[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                     
          
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                       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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