[Senate Hearing 115-545, Part 1]
[From the U.S. Government Publishing Office]
S. Hrg. 115-545, Part 1 of 2
CONFIRMATION HEARING ON THE
NOMINATION OF HON. BRETT M. KAVANAUGH
TO BE AN ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 4, 5, 6, 7, and 27, 2018
__________
Serial No. J-115-61
__________
PART 1 OF 2
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
32-765 PDF WASHINGTON : 2020
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COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah DIANNE FEINSTEIN, California,
LINDSEY O. GRAHAM, South Carolina Ranking Member
JOHN CORNYN, Texas PATRICK J. LEAHY, Vermont
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
BEN SASSE, Nebraska AMY KLOBUCHAR, Minnesota
JEFF FLAKE, Arizona CHRISTOPHER A. COONS, Delaware
MIKE CRAPO, Idaho RICHARD BLUMENTHAL, Connecticut
THOM TILLIS, North Carolina MAZIE K. HIRONO, Hawaii
JOHN KENNEDY, Louisiana CORY A. BOOKER, New Jersey
KAMALA D. HARRIS, California
Kolan L. Davis, Chief Counsel and Staff Director
Jennifer Duck, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
September 4, 9:35 a.m.; September 5, 9:35 a.m.; September 6, 9:33 a.m.;
September 7, 9:30 a.m.; and September 27, 2018, 10:05 a.m.
STATEMENTS OF COMMITTEE MEMBERS
Page
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut.................................................... 72
prepared statement........................................... 939
Booker, Hon. Cory A., a U.S. Senator from the State of New Jersey 86
Coons, Hon. Christopher A., a U.S. Senator from the State of
Delaware....................................................... 66
prepared statement........................................... 943
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 36
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho......... 83
Cruz, Hon. Ted, a U.S. Senator from the State of Texas........... 51
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 39
prepared statement........................................... 948
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California:
September 4, 2018, opening statement......................... 10
September 4, 2018, prepared statement........................ 952
September 7, 2018, opening statement......................... 516
September 27, 2018, opening statement........................ 630
Flake, Hon. Jeff, a U.S. Senator from the State of Arizona....... 70
Graham, Hon. Lindsey O., a U.S. Senator from the State of South
Carolina....................................................... 99
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
September 4, 2018, opening statement......................... 1
September 4, 2018, prepared statement........................ 955
September 5, 2018, opening statement......................... 115
September 6, 2018, opening statement......................... 321
September 7, 2018, opening statement......................... 515
September 27, 2018, opening statement........................ 627
Harris, Hon. Kamala D., a U.S. Senator from the State of
California..................................................... 95
prepared statement........................................... 960
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 28
Hirono, Hon. Mazie K., a U.S. Senator from the State of Hawaii... 79
prepared statement........................................... 965
Kennedy, Hon. John, a U.S. Senator from the State of Louisiana... 77
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 57
prepared statement........................................... 970
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 32
prepared statement........................................... 974
Lee, Hon. Michael S., a U.S. Senator from the State of Utah...... 43
Tillis, Hon. Thom, a U.S. Senator from the State of North
Carolina....................................................... 93
prepared statement........................................... 977
Sasse, Hon. Ben, a U.S. Senator from the State of Nebraska....... 60
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 47
prepared statement........................................... 994
INTRODUCERS
Blatt, Lisa S., Partner, Arnold & Porter, Washington, DC,
introducing
Hon. Brett M. Kavanaugh, Nominee to be an Associate Justice of
the Supreme Court of the United States......................... 107
Portman, Hon. Rob, a U.S. Senator from the State of Ohio,
introducing Hon. Brett M. Kavanaugh, Nominee to be an Associate
Justice of the Supreme Court of the United States.............. 104
Rice, Hon. Condoleezza, Ph.D., former U.S. Secretary of State,
Senior Fellow at Hoover Institution, and Professor at Stanford
University, Stanford, California, introducing Hon. Brett M.
Kavanaugh, Nominee to be an Associate Justice of the Supreme
Court of the United States..................................... 103
STATEMENTS OF THE NOMINEE
Witness List..................................................... 734
Kavanaugh, Hon. Brett M., Nominee to serve as an Associate
Justice of the Supreme Court of the United States:
September 4, 2018, statement................................. 109
September 27, 2018, statement................................ 681
September 27, 2018, prepared statement....................... 740
questionnaire and biographical information................... 742
attachment: supplemental statement of net worth.............. 852
attachment: appendix 11(c)................................... 855
attachment: appendix 12(d)................................... 881
attachment: appendix 12(e)................................... 883
attachment: appendix 13(b)................................... 887
attachment: supplemental appendix 13(b)...................... 905
attachment: appendix 13(c)................................... 907
attachment: appendix 13(f)................................... 908
attachment: appendix 14...................................... 934
STATEMENTS OF THE WITNESSES
Amar, Akhil Reed, Sterling Professor of Law and Political
Science, Yale Law School, New Haven, Connecticut............... 542
prepared statement........................................... 1000
Baker, Alicia Wilson, Indianapolis, Indiana...................... 536
prepared statement........................................... 1024
Christmas, Kenneth C., Jr., Executive Vice President, Business
and Legal Affairs, Marvista Entertainment, Los Angeles,
California..................................................... 584
prepared statement........................................... 1029
Clement, Hon. Paul D., Partner, Kirkland & Ellis LLP, and former
Solicitor General of the United States, U.S. Department of
Justice, Washington, DC........................................ 602
prepared statement........................................... 1032
Corbin, Jackson, Hanover, Pennsylvania........................... 577
prepared statement........................................... 1038
Dean, John W., former Counsel to the President, President Richard
M. Nixon, Beverly Hills, California............................ 600
prepared statement........................................... 1041
Eastmond, Aalayah, Parkland, Florida............................. 572
prepared statement........................................... 1047
Ford, Christine Blasey, Ph.D., Professor of Psychology, Palo Alto
University, Palo Alto, California, and Research Psychologist,
Stanford University School of Medicine, Stanford, California... 634
prepared statement........................................... 1052
Garry, Louisa, Teacher, Friends Academy, Locust Valley, New York. 529
prepared statement........................................... 1061
Garza, Rochelle M., Managing Attorney, Garza & Garza Law,
Brownsville, Texas............................................. 527
prepared statement........................................... 1063
Heinzerling, Lisa, Justice William J. Brennan, Jr., Professor of
Law, Georgetown University Law Center, Washington, DC.......... 607
prepared statement........................................... 1070
Ingber, Rebecca, Associate Professor of Law, Boston University
School of Law, Boston, Massachusetts........................... 604
prepared statement........................................... 1079
Kramer, A.J., Federal Public Defender, Office of the Federal
Public Defender for the District of Columbia, Washington, DC... 570
prepared statement........................................... 1088
Lachance, Hunter, Kennebunkport, Maine........................... 579
prepared statement........................................... 1094
Mahoney, Maureen E., former Deputy Solicitor General of the
United States, U.S. Department of Justice, Washington, DC...... 580
prepared statement........................................... 1097
Mascott, Jennifer L., former Law Clerk, and Assistant Professor
of Law, George Mason University Antonin Scalia Law School,
Arlington, Virginia............................................ 609
prepared statement........................................... 1102
Mastal, Monica, Real Estate Agent, Washington, DC................ 599
prepared statement........................................... 1106
McCloud, Luke, former Law Clerk, and Associate, Williams &
Connolly LLP, Washington, DC................................... 526
prepared statement........................................... 1108
Moxley, Paul T., Chair, American Bar Association, Standing
Committee on the Federal Judiciary, Salt Lake City, Utah....... 517
prepared statement........................................... 1110
Murray, Melissa, Professor of Law, New York University School of
Law, New York, New York........................................ 540
prepared statement........................................... 1134
Olson, Hon. Theodore B., Partner, Gibson, Dunn & Crutcher, and
former Solicitor General of the United States, U.S. Department
of Justice, Washington, DC..................................... 535
prepared statement........................................... 1143
Richmond, Hon. Cedric L., a Representative in Congress from the
State of Louisiana, and Chairman of the Congressional Black
Caucus, Washington, DC......................................... 532
prepared statement........................................... 1149
Shane, Peter M., Jacob E. Davis and Jacob E. Davis II Chair in
Law, Ohio State University Moritz College of Law, Columbus,
Ohio........................................................... 611
prepared statement........................................... 1157
Sinzdak, Colleen E. Roh, former Harvard Law School Student, and
Senior Associate, Hogan Lovells LLP, Washington, DC............ 538
prepared statement........................................... 1167
Smith, Melissa, Social Studies Teacher, U.S. Grant Public High
School, Oklahoma City, Oklahoma................................ 582
prepared statement........................................... 1170
Taibleson, Rebecca, former Law Clerk, Eastern District of
Wisconsin, Foxpoint, Wisconsin................................. 574
prepared statement........................................... 1178
Tarpley, John R., Principal Evaluator, American Bar Association,
Standing Committee on the Federal Judiciary, Nashville,
Tennessee...................................................... 518
Weintraub, Elizabeth ``Liz,'' Advocacy Specialist, Association of
University Centers on Disabilities, Silver Spring, Maryland.... 531
prepared statement........................................... 1181
White, Adam J., Professor and Executive Director, The C. Boyden
Gray Center for the Study of the Administrative State, George
Mason University Antonin Scalia Law School, Arlington, Virginia 606
prepared statement........................................... 1187
QUESTIONS
Questions submitted to John W. Dean by Senator Grassley.......... 1318
Questions submitted to Professor Lisa Heinzerling by Senator
Grassley....................................................... 1319
Questions submitted to Hon. Brett M. Kavanaugh by:
Senator Blumenthal........................................... 1205
attachment................................................. 1213
Follow-up questions submitted by Senator Blumenthal.......... 1237
Senator Booker............................................... 1239
Senator Coons................................................ 1257
Senator Durbin............................................... 1270
Senator Feinstein............................................ 1290
Senator Flake................................................ 1315
Senator Grassley............................................. 1316
Senator Harris............................................... 1320
Senator Hirono............................................... 1334
Senator Klobuchar............................................ 1350
Follow-up questions submitted by Senator Klobuchar........... 1352
Senator Leahy................................................ 1357
Senator Whitehouse........................................... 1379
Questions submitted to A.J. Kramer by Senator Durbin............. 1288
Questions submitted to Professor Peter M. Shane by Senator
Whitehouse..................................................... 1393
ANSWERS
Responses of John W. Dean to questions submitted by Senator
Grassley....................................................... 1655
Responses of Professor Lisa Heinzerling to questions submitted by
Senator Grassley............................................... 1656
Responses of Hon. Brett M. Kavanaugh to questions submitted by:
Senator Blumenthal........................................... 1565
Senator Booker............................................... 1609
Senator Coons................................................ 1537
Senator Durbin............................................... 1474
Senator Feinstein............................................ 1398
Senator Flake................................................ 1396
Senator Grassley............................................. 1394
Senator Harris............................................... 1632
Senator Hirono............................................... 1582
Senator Klobuchar............................................ 1532
Senator Leahy................................................ 1442
Senator Whitehouse........................................... 1503
Responses of A.J. Kramer to questions submitted by Senator Durbin 1657
Responses of Professor Peter M. Shane to questions submitted by
Senator Whitehouse............................................. 1668
LETTERS RECEIVED WITH REGARD TO THE NOMINATION OF HON. BRETT M.
KAVANAUGH TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED
STATES
Aaronson, Russell, et al., high school friends of Judge Brett M.
Kavanaugh, September 26, 2018.................................. 2011
Aberly, Naomi, Boston, Massachusetts, et al., business owners,
entrepreneurs, philanthropists, and leaders.................... 2239
Abramowicz, Michael B., et al., legal scholars, August 28, 2018.. 2083
Abrams, Jamie, University of Louisville Brandeis School of Law,
et al., law professors, letter to Hon. Susan M. Collins, a U.S.
Senator from the State of Maine, and Hon. Lisa Murkowski, a
U.S. Senator from the State of Alaska, August 29, 2018......... 1729
A Critical Mass: Women Celebrating Eucharist (ACM), Oakland,
California, et al., religious and faith-centered organizations
and communities, August 31, 2018............................... 2270
Action NC, Charlotte, North Carolina, et al., July 20, 2018...... 1747
ADAPT, Philadelphia, Pennsylvania, et al., national healthcare
organizations, August 20, 2018................................. 1750
Advocates for Youth, Washington, DC, et al., organizations in
support of women's health, August 21, 2018..................... 2338
Advocates for Youth, Washington, DC, et al., reproductive justice
organizations, August 31, 2018................................. 2273
Advocates for Youth, Washington, DC, et al., reproductive rights
organizations, September 4, 2018............................... 1725
Advocates for Youth, Washington, DC, et al., youth-led and youth-
serving organizations, September 18, 2018...................... 1756
African American Ministers in Action, Washington, DC, et al.,
faith-based, nontheist, and religious liberty organizations,
August 27, 2018................................................ 1742
Agarwal, Amit, et al., former law clerks of Judge Kavanaugh, July
9, 2018........................................................ 1966
Agarwal, Amit, et al., State Solicitors General, September 6,
2018........................................................... 2290
Ahearn, Beth, et al., attorneys practicing in the State of Maine,
letter to Hon. Susan M. Collins, a U.S. Senator from the State
of Maine, and Hon. Angus S. King, a U.S. Senator from the State
of Maine, August 28, 2018...................................... 2100
Alaska Wilderness League, Washington, DC, et al., environmental
groups, August 10, 2018........................................ 1716
Alicea, J. Joel, et al., former Harvard Law School students of
Judge Kavanaugh, July 19, 2018................................. 1964
Allen, Bertrand-Marc, et al., former law clerks of U.S. Supreme
Court Justice Anthony M. Kennedy, August 2, 2018............... 1968
Alliance for Justice, Washington, DC, September 1, 2018.......... 1760
American Association for Justice (AAJ), Washington, DC, September
4, 2018........................................................ 1762
American Association of People with Disabilities (AAPD),
Washington, DC, September 4, 2018, letter and attachment....... 1765
American Association of University Women (AAUW), Washington, DC,
August 30, 2018................................................ 1776
American Association of University Women (AAUW), Washington, DC,
September 17, 2018............................................. 1780
American Bar Association (ABA), Chicago, Illinois, September 27,
2018........................................................... 1784
American Bar Association (ABA), Standing Committee on the Federal
Judiciary, Paul T. Moxley, Chair, Salt Lake City, Utah,
September 28, 2018............................................. 1786
American Center for Law & Justice (ACLJ), Washington, DC, August
31, 2018....................................................... 1787
American Civil Liberties Union (ACLU), Washington, DC, October 1,
2018........................................................... 1788
American Federation of Government Employees, AFL-CIO (AFGE),
Washington, DC, Federal and District of Columbia workers,
September 13, 2018............................................. 1745
American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO), Washington, DC, September 10, 2018.... 1792
American Federation of State, County and Municipal Employees,
AFL-CIO (AFSCME), Washington, DC, August 28, 2018.............. 1794
American Legislative Exchange Council (ALEC), Arlington, Virginia 1796
American Network of Community Options and Resources (ANCOR),
Alexandria, Virginia, August 3, 2018........................... 1802
American Public Health Association (APHA), Washington, DC, July
26, 2018....................................................... 1804
American Public Health Association (APHA), Washington, DC,
September 28, 2018............................................. 1805
Americans for Financial Reform, Washington, DC, September 3, 2018 1806
Americans United (AU), Washington, DC, September 10, 2018........ 1808
Aniskovich, Jennifer Slye, et al., women friends of Judge
Kavanaugh since high school, September 14, 2018................ 2009
Anti-Defamation League (ADL), New York, New York, August 30, 2018 1810
Arends, Jackie, et al., women who are former White House staff
members, President George W. Bush administration, August 29,
2018........................................................... 1833
Asbestos Disease Awareness Organization (ADAO), Redondo Beach,
California, September 3, 2018.................................. 1823
Assaf, Eugene F., et al., former Kirkland & Ellis LLP coworkers
of Judge Kavanaugh, August 27, 2018............................ 2023
Bartolomucci, H. Christopher, et al., former lawyers of the White
House Counsel's Office, August 28, 2018........................ 1971
Bash, Zina, et al., former women law clerks of Judge Kavanaugh,
July 12, 2018.................................................. 1973
Batlan, Felice, Professor of Law, Chicago-Kent College of Law, et
al., women law faculty members, October 4, 2018................ 2343
Beason, Hilary H., M.D., Alabama, et al., women physicians,
September 20, 2018............................................. 2376
Bennett, Robert S., Washington, DC, August 28, 2018.............. 1826
Bergdolt, Rob, et al., Yale Law School classmates of Judge
Kavanaugh, August 27, 2018..................................... 2394
Bergman, Allyson Abrams, et al., Holton Arms Class of 1984
classmates of Christine Blasey Ford, Ph.D., September 17, 2018. 2001
Bidwill, Michael J., Esq., President, Arizona Cardinals, Paradise
Valley, Arizona, et al., classmates of Judge Kavanaugh and
alumni from Georgetown Preparatory School, July 9, 2018........ 1986
Black Farmers and Agriculturalists Association, Inc. (BFAA),
Memphis, Tennessee, August 15, 2018............................ 1828
Blatt, Lisa S., Partner, Arnold & Porter, Washington, DC, et al.,
members of the Supreme Court Bar, August 27, 2018.............. 2301
B'nai B'rith International, Washington, DC, September 4, 2018.... 1830
Bond, Heidi Sacha, September 22, 2018............................ 1831
Center for Biological Diversity, Tucson, Arizona, September 1,
2018........................................................... 1836
Center for Law and Social Policy (CLASP), Washington, DC, August
31, 2018....................................................... 1838
Center for Popular Democracy, The, Brooklyn, New York, September
4, 2018........................................................ 1840
Center for Reproductive Rights, New York, New York, August 31,
2018, letter and report........................................ 1842
Chicago Council of Lawyers, Chicago, Illinois.................... 1865
Chin, Kari, L.C.S.W., St. Petersburg, Florida, September 10, 2018 1866
Chu, Hon. Judy, Ph.D., a Representative in Congress from the
State of California, and Member, Congressional Pro-Choice
Caucus, et al., additional Members of Congress, October 2, 2018 2254
Cicilline, Hon. David N., a Representative in Congress from the
State of Rhode Island, et al., additional Members of Congress,
September 13, 2018............................................. 2128
City of West Hollywood, Hon. John J. Duran, Mayor, West
Hollywood, California, August 14, 2018, letter and City of West
Hollywood City Council Resolution No. 18-5095.................. 1878
Coghill, Hon. John, State Senator of Alaska, Juneau, Alaska, July
30, 2018....................................................... 1888
Committee for Justice, The (CFJ), Washington, DC, September 4,
2018........................................................... 1890
Common Cause, Washington, DC, August 31, 2018.................... 1894
Conaghan, Stephanie and Tom, et al., parents of 4th- and 5th/6th-
grade girls' basketball team players, Parish of the Shrine of
the Most Blessed Sacrament, Washington, DC, August 10, 2018.... 1824
Concerned Women for America Legislative Action Committee
(CWALAC), Washington, DC, August 29, 2018...................... 1898
Congressional Black Caucus (CBC), Washington, DC, September 4,
2018........................................................... 1900
Congressional Hispanic Caucus, Washington, DC, September 6, 2018. 1904
Constitutional Accountability Center (CAC), Washington, DC,
September 13, 2018............................................. 1906
Dargan, Gayle Connors, et al., women who attended Yale Law School
with Judge Kavanaugh, August 30, 2018.......................... 2404
Davis, Angela J., American University, Washington College of Law,
et al., coalition of law professors............................ 2042
Dellinger, Walter, Douglas B. Maggs Professor Emeritus, Duke
University School of Law, et al., former attorneys in the U.S.
