claims that
    every alleged eyewitness has either denied or failed to
    corroborate.
        I do not mean to minimize the seriousness of the claims.
    Yes, they have been serious claims. But the search for truth
    has to involve more than bare assertions. Like Dr. Ford, Judge
    Kavanaugh deserves fair treatment. He was an immature high
    schooler. So were we all. That he wrote or said stupid things
    sometimes does not make him a sexual predator.
        I understand the desire of my colleagues to tear down this
    man at any cost. I do understand it. But let us at least be
    fair and look at the facts, or the absence thereof. Guilt by
    association is wrong. Immaturity does not equal criminality.
    That Judge Kavanaugh drank in high school or college does not
    make him guilty of every terrible thing that he has recently
    been accused of. A lifetime of respect and equal treatment
    ought to mean something when assessing allegations that are
    flatly inconsistent with the course of a person's entire adult
    life.
        With those comments, Judge, I would just like to ask you a
    few questions, if I can, about how--and if you can be short in
    your answers, it would help me get through a bunch of them--
    about how this process has unfolded. When did you first learn
    of Dr. Ford's allegations against you?
        Judge Kavanaugh. It was a week ago Sunday when--The
    Washington Post story.
        Senator Hatch. Isn't that amazing? Did the Ranking Member
    raise these allegations in your one-on-one meeting with her
    last month?
        Judge Kavanaugh. She did not.
        Senator Hatch. Did the Ranking Member raise them at your
    public hearing earlier this month?
        Judge Kavanaugh. No.
        Senator Hatch. Did the Ranking Member raise them at the
    closed session that followed the public hearing?
        Judge Kavanaugh. She was not there.
        Senator Hatch. Did the Ranking Member or any of her
    colleagues raise them in the 1,300 written questions that were
    submitted to you following the hearing?
        Judge Kavanaugh. No.
        Senator Hatch. When was the first time that the Ranking
    Member or her staff asked you about these allegations?
        Judge Kavanaugh. Today.
        Senator Hatch. When did you first hear of Ms. Ramirez's
    allegations against you?
        Judge Kavanaugh. In the last--in the period since then, the
    New Yorker story.
        Senator Hatch. Did the Ranking Member or any of her
    colleagues or any of their staffs ask you about Ms. Ramirez's
    allegations before they were leaked to the press?
        Judge Kavanaugh. No.
        Senator Hatch. When was the first time that the Ranking
    Member or any of her colleagues or any of their staff asked you
    about Ms. Ramirez's allegations?
        Judge Kavanaugh. Today.
        Senator Hatch. I think it is a disgrace between----
        Chairman Grassley. Senator Coons.
        Senator Coons. Thank you, Mr. Chairman.
        Judge Kavanaugh, today's hearing is about Dr. Ford's
    serious allegations about sexual assault. You have
    unequivocally denied those claims, but we are here today to
    assess her credibility and yours. And in our previous vigorous
    exchanges in the previous confirmation hearing rounds, I have
    found that your answers at times vigorously defended, but at
    other times have struck me as evasive or not credible on key
    issues. And it is against that backdrop that I am seeking to
    assess your credibility today.
        You said in your opening that rule of law means taking
    allegations seriously, and I agree with that. It brings me no
    joy to question you on these topics today, but I do think they
    are serious, and I think they are worthy of our attention.
        So let me, if I can, return to a line of questioning that
    my colleague was on before, which was about whether you have
    ever gotten aggressive while drinking or forgotten an evening
    after drinking.
        Judge Kavanaugh. Those are two different questions. I've
    already answered the second one. As to the first, I think the
    answer to that is basically no. I don't know really what you
    mean by that. Like, what are you talking about?
        Senator Coons. Well, the reason I----
        Judge Kavanaugh. I don't mean it that way, but no is the
    basic answer unless you're talking about something where--that
    I'm not aware of that you're going to ask about.
        Senator Coons. The reason I am asking, we have had a very
    brief period of time to weigh outside evidence, and I will join
    my colleagues in saying I wish we had more evidence in front of
    us today to weigh.
        Do you remember Liz Swisher, a college classmate of yours
    from Yale?
        Judge Kavanaugh. First, on your point about the outside
    evidence, all four witnesses said----
        Senator Coons. Well, let me focus--I am trying to get this
    question----
        Judge Kavanaugh. I know, but you made a point, and I just
    want to emphasize, all four witnesses who were allegedly at the
    event have said it didn't happen, including Dr. Ford's long-
    time friend, Ms. Keyser, who said she----
        Senator Coons. That is right. And if Mark Judge were in
    front of us today to question, we would be able to assess his
    credibility.
        Judge Kavanaugh. But he's----
        Senator Coons. Let me just get this through, if I can, Your
    Honor. Liz Swisher is a college classmate. She is now a medical
    doctor. And I am quoting from a recent interview she gave. She
    said, ``Brett Kavanaugh drank more than a lot of people. He'd
    end up slurring his words, stumbling. It's not credible for him
    to say he's had no memory lapses in the nights he drank to
    excess. I know because I drank with him.''
        How should we assess that?
        Judge Kavanaugh. She then goes on, if you kept reading, and
    says she actually can't point to any specific instance like
    that.
        Senator Coons. The quote that jumped out at me was, ``Brett
    was a sloppy drunk, and I know because I drank with him.''
    There is also----
        Judge Kavanaugh. I do not think that's a fair
    characterization, and Chris Dudley's quoted in that article,
    and I would refer you to what Chris Dudley said. I spent more
    time with Chris Dudley in college than just about anyone. And
    I'd refer you to what he said.
        Senator Coons. In other reporting, as I am sure you know, a
    college classmate described you as relatively shy, but said
    that when you drank you could be aggressive or even
    belligerent. And your roommate, as I think you discussed with
    Senator Klobuchar, said you were frequently drunk.
        Judge Kavanaugh. And that roommate, that was freshman year
    roommate.
        Senator Coons. Yes.
        Judge Kavanaugh. And there was contention between him and
    the third person. There were three of us in a small room, and
    you should look at what I said in the redacted portion of the
    transcript about him. And you should assess his credibility
    with that in mind.
        Senator Coons. Put yourself in our shoes for a moment, if
    you would, Judge, and I know that is asking a lot of you in
    this setting. But suppose you had gone through a process to
    select someone for an incredibly important job and a position
    you had a lot of qualified candidates, and as you are finishing
    the hiring process, you learn of a credible allegation that, if
    true, would be disqualifying. Wouldn't you either take a step
    back and conduct a thorough investigation or move to a
    different candidate? And why not agree to a 1-week pause to
    allow the FBI to investigate all these allegations and allow
    you an opportunity a week from now to have the folks present in
    front of us for us to assess their credibility and for us to
    either clear your name or resolve these allegations by moving
    to a different nominee?
        Judge Kavanaugh. All four witnesses who were alleged to be
    at the event said it didn't happen, including Dr. Ford's long-
    time friend, Ms. Keyser, who said that she didn't know me and
    that she does not recall ever being at a party with me with or
    without Dr. Ford.
        Senator Coons. What I struggle with, Judge Kavanaugh, is
    the absence of a fair, Federal law enforcement-driven,
    nonpartisan process to question the various people who I think
    are critical to this. My concern, should you move forward, is
    what it will do to the credibility of the Court and how that
    may well hang over your service. I understand your concern
    about this----
        Judge Kavanaugh. Look, Senator, my----
        Senator Coons. But I wish you would join us----
        Judge Kavanaugh [continuing]. Reputation has been----
        Senator Coons [continuing]. In calling for an FBI
    investigation for 1 week to clear or confirm some of these
    allegations.
