[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



                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             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

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

                       COMMITTEE ON THE JUDICIARY

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


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



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 
    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


Blatt, Lisa S., Partner, Arnold & Porter, Washington, DC, 
  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 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


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


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


#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 
  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 
  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 
  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, 
  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


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


                       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.


    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 
    Senator Klobuchar. Mr. Chairman, we received 42,000 
    Chairman Grassley [continuing]. Judge Kavanaugh's many law 
    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 
    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 
    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 
    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 
    [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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Feinstein. Shall I?
    Chairman Grassley. Yes, would you please?
    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 
    Senator Feinstein. Well, let me----
    Chairman Grassley. I would like to have you give Senator 
Feinstein the courtesy of listening to her opening statement.


    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 
    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 
    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 
    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 
    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 
    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 
    Chairman Grassley. Does that answer your question, Senator 
    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 
    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 
    Senator Kennedy. Well, before I try your patience, I am 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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. 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    The American Bar Association, whose assessment Democratic 
leaders have called the ``gold standard'' of judicial 
evaluations, rated Judge Kavanaugh unanimously ``well 
    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 
    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 
    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 
    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 
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    Chairman Grassley. Senator Hatch for 10 minutes.


    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 
    [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 
    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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    Chairman Grassley. Senator Cornyn. Senator Cornyn.


    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 
    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 
    [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 
    [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----
    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 
    Thank you very much.
    Chairman Grassley. Senator Durbin.


    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 
    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 
    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.


    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 
    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 
    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 
    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.


    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.
    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 
    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 
    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 
    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.]


    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 
    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 
    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.
    [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.
    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.


    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, 
    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 
    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 
    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 
    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 
    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.


    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.
    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?
    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 
    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 
    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-
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Flake.


    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 
    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.


    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 
    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 
    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 
    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 
    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 
    Senator Blumenthal. I will be very judicious, Mr. Chairman. 
Thank you.
    Chairman Grassley. I do not know what that means.
    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 
    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 
    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 
    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 
    [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.]


    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 
    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?
    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 
    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.


    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 
    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 
    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 
    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 
    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.


    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 
    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 
    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.


    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 
    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 
    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 
    I have said before already that----
    Chairman Grassley. Since you have not begun your opening 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    Thank you.
    Chairman Grassley. Senator Tillis.


    Senator Tillis. Thank you, Mr. Chairman.
    I have a 12-minute preamble and 18 minutes of comments.
    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.
    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 
    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----
    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 
    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 
    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.


    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 
    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.


    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.
    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.
    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.
    Senator Graham. And this is a homerun from my point of 
    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 
    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 
    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 
    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.
    [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 
    We will now start with Condoleezza Rice.


    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 
    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.


    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.
    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.


    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 
    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.
    [Witness is sworn in.]
    Chairman Grassley. Thank you.
    Proceed with your statement or anything else that you want 
to tell the Committee right now.


    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.
    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 
    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 
    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


                      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.


    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.]
    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 
    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 
    [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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    [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 
    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 
    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 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 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 
    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 
    [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 
    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 
    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 
    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 
    Judge Kavanaugh. I agree completely, Senator. That is at 
the foundation of what I view as the proper judicial 
    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 
    Chairman Grassley. Limit it to as many--few as you can. His 
time has run out.
    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 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 
    Senator Leahy. Let me ask you this. Between 2001--I am new 
    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 
    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 
    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 
    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 
    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. 
    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 
    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 
    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 
    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 
    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 
    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----
    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. 
    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 
    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 
    Senator Feinstein. Can somebody move it so we can see it 
    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 
    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 
    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 
    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.
    Senator Leahy. Thank you. God bless you. I will be forever 
    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.
    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 
    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 
    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 
    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 
    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 
    Ms. Kagan, ``My political views are generally 
    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 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.
    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 
    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 
    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 
    Senator Graham. Well, let us talk about ``can be.'' I think 
    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 
    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.
    Senator Graham. Thanks, Dianne. You helped him a lot.
    It is going to be better for you tonight.
    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. 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    Judge Kavanaugh. That is Part 2(a). You have to go to Part 
    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 
    Chairman Grassley. Senator Cornyn.
    Senator Lee is going to chair while I have another 
    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 
    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.
    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 
    [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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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----
    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 
    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 
    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 
    Judge Kavanaugh. There is no aisle or separate caucus rooms 
in the Supreme Court, either literally or figuratively, in my 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 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 
    Senator Lee. Do you have a favorite among the Federalist 
    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.
    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.
    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 
    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 
    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 
    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 
    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 
    Senator Klobuchar. But it would not have anyone heading it 
    Judge Kavanaugh. No. It would have a single person heading 
it up, but removable at will in the case of the CFPB, so the 
    [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 
    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 
    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 
    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. 
    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 
    Senator Klobuchar. Okay. Thank you.
    Chairman Grassley. Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman. Welcome back, Judge 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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. 
    Judge Kavanaugh. I think they were applying Humphrey's 
Executor. They might have cited Morrison. But the principle 
    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 
    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 
    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 
    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 
    [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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Coons. And what happened to the special counsel in 
    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 
    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 
    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 
    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 
    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 
    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. 
    Senator Sasse. You are going to be here past midnight, I 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Sasse. Thank you. Oh, and thank you, Chairman.
    Chairman Grassley. How come you did not ask that question 
    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 
    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, 
    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 
    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 
    All of what I have said is correct as to the facts here, 
    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. 
    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 
    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, 
    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 
    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 
    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 
    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 
    Senator Blumenthal. Well, my point is there are no limits 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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,'' 
    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 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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    Senator Crapo. I heard yesterday from the Chairman it was 
    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 
    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 
    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 
    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 
    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 
    Judge Kavanaugh. Twenty-five?
    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 
    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 
    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 
    Senator Booker. Hold on--the Supreme Court said that the 
desire to remedy societal discrimination is not a compelling 
    Judge Kavanaugh. The Supreme Court has in--let us go to 
Bakke, for example.
    Senator Booker. I am going to get to Bakke.
    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 
    Judge Kavanaugh. Or Roberts, Alito, Gorsuch, Kagan, 
    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 
    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 
    Senator Booker. So you expressed a personal opinion on this 
issue then. Do you still hold that same opinion now that it is 
    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 
    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 
    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 
    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 
    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 
    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 
    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-
    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 
    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 
    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 
    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 
    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, 
    Senator Booker. I am sorry, Judge. I am sorry. I feel 
comfortable with you.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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 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 
    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.
    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 
    All right. Let me ask you a couple more. You are an 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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, whet