Department of Justice's Office of Legal Counsel................ 1959
Doctors for America (DFA), Washington, DC, August 30, 2018....... 1916
Dreher, Will, Bridget Fahey, and Rakim Brooks, former law clerks
to Judge Kavanaugh, October 1, 2018............................ 2413
Earthjustice, Washington, DC, August 30, 2018.................... 1918
Electronic Privacy Information Center (EPIC), Washington, DC,
September 4, 2018.............................................. 1923
Enzler, Monsignor John J., President and Chief Executive Officer,
Catholic Charities of the Archdiocese of Washington, DC, August
23, 2018....................................................... 2136
Equality California, Los Angeles, California, September 13, 2018. 1928
Everytown for Gun Safety Action Fund, New York, New York,
September 5, 2018.............................................. 1931
Families USA, Washington, DC, et al., national and State
healthcare organizations, August 14, 2018...................... 1933
Family Equality Council, New York, New York, August 31, 2018..... 1938
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, and Ranking Member, U.S. Senate Committee on the
Judiciary, et al., the Democratic Members of the U.S. Senate
Committee on the Judiciary, letter to Hon. Charles E. Grassley,
a U.S. Senator from the State of Iowa, and Chairman of the U.S.
Senate Committee on the Judiciary, September 18, 2018.......... 2967
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, and Ranking Member, U.S. Senate Committee on the
Judiciary, et al., the Democratic Members of the U.S. Senate
Committee on the Judiciary, letter to Hon. Christopher Wray,
Director, Federal Bureau of Investigation, and Donald F.
McGahn, II, Counsel to the President, President Donald J.
Trump, September 18, 2018...................................... 2970
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, and Ranking Member, U.S. Senate Committee on the
Judiciary, et al., the Democratic Members of the U.S. Senate
Committee on the Judiciary, letter to U.S. President Donald J.
Trump, September 26, 2018...................................... 2975
Feminist Majority Foundation, Arlington, Virginia, August 31,
2018........................................................... 1946
Feminist Majority Foundation, Arlington, Virginia, September 20,
2018........................................................... 1957
Ford, Russell, et al., family members of Christine Blasey Ford... 1829
Frankel, Hon. Lois, a Representative in Congress from the State
of Florida, and Chair, Democratic Women's Working Group, et
al., additional Members of Congress, September 17, 2018........ 2108
Garner, Bryan A., Editor in Chief, ``Black's Law Dictionary,''
and Distinguished Research Professor of Law, Southern Methodist
University, Dallas, Texas, September 2, 2018................... 1975
Goldscheid, Julie, et al., gender violence law professors and
lawyers representing gender violence survivors, September 26,
2018........................................................... 1977
Graves, Lisa, September 10, 2018................................. 1996
Haslam, Hon. Bill, Governor of Tennessee, Nashville, Tennessee,
et al., coalition of State Governors, July 25, 2018............ 1885
Huffman, Hon. Jared, a Representative in Congress from the State
of California, et al., additional Members of Congress,
September 6, 2018.............................................. 2122
International Association of Chiefs of Police (IACP), Alexandria,
Virginia, August 31, 2018...................................... 2002
International Union of Bricklayers and Allied Craftworkers (BAC),
Washington, DC, September 21, 2018............................. 2003
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), Detroit,
Michigan, July 26, 2018........................................ 2305
Kapczynski, Amy, et al., faculty members of Yale Law School,
September 21, 2018............................................. 2414
Kemp, Hon. Brian P., Secretary of State of Georgia, Atlanta,
Georgia, August 2, 2018........................................ 2013
Kemp, Paul F., Rockville, Maryland, August 24, 2018, letter and
attachment..................................................... 2015
Kinkopf, Neil J., Professor of Law, Georgia State University
College of Law, and Peter M. Shane, Jacob E. Davis and Jacob E.
Davis II Chair in Law, Ohio State University Moritz College of
Law, August 10, 2018........................................... 2019
Kuster, Hon. Ann McLane, a Representative in Congress from the
State of New Hampshire, et al., additional Members of Congress,
September 26, 2018............................................. 2118
Lalla, Deepa, et al., friends of Christine Blasey Ford, September
18, 2018....................................................... 1673
Lambda Legal, Washington, DC, et al., national, State, and local
advocacy organizations, July 31, 2018.......................... 2028
Lambda Legal, Washington, DC, et al., national, State, and local
advocacy organizations, September 18, 2018..................... 2025
LatinoJustice PRLDEF, New York, New York, August 6, 2018......... 2037
Lawyers' Committee for Civil Rights Under Law, Washington, DC, et
al., civil rights organizations, September 5, 2018............. 1881
Leadership Conference on Civil and Human Rights, The, Washington,
DC, and National Women's Law Center (NWLC), Washington, DC,
Septem-ber 18, 2018............................................ 2303
Leadership Conference on Civil and Human Rights, The, Washington,
DC, et al., September 3, 2018.................................. 2056
League of Conservation Voters (LCV), Washington, DC.............. 2075
Lefkowitz, Jay P., P.C., Kirkland & Ellis LLP, August 29, 2018,
letter and article............................................. 2077
Legal Momentum, New York, New York, September 26, 2018........... 2081
Levi, David F., former U.S. District Judge, U.S. District Court
for the Eastern District of California, August 7, 2018......... 2098
Livas, Athanasia, Yale Law School student, et al., students,
alumni, and faculty members of Yale University in support of
Judge Brett M. Kavanaugh, July 12, 2018........................ 2396
Mac Avoy, Janice, Partner, Fried, Frank, Harris, Shriver &
Jacobson LLP, et al., women lawyers who jointly submitted an
amicus brief in support of petitioners in Whole Woman's Health
v. Hellerstedt, September 1, 2018.............................. 2331
Martin, Ed, President, Phyllis Schlafly Eagles, St. Louis,
Missouri, August 31, 2018...................................... 2105
Masagatani, Jobie M.K., Chairman, Hawaiian Homes Commission,
Department of Hawaiian Home Lands, State of Hawaii, Honolulu,
Hawaii, September 18, 2018..................................... 2106
Mead, Hon. Matthew H., Governor of Wyoming, Cheyenne, Wyoming,
July 26, 2018.................................................. 1995
Mexican American Legal Defense and Educational Fund (MALDEF), Los
Angeles, California, September 5, 2018......................... 2134
Monck, Nicholas, President, Student Bar Association, University
of Colorado School of Law, et al., student bar association
presidents, October 2, 2018.................................... 2295
Morrisey, Hon. Patrick, Attorney General of West Virginia,
Charleston, West Virginia, et al., State Attorneys General,
July 12, 2018.................................................. 2292
Moschella, Hon. William E., Assistant Attorney General, Office of
Legislative Affairs, U.S. Department of Justice, letter to Hon.
Joseph R. Biden, Jr., a U.S. Senator from the State of
Delaware, and Member, U.S. Senate Committee on the Judiciary,
August 5, 2005................................................. 2946
Muslim Advocates, Oakland, California, August 31, 2018........... 2137
National Abortion Federation (NAF), Washington, DC, August 31,
2018........................................................... 2145
National Association for the Advancement of Colored People
(NAACP), Washington Bureau, Washington, DC, August 13, 2018.... 2141
National Association for the Advancement of Colored People
(NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
York, New York, August 31, 2018................................ 2143
National Association of Federal Defenders (NAFD), September 12,
2018........................................................... 2147
National Cattlemen's Beef Association (NCBA), Washington, DC, and
Public Lands Council (PLC), Washington, DC, August 30, 2018.... 2148
National Center for Lesbian Rights (NCLR), Washington, DC,
September 4, 2018.............................................. 2149
National Center for Special Education in Charter Schools
(NCSECS), New York, New York, September 3, 2018................ 2151
National Center for Transgender Equality (NCTE), Washington, DC,
September 4, 2018.............................................. 2153
National Coalition on Black Civic Participation, Washington, DC,
et al., civil rights organizations, August 16, 2018............ 1883
National Congress of American Indians (NCAI), Washington, DC, and
Native American Rights Fund (NARF), Boulder, Colorado,
September 12, 2018............................................. 2157
National Congress of American Indians (NCAI), Washington, DC, and
Native American Rights Fund (NARF), Boulder, Colorado,
September 28, 2018............................................. 2159
National Council of Jewish Women (NCJW), New York, New York,
August 22, 2018................................................ 2160
National Education Association (NEA), Washington, DC, August 30,
2018........................................................... 2161
National Education Association (NEA), Washington, DC, September
27, 2018....................................................... 2164
National Employment Lawyers Association (NELA), Oakland,
California, September 28, 2018................................. 2168
National Immigration Law Center (NILC), Los Angeles, California,
Septem-ber 3, 2018............................................. 2170
National Latino Farmers and Ranchers Trade Association (NLFRTA),
Washington, DC, August 31, 2018, letter and attachment......... 2172
National LGBTQ Task Force Action Fund, Washington, DC, September
12, 2018....................................................... 2191
National Organization for Women (NOW), Washington, DC, September
25, 2018....................................................... 2194
National Partnership for Women & Families, Washington, DC,
September 13, 2018............................................. 2196
National Partnership for Women & Families, Washington, DC,
September 28, 2018, letter and attachment...................... 2202
National Shooting Sports Foundation, Inc. (NSSF), Newtown,
Connecticut, August 30, 2018................................... 2216
National Task Force to End Sexual and Domestic Violence (NTF),
Seattle, Washington, September 4, 2018......................... 2218
National Task Force to End Sexual and Domestic Violence (NTF),
Seattle, Washington, September 18, 2018........................ 2222
National Women's Law Center, Washington, DC, September 4, 2018... 2224
Natural Resources Defense Council (NRDC), New York, New York,
Septem-ber 4, 2018............................................. 2210
Network Lobby for Catholic Social Justice, Washington, DC, and
Suzanne Strisik, Ph.D., Anchorage, Alaska, et al., Catholic
faith leaders, Septem-ber 4, 2018.............................. 1678
OCA--Asian Pacific American Advocates, Washington, DC, September
4, 2018........................................................ 2229
Office of Hawaiian Affairs (OHA), State of Hawaii, Honolulu,
Hawaii, September 24, 2018..................................... 2230
Pacific Palisades Democratic Club (PPDC), Pacific Palisades, Los
Angeles, California, September 6, 2018......................... 2238
Pearson, Myra, Chairwoman, Spirit Lake Nation, et al., Native
women leaders of North Dakota, September 4, 2018............... 2226
People For the American Way, Washington, DC, August 30, 2018..... 2244
Physician Women for Democratic Principles (PWDP), September 21,
2018........................................................... 2246
Physicians for Reproductive Health, New York, New York, September
26, 2018....................................................... 2247
Planned Parenthood Action Fund, New York, New York, et al.,
reproductive rights, civil rights, health, justice, and
advocacy organizations, September 7, 2018...................... 1671
Planned Parenthood Federation of America and Planned Parenthood
Action Fund, New York, New York, September 28, 2018............ 2250
Pough, Bradley, et al., members of Harvard Black Law Students
Association (HBLSA), August 29, 2018........................... 1999
Prairie Band Potawatomi Nation, Mayetta, Kansas, September 10,
2018........................................................... 2252
Proctor, Michael J., and Mark Osler, Yale Law School classmates
of Judge Kavanaugh, October 2, 2018............................ 2411
Reeves, Mona, resident of California, September 18, 2018......... 2265
Religious Coalition for Reproductive Choice (RCRC), Washington,
DC............................................................. 2266
Religious Coalition for Reproductive Choice (RCRC), Washington,
DC, September 20, 2018......................................... 2268
Safer, Debra, M.D., et al., supporters of Christine Blasey Ford,
Ph.D........................................................... 1710
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York, and Minority Leader, U.S. Senate, and Hon. Dianne
Feinstein, a U.S. Senator from the State of California, and
Ranking Member, U.S. Senate Committee on the Judiciary, letter
to U.S. President Donald J. Trump, September 21, 2018.......... 2973
Secular Coalition for America, Washington, DC, et al., secular
and religiously unaffiliated organizations, July 26, 2018...... 2277
Service Employees International Union (SEIU), Washington, DC,
August 29, 2018................................................ 2284
Sexuality Information and Education Council of the United States
(SIECUS), Washington, DC, September 4, 2018.................... 2286
Shoemate, Scott, San Diego, California, et al., fathers and
friends supporting victims of sexual assault, October 1, 2018.. 1941
Sierra Club, Washington, DC, July 24, 2018....................... 2288
Sullivan, William M., Jr., Partner, Pillsbury Winthrop Shaw
Pittman LLP, Washington, DC, Counsel for Christopher C.