        Chairman Grassley. I will give you time to answer.
        Judge Kavanaugh. When you say a week delay, do you know how
    long the last 10 days have been for us?
        Senator Coons. They were probably an eternity. But in the
    Judge Thomas confirmation----
        Judge Kavanaugh. For us, every day----
        Senator Coons [continuing]. It was a 4-day delay.
        Judge Kavanaugh [continuing]. Has been a lifetime, and, you
    know, yes--and it's been investigated, and all four witnesses
    say it didn't happen, and they've said it under penalty of
    felony. And I've produced my calendars which show, you know, a
    lot that's important evidence. And you act like--I mean, the
    last 10 days, I asked for a hearing the day after the
    allegation.
        Chairman Grassley. Before I call on Senator Lee, I want to
    emphasize something here. Talking about doing something without
    enough time, we had 45 days between July 30th and September the
    13th, I believe it is, when we could have been investigating
    this. And in regard to this candidate, if you take the average
    of 65 to 70 days between the time that a person is announced by
    the President and the Senate votes on it, it is about 65 to 70
    days. And here we are at about 85 to 90 days. So there is
    plenty of time put in on this nomination.
        Senator Lee--oh, no, wait a minute. I have got one other
    thing I want to do. Everybody else has been putting letters in
    the record. I have a letter here from 65 women who knew Judge
    Kavanaugh between the years 1979 and 1983, the years he
    attended Georgetown Prep High School. These women wrote to the
    Committee because they know Judge Kavanaugh and they know that
    the allegations raised by Dr. Ford are completely, totally
    inconsistent with his character. These 65 women know him
    through social events and church. Many have remained close
    friends with him. Here is what they say, partly quoting the
    letter: ``Through the more than 35 years we have known him,
    Brett has stood out for his friendship, character, and
    integrity. He has always treated women with decency and
    respect. That was true in high school, and it remains true to
    this day.''
        ``In closing,'' they wrote, Judge Kavanaugh ``has always
    been a good person.''
        So, without objection, I will put it in the record.
        [The information appears as a submission for the record.]
        Chairman Grassley. Senator Lee.
        Senator Lee. Judge Kavanaugh, you have been cooperative at
    every stage of this investigation, both your background
    investigation and the investigation conducted by this
    Committee. Is that correct?
        Judge Kavanaugh. That's correct, Senator.
        Senator Lee. It is also correct that you yourself do not
    control the FBI or when it conducts an investigation. You are a
    nominee. You are not tasked with the job of deciding who, when,
    whether, or how conducts an investigation.
        Judge Kavanaugh. That's correct.
        Senator Lee. But at every moment when he either we or,
    prior to taking the jurisdiction over it, the FBI has asked you
    questions, you have been attentive and you have been
    responsive. Isn't that right?
        Judge Kavanaugh. That's correct, throughout my career.
        Senator Lee. I have colleagues today who have repeatedly
    asked for an FBI investigation, and there are some ironies in
    this, ironies that ascend at least two levels.
        In the first place, at least one of my colleagues, at least
    one of them, had access to this information many, many weeks
    before anyone else did, had the ability and I believe the moral
    duty and obligation to report those facts to the FBI, at which
    point they could have and would have been investigated by the
    FBI. And that could have been handled in such a way that did
    not turn this into a circus, one that has turned your life
    upside down and that of your family and the life of Dr. Ford
    and her family upside down. I consider this most unfortunate
    given that this was entirely within the control of at least one
    of my Democratic colleagues to do this.
        The second level of irony here is that while calling
    repeatedly for an investigation by the FBI, an investigation
    over which you have no ability to control, by the way, an
    investigation you have no authority to call for, while calling
    for an investigation, we are in the middle of a conversation
    that involves questions to you. And so I ask my Democratic
    colleagues, if you have questions for Judge Kavanaugh, ask him.
    He is right here. If that is really what you want is the truth,
    ask him questions right now. If you have questions of other
    witnesses, then for the love of all that is sacred and holy,
    participate in the Committee investigations that have been
    going on, as you have not been participating, with the
    Committee staff investigating the outside witnesses.
        If someone really were interested in the truth, this is
    what they would do. They would participate in the
    investigation, and when we have a Committee investigation, a
    Committee hearing with live witnesses, they would talk about
    that rather than something else they wish they were having in
    front of them. If what they want is a search for the truth,
    then now is their choice. If, on the other hand, what they want
    to do is delay this until after the election, which at least
    one of my colleagues on the Democratic side has acknowledged,
    then that might be what they would do.
        Finally, I want to point out that there is significant
    precedent from our former Chairman of this Committee, Chairman
    Joe Biden. During the Clarence Thomas hearings, nearly three
    decades ago, Chairman Biden made some interesting observations
    about FBI reports and their role in this process. Here is what
    he said: ``The next person who refers to an FBI report as being
    worth anything obviously doesn't understand anything. The FBI
    explicitly does not, in this or any other case, reach a
    conclusion. Period. Period.'' Those are his dual ``periods,''
    not mine.
        I continue the quote: ``The reason why we cannot rely on
    the FBI report, you would not like it if we did because it is
    inconclusive. So when people wave an FBI report before you,
    understand they do not--they do not--they do not reach
    conclusions. They do not make--as my friend points out more
    accurately, they do not make recommendations. In other words,
    the role of the FBI is to flag issues. Those issues have been
    flagged.'' Sadly, in this case they were flagged not as they
    should have been, not in the timing in which they should have
    been. And, therefore, they couldn't have been addressed in the
    manner that would have preserved a lot more dignity for you,
    for your family, and for Dr. Ford and her family. They were
    instead held out until the final moment. I consider that most
    unfortunate. And for that, on behalf of this Committee, I
    extend to you my most profound sympathies, and my most profound
    sympathies to Dr. Ford and her family as well.
        Chairman Grassley. Senator----
        Senator Sasse. Mr. Chairman, since we do not have enough
    slots for everyone, can I have the last minute of Senator Lee
    so that Senator Kennedy can be recognized?
        Judge, we did 38 hours in public with you. Did we have any
    private hearings with you?
        Judge Kavanaugh. Yes.
        Senator Sasse. Was that a fun time for you when people,
    when Senators could ask questions that are awkward or
    uncomfortable about potential alcoholism, potential gambling
    addiction, credit card debt, if your buddies floated you money
    to buy baseball tickets? Did you enjoy that time we spent in
    here late one night?
        Judge Kavanaugh. I am always happy to cooperate with the
    Committee.
        Senator Sasse. That is charitable. Were you ever asked
    about any sexual allegations when we had that time in here with
    you alone?
        Judge Kavanaugh. No.
        Senator Sasse. Did the Ranking Member already have these
    allegations for--I guess this would have been September 6 or 7,
    and the letter was written on July 30th. A recommendation was
    made by the Ranking Member or her staff to Dr. Ford--and, by
    the way, I think Dr. Ford is a victim, and I think she has been
    through hell, and I am very sympathetic to her. But did the
    Ranking Member's staff, did we hear today, make a
    recommendation to hire a lawyer and she knew all that, and yet
    we had a hearing here with you and none of these things were
    asked? But then once the process was closed, once the FBI
    investigation was closed, once we were done meeting in public
    and in private, then this was sprung on you? I just want to
    make sure I have the dates correct. Right? Because we have got
    35-plus days from all the time that this evidence was in the
    hands, recommendations were made to an outside lawyer, you
    could have handled all this, we could have had this
    conversation in private in a way that did not, not only do crap
    to his family but do----
        Chairman Grassley. Senator----
        Senator Sasse. I yield my time. I am just trying to see if
    he could do math about 35 days. That was a little bit of a
    question.