Garrett, September 26, 2018.................................... 2298
Turkos, Alison, resident of New York, et al., survivors and
victims of sexual assault and rape............................. 1721
UltraViolet, survivors of sexual assault, survivors of domestic
violence, and their loved ones, September 21, 2018............. 2307
Upmeyer, Hon. Linda, Speaker of the House, Iowa House of
Representatives, Des Moines, Iowa, et al., Iowa House
Republican Caucus, August 20, 2018............................. 2005
Voto Latino, Washington, DC, August 31, 2018, letter and
attachment..................................................... 2308
Wagner, William, President, Great Lakes Justice Center, and
Distinguished Professor Emeritus, constitutional law, Lansing,
Michigan....................................................... 2327
Whitaker, William B., Founding President, Washington Jesuit
Academy, Washington, DC, August 29, 2018....................... 2329
Williams, Carolyn H., Williams & Connolly LLP, Washington, DC,
August 28, 2018................................................ 2336
Women Lawyers On Guard Action Network, Inc., Arlington, Virginia,
September 4, 2018.............................................. 2368
YWCA USA, Washington, DC, August 6, 2018......................... 2406
Zaun, Hon. Brad, State Senator of Iowa, and Chairman, Iowa Senate
Judiciary Committee, Des Moines, Iowa, et al., August 17, 2018. 2007
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
#1600men, a list of 1,600 names of men who support the statements
of Christine Blasey Ford, Ph.D., and Professor Anita Hill, The
New York Times, full-page newspaper advertisment............... 2428
Aaron, Marjorie Corman, Cincinnati, Ohio, et al., professors of
law and scholars of judicial institutions, statement........... 2415
Alaska Federation of Natives (AFN), Anchorage, Alaska, statement
and attachment................................................. 2434
Amar, Akhil Reed, ``A Liberal's Case for Brett Kavanaugh,'' The
New York Times, July 9, 2018, op-ed article.................... 2448
America Magazine, ``The Editors: It is time for the Kavanaugh
nomination to be withdrawn,'' September 27, 2018, editorial.... 2451
American Association of People with Disabilities (AAPD),
Washington, DC, statement...................................... 2455
Arc, The, Washington, DC, statement.............................. 2921
Arnold, Carrie, ``Life After Rape: The Sexual Assault Issue No
One's Talking About; The sickening truth about PTSD among
survivors,'' Women's Health, September 13, 2016, article....... 2457
Association of University Centers on Disabilities (AUCD), Silver
Spring, Maryland, statement.................................... 2463
Batlan, Felice, Professor of Law, Chicago-Kent College of Law, et
al., U.S. women law professors, October 3, 2018, press release. 2432
Bazelon, Emily, and Eric Posner, ``Who Is Brett Kavanaugh?
Contrary to what supporters say, he's no originalist,'' The New
York Times, September 3, 2018, op-ed article................... 2465
Blatt, Lisa, ``I'm a Liberal Feminist Lawyer. Here's Why
Democrats Should Support Judge Kavanaugh,'' Politico, August 2,
2018, article.................................................. 2469
Boston Herald, ``Editorial: Nix the toxic, give Brett Kavanaugh a
shot,''
July 10, 2018, editorial....................................... 2471
``Brett Kavanaugh: Delivering for Right-Wing and Corporate
Interests,'' report............................................ 2708
``Brett Kavanaugh in Partisan 2-1 cases: Advancing Right-Wing and
Corporate Interests 91% of the Time,'' factsheet............... 2429
``Brett Kavanaugh: Siding with Conservative Amici Curiae 91% of
the Time,'' Paul M. Collins, Jr., Ph.D., Judicial Analytics
LLC, report.................................................... 2707
Brettschneider, Corey, ``Brett Kavanaugh's Radical View of
Executive Power,'' Politico, September 4, 2018, op-ed article.. 2726
Bryant, Hon. Phil, Governor of Mississippi, Jackson, Mississippi,
and Guest Columnist, ``Gov. Phil Bryant: Brett Kavanaugh best
choice for Supreme Court,'' The Clarion-Ledger, July 26, 2018,
op-ed article.................................................. 2472
Campaign Legal Center (CLC), Washington, DC, and Demos, New York,
New York, July 13, 2018, statement and factsheet............... 2950
Center for Public Representation (CPR), Northampton,
Massachusetts, statement....................................... 2474
Center for Reproductive Rights, New York, New York, ``An Analysis
of the Testimony of Judge Brett Kavanaugh on Issues Relating to
Reproductive Rights Before the Senate Judiciary Committee,''
analysis....................................................... 2477
Chicago Tribune, ``Judging Judge Kavanaugh,'' July 9, 2018,
editorial...................................................... 2507
Chua, Amy, ``Kavanaugh Is a Mentor To Women: I can't think of a
better judge for my own daughter's clerkship,'' Wall Street
Journal, July 12, 2018, op-ed article.......................... 2509
Cope, Kevin, and Joshua Fischman, ``It's hard to find a federal
judge more conservative than Brett Kavanaugh,'' The Washington
Post, September 5, 2018, op-ed article......................... 2511
Council for Native Hawaiian Advancement (CNHA), Kapolei, Hawaii,
statement...................................................... 2514
Detroit News, The, ``Our editorial: Kavanaugh's record defies
challenge,''
July 10, 2018, editorial....................................... 2519
Disability Rights Education and Defense Fund (DREDF), Berkeley,
California, statement.......................................... 2521
Earthjustice, San Francisco, California, statement............... 2553
Email correspondence in order of ``REV'' identification number:
Brett M. Kavanaugh, subject: ``4A issue,'' message to John C.
Yoo and Timothy Flanigan, September 17, 2001, email,
REV_00023540............................................... 2804
Don Willett, subject: ``Re: Owen/Money,'' message to Brett M.
Kavanaugh et al., July 21, 2002, email, REV_00097139 to
REV_00097140............................................... 2805
David G. Leitch, subject: ``FW: Signing Statements,'' message
to Alberto R. Gonzales et al., March 6, 2003, email,
REV_00111240............................................... 2807
Benjamin A. Powell, subject: ``4pm conference number,''
message to William Smith et al., June 5, 2003, email,
REV_00120822............................................... 2808
Benjamin A. Powell, subject: ``Pryor Working Group Contact
List,'' message to William Smith et al., June 5, 2003,
email, REV_00120849........................................ 2809
David G. Leitch, subject: ``RE: revised draft Rehnquist
statement,'' message to Brett M. Kavanaugh, June 26, 2003,
email, REV_00124536........................................ 2810
Bradford A. Berenson, subject: ``Re: Adarand -- other
considerations,'' message to Courtney S. Elwood et al.,
March 27, 2001, email, REV_00125571 to REV_00125573........ 2811
Brett M. Kavanaugh, subject: ``RE: Owen,'' message to Viet
Dinh, April 3, 2002, email, REV_00214620 to REV_00214621... 2814
Helgard C. Walker, subject: ``Re: Removal,'' message to Brett
M. Kavanaugh, May 6, 2002, email, REV_00215784............. 2816
Brett M. Kavanaugh, subject: ``Re: Justice Owen,'' message to
H. Christopher Bartolomucci, May 15, 2002, email,
REV_00216043............................................... 2817
Manuel Miranda, subject: ``Highly confidentail'' [sic],
message to Viet Dinh, Don Willett, and Brett M. Kavanaugh,
July 18, 2002, email, REV_00217778......................... 2818
Adam Charnes, subject: ``Re: CA11,'' message to Brett M.
Kavanaugh, Benjamin A. Powell, and Alberto R. Gonzales,
December 11, 2002, email, REV_00223834 to REV_00223835..... 2819
Brett M. Kavanaugh, subject: ``Re: CA11,'' message to Kyle
Sampson, December 16, 2002, email, REV_00223960............ 2821
Manuel Miranda, subject: ``RE: Judiciary Dems obstruct on
reorganization,'' message to Brett M. Kavanaugh, January
13, 2003, email, REV_00224790 to REV_00224792.............. 2822
Brett M. Kavanaugh, subject: ``Re: Kuhl/For your prep,''
message to Brett M. Kavanaugh and Manuel Miranda, March 8,
2003, email, REV_00230675 to REV_00230676.................. 2825
Brett M. Kavanaugh, subject: ``From Manny on Frist's staff,''
message to Wendy J. Grubbs, April 9, 2003, email,
REV_00233594............................................... 2827
Joel Pardue, subject: ``Emergency Umbrella Meeting
Tomorrow,'' message to Joel Pardue and Brett M. Kavanaugh,
June 5, 2003, email, REV_00237179.......................... 2828
Manuel Miranda, subject: ``Help requested,'' message to Brett
M. Kavanaugh et al., July 28, 2002, email, REV_00348846.... 2829
Brett M. Kavanaugh, subject: ``Re: Help requested,'' message
to Manuel Miranda et al., July 28, 2002, email,
REV_00348848 to REV_00348849............................... 2830
Manuel Miranda, subject: ``Biden and Feinstein, etc.,''
message to Don Willett and Brett M. Kavanaugh, July 28,
2002, email, REV_00348850.................................. 2832
Manuel Miranda, subject: ``Re[2]: NEWS,'' message to Brett M.
Kavanaugh et al., July 30, 2002, email, REV_00349085 to
REV_00349086............................................... 2833
Manuel Miranda, subject: ``Re[2]: Biden and Feinstein,
etc.,'' message to Don Willett and Brett M. Kavanaugh, July
30, 2002, email, REV_00349088 to REV_00349089.............. 2835
Manuel Miranda, subject: ``Sept 5th,'' message to Brett M.
Kavanaugh and Don Willett, August 13, 2002, email,
REV_00350167............................................... 2837
Nathan Sales, subject: ``Re: Estrada event on Tuesday,''
message to Manuel Miranda, Brian A. Benczkowski, and Brett
M. Kavanaugh, February 14, 2003, email, REV_00368977 to
REV_00368981............................................... 2838
Manuel Miranda, subject: ``For use and not distribution,''
message to Brett M. Kavanaugh, March 18, 2003, email,
REV_00379743 to REV_00379750............................... 2843
Manuel Miranda, subject: ``For use and not distribution,''
attachment to message to Brett M. Kavanaugh, March 18,
2003, email, REV_00379751 to REV_00379757.................. 2851
James Ho, subject: ``RE: Pro-choice op-eds in support of
Justice Owen?'', message to Brett M. Kavanaugh and Barbara
Ledeen, March 24, 2003, email, REV_00381149 to REV_00381155 2858
Brett M. Kavanaugh, subject: ``SCt -- interest groups
intel,'' message to Ashley Snee et al., June 5, 2003,
email, REV_00402347 to REV_00402348........................ 2865
End Violence Against Women International (EVAWI), Colville,
Washington, statement.......................................... 2555
Epps, Garrett, ``Brett Kavanaugh Is Devoted to the Presidency,''
theatlantic.com, July 10, 2018, article........................ 2556
Ford, Christine Blasey, Ph.D., Palo Alto, California, materials
submitted for the record....................................... 2524
Ford, Christine Blasey, Ph.D., Palo Alto, California,
supplemental materials submitted for the record [secured file]. 2548
Friedman, Richard A., M.D., ``Why Sexual Assault Memories Stick:
Christine Blasey Ford says she has a vivid memory of an attack
that took place when she was 15. That makes sense,'' The New
York Times, September 19, 2018, article........................ 2960
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
and Chairman, U.S. Senate Committee on the Judiciary,
correspondence regarding allegations against Judge Kavanaugh
sent to Hon. Jeff Sessions, Attorney General, U.S. Department
of Justice, and Hon. Christopher A. Wray, Director, Federal
Bureau of Investigation, Washington, DC, November 2, 2018...... 2558
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
and Chairman, U.S. Senate Committee on the Judiciary,
correspondence regarding allegations against Judge Kavanaugh
sent to Hon. Jeff Sessions, Attorney General, U.S. Department
of Justice, and Hon. Christopher A. Wray, Director, Federal
Bureau of Investigation, Washington, DC, October 26, 2018...... 2567
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
and Chairman, U.S. Senate Committee on the Judiciary,
correspondence regarding allegations against Judge Kavanaugh
sent to Hon. Jeff Sessions, Attorney General, U.S. Department
of Justice, and Hon. Christopher A. Wray, Director, Federal
Bureau of Investigation, Washington, DC, October 25, 2018...... 2583
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
and Chairman, U.S. Senate Committee on the Judiciary,
correspondence regarding investigation of potential violations
for false allegations against Judge Kavanaugh sent to Hon. Jeff
Sessions, Attorney General, U.S. Department of Justice, and
Hon. Christopher A. Wray, Director, Federal Bureau of
Investigation, Washington, DC, September 29, 2018.............. 2612
Graves, Lisa, ``I Wrote Some of the Stolen Memos That Brett
Kavanaugh Lied to the Senate About: He should be impeached, not
elevated,'' slate.com, September 7, 2018, op-ed article........ 2701
Heiman, Matthew, ``Kavanaugh Deserves a Quick Hearing and a
Favorable Vote,'' insidesources.com, August 6, 2018, op-ed
article........................................................ 2705
Kavanaugh, Hon. Brett M., Nominee to be Associate Justice of the
Supreme Court of the United States, Summer 1982 calendar pages. 2712
Klein, Roger D., M.D., J.D., ``Judge Brett Kavanaugh is the right
Supreme Court appointment at the right time,'' The Hill, August
15, 2018, op-ed article........................................ 2717
Las Vegas Review-Journal, ``Editorial: Donald Trump nominates
Brett Kavanaugh to the Supreme Court,'' July 11, 2018,
editorial...................................................... 2722
Lopez, German, ``Why didn't Kavanaugh's accuser come forward
earlier?
Police often ignore sexual assault allegations: When even those
in charge of public safety don't take sexual assault seriously,
victims are going to be very cautious,'' Vox.com, September 19,
2018, article.................................................. 2962
Los Angeles Times, ``Can the Supreme Court confirmation process
ever be repaired?'', July 9, 2018, editorial................... 2719
Lowell Sun, The, ``Editorial: Senate approval of Kavanaugh makes
sense--even for Democrats,'' July 12, 2018, editorial.......... 2724
Maleck, Marisa, ``Marisa Maleck column: Kavanaugh has a proven
track record, Democrats should take an honest look,'' Richmond
Times-Dispatch, August 21, 2018, article....................... 2729
Mayer, Jane, and Ronan Farrow, ``The F.B.I. Probe Ignored
Testimonies from Former Classmates of Kavanaugh,'' The New
Yorker, October 3, 2018, article............................... 2731
Mormon Women for Ethical Government (MWEG), Riverton, Utah,
statement...................................................... 2736
NARAL Pro-Choice America, Washington, DC, statement.............. 2764
National Alliance to End Sexual Violence (NAESV), Washington, DC,
``Costs, Consequences and Solutions,'' endsexualviolence.org,
briefing paper................................................. 2768
National Archives News Staff, ``National Archives Works to
Release Records Related to Judge Kavanaugh,'' archives.gov,
Washington, DC, August 15, 2018, article....................... 2771
National Association for the Advancement of Colored People
(NAACP), Washington Bureau, Washington, DC, statement.......... 2737
National Association for the Advancement of Colored People
(NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
York, New York, September 14, 2018, supplement to August 30,
2018, 94-page report on civil rights record of Judge Brett
Kavanaugh...................................................... 2747
National Association for the Advancement of Colored People
(NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
York, New York, second supplement to August 30, 2018, 94-page
report on civil rights record of Judge Brett Kavanaugh......... 2754
National Network to End Domestic Violence (NNEDV), Washington,
DC, statement.................................................. 2774
National Review, ``A Worthy Pick,'' July 10, 2018, editorial..... 2777
National Sexual Violence Resource Center (NSVRC), Enola,
Pennsylvania, ``The Impact of Sexual Violence,'' factsheet..... 2778
New Hampshire Union Leader, ``Qualified Kavanaugh: A prudent pick
for the court,'' July 10, 2018, editorial...................... 2780
New York Post, ``Democrats' demented assault on Brett
Kavanaugh,'' July 10, 2018, editorial.......................... 2785
Niemi, Laura, and Liane Young, Department of Psychology, Boston
College, Chestnut Hill, Massachusetts, ``Blaming the Victim in
the Case of Rape,'' Psychological Inquiry: An International
Journal for the Advancement of Psychological Theory, Taylor &
Francis Group, LLC, Volume 25, pages 230-233, May 20, 2014,
article........................................................ 2781
O'Brien, Julie, ``I don't know Kavanaugh the judge. But Kavanaugh
the carpool dad is one great guy,'' The Washington Post, July
10, 2018, op-ed article........................................ 2787
Orange County Register and San Bernardino Sun, ``Brett Kavanaugh
nomination might be the calm before the storm,'' July 10, 2018,
editorial...................................................... 2788
Orfield, Gary, Distinguished Research Professor of Education,
Law, Political Science and Urban Planning, University of
California, Los Angeles, California, statement................. 2790
Planned Parenthood Federation of America and Planned Parenthood
Action Fund, New York, New York, and Washington, DC, statement. 2794
Podesta, John, and Todd Stern, ``Staff secretaries aren't traffic
cops. Stop treating Kavanaugh like he was one,'' The Washington
Post, July 30, 2018, op-ed article............................. 2798
Post and Courier, The, ``Kavanaugh the right choice,'' July 10,
2018, editorial................................................ 2505
Public Citizen, chamberofcommercewatch.org, Washington, DC,
``Judge Brett Kavanaugh's Decisions in Cases With Leading
Business Association
Involvement,'' August 30, 2018, report......................... 2800
Richmond Times-Dispatch, ``Editorial: A good and decent choice
for Supreme Court justice,'' July 11, 2018, editorial.......... 2867
Rivkin, David B., Jr., and Andrew M. Grossman, ``Kavanaugh and
the Ginsburg Standard,'' Wall Street Journal, September 3,
2018, op-ed article............................................ 2868
Rizzo, Salvador, ``Does Brett Kavanaugh think the president is
immune from criminal charges?'', The Washington Post, July 11,
2018, analysis................................................. 2870
``The Roberts Five: Advancing Right-Wing and Corporate Interests
92% of the Time,'' report...................................... 2876
``The Roberts Five: Siding with Conservative Amici Curiae 92% of
the Time,'' Paul M. Collins, Jr., Ph.D., Judicial Analytics
LLC, report.................................................... 2883
Rosenzweig, Paul, ``Kavanaugh's Exercise of Discretion,'' The
Atlantic, July 11, 2018, op-ed article......................... 2884
San Diego Union-Tribune, The, ``Why Supreme Court nominee Brett
Kavanaugh may be more independent than you expect,'' July 9,
2018, editorial................................................ 2886
Schwartz, Brian, ``Trump lawyer Marc Kasowitz denies Kavanaugh
ever spoke to anyone at the firm about Mueller probe,
contradicting
Sen. Kamala Harris claim,'' CNBC.com, September 6, 2018,
article........................................................ 2944
Shugerman, Jed, ``Brett Kavanaugh's Legal Opinions Show He'd Give
Donald Trump Unprecedented New Powers,'' slate.com, July 19,
2018, article.................................................. 2888
Smith, Daniel W., et al., ``Delay in disclosure of childhood
rape: results from a national survey,'' sciencedirect.com,
Child Abuse & Neglect, Volume 24, Issue 2, pages 273-287,
February 2000, research article................................ 2894
Strand, Russell W., Special Agent, retired, and Lori D. Heitman,
former Supervisory Special Agent, Independent Consultants,
``The Forensic Experiential Trauma Interview (FETI),'' report.. 2897
TIME'S UP, Washington, DC, September 17, 2018, Twitter posting... 2923
Tribe, Laurence H., Timothy K. Lewis, and Norman Eisen, ``The
Kavanaugh Nomination Must Be Paused. And He Must Recuse
Himself,'' Politico, September 4, 2018, op-ed article.......... 2924
Turley, Jonathan, ``No one can use Mueller probe to hold up
Supreme Court nominee,'' The Hill, July 3, 2018, op-ed article. 2927
United States Senate Committee on the Judiciary, ``Actions by
Chairman Grassley and the Senate Judiciary Committee Related to
Allegations Made and Disputed Regarding Judge Brett
Kavanaugh,'' a summary of Senate Judiciary Committee
investigation of allegations, report........................... 2907
United States Senate Committee on the Judiciary, ``Allegations
Against Judge Kavanaugh,'' documented response and status log.. 2444
United States Senate Committee on the Judiciary, interview with
Hon. Brett M. Kavanaugh for background investigation,
Washington, DC, Septem-ber 17, 2018, transcript................ 2662
United States Senate Committee on the Judiciary, interview with
Hon. Brett M. Kavanaugh for background investigation,
Washington, DC, Septem-ber 26, 2018, transcript................ 2682
United States Senate Committee on the Judiciary, ``Summary of
Senate Judiciary Committee Investigation,'' October 4, 2018,
report......................................................... 2918
Walker, Justin, ``Brett Kavanaugh is a great judge, a good man
and great nominee,'' The Courier-Journal, August 3, 2018, op-ed
article........................................................ 2930
Wall Street Journal, ``Kavanaugh for the Court: Trump's second
nominee will be an intellectual leader on the bench,'' July 9,
2018, editorial................................................ 2932
Wall Street Journal, ``The Kavanaugh Hazing,'' September 3, 2018,
editorial...................................................... 2935
Weekly Standard, The, ``Editorial: Justice Kavanaugh?'' July 10,
2018, editorial................................................ 2937
Wheeler, Lydia, ``Sex assault survivors urge Senate to reject
Kavanaugh,'' The Hill, September 18, 2018, article............. 2939
Whelan, Ed, ``Dems' Latest Documents Hullabaloo,'' National
Review, September 3, 2018, article............................. 2940
Wisconsin Coalition Against Sexual Assault (WCASA), Madison,
Wisconsin, statement........................................... 2943
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria
determined by the Committee, list.............................. 2977
Ash, Elliott, and Daniel L. Chen, ``Kavanaugh is radically
conservative. Here's the data to prove it: He's to the right
of, and much more political than, his peers on the federal
bench,'' The Washington Post: PostEverything Perspective, July
10, 2018, op-ed article........................................ 2977
Briere, John, and Diana M. Elliott, Department of Psychiatry and
the Behavioral Sciences, Keck School of Medicine, University of
Southern California, Los Angeles, California, ``Prevalence and
psychological sequelae of self-reported childhood physical and
sexual abuse in a general population sample of men and women,''
Child Abuse & Neglect, Volume 27, 2003, pages 1205-1222, March
2, 2002, research article...................................... 2977
Burgess, Sarah, Holton-Arms School Class of 2005, et al.,
``Holton-Arms Alumnae in support of Dr. Christine Blasey
Ford,'' letter to Hon. Charles E. Grassley, a U.S. Senator from
the State of Iowa and Chairman of the U.S. Senate Committee on
the Judiciary, and Hon. Dianne Feinstein, a U.S. Senator from
the State of California and Ranking Member of the U.S. Senate
Committee on the Judiciary, September 25, 2018, letter......... 2977
Giles, Nancy R., Arizona, et al., ``From Mothers in the Legal
Profession: An Open Letter to Dr. Blasey Ford,'' September 20,
2018, letter................................................... 2977
Goodman-Brown, Tina B., Private Practice, Newbury Park,
California, et al., ``Why children tell: a model of children's
disclosure of sexual abuse,'' Child Abuse & Neglect, Volume 27,
2003, pages 525-540, September 9, 2002, research article....... 2977
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
and Chairman of the U.S. Senate Committee on the Judiciary,
memorandum to Senate Republicans, ``Re: Senate Judiciary
Committee Investigation of
Numerous Allegations Against Justice Brett Kavanaugh During the
Senate Confirmation Proceedings,'' various exhibits include
statements from
witnesses Mark Judge, Leland Keyser, and Patrick Smyth,
November 2, 2018, memorandum................................... 2977
Heller v. District of Columbia, United States Court of Appeals,
The District of Columbia Circuit, Decided October 4, 2011,
Opinion of the Majority, Conclusion and Appendix............... 2977
Lawyers' Committee for Civil Rights Under Law, Washington, DC,
``Report on the Nomination of Judge Brett Kavanaugh as an
Associate Justice of the United States Supreme Court,'' 2018,
report......................................................... 2977
NARAL Pro-Choice America, Ilyse G. Hogue, President, Washington,
DC, ``In Opposition to the Confirmation of Brett Kavanaugh to
the U.S. Supreme Court,'' statement............................ 2978
National Association for the Advancement of Colored People
(NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
York, New York, ``The Civil Rights Record of Judge Brett
Kavanaugh,'' 94-page report.................................... 2978
People For the American Way (PFAW), Washington, DC, ``The
Dissents of Judge Brett Kavanaugh: A Narrow-Minded Elitist Who
Is Out of the Mainstream,'' report............................. 2978
Public Citizen, Robert Weissman, President, Washington, DC, ``An
Analysis of Judge Kavanaugh's Opinions in Split-Decision
Cases,'' August 29, 2018, report............................... 2978
Sobel, Richard, Charles Hamilton Houston Institute for Race &
Justice, Harvard Law School, Cambridge, Massachusetts, ``The
High Cost of `Free' Photo Voter Identification Cards,'' June
2014, research article......................................... 2978
Wenisch, Amanda Riddle, California, et al., ``Open Letter to the
Senate Judiciary Committee: Women Attorneys for an Honorable
Judiciary,'' letter to Hon. Charles E. Grassley, a U.S. Senator
from the State of Iowa and Chairman of the U.S. Senate
Committee on the Judiciary, Hon. Dianne Feinstein, a U.S.
Senator from the State of California and Ranking Member of the
U.S. Senate Committee on the Judiciary, and Members of the U.S.
Senate Committee on the Judiciary, September 25, 2018, letter.. 2978
CONFIRMATION HEARING ON THE
NOMINATION OF HON. BRETT M. KAVANAUGH
TO BE AN ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES
----------
TUESDAY, SEPTEMBER 4, 2018
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:35 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
Booker, and Harris.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. I welcome everyone to this confirmation
hearing on the nomination of Judge----
Senator Harris. Mr. Chairman?
Chairman Grassley [continuing]. Brett Kavanaugh----
Senator Harris. Mr. Chairman?
Chairman Grassley [continuing]. To serve as Associate
Justice on the Supreme Court of the United States.
Senator Harris. Mr. Chairman, I would like to be recognized
for a question before we proceed.
Senator Hatch. Regular order, Mr. Chairman.
Senator Harris. Mr. Chairman, I'd like to be recognized to
ask a question before we proceed. The Committee received just
last night, less than 15 hours ago, 42,000----
Senator Cornyn. Mr. Chairman, regular order.
Senator Harris [continuing]. Pages of documents that we
have not had an opportunity to review, or read, or analyze.
Chairman Grassley. You are out of order. I will proceed.
Senator Harris. We cannot possibly move forward, Mr.
Chairman, with this hearing----
Chairman Grassley. I extend a very warm welcome----
Senator Harris. We have not been given an opportunity----
Chairman Grassley [continuing]. To Judge Kavanaugh----
Senator Harris [continuing]. To have a meaningful hearing--
--
Chairman Grassley [continuing]. To his wife, Ashley----
Senator Harris [continuing]. On this nominee.
Chairman Grassley [continuing]. Their two daughters----
Senator Klobuchar. Mr. Chairman, I agree with my colleague,
Senator Harris.
Chairman Grassley [continuing]. And their family and
friends----
Senator Klobuchar. Mr. Chairman, we received 42,000
documents----
Chairman Grassley [continuing]. Judge Kavanaugh's many law
clerks----
Senator Klobuchar [continuing]. That we have not been able
to review last night.
Chairman Grassley [continuing]. And everyone else joining
us today.
Senator Klobuchar. And we believe this hearing should be
postponed.
Chairman Grassley. I know this is an exciting day for all
of you here----
Senator Blumenthal. Mr. Chairman.
Chairman Grassley [continuing]. And you are rightly proud
of Judge----
Senator Blumenthal. Mr. Chairman, if we cannot be
recognized, I move to adjourn.
Chairman Grassley. The American people----
Senator Blumenthal. Mr. Chairman, I move to adjourn.
[Disturbance in the hearing room.]
Chairman Grassley [continuing]. Will hear directly from
Judge Kavanaugh later this afternoon.
Senator Blumenthal. Mr. Chairman, I move to adjourn.
[Disturbance in the hearing room.]
Senator Blumenthal. Mr. Chairman, we have been denied--we
have been denied real access to the documents we need to advise
and consent----
Senator Cornyn. Mr. Chairman, regular order is called for.
Senator Blumenthal [continuing]. Which turns this hearing
into a charade and a mockery of our norms.
Chairman Grassley. Well----
Senator Blumenthal. And, Mr. Chairman, I, therefore, move
to adjourn this hearing.
Chairman Grassley. Okay.
[Disturbance in the hearing room.]
Senator Blumenthal. Mr. Chairman, I ask for a roll call
vote on my motion to adjourn.
Chairman Grassley. Okay.
Senator Blumenthal. Mr. Chairman, I move to adjourn. I ask
for a roll call vote.
Chairman Grassley. We are not in executive session. We will
continue as planned.
Senator Booker. Mr. Chairman, may I be recognized, sir? Mr.
Chairman, I appeal to the Chair to recognize myself or one of
my colleagues.
Chairman Grassley. You are out of order.
Senator Booker. Mr. Chairman, I appeal to be recognized on
your sense of decency and integrity. Even the documents you
have requested, Mr. Chairman, even the ones that you said, the
limited documents you have requested, this Committee has not
received. And the documents we have, you, sir, have----
Senator Cornyn. Mr. Chairman, I would ask for regular
order.
Senator Booker [continuing]. Should be transparent. This
Committee, sir, is a violation of even the values I have heard
you talk about time and time again, the ideals that we should
have. What is the rush? What are we trying to hide by not
having the documents out front? What is with the rush? What are
we hiding by not letting those documents come out?
Sir, this Committee is a violation of the values that we,
as the Committee, have striven for, transparency. We are
rushing through this process in a way that is unnecessary. And
I appeal for the motion to at least be voted on.
Senator Cornyn. Mr. Chairman----
Senator Booker. At least let us have a vote because when we
wrote you a letter on August 24th----
Chairman Grassley. Senator----
Senator Booker [continuing]. Asking to have a meeting on
this issue, you denied us even the right to meet, so here we
are having a meeting. Let us at least debate this issue. Let us
at least call this for a vote.
Chairman Grassley. Senator----
Senator Booker. I appeal to your sense of fairness and
decency, your commitments that you have made to transparency.
This violates what you have even said and called for, sir. You
have called for documents, you yourself, limited documents. We
thought there should be more. We have not received the
documents that you have even called for. So, sir, based upon
your own principles, your own values, I call for, at least, to
have a debate or a vote on these issues and not for us to rush
through this process.
[Disturbance in the hearing room.]
Senator Whitehouse. Mr. Chairman.
Senator Hirono. Mr. Chairman. Mr. Chairman.
Chairman Grassley. Senator----
Senator Hirono. I have heard calls for regular order.
Chairman Grassley. I would like to respond. I would like to
respond to Senator Booker. Senator Booker, I think that--I
respect very much a lot of things you do, but you spoke about
my decency and----
[Disturbance in the hearing room.]
Chairman Grassley. You spoke about my decency and
integrity, and I think you are taking advantage of my decency
and integrity, so.
[Disturbance in the hearing room.]
Chairman Grassley. Okay.
Senator Hirono. Mr. Chairman, I heard calls for regular
order. It is regular order for us to receive all the
documents--to receive all the documents that this Committee is
entitled to.
[Disturbance in the hearing room.]
Chairman Grassley. Okay.
Senator Hirono. Mr. Chairman, it is also----
Chairman Grassley. I think I----
Senator Hirono. Mr. Chairman, it is also not regular order
for the Majority to require----
Chairman Grassley. Senator Hirono----
Senator Hirono [continuing]. The Minority to pre-clear our
questions, our documents, and the videos we would like to use
at this hearing. That is unprecedented. That is not regular
order. Since when we do have to submit the questions and the
process that we wish to follow to question this nominee----
Chairman Grassley. Senator----
Senator Hirono. I would like to have clarification. I would
like your response on why you are requesting----
Chairman Grassley. Senator Hirono, I would ask that you----
Senator Hirono [continuing]. The Minority to submit our
questions----
Chairman Grassley. I ask that you stop so we can conduct
this hearing the way we have planned it. Maybe it is not going
exactly the way that the Minority would like to have it go, but
we have said for a long period of time that we were going to
proceed on this very day.
[Disturbance in the hearing room.]
Chairman Grassley. And I think we ought to give the
American people the opportunity to hear whether Judge Kavanaugh
should be on the Supreme Court or not. And you have heard my
side of the aisle call for regular order, and I think we ought
to proceed in regular order. There will be plenty of
opportunities to respond to the questions that the Minority is
legitimately raising.
Senator Hatch. Have her thrown out of here.
Chairman Grassley [continuing]. And we will--we will
proceed accordingly.