        Chairman Grassley. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman. Good afternoon,
    Judge Kavanaugh.
        As a Federal judge, you are aware of the jury instruction,
    ``Falsus in uno, falsus in omnibus,'' are you not? You are
    aware of that jury instruction?
        Judge Kavanaugh. Yes, I am.
        Senator Blumenthal. You know what it means.
        Judge Kavanaugh. You can translate it for me, Senator. You
    can do it better than I can.
        Senator Blumenthal. ``False in one thing, false in
    everything,'' meaning, in jury instructions that we--some of us
    as prosecutors have heard many times, has told a jury that they
    can disbelieve a witness if they find him to be false in one
    thing. So the core of why we are here today really is
    credibility. Let me talk----
        Judge Kavanaugh. The core of why we are here is an
    allegation for which the four witnesses present have all said
    it didn't happen.
        Senator Blumenthal. Let me ask you about Renata Dolphin,
    who lives in Connecticut. She thought these yearbook statements
    were, quote, ``horrible, hurtful, and simply untrue,'' end
    quote, because ``Renata alumni'' clearly implied some boast of
    sexual conquest, and that is the reason that you apologized to
    her. Correct?
        Judge Kavanaugh. That's false, speaking about the yearbook,
    and she said she and I never had any sexual interaction. So
    your question--your question is false, and I've addressed that
    in the opening statement, and so your question is based on a
    false premise and really does great harm to her. I don't know
    why you're bringing this up, frankly. Doing great harm to her
    by even bringing her name up here is really unfortunate.
        Senator Blumenthal. Well, calling someone an alumnus in
    that way----
        Judge Kavanaugh. Well, implying what you're implying
    about----
        Senator Blumenthal [continuing]. Especially interpreted by
    a number of your football friends at the time as boasting of
    sexual--that is the reason that I am bringing it up.
        Judge Kavanaugh. Yes. No, it's false. You're implying
    that--look what you're bringing up right now about her. Look
    what you're doing.
        Senator Blumenthal. Mr. Chairman, I ask that----
        Judge Kavanaugh. Don't bring her name up.
        Senator Blumenthal [continuing]. These interruptions not be
    subtracted from my time.
        Chairman Grassley. Ask your question, and then----
        Judge Kavanaugh. She's a great person. She's always been a
    great person. We never had any sexual interaction. By bringing
    this up, you're just dragging her through the mud. It's just
    unnecessary.
        Chairman Grassley. Proceed, Senator Blumenthal.
        Senator Blumenthal. Thank you, Mr. Chairman.
        You have made reference, Judge, to a sworn statement, I
    believe, by Mark Judge to the Committee. Is that correct?
        Judge Kavanaugh. I've made reference to what Mark Judge's
    lawyer sent to the Committee.
        Senator Blumenthal. Yes. It is not a sworn statement, is
    it?
        Judge Kavanaugh. Under penalty of felony.
        Senator Blumenthal. Well, it is a statement signed by his
    lawyer, Barbara VanGelder. It is six cursory and conclusory
    sentences. Are you saying that that is a substitute for an
    investigation by the FBI or some interview by the FBI under
    oath?
        Judge Kavanaugh. Under penalty of felony, he said that this
    kind of event didn't happen and that I never did or would have
    done something like that.
        Senator Blumenthal. As a Federal judge, you always want the
    best evidence, don't you?
        Judge Kavanaugh. Senator, he has said and all the witnesses
    present--look at Ms. Keyser's statement. She's--she's----
        Senator Blumenthal. Let me move on to another topic. You
    have testified to this Committee this morning--this afternoon:
    ``This whole 2-week effort has been a calculated and
    orchestrated political hit, fueled with apparent pent-up anger
    about President Trump and the 2016 election, fear that has been
    unfairly stoked about my judicial record, revenge on behalf of
    the Clintons, and millions of dollars in money from outside
    left-wing opposition groups.''
        Is it your testimony that the motivation of the courageous
    woman who sat where you did just a short time ago was revenge
    on behalf of a left-wing conspiracy or the Clintons?
        Judge Kavanaugh. Senator, I said in my opening statement
    that she preferred confidentiality, and her confidentiality was
    destroyed by the actions of this Committee.
        Senator Blumenthal. Let me ask you this: In a speech that
    you gave at Yale, you described ``falling out of the bus onto
    the front steps of the Yale Law School at 4:45 a.m.'' and
    then----
        Judge Kavanaugh. I wasn't--I wasn't describing me. I
    organized----
        Senator Blumenthal [continuing]. And trying to----
        Judge Kavanaugh. Senator, Senator, let me finish here,
    please. I organized a third-year, end-of-school party for 30 of
    my classmates to rent a bus to go to Fenway Park in Boston,
    which was about a 3-hour trip. I bought all the tickets. You
    and I have discussed that before. I bought all the baseball
    tickets. I rented the bus. I organized the whole trip. We went
    to Fenway Park. Roger Clemens was pitching for the Red Sox. We
    had a great time. George Brett was playing third base for the
    Royals--actually, he was playing left field that night, and
    he--and we went to the game and got back, and then we went out.
    It was a great night of friendship----
        Senator Blumenthal. I apologize for interrupting, Judge,
    but I need to finish the quote before I ask you the question.
    The quote ends----
        Judge Kavanaugh. I wasn't talking about me.
        Chairman Grassley. Okay. We will----
        Senator Blumenthal. The quote ends that you tried to,
    quote, ``piece things back together, '' end quote, to recall
    what happened that night, meaning----
        Judge Kavanaugh. I know what happened.
        Senator Blumenthal. Well, you----
        Chairman Grassley. Judge, let him--will you quickly answer
    your question, then I am going to let him answer----
        Judge Kavanaugh. I know what happened that night.
        Senator Blumenthal. I will finish asking my question.
        Chairman Grassley. Please, go ahead, but do it quickly.
        Senator Blumenthal. Doesn't that imply to you that you had
    to piece things back together, you had to ask others what
    happened that night?
        Judge Kavanaugh. No, it----
        Chairman Grassley. Okay. You take your time now and answer
    the question. Then, Senator Crapo.
        Judge Kavanaugh. Definitely not. I know exactly what
    happened that night. It was a great night of fun. I was so
    happy that--there was great camaraderie. Everyone looks back
    fondly on the trip to Fenway Park. And then we went out
    together, a group of classmates, and I know exactly what
    happened the whole night, and I'm happy----
        Senator Blumenthal. Judge, do you believe Anita Hill?
        Chairman Grassley. Senator Crapo.
        [Voice off microphone.] Your time is up. Your time is up.
        Chairman Grassley. Senator Crapo.
        Senator Crapo. Thank you, Mr. Chairman.
        And, Judge Kavanaugh, first I want to get into this whole
    question that has been bandied back and forth here almost
    endlessly today about the FBI investigation process, because I
    think it--I want to follow up a little bit on what Senator Lee
    and Senator Sasse have referenced. There has been a lot of talk
    here about we need an FBI investigation. In these processes,
    which you have been through a number of times now when the FBI
    does a background check with regard to a nomination, could you
    quickly describe that for us? What does the FBI do?
        Judge Kavanaugh. The FBI gathers statements from people who
    have information. They don't resolve credibility. They gather
    the information, and the credibility determination is made by
    the ultimate factfinder, which in this case is the United
    States Senate. The Committee, of course, hears gathered
    evidence.
        Senator Crapo. And the FBI then gives that report to the
    White House, if I understand it, and the White House then
    transfers it to the Senate. Is that the chain of control?
        Judge Kavanaugh. That's my understanding, yes.