Senator Whitehouse. Mr. Chairman, under regular order, may
I ask a point of order, which is that we are now presented with
a situation in which somebody has decided that there a hundred
thousand documents protected by executive privilege, yet there
has not been assertion of executive privilege before the
Committee. How are we to determine whether executive privilege
has been properly asserted if this hearing goes by without the
Committee ever considering that question? Why is it not in
regular order for us to determine--before the hearing at which
the documents would be necessary--whether or not the assertion
of privilege that prevents us from getting those documents is
legitimate, or, indeed, is even an actual assertion of
executive privilege? I do not understand why that is not a
legitimate point of order at this point, because at the end of
this hearing it is too late to consider it.
Senator Leahy. Mr. Chairman, if I might add to this, on the
integrity of the documents we have received, there really is no
integrity. They have alterations. They have oddities.
Attachments are missing. Emails are cut off halfway through a
chain. Recipients' names are missing. They are of interest to
this Committee, but it is cut off. The National Archives has
not had a chance to get us all that we want even though you
said on your website, the National Archives would act as a
check against any political interference.
[Disturbance in the hearing room.]
Senator Leahy. But a check after the hearing is over is no
check. I think we ought to at least have the National Archives
finish it. And to have for the first time certainly in my 44
years here, to have somebody say there is a claim of executive
privilege when the President has not made such a claim just
puts everything under doubt. What are we trying to hide? Why
are we rushing?
Chairman Grassley. I can answer all the questions that have
been raised, but I think if I answer those questions, it is
going to fit into the effort of the Minority to continue to
obstruct, and I do not think that that is fair to our Judge. It
is not fair to our constitutional process. But let me--let me
respond to those now, and then maybe we can proceed.
My colleagues on the other side are accusing the
administration of using executive privilege to hide documents
from the Committee. I want to say why they are wrong. Unlike
President Obama's assertion of executive privilege during Fast
and Furious, as one example, this assertion is not legitimate.
Judge Kavanaugh was a senior lawyer in the White House. He
advised the President on judicial nominations, provided legal
advice on separation of powers issues, and handled litigation
matters.
[Disturbance in the hearing room.]
Chairman Grassley. As a--as the Supreme Court has put it,
``Unless the President can give his advisors some assurance of
confidentiality, a President could not expect to receive the
full and frank submissions of facts and opinions upon which the
effective discharge of his duties depends.'' The issues Judge
Kavanaugh worked on are exactly the sort of issues that
require, according to the Supreme Court, some assurance of
confidentiality.
We in the Senate and everyone else in America expects
exactly the same sort of confidentiality. Most Senators would
not agree to turn over their staffs' communication to anyone.
For example, we did not ask for Judge Kagan's records for her
service with then-Senator Biden to be turned over during her
nomination. And because of attorney-client privilege, everybody
has a right to keep communications from their lawyers out of
Government's hands. We, therefore, did not ask for Justice
Ginsburg's documents from her time with the ACLU. We did not
ask for Judge Sotomayor's confidential documents from her time
in private practice. It cannot be that the Senate and the ACLU
are entitled to more protection than the President of the
United States.
And then I will speak to the fact about the 42,000 pages.
Last night, we received additional documents for the
Committee's review. These were documents we requested before
the hearing, and we received them before the hearing just as we
requested. The Majority staff began reviewing the documents as
soon as they arrived and has already completed its review.
There is, thus, absolutely no reason--that is no reason to
delay the hearing.
We have received and read every page of Judge Kavanaugh's
extensive public record. This includes 12 years of his judicial
service on the most important Federal circuit court in the
country where he authored 307 opinions and joined hundreds
more, amounting to more than 10,000 pages of judicial writing.
We all--also received and read more than 17,000 pages of his
speeches, articles, teaching materials, other documents that
Judge Kavanaugh submitted with his questionnaire, the most
robust questionnaire this Committee has ever issued. And, of
course, we received and read more than 483,000 pages of
documents from Judge Kavanaugh's extensive executive branch
service. This is more pages than the last five Supreme Court
nominees combined.
In short, this Committee has more materials for Judge
Kavanaugh's nomination than we have had on any Supreme Court
nominee in history. Senators have had more than enough time and
materials to adequately assess Judge Kavanaugh's
qualifications, and so, that is why I proceed.
I know that this is an exciting day for all of you in the
family and all the people that are close to Judge Kavanaugh,
and you are rightly proud of the Judge. The American people get
to hear directly from Judge Kavanaugh later this afternoon.
After this confirmation hearing and process is finished, I
expect Judge Kavanaugh will become the next Associate Justice
of the Supreme Court. Welcome again, Judge. Before I begin, I
would want to give you, Judge, an opportunity to introduce your
family.
Judge Kavanaugh. Thank you, Mr. Chairman and Senator
Feinstein and----
Chairman Grassley. Push the red button if it is not on.
Yes, we are going to--yes.
Judge Kavanaugh. Thank you, Mr. Chairman, and Senator
Feinstein, and Members of the Committee. I am honored to be
here today with my family: my wife, Ashley, proud West Texan,
graduate of Abilene Cooper High School, now the town manager of
our local community where we live, our daughters, Margaret and
Liza. I thank the Committee for arranging a day off from school
today.
[Laughter.]
Judge Kavanaugh. My mom and dad, Martha and Ed Kavanaugh;
my aunt and uncle, Nancy and Mark Murphy; and my first cousins,
Rosie and Elizabeth Murphy. I am very honored to be here,
honored to have my family here. I am here because of them.
Thank you, Mr. Chairman.
Chairman Grassley. We are delighted to have your family
here. Before I make my opening remarks, I want to set out the
ground rules for the hearing. I want everyone to be able to
watch the hearing without obstruction. If people stand up and
block the view of those behind them or speak out of turn, it is
not fair or considerate to others. So, officers will
immediately remove those individuals, and I thank the officers
for doing the work that they have to do.
We will have 10-minute rounds of opening statements with
each Member. The Ranking Member and I may go a little over 10
minutes, but I am going to ask everyone else to limit your
remarks to those 10 minutes. I hope everyone will respect that.
We plan on taking a 15-minute break after Senator Cruz's
opening statement. After all the opening statements by Senators
are complete, we will take another 15-minute round break to
turn to our introducers, who will formally present the Judge.
After that, I will administer the oath to the Judge, and we
will close that portion of today's hearing with his testimony.
Tomorrow morning----
Senator Harris. Mr. Chairman? Mr. Chairman, when will we
review Senator Blumenthal's motion to adjourn?
Chairman Grassley. What is your motion?
Senator Blumenthal. I renew my motion to adjourn, Mr.
Chairman. I think we are entitled to a vote on it. The
responses that, Mr. Chairman, you have given, with all due
respect, really fly in the face of the norms of this Committee,
our traditions, and our rules.
Senator Coons. Mr. Chairman, if I might add an additional
point, I agree with my colleague. It is striking, given your
long history of encouraging the executive branch to treat
Minority requests equal with Majority requests, that you
discouraged the National Archives from responding to Ranking
Member Feinstein's request, which she tried to craft with you
to be identical to the request for records for Justice Kagan.
We should not proceed until we have the full documents that
allow us to review the Judge's records.
Senator Klobuchar. And, Mr. Chairman, last Friday we
learned that nearly 102,000 pages of documents from Judge
Kavanaugh's work in the White House Counsel's Office are being
withheld from the Committee and the public based on a claim of
constitutional privilege. Executive privilege has never been
invoked to block the release of Presidential records to the
Senate during a Supreme Court nomination. This includes when
Justice Kagan was nominated to the Supreme Court as well as
Justice Roberts.
Yesterday my colleagues and I sent a letter to the White
House Counsel asking that the President withdraw his claim of
privilege over these documents so that they can be made
available to this Committee and to the American people. We have
not yet received a response to that letter, so we should not be
proceeding until we have a response and these documents have
been available. It is 102,000 documents.
Senator Booker. And, Mr. Chairman----
Senator Blumenthal. My motion to adjourn, Mr. Chairman,
would raise this issue of executive privilege and whether it
has been properly asserted for reasons that have been outlined
well by my colleague, Senator Whitehouse. There is no valid
claim here of executive privilege. Even if there were one, it
has not been properly asserted. The question is, what is the
administration afraid of showing the American people? What is
it trying to hide?
Senator Booker. And, Mr. Chairman, using your own words in
the statement you just read, you said, I quote, ``We have had
more than enough time to review the documents.'' Sir, we just
got a document dump last night of over 40,000 pages. I would
venture to say not one Senator here has had time to read
through those 40,000 pages, and so, we are continuing to rush
through this process, a process that deserves to be
scrutinized. I support Senator Blumenthal's motion to adjourn,
and I hope that we can at least have a vote on that motion.
Senator Whitehouse. Mr. Chairman, I think you would be hard
pressed to find a court in the country that would not give a
party litigant a continuance when the party on the other side
did a 42,000-page document dump after close of business the
night before trial.
Senator Durbin. Mr. Chairman, we waited for more than a
year with a vacancy on the Supreme Court under the direction of
your Leader in the United States Senate, and the republic
survived. I think the treatment was shabby of Merrick Garland,
President Obama's nominee. The fact that we cannot take a few
days or weeks to have a complete review of Judge Kavanaugh's
record is unfair to the American people. It is inconsistent
with our responsibility under Article II, Section 2, of the
Constitution to advise and consent on Supreme Court nominees.
Chairman Grassley. Senator Cornyn, do you want to speak?
Senator Cornyn. Mr. Chairman, thank you. I will be very
brief. I would just say that Senator Whitehouse has suggested
that we handle this hearing like a court of law. But I would
suggest that if this were a court of law, that virtually side--
every Member on the dais on that side would held in contempt of
court because this whole process is supposed to be a civil one
where people get to ask questions and we get to get answers.
And that is the basis upon which we are to exercise our
constitutional responsibilities of advice and consent. So, I
would just suggest we get on with the hearing.
Chairman Grassley. If my colleagues----
Senator Booker. Mr. Chairman, if I could just respond. Mr.
Chairman, if I could just respond.
Senator Blumenthal. Mr. Chairman.
Senator Booker. If we could just respond to that----
Chairman Grassley. Sir, you can respond, but just a minute.
If people wonder why the Chair is so patient during this whole
process, I have found that it takes longer to argue why you
should not do anything than let people argue why they want it.
These things are going to be said throughout this hearing. We
are going to be in session Tuesday, Wednesday, Thursday,
Friday, Saturday, until we get done this week, so however long
people want to take. We are going to not necessarily
accommodate all obstruction, but if people have got something
to say, this Chairman is going to let them say it, but it gets
pretty boring to hear the same thing all the time. Senator
Booker, make it quick, please.
Senator Booker. I really appreciate the deference, Mr.
Chairman. The question was why would we want to delay this, and
this is not an attempt to delay. This is an attempt to be fully
equipped to do our constitutional duty, which everybody,
Republicans and Democrats, on this Committee take seriously. It
is very hard to perform our role of advice and consent when we
do not have a thorough vetting of the background of the
candidate in areas which he--the candidate himself has referred
to as the most formative part of his legal career, where he
himself has talked about how important this period of his life
is.
We are denied the full vetting. And, sir, this is not
something that Democrats are asking for. I remind you that you
yourself asked for a limited set of documents for when he was
in the White House Counsel's Office. You yourself set that
standard, and even on that limited standard, sir, we have not
received the documents. And then even the documents--we've
received 7 percent of them--almost half of those have been
labeled ``committee confidential.'' They cannot be put before
the American people, which further undermine and inhibit our
ability to ask questions to thoroughly vet this candidate and
advise and consent the President of the United States.
So, sir, just on the basic ideals of fairness, the
traditions of this body, we should have a thorough
understanding of the nominee that is put before us so that we
can vet them. To go into this hearing without those documents
is an undermining of the constitutional role to which we have
all sworn an oath to uphold.
Senator Blumenthal. Mr. Chairman, I have great respect for
my colleague from Texas----
Chairman Grassley. I would like to respond to Senator
Booker, and then Senator Feinstein has asked for the floor. I
would like to----
Senator Blumenthal. Mr. Chairman, I ask to respond to my
colleague from Texas.
Chairman Grassley. I would like to respond to Senator
Booker.
Senator Blumenthal. Mr. Chairman.
Chairman Grassley. Senator Booker, using a standard set by
two Members of your political party in the caucus, and I am
going to paraphrase because I do not have the exact quotes in
front of me, but recently Senator Schumer said from the floor,
the best judge of whether or not somebody should be on the
Supreme Court is decisions that they have made at lower courts.
Senator Leahy said something similar to that when Judge
Sotomayor was before us, that we know--we know how many--we
know what you have done in a lower court. That is the best
basis for knowing whether or not you ought to be on the Supreme
Court.
So, we have 307 cases that this nominee has written
decisions on, as a basis for that, and we have got 488,000
other pages, and maybe the Senators have not read them, but
their staff is fully informed because last night before 11 on
the 42,000 pages that have come to our attention, the staff on
the Republican side has gone through that.
Senator Booker. But, sir, then why did you ask for the
White House Counsel documents?
Chairman Grassley. Senator----
Senator Booker. If they were not germane to this hearing,
why would you even ask for them?
Chairman Grassley. Senator Feinstein.
Senator Whitehouse. For the record, that is a rate of 7,000
pages per hour. That is superhuman.
Senator Klobuchar. Yes.
Senator Leahy. They are amazing. They are amazing.
Senator Feinstein. Mr. Chairman.
Chairman Grassley. Yes, go ahead.
Senator Feinstein. If I may, I have been through nine
Supreme Court hearings, and----
Chairman Grassley. Is this your opening statement?
Senator Feinstein. It is part of it.
Chairman Grassley. Well, why do you not make your opening
statement?
Senator Feinstein. Shall I?
Chairman Grassley. Yes, would you please?
[Laughter.]
Senator Klobuchar. There is a motion pending.
Senator Blumenthal. Mr. Chairman, I asked for an
opportunity to respond to my colleague from Texas because he
has directly challenged us with----
Chairman Grassley. I said you are out of order.
Senator Blumenthal. Well, Mr. Chairman----
Chairman Grassley. Senator Feinstein.
Senator Blumenthal. I ask in the process of regular order
an opportunity to respond to what I believe was a personal
attack----
Senator Feinstein. Well, let me----
Chairman Grassley. I would like to have you give Senator
Feinstein the courtesy of listening to her opening statement.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Well, I was just going to say some
things, and you heard that this is my ninth hearing, and I
think we have got to look at this. These are very unique
circumstances. Not only is the country deeply divided
politically, we also find ourselves with a President who faces
his own serious problems. Over a dozen Cabinet members and
senior aides to President Trump have resigned, been fired, or
failed their confirmations under clouds of corruption, scandal,
and suspicion. The President's personal lawyer, campaign
manager, deputy campaign manager, and several campaign advisors
have been entangled by indictments, guilty pleas, and criminal
convictions. So, it is this backdrop that this nominee comes
into when what we are looking is, is he within the mainstream
of American legal opinion and will he do the right thing by the
Constitution.
We are also experiencing the vetting process that has cast
aside tradition in favor of speed. When Justice Scalia died,
Republicans refused to even meet--even a meeting in their
office--with President Obama's nominee, and held the seat open
for 1 year. Now with a Republican in the White House, they have
changed their position. The Majority rushed into this hearing
and is refusing to even look at the nominee's full record. In
fact, 93 percent of the records from Kavanaugh's tenure in the
White House as counsel and staff secretary have not been
provided to the Senate, and 96 percent have not been given to
the public.
We do know what the White House thinks of this nominee. Don
McGahn, the White House Counsel, spoke to the Federalist
Society and made clear Brett Kavanaugh is exactly the kind of
nominee the President wanted. In his speech, Mr. McGahn
discussed President Trump's two lists of potential Supreme
Court nominees. One he said was filled with mainstream
candidates. The other list included ``candidates that are kind
of too hot for primetime, the kind that really--would be really
hot in the Senate, probably people who have written a lot, we
really get a sense of their views, the kind of people that make
people nervous.'' That is a quote.
Now, what I am saying, this is the backdrop into which we
come into this situation, so, yes, there is frustration on this
side. We know what happened with the prior nominee, the last
one President Obama presented to us. He never even got a
meeting. He never got a hearing. He never got a vote. And now
the rush to judgment and the inability to really have a civil
and positive process ends up being the result. I really regret
this, but I think you have to understand the frustration on
this side of the aisle.
Everyone on this side of the aisle wants to do a good job.
They want time to be able to consider what the findings are,
and there are tens of thousands of pages of emails and other
items which could constitute findings on a whole host of major
subjects that this nominee may be faced with, and they are
serious. The torture issues, all of the Enron issues that he
has been through, all of the kinds of things that we want to
ask questions about.
So, I mean, understand where we are coming from. It is not
to create a disruption. It is not to make this a very bad
process. It is to say, Majority, give us the time to do our
work so that we can have a positive and comprehensive hearing
on the man who may well be the deciding vote for many of
America's futures.
Senator Blumenthal. Mr. Chairman, I renew my motion to
adjourn and Senator Harris' motion to postpone. I ask for a
second.
Senator Whitehouse. Second the motion.
Senator Blumenthal. Mr. Chairman, I ask for a vote. I ask
that we----
Chairman Grassley. I do not----
Senator Blumenthal [continuing]. Reconvene in executive
session.
Chairman Grassley. I should not have to explain to you we
are having a hearing. It is out of order. We are not in
executive session. That would be the proper forum for
entertaining motions, so----
Senator Blumenthal. I ask that we reconvene in executive
session.
Chairman Grassley. So, we will not--we will not vote on
Senator Blumenthal's suggestion. We will not follow your
suggestion to----
[Disturbance in the hearing room.]
Senator Blumenthal. Well, it is a motion, Mr. Chairman.
Chairman Grassley [continuing]. To go into executive
session. Motions will not be proper at this time.
[Disturbance in the hearing room.]
Senator Klobuchar. Mr. Chairman, it is a pending motion
before the Committee.
[Disturbance in the hearing room.]
Senator Blumenthal. Mr. Chairman, if there is no vote on
this motion which has been properly seconded and which could be
given a vote in executive session, this process will be tainted
and stained forever. I am asking as a Member of this
Committee--it is my right to do so--that we vote on my motion
to adjourn and Senator Harris' motion to postpone, and that we
do it in executive session which can be easily and quickly
convened right now.
Chairman Grassley. Yes, the motion is out of order.
Senator Booker. Sir, then I make a very clear and simple
motion to move into executive session so that Senator
Blumenthal's motion may be considered.
Chairman Grassley. The motion is out of order.
Senator Blumenthal. Well, they are not out of order, Mr.
Chairman. They are properly before this Committee. Simply
saying so, with all due respect, and I have great respect for
the Chairman, does not make them so. It does not make them out
of order just because the Chairman rules that they are out of
order. We have a number of excellent lawyers in this room, and
I ask that this body now do what its responsibility is to have
an executive session so we can vote on a motion to adjourn, and
then we can deliberately and thoughtfully consider the
documents that have been presented, and also review the
Committee documents that have been marked confidential without
any reason or rationale.
Chairman Grassley. The motion is denied.
Senator Booker. Sir, how long would that take, 10 minutes
for us to have a motion and a vote on this process? I do not
understand what the rush is that we cannot even let Senators
vote on what is a very important motion germane to our
constitutional duties before this--before this body before we
proceed. I do not understand. It will not take that much time.
What is the rush? What are we afraid of to hold a vote on the
motions before us?
Senator Kennedy. Mr. Chairman. Mr. Chairman.
Chairman Grassley. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. I have a question
about the process. I understand my colleagues' point, and I
understand they feel strongly about this, but what are going to
be the ground rules today? Are we going to be allowed to
interrupt each other, interrupt the witness? Are we going to--
should we seek recognition from the Chair? I just want to
understand the ground rules.
Chairman Grassley. Proper respect and decorum, plus how we
normally have done business in a hearing like this. We would
not be having all these motions. You are new to the Senate, so
this is something I have never gone through before in 15
Supreme Court nominations that I have been since I have been on
here. And every Member--I was interrupted before I got a chance
to say what--the agenda for today, but every Member is going to
get 10 minutes to make their remarks, and then we will go to
the introducers of Judge Kavanaugh. There will be three of
those. Then we will take the usual time of introducer, and then
we will have the swearing in of Judge Kavanaugh, and then we
will have his opening remarks, and then we will adjourn for
today.
We will reconvene at 9:30 on Wednesday and Thursday. Each
Member will have 30 minutes to ask questions or make all these
points they are making right now for the first round, then
there will be a second round of 20 minutes each. So, every
Member is going to get 50 minutes to ask all the questions or
make all the statements that they want to make in regard to
anything about this candidate or anything about how this
meeting is being conducted.
And then we will--we will go late into Wednesday night or
Thursday night until we get done with the questioning of Judge
Kavanaugh. And then on Thursday we are going to have three
panels of six each, evenly divided for people that think Judge
Kavanaugh should be on the Supreme Court and people that think
he should not be on the Supreme Court. And we hopefully get
that done Friday, but if we have to go Saturday and Sunday, we
will go Saturday and Sunday until we get it all done.
Senator Harris. Mr. Chairman, how can we possibly talk
about----
Chairman Grassley. Does that answer your question, Senator
Kennedy?
Senator Kennedy. Well, if I want to--yes, Mr. Chairman. I
appreciate it. If I want to say something, do I need to be
recognized by the Chair?
Chairman Grassley. That would be the way that it is
handled. I have tried to explain to you I want to be patient
because sometimes if you are not patient and you argue why
something should not be done, it takes longer than it does just
to listen to people. But I do not think we should have to
listen to the same thing three or four times.
Senator Kennedy. Well, patience is good, Mr. Chairman, but
I just want to understand the rules. If I want to be
recognized----
Chairman Grassley. Yes, you should be recognized----
Senator Kennedy [continuing]. I have----
Chairman Grassley. You can understand that I have been
patient and listened to people not be recognized and speak
anyway, because I would like to have this be a peaceful
session.
Senator Kennedy. Well, before I try your patience, I am
done.
Senator Hirono. Mr. Chairman, I have a question about
ground rules.
Chairman Grassley. Go ahead.
Senator Hirono. The question is, before we can proceed, I
would like to know whether the Majority is still requiring of
all of the Democratic Members of this Committee to pre-clear
the questions, documents, and videos that we would like to use
at this hearing?
Chairman Grassley. If the--I was hoping that on the subject
that you just brought up that we would have some clarification
of what you want, to approach that. And I am not prepared to
answer that question because I do no know what the answer has
been, and I do not want you to give me what you think the
answer has been of discussion between our staff on that
subject.
Senator Hirono. Mr. Chairman, I do not think it has ever
been the case in a hearing like this that the Members of this
Committee have to pre-clear what we propose to query the
nominee about. I think that is totally unprecedented.
Senator Klobuchar. And, Mr. Chairman, if we do not even
know what the rules are, how can we proceed with this hearing?
Chairman Grassley. I would like to respond--I would like to
respond to Senator Hirono. The reason why we are having that
discussion is, at least in my time on this Committee and for 15
nominations, we have never had a request for a video. So, it
seems to me to be courteous to all the Members of the
Committee, it would be nice to know the purpose and what it
might contain. You do not--any questions you want to ask, you
can ask questions. It is not about what questions you were
going to ask. It is about the presentation of something that
has never been part of a Supreme Court hearing in the past.
Senator Harris. Mr. Chairman----
Chairman Grassley. Who wanted----
Senator Durbin. Mr. Chairman.
Chairman Grassley. I think I will go back and forth.
Senator Tillis.
Senator Tillis. Mr. Chairman, I am confused because I heard
earlier that this was a reaction to the document releases last
night. But I am reviewing a tweet from NBC that said
``Democrats plotted coordinated protest strategy over the
holiday weekend. All agreed to disrupt and protest the hearing,
sources tell me, and subsequent Dem Leader, Chuck Schumer, led
a phone call and Committee Members are executing now.'' So, I
just want to be clear, none of the Members on this Committee
participated in that phone call or that strategy before the
documents were released yesterday? Is this a--are you
suggesting that this allegation is false?
Senator Harris. This is outrageous.
Senator Durbin. Mr. Chairman, may I respond?
Chairman Grassley. Senator Durbin.
Senator Durbin. Mr. Chairman, there was a phone conference
yesterday, and I can tell you at the time of the phone
conference, many issues were raised. One of the issues was the
fact that over a hundred thousand documents related to Judge
Kavanaugh had been characterized by the Chairman of the
Committee as ``committee confidential.'' I have been a Member
of this Committee for a number of years. Committee confidential
documents have been really limited to extraordinarily
circumstances, as an example, if someone is accused of taking
drugs during the course of an investigation.
I'm not making any suggestion that that is even the case or
close to it here. It was done in a confidential setting in
fairness to the nominee, and the same thing on DUIs and the
like. We used it in extremely rare circumstances where we would
meet after this Committee hearing and sit down, and it usually
related to a handful of pages or a handful of document
references. Instead what we have found now is that we are
seeing hundreds of thousands of documents characterized as
``committee confidential'' unilaterally. It is not done on a
bipartisan basis. It is being done by the Chairman.
So, one of the discussions yesterday was this whole
question of whether this Committee is going to hear a nominee
for a lifetime appointment to the highest court in the land
without access to basic information about his public record--
his public record as secretary to the President of the United
States, staff secretary. Thirty-five months of public service,
we have been told, cannot even be considered. The documents of
that service cannot even be considered.
So, I would say to the gentleman--the Senator from North
Carolina, there was a conversation yesterday about these
documents. I had no idea that at 11 o'clock last night 42,000
more documents would be put on top of us and we would be asked
to take them up today. So, it added insult to injury.
Senator Harris. Mr. Chairman----
Senator Blumenthal. Mr. Chairman----
Senator Harris [continuing]. We are in a hearing----
Senator Blumenthal. Mr. Chairman, I ask to be recognized
under Rule IV. Rule IV states, ``The Chairman shall entertain a
non-debatable motion to bring a matter before the Committee to
a vote. If there is objection to bring the matter to a vote
without further debate, a roll call vote of the Committee shall
be taken, and debate shall be terminated if the motion to bring
the matter to a vote without further debate passes with eleven
votes in the affirmative, one of which must be cast by the
minority.''
I ask for a vote on my motion to adjourn under Rule IV, Mr.
Chairman. These are rules that we are obligated to follow. The
Chairman has no right, with all due respect, to simply override
them by fiat.
Chairman Grassley. We are----
Senator Blumenthal. I ask for a second.
Senator Whitehouse. I second the motion.
Chairman Grassley. We are obligated by that rule in
executive session. We are not in executive session.
[Disturbance in the hearing room.]
Chairman Grassley. I would respond to the issues brought up
by Senator Durbin about confidential documents. I was
criticized for my decision to receive some documents on
``committee confidential,'' but I am doing exactly what I did
during Judge Gorsuch's confirmation and what Chairman Leahy did
during Justice Kagan's. This is another example of treating
regular Committee practices as somehow out of the ordinary.
Presidential records that we receive often contain highly
sensitive advice to the President as well as personal privacy
information, like full names, date of birth, Social Security
numbers and bank account numbers. Like my predecessor, I agreed
to receive some Presidential records as ``committee
confidential'' so that both Democrats and Republicans could
begin reviewing Judge Kavanaugh's materials much earlier. I do
not know why my Democratic colleagues object to receiving
documents faster, but not all of these Presidential documents
remain confidential. In fact, nearly two-thirds already became
public.
These records are posted on the Committee's public website
and are available to the American people. As a result, we have
provided unprecedented public access to a record number of
Presidential records, and do it--did it in record time. The
most sensitive Presidential records remain committee
confidential under Federal law, just as they were during the
nominations of Kagan or Gorsuch.
But we have expanded access to these documents also.
Instead of just providing access to Committee Members, we have
provided access to all 100 Senators. Instead of just providing
access to a very few Committee aides, we have provided access
to all Committee aides. And instead of just providing access to
physical binders of paper, we have provided 24/7 digital and
searchable access. This is unprecedented access to committee
confidential material.
I would also like to add that my staff set up workstations
and have been available 24/7 to help Senators who are not on--
--
[Disturbance in the hearing room.]
Chairman Grassley [continuing]. Confidential materials, but
not one--but not one Senator showed up. I guess Senators
complaining about lack of access to confidential documents were
not really interested in seeing them in the first place, but I
want to emphasize more documents are widely available than in
any prior Supreme Court nomination.
And then to the issue about hiding committee confidential
documents, some colleagues, and you have heard it this morning,
accused of hiding documents. They are suggesting that some of
the committee confidential documents contain information that
would be of great interest to the public. Well, just as I did
last year during Justice Gorsuch's confirmation, I put a
process in place that would allow my colleagues to obtain the
public release of confidential documents for use during the
hearing. All I asked was my colleagues to identify the
documents they intended to use, and I would work to get the
Department of Justice and former President Bush to agree to
waive restrictions on the documents. Senator Feinstein secured
the public release of 19 documents last year under this
process, and Senator Klobuchar secured the release of four
documents this year.
If my colleagues truly believed that other committee
confidential documents should have been made public, they never
told me about them and requested the ones that they wanted.
Instead of scaring the American people by suggesting that we
are hiding some incriminating documents, they should have made
a request that I work to get the ``committee confidential''
designation removed. This year I received no such request
except from Senator Klobuchar, which was honored and resulted
in the disclosure of documents that she wanted to use during
this hearing.
[Disturbance in the hearing room.]
Senator Leahy. Mr. Chairman, you stated what I did and you
stated it inaccurately. I think I have the right----
Chairman Grassley. I said I was paraphrasing. You can
correct me any way you want to.
Senator Leahy. It was one heck of a paraphrase when you----
Chairman Grassley. Give me the exact quote.
Senator Leahy [continuing]. When you speak about doing the
same thing as with Elena Kagan. I was Chairman when Elena Kagan
was here. We had 99 percent of her records from the White House
that were made public 12 days--12 days--before the hearing.
With Judge Kavanaugh, we have 7 percent, and only 4 percent are
public. You can talk about the numbers of pages. The fact is 99
percent for Elena Kagan 12 days before the hearing. It was all
available. For Judge Kavanaugh, it is 7 percent, and only 4
percent made public.
So, you know, if we are going to argue what was precedent,
I would--I would point out that I have been in the Senate for
19 Supreme Court nominations. What is being done here is
unprecedented, and I keep coming back to the same question I
asked. What are we trying to hide? What are we hiding? What is
being hidden? Why not have it open like all others? The only
other time we heard a President invoke executive privilege was
President Reagan during the Justice William Rehnquist hearing,
and Republicans and Democrats together went to him and said do
not do that. He said, okay, you are right, and he withdrew his
request of executive privilege and released the documents.
Senator Hirono. Mr. Chairman----
Senator Leahy. I am just sorry to see the Senate Judiciary
Committee descend this way. I have felt privileged to serve
here under Republican and Democratic leadership for over 40
years. This is not the Senate Judiciary Committee I saw when I
came to the U.S. Senate.
Senator Klobuchar. Mr. Chairman, since my name was invoked
by you, could I please respond?
Chairman Grassley. After I get done. I want to give the
exact quote that I was paraphrasing. Chairman Leahy said, ``We
have Judge Sotomayor's record from the Federal bench. That is a
public record that we had even before she was designated by the
President. Judge Sotomayor's mainstream record of judicial
restraint and modesty is the best indication of her judicial
philosophy. We do not have to imagine what kind of a judge she
will be because we see what kind of a judge she has been.'' And
so, that is why my answer to ``gold standard,'' of whether
Judge Kavanaugh ought to be on the Supreme Court, based upon
what Democrats themselves have said, is the best judge of
whether you should be on the Supreme Court.
Senator Klobuchar.
Senator Klobuchar. Thank you. Mr. Chairman----
Senator Leahy. Wait a minute. You mentioned what I said.
Let me just finish on that on Justice Sotomayor. I did say that
we should look at her cases just as we should on Judge
Kavanaugh's. But you neglect to mention--carefully neglect to
mention, and I think erroneously neglect to mention--that the
Republicans asked for board minutes from her work at a civil
rights group in the 1980s, long before she was ever even
considered as a judge. You asked for that, and we got it for
you. That's the difference.
Senator Klobuchar. Mr. Chairman.
[Voice off microphone.] Mr. Chairman.
Senator Klobuchar. Mr. Chairman, you called on me.
Chairman Grassley. Before Senator Klobuchar speaks, so we
have 488,000 pages of documents.