        Senator Crapo. And as you indicated, it does not do--and it
    has been said many times here today; the FBI does not make
    judgments. It gives the Senate Committee information.
        At that point in time, if I understand the process
    correctly, the Senate, the United States Senate Judiciary
    Committee, has legal authorities--if it receives information in
    an FBI report that it wants to further investigate, the Senate
    has legal authority to conduct further investigation. Is that
    correct?
        Judge Kavanaugh. That's my understanding.
        Senator Crapo. And that is what has been referenced here
    many times about how some of these witnesses that were
    identified in the very late information that we received have
    made statements that are under penalty of felony. That is a
    felony for lying to the Senate Judiciary Committee. And as I
    understand it, what happens is the Senate Judiciary Committee,
    which has authority under law to conduct those kinds of
    investigations, follows up on the FBI reports to finish out the
    investigation that it wants with regard to any information that
    it receives that needs further investigation. Is that your
    understanding of the process?
        Judge Kavanaugh. That is my understanding, Senator.
        Senator Crapo. Now, in this case, there has been a lot of
    talk here today--and if I have time, I will get into it. It
    looks like I will run out of time. But in this case, there is a
    lot of concern by many that there was not so much an interest
    in an FBI investigation as there was in delay. I am not going
    to get to that unless I have time. I want to talk about what
    happened in the Senate Committee's investigation, because as I
    understand it--and this may be more of a question to the
    Chairman--as soon as we received information, which was about
    45 days after others on the Committee received it, we conducted
    an investigation. Is that correct, Mr. Chairman? I am sorry to
    turn the questioning to you, but we began that legal Senate
    Judiciary Committee investigation.
        Chairman Grassley. Yes.
        Senator Crapo. And that investigation involved our fully,
    lawfully enabled investigators to conduct an investigation. And
    if I understand it correctly, the Democratic Members of the
    Committee refused to participate in that investigation.
        Chairman Grassley. Yes.
        Senator Crapo. And so we have conducted the investigation.
    The very kinds of things that my colleagues on the other side
    are asking that we tell the FBI to do, this Committee has the
    authority to do it, and this Committee does it, and this
    Committee has done it.
        Now, there may be more demands for more interviews and more
    investigation. But when you, Judge Kavanaugh, have referenced
    the testimony that has come from those who were supposed--who
    were identified as being at this event, the testimony that has
    been received from them is information that has been received
    pursuant to a Senate Committee investigation. And I just think
    it should be made clear. I think there has been a lot of back
    and forth here about, oh, we are not getting information, we
    are not looking at this, you do not want to look into the
    investigation, you do not want to see what happened. The
    reality is that this Committee immediately and thoroughly
    investigated every witness that has been identified to us, and
    we have statements under penalty of felony from them. So I just
    want to conclude with that. I have got 45 seconds left, so I am
    going to just ask you one quick question, again, on timing. You
    had a meeting with Senator Feinstein on August 20th?
        Judge Kavanaugh. It's my understanding--yes, well, I had a
    meeting, and that's my understanding of the date.
        Senator Crapo. Of the date, yes. What was established
    earlier in testimony here today was that the Ranking Member's
    staff helped Dr. Ford to retain the Katz law firm on--sometime
    between July 30th and August 7th. So I just wanted you to
    clarify one more time. In the meeting that you had 2 weeks or
    more later, this issue was not raised with you.
        Judge Kavanaugh. The issue was not raised.
        Senator Crapo. All right. Thank you. My time is up.
        Chairman Grassley. We will take a 5-minute break now.
        [Whereupon the Committee was recessed and reconvened.]
        [Voice off microphone.]
        Judge Kavanaugh. I'm good.
        Chairman Grassley. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman. Judge Kavanaugh,
    my colleagues on the other side are accusing the Democrats of
    some sort of political conspiracy, but that's because they want
    us to distract--they want to distract us from what happened
    here this morning. And what happened here this morning was that
    we heard from Dr. Christine Ford, who spoke to us with quiet,
    raw emotional power about what happened to her.
        She said she was 100 percent certain that it was you who
    attacked her, and she explained how she came forward, how she
    struggled with her decision, how she wanted the President to
    know so that he could make a better choice. So, when you and my
    colleagues on the other side accuse us of ambushing you with
    false charges, I think we all have to remember Dr. Ford's
    testimony and her courage.
        Let me go back to something you just said in your opening.
    You said you thought at your first hearing ``the Democrats were
    an embarrassment.'' We asked you a lot of questions in those
    days, and which of our questions do you think were an
    embarrassment? I asked you about dissents you had written as a
    judge, an amicus brief you wrote as a lawyer, and your
    knowledge of sexual harassment and abuse by your close friend
    and mentor, Alex Kozinski, all valid questions in this setting.
    They are valid because this is a job interview for the one of
    the most important positions of trust in this country. And
    earlier, you agreed that this process of advice and consent is
    really a job interview, certainly not a criminal trial. There's
    certainly no entitlement for you to be confirmed to the Supreme
    Court. Are credibility, character, and candor of a nominee
    things for us to consider in your job interview?
        Judge Kavanaugh. I think my whole life is subject to
    consideration.
        Senator Hirono. Is that ``yes''? Credibility, character,
    and candor?
        Judge Kavanaugh. My whole life----
        Senator Hirono. Are those specific traits that would be of
    interest to us as we consider putting you for life on the
    highest court in the country? Credibility, character, and
    candor.
        Judge Kavanaugh. Of course, and as part of my whole life.
        Senator Hirono. Thank you. Is temperament also an important
    trait for us to consider?
        Judge Kavanaugh. For 12 years, everyone who has appeared
    before me on the D.C. Circuit has praised my judicial
    temperament. That's why I have the unanimous well-qualified
    rating from the American Bar Association. And all the people
    who have appeared before me----
        Senator Hirono. So, you would agree that temperament is
    also an important factor for----
        Judge Kavanaugh. Yes, and the Federal Public Defender, who
    testified to the Committee, talked about how I was always open-
    minded and how I had ruled in favor of unpopular defendants,
    how I was fair-minded. I think universally, lawyers who have
    appeared before the D.C. Circuit----
        Senator Hirono. So, the answer is yes. I am running out of
    time. You know, we only have 5 minutes, so let me get to
    something else. In your Fox News interview, you said that you
    ``always treated women with dignity and respect,'' and that in
    high school you never ``drank so much that you couldn't
    remember what happened the night before.'' Would you say the
    same thing about your college life?
        Judge Kavanaugh. Yes.
        Senator Hirono. So, I'd like to read you statements from
    people who knew you in college.
        Judge Kavanaugh. Can I say one thing?
        Senator Hirono. And it was noted that James Roche said,
    your roommate, ``Although Brett was normally reserved, he was a
    notably heavy drinker even by the standards of the time, and he
    became aggressive and belligerent when he was drunk.'' So, is
    your former college roommate lying?
        Judge Kavanaugh. I would refer you to what I said in the
    sealed or redacted portion about his relationship with the
    other two roommates, and I'm going to leave it at that. I will
    say, Senator, you're asking about college. I got into Yale Law
    School. That's the number one law school in the country. I have
    no connections there. I got there by busting my tail in
    college.
        Senator Hirono. I feel insulted as a Georgetown graduate.
        [Laughter.]
        Judge Kavanaugh. Excuse me?
        Senator Hirono. But go on.
        Judge Kavanaugh. I'm sorry. It's ranked number one. That
    doesn't mean it's number one.
        [Laughter.]