Go ahead, Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. A few
points here. Number one, Justice Sotomayor never worked in the
White House, so none of these issues of executive privilege or
other things that we have been discussing are relevant. Number
two, while I appreciate you granting my request, Mr. Chairman,
on these campaign finance documents, this is all they were.
This is it. This is how many pages.
Yet we have 148,000 documents that we cannot talk about
publicly, and I will say they are illuminating. It shows that
the nominee has a limited view of campaign finance reform. In
his own words, he says that his views on the First Amendment
are pure when it comes to this very important issue, and we can
talk about that more in the future. But I do have a question,
and that is, yes, I asked for these documents, but I have also
joined several letters led by Senator Feinstein asking that all
the documents that we have in the Committee be made public so
that we can ask questions.
And then finally, my initial point that I am so focused on,
the 102,000 pages of documents from Judge Kavanaugh's work in
the White House Counsel, I would like to know, Mr. Chairman, if
you have another example of a time when executive privilege was
invoked to block the release of Presidential records to the
Senate during a Supreme Court nomination. As far as my research
shows, this was not done for Justice Kagan or Justice Roberts,
and I would like to know if you have another example of that
during a Supreme Court nomination hearing.
Chairman Grassley. Yes, it was done for Justice Roberts and
it was the Solicitor General position he had.
Senator Klobuchar. When he was a Solicitor General, that is
correct, but during the time that they worked in the White
House, that is my question.
Senator Blumenthal. Mr. Chairman, I would like to bring to
the attention of the Chair----
Senator Cornyn. I believe I have the floor.
Chairman Grassley. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman, for recognizing
me. I have not been in as many confirmation hearings as some of
my colleagues, but this is the first confirmation hearing for a
Supreme Court Justice I have seen basically according to mob
rule. We have rules in the Senate. We have norms for decorum.
Everybody, as you pointed out, Mr. Chairman, is going to get a
chance to their say.
Chairman Grassley. Yes.
Senator Cornyn. You have given everybody a chance to ask
questions for up to 50 minutes. You have given them a chance to
make an opening statement. Any one of our colleagues can step
out here and talk to the press and make whatever comments they
want to the press and tell the world how they feel about this.
But the fact is it is hard to take it seriously when every
single one of our colleagues in the Senate Judiciary Committee
on the Democratic side have announced their opposition to this
nominee even before today's hearing. So, it is hard to take
seriously their claim that somehow they cannot do their job
because they have been denied access to attorney-client or
executive privilege documents when they have already made up
their mind before the hearing. There is nothing fair about
that.
And we were just asked for an opportunity for the American
people to be able to listen to this nominee answer the
questions that we have. And I think that is how we ought to
proceed, and I hope we will.
Senator Durbin. Mr. Chairman.
Senator Blumenthal. Mr. Chairman, can I be recognized to
respond specifically to that comment? There is precedent here.
There are rules that can guide us. We are asking for those
rules to be followed. In the past, our colleagues on the
Republican side have asked for a postponement of these
Committee proceedings on nominations when documents have been
denied on two occasions from Senator Sessions--then-Senator
Sessions, and Senator Kyl. Those requests were granted. We are
asking simply that that precedent be followed, Mr. Chairman.
Far from mob rule, far from contempt of the process, we are
simply asking for respect here to the normal, regular order.
Senator Durbin. Mr. Chairman.
Chairman Grassley. Yes, go ahead.
Senator Durbin. Mr. Chairman, I would like to address this
``committee confidential'' issue one more time because you have
explained your point of view. Here is what we know. The
Chairman, Chairman Grassley, who is my friend and I respect,
said his reason for unilaterally designating 147,000 pages of
Burck documents as ``committee confidential'' is because that
was the condition that Bill Burck imposed on the provision of
the documents. When Judge Kavanaugh was in my office meeting
with us, I asked him, ``Who is Bill Burck? By what authority
can he restrict the information given to the Senate Judiciary
Committee and to the American people? Is he a Government
employee?'' No one knew this mysterious Bill Burck who is
filtering these documents.
So, I figured since the nominee carries the Constitution in
his pocket, there must be some reference to Bill Burck in
Article II, Section 2, but it just says ``advice and consent of
the Senate.'' It does not include Mr. Burck. By what authority
is this man holding back hundreds of thousands of documents
from the American people? Who is he? Who is paying him? So,
``committee confidential'' is being determined by a man, a
private attorney, and we do not know who he works for, or to
whom he is accountable.
Mr. Chairman, in the past when we went into committee
confidential, it was in a discrete, specific area of concern
involving a handful of words or accusations that have made in a
document, and we were very careful to do it on a bipartisan
basis. That has not been the case here where 147,000 pages have
been designated by Bill Burck as outside the reach of the
American people in the Senate Judiciary Committee. That is a
further example of why this whole process has gone astray, and
I think your explanation ignores that.
[Voice off microphone.] Mr. Chairman.
Senator Kennedy. Mr. Chairman. Mr. Chairman.
Chairman Grassley. Who wants the floor?
Senator Kennedy. The new Senator.
[Laughter.]
Chairman Grassley. Go ahead.
Senator Kennedy. Thank you, Mr. Chairman. Mr. Chairman, can
you tell me again how many documents have been produced?
Chairman Grassley. Four hundred and eighty-eight thousand,
minus--or, I mean, other than 28,000 pages that Justice
Kavanaugh has submitted including his own judicial opinions.
Senator Kennedy. Number two, are we in executive session or
not?
Chairman Grassley. We are having a hearing on the
nomination of the--of a nominee for the Supreme Court.
Senator Kennedy. Yes, sir, I got----
Chairman Grassley. We are not in executive session.
Senator Kennedy. All right. Number three, at some point are
we going to get to hear from the nominee?
Chairman Grassley. Hopefully it was going to be before
2:30. It will probably be later this afternoon now.
Senator Kennedy. All right. Thank you, Mr. Chairman.
Chairman Grassley. Yes.
Senator Coons. Mr. Chairman?
Chairman Grassley. Can I ask my colleagues on the other
side of the aisle how long you want to go on with this because
I am not going to entertain any of the motions you are making.
We are not in executive session, and I think we ought to level
with the American people. Do you want this to go on all day
because I have been patient. I have been accused of having a
mob rule session. Now, if we have a mob rule session, it is
because the Chairman is not running the Committee properly, but
since every one of you on that side of the aisle, except
Senator Booker and Senator Harris, new to the Committee, said
during Justice Gorsuch's hearing, every one of you prefaced
your comments on how fair I was in running that hearing. Now,
this is the same Chuck Grassley that ran the Gorsuch hearing. I
would like to run this hearing the same way if you will give me
the courtesy of doing it.
Senator Coons. Thank you, Mr. Chairman.
Chairman Grassley. How long do you want to go on?
Senator Coons. Mr. Chairman, I would like to make one more
point before we proceed, if I might.
Chairman Grassley. Senator Coons.
Senator Coons. The accusation that this is a mob rule
hearing was made by your colleague from the State of Texas. I
think you have been conducting this in a respectful,
appropriate, and deliberate way. My concerns that I want to
renew given the exchange you just had with Senator Leahy, who
has participated in or presided over more Supreme Court
confirmations than any currently serving Member, I believe, was
over how the document request was handled for now-Justice
Kagan.
A request was sent to the National Archives. Ranking Member
Feinstein tried to work with you to send an identical request
to the National Archives. And before we proceed with the
questioning, Mr. Chairman, I simply would like to have a
settled heart about why you chose to communicate directly to
the Archives, and not to respond to the Ranking Member's
request.
Members of this Committee have raised issues about an
unprecedented Committee process by which documents were
blocked, by which they were considered classified, and by which
we have been blocked from being able to share them with the
American people or ask questions based on them. This is
unprecedented. That is why, as you put it, this side seeks to
raise issues to establish ground rules before we proceed.
Chairman Grassley. You asked an appropriate question. I
have an answer. I do not know whether it will satisfy you or
not. Those documents are the least useful in understanding his
legal views and the most sensitive to the executive branch, and
let me emphasize--the most sensitive to the executive branch.
The staff secretary serves as an inbox and outbox to the
Oval Office. And you are going to have opportunities to ask the
nominee himself what he did then, but I am giving you my
judgment about being a person that primarily was responsible
for managing the paper that crosses the President's desk. His
job--and if I am wrong, he can satisfy you otherwise in your
questions you want to ask him. But his job was to make sure the
President sees the advice of other advisers, not, as staff
secretary, providing his own advice.
One of President Clinton's staff secretaries, Todd Stern,
described the job this way. I quote, ``The staff secretary's
job is not to influence the President, but to ensure he gets a
balanced diet of viewpoints from all relevant people on the
staff. You are certainly not trying to put your thumb on the
scale between options.''
Reviewing Judge Kavanaugh's staff secretary documents would
teach us nothing about his legal views. For that, we have the
307 opinions that he wrote and the hundreds more joined,
totaling more than 10,000 pages of judicial writings. We also
have more than 17,000 pages of speeches, articles, teaching
materials, and other materials that Judge Kavanaugh attached to
his 120-page written response, which I think was--Judiciary's
questionnaire was probably the most robust questionnaire ever
submitted to a Supreme Court nominee.
We also have more than 480,000 pages of emails and other
documents from Judge Kavanaugh's service as an executive branch
lawyer. This is a half million pages of paper, more than the
last five confirmed Supreme Court nominees combined. In
addition to not shedding light on Kavanaugh's legal views, the
staff secretary documents are very sensitive to the executive
branch.
Let us emphasize that word ``sensitive.'' These documents
contain highly confidential advice, including national security
advice, that went directly to the President from his advisers.
It would threaten the candor of future advice to Presidents if
advisers knew their advice would be broadly disclosed.
Senators have more documents for Judge Kavanaugh than any
nominee in Senate history. Democratic leaders insistent on
getting staff documents I think was a way of not having this
hearing take place at this particular time.
So can I proceed, Members of the Democratic Caucus?
Senator Harris. Mr. Chairman, if I may be recognized for
one final point?
Chairman Grassley. After you are done, can I proceed to my
opening statement?
Senator Harris. I will defer to my colleagues. But I would
just, as a point of information, we sent a letter to you, Mr.
Chairman, 7 days ago regarding the ``committee confidential''
nature of the documents and asked if they would not be
designated ``committee confidential.'' As another point of
information, it is my understanding there are 6 million to 7
million pages of documents regarding this nominee, and it is my
understanding, with all due respect, Mr. Chairman, that you
have only requested 10 to 15 percent of the total.
I appreciate that there are a lot of pages of documents,
but we have to have this conversation in the context of the
total and the fact that we have only been given by your request
10 to 15 percent of those documents.
And my final point is this. This is a hearing about who
will sit on the highest court of our land. This is a hearing
that is about who will sit in a house that symbolizes our
system of justice in this country.
And some of the most important principles behind the
integrity of our system of justice is that we have due process
and we have transparency. That is why we have public
courtrooms. That is why we have requirements in courts of law
in our country that there will be transparency, that both
parties will be given all relevant information. We can argue
then as to the weight of the documents and the significance,
but not as to whether or not they are admissible.
So I object. I ask that we renew and revisit Senator
Blumenthal's motion to suspend or my motion to postpone this
hearing. Thank you.
Chairman Grassley. Okay. Thank you.
Senator Blumenthal. Mr. Chairman?
Chairman Grassley. I appreciate the courtesy of the
Democrats for me to proceed.
Senator Blumenthal. May I just have one last opportunity
regarding my motion?
Chairman Grassley. Please go ahead. Please, please go
ahead.
Senator Blumenthal. Thank you, Mr. Chairman. I appreciate
your giving me the floor.
I have made a motion that is properly before this
Committee. The Chairman said earlier that he has never been
through a confirmation process like this one. The reason is
that no administration in the past has engaged in this kind of
concealment. That is the reason, very simply.
It is not the Chairman's doing necessarily. It is this
administration that has concealed and hidden documents from us
and from the American people. And so I renew my motion that we
adjourn so that we can access the documents we need, review
them in a deliberate and thoughtful way. Much has been done for
colleagues in the past when they have requested it, and as is
required under Rule IV of our rules, there is no requirement
that we be in executive session to follow this rule, Mr.
Chairman.
And I respectfully ask that we follow our rules, that we
proceed in accordance with those norms, and I know the Chairman
has great respect for open government, for whistleblowers, for
sunlight as the best disinfectant. We need some sunlight in
this process.
Thank you, Mr. Chairman. And I again renew my motion to
adjourn, which has been seconded by Senator Whitehouse.
Chairman Grassley. Denied because we are not in executive
session.
I will proceed with my----
Senator Hirono. Mr. Chairman, before you proceed, I would
just like to make one correction. There is a misconception as
to what White House staff secretaries do. And, in fact, two
past staff secretaries, Todd Stern and John Podesta, wrote an
op-ed in the July 30, 2018, Washington Post titled, ``Staff
Secretaries Aren't Traffic Cops. Stop Treating Kavanaugh Like
He Was One.''
And, in fact, Judge Kavanaugh himself has acknowledged the
importance of the time that he was White House staff secretary.
So why, Mr. Chairman, you and the others on your side, keep
saying that this is kind of a nothing kind of a job? Nothing
could be further from the truth. And this is why we are so
adamant about requesting these documents that the Judge
himself, the nominee himself, has said were among the most
formative times of his adult life.
Thank you, Mr. Chairman.
Chairman Grassley. Of course, that is why we have this
hearing. Judge Kavanaugh----
Senator Hirono. We do not have the documents.
Chairman Grassley. Judge Kavanaugh will have an opportunity
to answer every question about his role in almost anything he
has done in his lifetime, I assume.
Senator Booker. Mr. Chairman? One--Mr. Chairman, may I be
recognized, sir?
Chairman Grassley. Yes. Will you be the last one, or do you
want to go on all afternoon?
Senator Booker. I cannot speak for my colleagues. But a lot
of people I have a lot of respect for on this Committee,
especially some of the new folks--I just want to answer in the
most plain-spoken way I can possibly do--who are expected to
evaluate a nominee who has a vast record, and if you look--and
a lot of numbers have been cited--10,000 here, 40,000 here,
100,000 here. But an entire body of his record, sir, we only
have 10 percent of his record that we have been able to
evaluate.
Ninety percent of it has been withheld from Senators, 90
percent of his records. So we are asking to evaluate a
candidate, to have intelligent questions and insights into his
record, but we only have 10 percent of that record.
We can go on and on about the numbers of documents--
100,000, 10,000--but the fact is we are about to proceed with a
historic hearing. We are about to proceed toward having a
hearing on someone having a lifetime appointment on the most
important court in the land that will effectuate so many of the
areas of American life, from civil rights to women's rights, to
access to healthcare. All of this stuff is being decided, and
we are going into this only having 10 percent, access to 10
percent of the body of work of this man's career.
That seems to me just common sense--90 percent is missing
right now. Just common sense says we should have access to
thoroughly evaluate this person. We are not asking for anything
out of the ordinary.
Other candidates have come before. People can talk about
tens of thousands here, hundreds of thousands here. But we have
gotten far more for every Supreme Court Justice that has been
mentioned here, far more than just 10 percent just to scan a
bit.
My colleagues talk about what our duty to the American
public is. Our duty to the American public is to evaluate a
candidate on their body of work, but we are not even getting
released that, and why? Because some political person, not a
person who holds public office, not because--I mean, it is
unprecedented to think that this Committee has ceded its role
to a partisan outside lawyer.
And so here we are about to go forward with just 10 percent
of this person's record to evaluate, to base our questions on,
to investigate. Ninety percent is being withheld. Just common
sense would say that that is not fair, that is not right. It
undermines our ability to do our job. It is just plain wrong.
[Disturbance in the hearing room.]
Chairman Grassley. One of the Senate's most solemn
constitutional duties is to provide advice and consent to the
President on the nomination of Supreme Court Justices. We are
here this week to hear from Brett Kavanaugh, to hear about his
exceptional qualifications, his record of dedication to the
rule of law, and his demonstrated independence and his
appreciation of the importance of the separation of powers.
Indeed, to protect individual liberty, the Framers designed
a Government of three co-equal branches, strictly separating
legislative, executive, and judicial powers. The Framers
intended for the judiciary to be immune from the political
pressures the other two face. That is so that judges would
decide cases according to the law and not according to popular
opinion.
Now, 230 years after ratification, our legal system is the
envy of the world. It provides our people stability,
predictability, protection of our rights, and equal access to
justice. But this is only possible when judges are committed to
the rule of law.
Our legal system's success is built on judges accepting
that their role is limited to deciding cases and controversies.