        Judge Kavanaugh. And, you know, in college, two things: (a)
    I studied, I was in Cross Campus Library every night, and (b) I
    played basketball for the junior varsity. I tried out for the
    varsity. The first day I arrived on campus, we had captains
    workouts. I played basketball every day all through, and then
    as soon as the season was over in late February, captains
    workouts started out again. I was obsessed with being the best
    basketball player.
        Senator Hirono. So, you were not--I only have 23 seconds.
    So, you were not a sloppy drunk, and so your roommate was
    lying.
        Judge Kavanaugh. I refer you--I will refer you again to the
    redacted portion. I'll say look at my academic record. And I
    don't usually like to talk about myself this way, but in
    response to you, you know, I worked very hard in college in my
    studies, and I also played basketball, did sports, and I also
    did socialize.
        Senator Hirono. Excuse me. I know that the Chairman is
    going to stop me, but I do have some other references from
    other people who knew you, who say that you were not the basic
    choirboy, but----
        Chairman Grassley. Your time is up.
        Senator Hirono. Hold on. I'm sorry. Mr. Chairman----
        Chairman Grassley. Senator Tillis.
        Senator Hirono. I would like--Mr. Chairman--okay, I'll wait
    until we finish because I just want to enter some letters into
    the record.
        Chairman Grassley. Oh, yes.
        Senator Hirono. Could I do that? It's not a question.
        Chairman Grassley. It wasn't clear that's what you were
    doing.
        Senator Hirono. I could go on, but, Mr. Chairman, I'd like
    to enter into the record four letters. One is dated September
    18th, 2018 to you from all of the Democrats on this Committee.
    Another is a letter dated September 18th to Christopher Wray,
    the director of the FBI, and Don McGahn, counsel to the
    President, signed by all the Democrats on this Committee. A
    September 21st letter signed by Chuck Schumer and Dianne
    Feinstein to the President, and a September 26th letter signed
    by all the Democrats on this Committee, all requesting an FBI
    investigation because you did say all we have to do is ask, and
    the implication being that if we asked, an investigation will
    happen, and it certainly has not happened. Thank you, Mr.
    Chairman.
        Chairman Grassley. Without objection, that will be
    included.
        [The information appears as submissions for the record.]
        Chairman Grassley. Senator Tillis.
        Senator Tillis. Thank you, Mr. Chairman. Judge Kavanaugh,
    thank you again for being here, and I apologize for what you're
    going through right now. I can't imagine. I've gone through a
    campaign and had a lot of smears, but it pales in comparison to
    what you've had to deal with.
        I think one thing--one point that I'd like to make from the
    onset, if we go back and review how this Committee processes
    work, we've got a lot of work to do. We've had Members take it
    on themselves to release Committee confidential documents
    instead of respecting the process. We've had an allegation held
    for nearly 7 weeks that would've given us plenty of time to
    investigate. And then when we finally got the information, I
    invite everybody, particularly the American public--there is an
    investigation going on, and a lot of it has been documented.
    There's a chronology on the website that says that each and
    every time an allegation was made, the staff followed up on it.
        And sadly, in several different instances, the Democrats
    declined to participate. They listened in on at least one
    interview with you and didn't ask a single question. If they
    wanted to find other leads and other things to do, why not ask
    if you're really trying to get to the facts, if you're really
    trying to do your job to investigate. We're investigating. It's
    our job.
        I think in response to the Ranking Member's question that
    Judge Kavanaugh said, ``I'm here, you're asking me questions.''
    But you know what? When the Committee staff, I assume directed
    by the Ranking Member, says, no, we're not going to ask
    questions of Judge Kavanaugh, when he wanted to come in and
    clear his good name, what are you really after? You may not be
    after the truth. Maybe you are. Maybe you're after executing
    some sort of a political agenda. Maybe it's a mix of both. But
    I think you've been treated unfairly, and I'm amazed that after
    32 hours of testimony, one-and-a-half hours I sat in this room,
    that none of these questions came up when it was all fully
    known. Lawyered up, as a matter of fact.
        I also want to go back to the comments this morning. I
    think I heard, and we can go back to the record if someone
    disagrees with me. I think I heard Dr. Ford say that she wasn't
    aware of the fact that we said we'd come to California, we'd
    make it confidential, we'll completely depose and ask any
    questions you want to. I think I heard her say she wasn't aware
    of that. I don't know whether that came with counsel or not or
    whether counsel just neglected to tell her, her counsel, but
    the fact of the matter is, that offer was out there.
        We were moving heaven and earth and even moving the
    schedule to get to the truth. We're doing an investigation.
    We're doing our level best. I hope that the American people who
    are watching this will go out to the Senate Judiciary website
    and take a look at this chronology. Take a look at the lack of
    investigation on the part of the people who want the
    investigation. It doesn't make a lot of sense. Every
    opportunity you had to go and question a witness, every
    opportunity that we've had to find more truth, to find more
    facts, we've done it. It's documented. We've got sworn
    statements. We're doing our job. We're doing the Committee
    work.
        Judge Kavanaugh, I also have to say I believe that you're a
    part of--you're the first major target of a new strategy that's
    developed here, and I think you're right. I think it's just
    basically attack, attack, attack. It's not advise and consent.
    It's search and destroy. And maybe one of the best evidence of
    this is one of the websites--one of the groups that are out
    there attacking you and trying to create fodder and all of
    these red herrings has already acquired a URL for the next
    judge that they're going to attack. The URL is right here.
    They've already purchased it. They're ready to go. This is the
    playbook. This is the way we're going to run this Committee
    from this point forward? Take a look at it. I'll make sure we
    get it out on our website.
        We've already got a ``stop another judge who hasn't been
    nominated'' URL from the same people that are trying to
    mobilize people to attack you. There are some people here who
    may sincerely have concerns. I would tell you to pound the
    table with your Ranking Member and the leadership on your side
    to say, ``Why didn't we ask questions?'', ``Why did we listen
    in and defer?'', ``Why didn't we do our part of the
    investigation while this leader did everything he could to
    accommodate Dr. Ford and to run every single lead that's been
    presented to us weeks after it was known to the Minority?''
        I look forward to supporting your confirmation. I believe
    that you're going to be on the Bench. You know--as Senator
    Cornyn said, these are allegations that can be pursued through
    the courts if they actually rise to a level to where they could
    be prosecuted. And everybody on the other side of this dais
    knows that that's not going to happen.
        Chairman Grassley. Senator Booker.
        Senator Booker. Judge Kavanaugh, you drank on weekdays as
    well in high school, not just weekends.
        Judge Kavanaugh. Weekdays?
        Senator Booker. Yes, sir.
        Judge Kavanaugh. I would say that's rare. You're talking
    about during the school year?
        Senator Booker. I'm talking about the calendars that you
    provided during these dates in that summer.
        Judge Kavanaugh. Oh, that's in the summer after a football
    workout when we went over to----
        Senator Booker. You drank on weekdays, ``yes'' or ``no,''
    sir.
        Judge Kavanaugh. In the summer when we went over to Timmy's
    house on July 1st. That would indicate yes.
        Senator Booker. Yes. In other words, that July 1st
    reference to ``skis''--went over for ``skis,'' that's
    brewskies, correct?
        Judge Kavanaugh. And after Tobin----
        Senator Booker. Sir. Sir, I just need a ``yes'' or ``no.''
    That's ``brewskies,'' right?
        Judge Kavanaugh. Well, I need to explain in context.
        Senator Booker. You just said, sir, that you drank on
    weekdays. That's all I was looking for.
        Judge Kavanaugh. Well, no, that's not--you're----
        Senator Booker. If I may--if I may ask the next question,
    sir. You said clearly on the record--I just want you to restate
    it--that you never in your life after drinking heavily to the
    point of throwing up, and, again, you said you had a weak
    stomach, you never had gaps in memory, never had any losses
    whatsoever, never had foggy recollection about what happened.
    Is that correct, sir? ``Yes'' or ``no''?
        Judge Kavanaugh. That's what I said.
        Senator Booker. Okay. Sir, you also said that this past 2--
    this past 2 weeks has been a 2-week effort ``calculated and
    orchestrated as a political hit.'' Are you saying that Dr.
    Ford's efforts to come forward to prepare for the very
    difficult testimony she gave today, to travel to Washington,
    DC, and tell us about her experience, have all been part of an
    orchestrated political hit? And are you basically calling her
    some kind of political operative?
        Judge Kavanaugh. I've said my family has no ill will toward
    Dr. Ford. She wanted confidentiality. Her confidentiality was
    blown by the actions of this Committee, and it's caused--it's
    turned this into a circus.
        Senator Booker. So, sir, let's just be clear. In other
    words, you have problems with the Senators up here and how we
    conducted it, but you're not saying in any way that she is a
    political pawn, political operative. You have sympathy for her.
    She is talking about a sexual assault. Is that correct?
        Judge Kavanaugh. I said all allegations should be taken
    seriously. You should listen to both sides. My family has no
    ill will toward her.
        Senator Booker. Thank you, sir. Do you wish that she never
    came forward?
        Judge Kavanaugh. Senator, I did not do this. The witness--
    --
        Senator Booker. That's not my question, sir. Could you try
    to answer my question, sir? Do you wish she never came forward?
        Judge Kavanaugh. The witnesses who were there say it didn't
    happen.
        Senator Booker. Okay, sir. Do you wish she had just
    remained silent then?
        Judge Kavanaugh. I wish--the witnesses who were there say
    it didn't happen. All allegations should be taken seriously.
        Senator Booker. So, even if it's in the final days, days
    before a vote, if someone has a credible allegation of
    experience that they held for a long time, that person should
    be allowed to come forward, and, in fact, as she said, it was
    her civic duty. You're not questioning her sense of civic duty,
    are you?
        Judge Kavanaugh. She did come forward, and then the--then
    it----
        Senator Booker. I know you have a lot of political animus,
    you stated it very clearly, toward my colleagues and I on this
    panel. What I--what I'm trying to get to the bottom of is you
    do not see her specifically as part of an orchestrated--she is
    not a political pawn.
        Judge Kavanaugh. I don't know her, but I've also said that
    we bear no ill will toward her. She wanted confidentiality.
    This could've been handled----
        Senator Booker. And I understand, but she came forward. She
    took a great extent.
        Judge Kavanaugh. Yes.
        Senator Booker. Your family has gone through hell. Her
    family has gone through hell. She sat here, she told her truth,
    and you made the allegation that she was coordinating it. I do
    not think that she was coordinating with the therapist----
        Judge Kavanaugh. I did not say that. That's a----
        Senator Booker. You said--I'm sorry. You said that others
    were making a coordinated----
        Judge Kavanaugh. A coordinated----
        Senator Booker. Forgive me. You were talking about us, not
    her.
        Judge Kavanaugh. People in this room.
        Senator Booker. So, she was not----
        Judge Kavanaugh. People in this room coordinated.
        Senator Booker. She was not doing this for political
    efforts in 2012 when she talked to her therapist about this
    attack. She was not coordinating about this painful--when she
    made revela--painful experience when she made revelations to
    her husband. She did not coordinate in 2013, '16, 2017, before
    you were even nominated, when she revealed that it was you--
    with three different people--that had sexually assaulted her.
    That wasn't coordination.
        Judge Kavanaugh. All the witnesses who were there say it
    didn't happen. Ms. Keyser is her long-time friend, said she
    never saw me at a party with or without Dr. Ford.
        Senator Booker. And Ms. Keyser has said clearly, and I'll
    quote what she said, she said she does not remember, and I
    didn't question that. That supports what you said. But she also
    says that she believes Dr. Ford. And so, my colleague, Lindsey
    Graham, who I respect and have admiration to and has been a
    partner of mine, he said voting no would be legitimizing the
    most despicable thing in American politics. Do you think that
    people who believe Dr. Ford are legitimizing despicable things?
    Those of us who think she's a credible witness, the allegations
    against her are credible, do you think that somehow we're
    engaging in something that's despicable?
        Judge Kavanaugh. Senator, I say listen to both sides before
    you make a bottom-line conclusion, and look at the----
        Senator Booker. That is fair. I have 10 seconds left, sir.
        Judge Kavanaugh. You have my calendars.
        Senator Booker. You can answer after I finish. You have 10
    seconds left. That is fair. Listen to both sides. This is not
    about somebody--one side being despicable, the other side not.
    Listen to both sides. She was a credible--I'm going to finish
    my question and you can answer. She gave credible, meaningful
    testimony, a woman who had the courage to come forward and tell
    her truth, sir, and that's what I'm just asking you to say. She
    is not a political pawn. She is not orchestrating. She is not
    part of the Clintons' efforts to get some kind or revenge. She
    is a woman who came here with corroborating evidence to tell
    her truth.
        Chairman Grassley. Is that a question?
        Senator Booker. No, sir, it was a final statement.
        Chairman Grassley. Senator Cruz.
        Judge Kavanaugh. Just that one thing, Mr. Chairman.
        Chairman Grassley. Yes.
        Judge Kavanaugh. The evidence is not corroborated at the
    time. The witnesses who were there say it didn't happen.
        Senator Feinstein. No, that's not what they said.
        Chairman Grassley. Okay. Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman. Judge Kavanaugh, you
    and your family have been treated incredibly poorly by Senate
    Democrats and by the media. And let me say also I think Dr.
    Ford and her family have been treated incredibly poorly by
    Senate Democrats and the media. You have both seen your good
    names dragged through the mud, and this has been, sadly, one of
    the most shameful chapters in the history of the United States
    Senate.
        Let me say to you and your family, thank you for a lifetime
    of public service. I will say watching your mother's pained
    face has been heart-wrenching as she's seen her son's character
    dragged through the mud after not only your lifetime of public
    service, but her lifetime of public service as well. And I know
    as a father, there's been nothing more painful to you than
    talking to your daughters and explaining these attacks that the
    media is airing. I also believe, though, that the American
    people are fair-minded people, that the American people can set
    aside the partisan warfare of Washington and look to substance
    and facts, and that is the charge of this Committee.
        Now, there have been three different sets of allegations
    that have dominated the media. I think it's important to note
    that two of those sets of allegations had so little
    corroboration that even The New York Times, which is no
    conservative outlet, refused to report on them because they
    could find no basis for them. And it was striking in this
    entire hearing that not a single Democrat in this Committee
    asked about two sets of those allegations, Ms. Ramirez's
    allegations and the allegations of the client of Mr. Avenatti.
    Not a single Democrat. I don't know if they were just too
    embarrassed. Mr. Avenatti's allegations were so scandalous that
    the Ranking Member omitted his client's most scandalous
    accusations of you as a criminal mastermind essentially,
    omitted those scandalous accusations from her statement.
        This hearing has focused, rightly so, on the allegations
    Dr. Ford presented. And let me say I think the Committee did
    the right thing in giving Dr. Ford a full and fair opportunity
    to tell her story. That's what we needed to do when these
    allegations became public, and the Committee treated her with
    respect as we should. I do not believe Senate Democrats have
    treated you with respect.
        What do we know? We know that her testimony and your
    testimony are in conflict. A fair-minded assessor of facts
    would then look to what else do we know when you have
    conflicting testimony. Well, we know that Dr. Ford identified
    three fact witnesses who she said observed what occurred. All
    three of those fact witnesses have stated on the record under
    penalty of perjury that they do not recall what she is alleging
    happening. They have not only not corroborated her charges,
    they have explicitly refuted her charges. That's significant to
    a fair-minded fact finder.
        In addition, you've walked through before this Committee
    your calendars from the time. Now, I will say you were a much
    more organized teenager than I was and that many of us were.
    But it was a compelling recitation of night by night by night
    where you were in the summer of 1982. That is yet another
    contemporaneous piece of fact to assess what happened.
        And we also know that the Democrats on this Committee
    engaged in a profoundly unfair process. The Ranking Member had
    these allegations on July 30th, and for 60 days--that was 60
    days ago. The Ranking Member did not refer it to the FBI for an
    investigation. The Ranking Member did not refer it to the full
    Committee for an investigation. The Ranking Member--this
    Committee could've investigated those claims in a confidential
    way that respected Dr. Ford's privacy. And some of the most
    significant testimony we heard this morning is Dr. Ford told
    this Committee that the only people to whom she gave her letter
    were her attorneys, the Ranking Member, and her Member of
    Congress.
        And she stated that she and her attorneys did not release
    the letter, which means the only people that could've released
    that letter were either the Ranking Member and her staff or the
    Democratic Member of Congress because Dr. Ford told this
    Committee those are the only people who had it. That is not a
    fair process, and we should look to the facts, not anonymous
    innuendo and slander.
        Senator Feinstein. Mr. Chairman, I ask for a point of
    personal privilege to respond.
        Chairman Grassley. Proceed.
        Senator Feinstein. Mr. Chairman, let me be clear. I did not
    hide Dr. Ford's allegations. I did not leak her story. She
    asked me to hold it confidential, and I kept it confidential as
    she asked. She apparently was stalked by the press, felt that--
    what happened, she was forced to come forward, and her greatest
    fear were realized--was realized. She's been harassed, she's
    had death threats, and she's had to flee her home. In addition,
    the investigation that the Republican Majority is heralding is
    really nothing that I know about other than a partisan
    practice. Normally, all the witnesses would be interviewed.
    However, that's not happened. While the Majority has reached
    out to several people, they did not notify me or my staff that
    they were doing this. And so, to argue that we would not
    participate, but not tell us what they were up to, is somewhat
    disingenuous.
        I was given some information by a woman who was very much
    afraid, who asked that it be held confidential, and I held it
    confidential until she decided that she would come forward.
        Senator Cornyn. Mr. Chairman, would the Ranking Member
    answer a question, please?
        Senator Feinstein. If I can.
        Senator Cornyn. I have great respect for Senator Feinstein.
    We've worked together on many topics, and I believe what you
    just said. Can you tell us that your staff did not leak it?
        Senator Feinstein. I don't believe my staff would leak it.
    I have not asked that question directly, but I do not believe
    they would do it.
        Senator Cornyn. Do you know that? I mean, how in the world
    did that get in the hands of the press unless----
        Senator Feinstein. The answer is ``no.'' The staff said
    they did not.
        Senator Cornyn. Have you asked--have you asked your staff--
    --
        Senator Feinstein. I just did.
        Senator Cornyn [continuing]. Or other staff members of the
    Judiciary Committee?
        Senator Feinstein. Pardon me? Jennifer reminds me I've
    asked her before about it, and that's true.
        Senator Cornyn. Well, somebody leaked it, if it wasn't you.
        Senator Feinstein. Well, it--I'm telling you it was not--I
    did not. I mean, I was asked to keep it confidential, and I'm
    criticized for that, too.
        Senator Cruz. Mr. Chairman, could I ask the Chairman a
    question, which is, does the Committee have a process if there
    is an allegation against any nominee----
        Chairman Grassley. No.
        Senator Cruz [continuing]. To assess that allegation in a
    confidential forum rather than in the public? Since Dr. Ford
    requested that it be kept confidential, is there a process for
    the Committee for considering confidential allegations?
        Chairman Grassley. And the answer is ``yes,'' and Senator
    Tillis pointed out the document that I put out to show all of
    the things that we've done along the lines of your question.
        Senator Cruz. And, Mr. Chairman, what would you have done
    if on July 30th the Ranking Member had raised this allegation
    with you? As the Chairman of this Committee, how would you have
    handled it?
        Chairman Grassley. We would've done like we have done with
    every background or, let's say, FBI report that comes from the
    White House for a nominee. And then subsequent to that, because
    maybe the FBI got done with it 3 months ago, we go through the
    FBI or information comes to us. Then we have our investigators
    in a bipartisan way, both Republicans and Democrats, follow up
    on whatever those questions are or those problems that have to
    be worked out.
        Senator Cruz. So, bipartisan investigators could've
    investigated this 2 months ago, and it could've been heard in a
    confidential setting without Dr. Ford's name or Judge
    Kavanaugh's name being dragged through the mud. Is that
    correct?
        Chairman Grassley. And except for one or two conversations
    that we had with the Judge through our investigators, Democrats
    didn't participate except in those two. But in those two, one
    or two, they didn't ask any questions.
        Senator Cruz. Thank you, Mr. Chairman.
        Chairman Grassley. I want to----
        Senator Feinstein. Mr. Chairman?
        Chairman Grassley. Yes, go ahead.
        Senator Feinstein. May I--may I respond? It's my
    understanding that her story was leaked before the letter
    became public. And she testified that she had spoken to her
    friends about it, and it's most likely that that's how the
    story leaked and that she had been asked by press. But, it did
    not leak from us. I assure you of that.
        Senator Cornyn. Well, Mr. Chairman, I'm a little confused.
    I thought only the Member of the House, and Senator Feinstein,
    and her lawyers had the letter. So, her friends she might've
    talked to about it couldn't leak the letter if they just had a
    verbal conversation, unless she gave them a copy of the letter.
        Senator Feinstein. Senator, I don't think the letter was
    ever leaked.
        Senator Cornyn. Well, how did the press know to contact her
    about her complaint?
        Senator Feinstein. She apparently--she testified here this
    morning that she had talked to friends about it, and that press
    had talked to her.
        Chairman Grassley. Senator or Judge, since there was a
    reference to the problems--the legitimate problems and the--and
    the change of lifestyle that Dr. Ford had, if you want some
    time to say the impact on your family, I'd be glad to hear you.
    If you don't want to talk about it, that's okay.
        Judge Kavanaugh. I've talked about that, Mr. Chairman.
        Chairman Grassley. Okay. Then Senator Harris.
        Senator Harris. Thank you. Judge Kavanaugh, have you taken
    a professionally administered polygraph test as it relates to
    this issue?
        Judge Kavanaugh. No, the--I'll do whatever the Committee
    wants. Of course, those are not admissible in Federal court,
    but I'll do whatever the Committee wants. They're not
    admissible in Federal court because they're not reliable.
        Senator Harris. Thank you.
        Judge Kavanaugh. As you know.
        Senator Harris. So, you have not taken one.
        Judge Kavanaugh. Right.
        Senator Harris. All three of the women who have made sworn
    allegations against you have called for an independent FBI
    investigation into the claims. You've been asked during the
    course of this hearing by four different Members, by my count,
    at least 8 times today and also earlier this week on national
    television, whether you would call for the White House to
    authorize an FBI investigation. Each time you have declined to
    do so.
        Now, you know--I know you do--that the FBI is an agency of
    men and women who are sworn and trained law enforcement, who in
    the course of conducting background investigations on nominees
    for the Supreme Court of the United States and others, are
    charged with conducting those background investigations because
    they are sworn law enforcement, and they have the expertise and
    the ability and the history of doing that. So, I'm going to ask
    you one last time. Are you willing to ask the White House to
    authorize the FBI to investigate the claims that have been made
    against you?
        Judge Kavanaugh. Well, I'll do whatever the Committee
    wants. Of course----
        Senator Harris. And I've heard you say that----
        Judge Kavanaugh. The witness statements----
        Senator Harris [continuing]. But I've not heard you answer
    a very specific question that's been asked, which is, Are you
    willing to ask the White House to conduct an investigation by
    the FBI to get to whatever you believe is the bottom of the
    allegations that have been levied against you.
        Judge Kavanaugh. The FBI would gather witness statements.
    You have the witness statements.
        Senator Harris. Sir, it's--I'm not----
        Judge Kavanaugh. They don't----
        Senator Harris. I don't want to debate with you how they do
    their business. I'm just asking, are you willing to ask the
    White House to conduct such an investigation because as you are
    aware, the FBI did conduct a background investigation into you
    before we were aware of these most recent allegations. So, are
    you willing to ask the White House to do that. It is a ``yes''
    or ``no,'' and then we can move on.
        Judge Kavanaugh. I've had six background investigations
    over 26 years.
        Senator Harris. Sir, as it relates to the recent
    allegations, are you willing to have them do it?
        Judge Kavanaugh. The witness testimony is before you. No
    witness who was there supports that I was there.
        Senator Harris. Okay. I'm going to take that as a ``no,''
    and we can move on. You have said--in your opening statement
    you characterized these allegations as a conspiracy directed
    against you. I'll point out to you that Judge--Justice now--
    Neil Gorsuch was nominated by this President. He was considered
    by this body just last year. I did a rough kind of analysis of
    similarities. You both attended Georgetown Prep. You both
    attended very prestigious law schools. You both clerked for
    Justice Kennedy. You were both circuit judges. You were both
    nominated to the Supreme Court. You were both questioned about
    your record. The only difference is that you have been accused
    of sexual assault. How do you reconcile your statement about a
    conspiracy against you with the treatment of someone who was
    before this body not very long ago?
        Judge Kavanaugh. I explained that in my opening statement,
    Senator. Look at the evidence here, the calendars. Look at the
    witness statements. Look at Ms. Keyser's statement.
        Senator Harris. Okay. And then do you agree that it is
    possible for men to both be friends with some women and treat
    other women badly?
        Judge Kavanaugh. Of course, but the point I've been
    emphasizing, and that is, if you go back to age 14 for me, you
    will find people, and not just people, lots of people who I've
    been friends with, some of whom are in this room today starting
    at age 14, women, and who talked about my friendships with them
    through my whole life. And it's a consistent pattern all the
    way through.
        Sixty-five women who knew me more than 35 years ago signed
    a letter to support me after the allegation was made because
    they know, and they were with me, and we grew up together. We
    talked on the phone together, and we went to events together.
    That is who I am, what they've said, what the people who worked
    with me in the Bush White House, the women there. Look at what
    Sarah Day said in CentralMaine.com. Look at the--what the law
    clerks. I have sent more women law clerks to the Supreme Court
    than any other Federal judge in the country.
        Senator Harris. I only have a few seconds left, and I'll
    just ask a direct question. Did you watch Dr. Ford's testimony?
        Judge Kavanaugh. I did not. I planned to.
        Senator Harris. Thank you. Thanks. Thank you.
        Judge Kavanaugh. I planned to, but I did not. I was
    preparing mine.
        Chairman Grassley. Our last 5 minutes will be Senator
    Flake, 1 minute, and Senator Kennedy, 4 minutes.
        Senator Flake. Thank you, Mr. Chairman. When Dr. Ford came
    forward with her account, I immediately said that she should be
    heard and asked the Chairman to delay the vote that we had
    scheduled, and the Chairman did, and I appreciate that. She
    came at great difficulty for her and offered compelling
    testimony. You have come and done the same.
        I am sorry for what's happened to you and your family as
    I'm sorry for what has happened to hers. This is not a good
    process, but it's all we've got. And I would urge my colleagues
    to recognize that in the end we are 21 very imperfect Senators
    trying to do our best to provide advice and consent, and in the
    end there's likely to be as much doubt as certainty going out
    of this room today. And as we make decisions going forward, I
    hope that people will recognize that. And the rhetoric that we
    use and the language that we use going forward, that we'll
    recognize that, that there is doubt. We'll never move beyond
    that, and just have a little humility on that front. So, thank
    you.
        Chairman Grassley. Thank you, Senator Flake. Now Senator
    Kennedy.
        Senator Kennedy. Yes, sir. I'm sorry, Judge, for what you
    and your family have been through, and I'm sorry for what Dr.
    Ford and her family have been through. It could've been
    avoided. Do you believe in God?
        Judge Kavanaugh. I do.
        Senator Kennedy. I'm going to a last opportunity, right
    here, right in front of God and country. I want you to look me
    in the eye. Are Dr. Ford's allegations true?
        Judge Kavanaugh. They're not accurate as to me. I have not
    questioned that she might have been sexually assaulted at some
    point in her life by someone some place, but as to me, I've
    never done this. Never done this to her or to anyone else. And
    I've talked to you about what I was doing that summer of 1982,
    but I'm telling you I've never done this to anyone, including
    her.
        Senator Kennedy. Are Ms. Ramirez's allegations about you
    true?
        Judge Kavanaugh. Those are not. None of the witnesses in
    the room support that. If that had happened, that would've been
    the talk of campus, in our freshman dorm. The New York Times
    reported that as recently as last week she was calling other
    classmates seeking to--well, I'm not going to characterize it,
    but calling classmates last week, and it just seemed very--I'll
    just stop there, but it's not true. It's not true.
        Senator Kennedy. Are Ms. Swetnick's allegations, made by
    Mr. Avenatti, about you true?
        Judge Kavanaugh. Those are not true. Never met her. Don't
    know who she is. There was a letter released within 2 hours of
    that breaking yesterday from, I think, 60 people who knew me in
    high school, men and women, who said it was, their words,
    nonsense, totally--you know, the whole thing, totally
    ridiculous.
        Senator Kennedy. None of these allegations are true.
        Judge Kavanaugh. Correct.
        Senator Kennedy. No doubt in your mind.
        Judge Kavanaugh. Zero. I'm a hundred percent certain.
        Senator Kennedy. Not even a scintilla.
        Judge Kavanaugh. Not a scintilla. Hundred percent certain,
    Senator.
        Senator Kennedy. You swear to God.
        Judge Kavanaugh. I swear to God.
        Senator Kennedy. That's all I have, Judge.
        Chairman Grassley. Judge Kavanaugh, thank you very much.
    Hearing adjourned.
        [Whereupon, at 6:44 p.m., the Committee was adjourned.]
        [Additional material submitted for the record for Day 1,
    Day 2, Day 3, Day 4, and Day 5 follows.]

                                A P P E N D I X

                  Additional Material Submitted for the Record

                     [Some submissions contain redactions.]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Hon. Brett M. Kavanaugh Questionnaire Attachment, Appendix 13(c)

    The link listed below is a Submission for the Record not printed due to
       voluminous nature, previously printed by an agency of the Federal
                              Government, or other
                     criteria determined by the Committee:

        Kavanaugh, Hon. Brett M., Nominee to serve as Associate Justice of
    the Supreme
         Court of the United States, questionnaire attachment, Appendix
    13(c):
              https://www.judiciary.senate.gov/imo/media/doc/Brett%20M.%20
             Kavanaugh%2013(c)%20Attachments.pdf
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                      Prepared Statement of Monica Mastal

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

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