A good judge exercises humility and makes decisions according
to the specific facts of the case and, of course, according to
the law.
A good judge never----
[Disturbance in the hearing room.]
Chairman Grassley. A good judge never bases decisions on
his preferred policy preferences. A good judge also has
courage, recognizing that we have an independent judiciary to
restrain judges when that Government exceeds lawful authority.
President Andrew Jackson said, ``All the rights secured to
the citizens under the Constitution are worth nothing, and a
mere bubble, except guaranteed to them by an independent and
virtuous judiciary.''
Confirmation hearings for Supreme Court nominees are an
independent--are a very important opportunity to discuss the
appropriate role of judges. As I see it, and I expect many of
my colleagues will agree, the role of the judge is to apply the
law as written, even if the legal result is not one the judge
personally likes.
Justice Scalia has often been quoted because he was fond of
saying if a judge always likes the outcome of the cases he
decides, he is probably doing something wrong. I do not want
judges who always reach a liberal result or a conservative
result. I want a judge who rules the way the law requires.
Judges must leave the lawmaking to Congress, the elected
representatives of the people. Judges and Justices have
lifetime appointments. They cannot be voted out of office if
they legislate. Whereas if Congress legislates something that
people do not like, then you can vote them out of office. That
is why they are to interpret law and not make law.
Now some have a very different view of what a judge's role
should be. According to this view, judges should decide cases
based upon particular outcomes in order to advance their
politics. But the American people do not want their judges to
pick sides before they hear a case. They want a judge who rules
based upon what the law commands.
This is the reason why all Supreme Court nominees since
Ginsburg have declined to offer their personal opinions on the
correctness of precedent. Seeking assurances from a nominee on
how he will vote in certain cases or how he views certain
precedent undermines judicial independence and essentially asks
for a promise in exchange for a confirmation vote.
It is unfair and unethical. Indeed, what litigant could
expect a fair shake if the judge has already pre-judged the
case before the litigant even enters the courtroom?
I expect Judge Kavanaugh--in fact, it is my advice to him
to follow the example set by Justice Ginsburg, and all the
nominees that followed her, that a nominee should offer ``no
hints, no forecasts, no previews'' on how they will vote.
Justice Kagan, when asked about Roe v. Wade, said the
following, ``I do not believe it would be appropriate for me to
comment on the merits of Roe v. Wade other than to say that it
is settled law entitled to precedential weight. The application
of Roe to future cases, and even its continued validity, are
issues likely to come before the Court in the future.''
Senators were satisfied with these answers on precedent. So
Senators should be satisfied if Judge Kavanaugh answers
similarly.
This is my fifteenth Supreme Court confirmation hearing
since I joined the Committee in 1981. Thirty-one years ago,
during my fourth Supreme Court confirmation hearing, liberal
outside groups and their Senate allies engaged in an
unprecedented smear campaign against Judge Robert Bork.
As Mark Pulliam said, in an op-ed over the weekend, ``The
borking of Robert Bork taught special interest groups that they
could demonize judicial nominees based solely on their
worldview. Worse, character assassination proved an effective
tactic, nearly sinking Justice Clarence Thomas' appointment 4
years later.''
But he also said, continuing to quote, ``By confirming
Judge Kavanaugh, the Senate can go some way toward atoning for
its shameful treatment of Justice Robert Bork 31 years ago.''
Judge Kavanaugh is one of the most qualified nominees, if
not the most qualified nominee that I have seen. A graduate of
Yale Law School, clerking three Federal judges, including the
man he is nominated to replace. He spent all but 3 years of his
career in public service and has served as a judge for 12 years
on the D.C. Circuit, the most influential Federal circuit
court.
He has one of the most impressive records for a lower court
judge in the Supreme Court. In at least a dozen separate cases,
the Supreme Court adopted positions advanced by Judge
Kavanaugh.
The American Bar Association, whose assessment Democratic
leaders have called the ``gold standard'' of judicial
evaluations, rated Judge Kavanaugh unanimously ``well
qualified.''
A review of Judge Kavanaugh's extensive record demonstrates
a deep commitment to the rule of law. He has written eloquently
that both judges and Federal agencies are bound by the law
Congress enacts. And he has criticized those who substitute
their own judgment about what a statute should say for what the
statute actually says.
After the President nominated Judge Kavanaugh, I said this
would be the most thorough and transparent confirmation process
in history. I say that statement even regarding all the
discussion we have had this morning. It has proven to be, from
Judge Kavanaugh's authoring 307 opinions, joined hundreds more,
amounting to more than 10,000 pages. He submitted 17,000 pages
of speeches, articles, and other materials to the Committee,
along with his 120-page written response to the questionnaire
that the Committee set out.
These add up to 27,000 pages of Judge Kavanaugh's record
already available to the American people. And we received just
shy of half a million pages of emails and other documents from
Judge Kavanaugh's service as an executive branch lawyer, which
is more than we received for the last five Supreme Court
nominees. Every one of these more than 483,000 pages of
executive branch records are available to any Senator, 24/7.
I pushed for Federal officials to significantly expedite
the public disclosure process under Federal law, so that all
Americans have online access to more than 290,000 pages of
these records right now on our Committee website. In short, the
American people have unprecedented access and more materials to
review Judge Kavanaugh than ever have had for a Supreme Court
nominee. And to support the review of Judge Kavanaugh's
historic volume of material, I have worked to ensure that more
Senators have access to more material than ever.
Since so much of the rest of my statement has been
discussed this morning by what the Democrats have said, and I
have answered a lot of it, I am going to put the last seven
pages of my statement in the record.
[The prepared statement of Chairman Grassley appears as a
submission for the record.]
Chairman Grassley. And I am going to ask Senator Feinstein
if she has more to say on her opening statement. And if she
does not, I will go to Senator Hatch.
Senator Feinstein. Thank you. I do, Mr. Chairman. I will
probably truncate it even so.
But I think it is really important that people, as well as
the Judge, the nominee, understand how strongly we feel and why
we feel that way. I want to talk a little bit about one of the
big decisions that we have the belief that although you told
Senator Collins that you believed it was settled law, the
question is, really, do you believe that it is correct law? And
that is Roe v. Wade.
I was, in the '50s and '60s, active, but first, as a
student at Stanford. I saw what happened to young women who
became pregnant. And then subsequently, I sat, as an appointee
of Governor Brown's, on the term-setting and paroling authority
for women in California who had committed felonies. And so I
sentenced women who had committed abortions to State prison and
granted them paroles.
And so, came to see both sides: the terrible side, and the
human and vulnerable side. And when you look at the statistics
during those days, those statistics that the Guttmacher
Institute has put out, are really horrendous. For you, the
President that nominated you, has said, ``I will nominate
someone who is anti-choice and pro-gun.'' And we believe what
he said. We cannot find the documents that absolve from that
conclusion.
So what women have won through Roe and a host of privacy
cases--to be able to control their own reproductive system, to
have basic privacy rights--really extraordinarily important to
this side of the aisle and I hope the other side of the aisle
as well.
Last year, you drafted a dissent in Garza v. Hargan, and
that is a case where a young women in Texas, I believe, was
seeking an abortion. In that dissent, you argued that even
though the young woman had complied with the Texas parental
notification law and secured an approval from a judge, she
should nonetheless be barred.
In making your argument, you ignored and I believe
mischaracterized a Supreme Court precedent. You reasoned that
Jane Doe should not be unable to exercise her right to choose
because she did not have family and friends to make her
decision. The argument rewrites Supreme Court precedent and, if
adopted, we believe would require courts to determine whether a
young woman had a sufficient support network when making her
decision, even in cases where she has gone to court.
This reason, we believe--I believe--demonstrates that you
are willing to disregard precedent. And if that is the case
because just saying something is settled law, it really is, is
it correct law?
The impact of overturning Roe is much broader than a
woman's right to choose. It is about protecting the most
personal decisions we all make from Government intrusion. Roe
is one in a series of cases that upheld an individual's right
to decide who to marry. It is not the Government's right. Where
to send your children to school. The Government cannot get
involved. What kind of medical care you can receive at the end
of life, as well as whether and when to have a family.
And I deeply believe that all these cases serve as a
bulwark of privacy rights that protect all Americans from over-
involvement of the Government in their lives. And to me, that
is extraordinarily important.
Next, I would like to address the President's promise to
appoint a nominee blessed by the NRA. In reviewing your
judicial opinions and documents, it is pretty clear that your
views go well beyond simply being pro-gun, and I would like to
straighten that out.
It is my understanding that during a lecture at Notre Dame
Law School, you said you would be the ``first to acknowledge''
that most other lower court judges have disagreed with your
views on the Second Amendment. For example, in District of
Columbia v. Heller, you wrote that unless guns were regulated
either at the time of the Constitution was written or
traditionally throughout history, they cannot be regulated now.
In your own words, gun laws are unconstitutional unless they
are ``traditional or common in the United States.''
You concluded that banning assault weapons is
unconstitutional because they have not historically been
banned. And this logic means that even as weapons become more
advanced and more dangerous, they cannot be regulated. Judge
Easterbrook, as you know, a conservative judge from the Seventh
Circuit, concluded that that reasoning was absurd, and he
pointed out that a law's existence cannot be the source of its
own constitutional validity.
In fact, I am left with the fact that your reasoning is far
outside the mainstream of legal thought and that it surpasses
the views of Justice Scalia, who was clearly a pro-gun Justice.
Even Scalia understood that weapons that are like M-16 rifles
or weapons that are most useful in military service can, in
fact, be regulated. And there is no question that assault
weapons like the AR-15 were specifically designed to be like
the M-16.
The United States makes up 4 percent of the worldwide
population, but we own 42 percent of the world's guns. Since
2012, when 20 first graders and 6 school employees were killed
at Sandy Hook Elementary, there have been 273 school shootings.
This is an average of 5 shootings every month and a total of
462 children, teenagers, teachers, and staff shot, and 152
killed.
I care a lot about this. I authored assault weapons
legislation that became law for 10 years, and I have seen the
destruction. If the Supreme Court were to adopt your reasoning,
I fear the number of victims would continue to grow, and
citizens would be rendered powerless in enacting sensible gun
laws. So this is a big part of my very honest concern.
You are being nominated for a pivotal seat. It would likely
be the deciding vote on fundamental issues. So during your time
in the White House when you were staff secretary, some people
regard it as kind of a monitor, monitoring things going in and
going out. But I think it is much more. And you yourself have
said that that is the period of ``my greatest growth.''
And so we try to look at it, and the only way we can look
at it is to understand the documents. And it is very, very
difficult.
I do not want to take too much time, but we have heard a
lot of noise. Behind the noise is really a very sincere belief
that it is so important to keep in this country, which is
multi-ethnic, multi-religious, multi-economic, a Court that
really serves the people and serves this great democracy. And
that is my worry. That is my worry.
So I look forward to your statement and answering the
questions.
Thank you, Mr. Chairman.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Chairman Grassley. Senator Hatch for 10 minutes.
OPENING STATEMENT OF HON. ORRIN G. HATCH,
A U.S. SENATOR FROM THE STATE OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman.
I would first like to thank you for your tremendous work in
organizing this hearing. This has been the most thorough
Supreme Court confirmation process that I have ever
participated in. We have received more than twice as many
documents for Judge Kavanaugh as for any Supreme Court nominee
in history.
This is a big deal. We have tens of thousands of pages of
Judge Kavanaugh's opinions, speeches, and other writings. This
has been an exhaustive process, and I want to thank you for
your leadership on it.
Now to our witness, Judge Kavanaugh, it is good to see you.
I have known you for a long time. This is my fifteenth and
final Supreme Court confirmation hearing. I participated in the
confirmation of every current Justice on the Court. I have
participated in the confirmation of over half of all Federal
judges now serving in the Federal system or who have ever
served in the Federal system.
I know a good nominee when I see one, and you are a great
nominee. I do not think there is any question about it. I have
known you for a long time.
I remember when you first came before this Committee back
in 2004 for your first confirmation hearing. I was the Chairman
of this Committee at the time. I got to know you well. I was
impressed by your intellect, your legal ability, and your
integrity, all of which were very much notable. At only 39
years of age, you knew more about the law than most lawyers who
have practiced for a lifetime.
And you have been an outstanding judge. You have earned the
respect of your colleagues, and you have earned the respect of
the Supreme Court as well. As you know, the Supreme Court has
adopted the positions in your opinions no less than 13 times.
That is something nobody can really argue against. You have
authored landmark opinions on the separation of powers,
administrative law, and national security.
You served as a mentor to dozens of clerks and hundreds of
law students, male and female. And some of whom did not share
your philosophy. Your student reviews are off the charts
favorable, even by those who may not have completely agreed
with your philosophical approaches on some matters.
You volunteer in your community.
[Disturbance in the hearing room.]
Senator Hatch. Mr. Chairman, I ask for order.
Chairman Grassley. Just go ahead.
Senator Hatch. You volunteer in the community. You coach
youth basketball. You are the sort of person many of us would
like to have as a friend and a colleague. You also apparently
like to eat pasta with ketchup, but nobody is perfect.
Now this being politics and this being--this being a
Supreme Court confirmation hearing, my Democratic colleagues
actually----
[Disturbance in the hearing room.]
Senator Hatch. I have got to admit this is----
My Democratic colleagues can admit that you are actually a
good judge and a good person as well. They have to turn the
volume up to 11 and try to paint you as one of the four
horsemen of the apocalypse. Anyone who actually knows you knows
that is ridiculous, and the American people will see soon
enough that you are a smart, decent, normal person that just so
happens to have been nominated to the highest court in our
land.
So here are the facts. Judge Kavanaugh is one of the most
distinguished judges----
[Disturbance in the hearing room.]
Senator Hatch. Mr. Chairman, I think we ought to have this
loudmouth removed. I mean, we should not have to put up with
this kind of stuff. I hope she is not a law student.
Chairman Grassley. I--now that we have quiet, I would like
to explain that I advised 2 years ago that at my hearings I
expected the police to do their job, and I expected the
Committee to go on. But if you do not want to continue, we
will----
Senator Hatch. I am going to continue.
Chairman Grassley. Okay. Go ahead.
Senator Hatch. Okay. So here are the facts. Judge Kavanaugh
is one of the distinguished judges in the entire country. He
has served for over 12 years now on the U.S. Court of Appeals
for the D.C. Circuit. The D.C. Circuit is often referred to as
the second----
[Disturbance in the hearing room.]
Senator Hatch [continuing]. Second-highest court in the
land because it hears many critically important cases involving
agency action and the separation of powers. During his time on
the bench, Judge Kavanaugh has heard over 1,000 cases. He has
written more than 300 opinions. His opinions span nearly 5,000
pages in length.
What is remarkable about Judge Kavanaugh's judicial record
is not just its length, but its depth and its quality. Judge
Kavanaugh has been a true thought leader. He has written
powerful opinions on the separation of powers and
administrative law. He has shown that he brings a fair-minded
approach to questions of criminal law and employment law.
On almost every issue of consequence, Judge Kavanaugh has
made a significant contribution to our Nation's jurisprudence,
and he has won respect from both sides of the political
spectrum. The Committee has received letters from former
clerks, former colleagues, former students, and former
classmates, all attesting to Judge Kavanaugh's sterling
character and qualifications, some of whom are Democrats.
Eminent members of the Supreme Court bar and legal academia
have all written in strong support of Judge Kavanaugh's
nomination. The authors of these letters emphasize that they
have different political views and that they do not agree on
every subject. But to a person, they speak of Judge Kavanaugh's
integrity and judgment, and they enthusiastically endorse his
nomination.
I would like to highlight one letter in particular from 18
of Judge Kavanaugh's former women law clerks. That is all of
his former women clerks, all of them, who were not precluded by
their current or pending employment from signing the letter.
They write that ``Judge Kavanaugh has been one of the strongest
advocates in the Federal judiciary for women lawyers.'' They
detail the mentoring and encouragement Judge Kavanaugh has
given them in their careers, and they say that is it ``not an
exaggeration to say that we would not be the professors,
prosecutors, public officials, and appellate advocates we are
today without his enthusiastic encouragement and unwavering
support.''
It bears emphasis that these former clerks span the
political divide. A number went on to clerk for liberal
Justices. That itself shows you the high regard Judge Kavanaugh
has across the ideological spectrum. Republican- and
Democratic-appointed judges alike have hired his former clerks.
Judge Kavanaugh is no ideologue. He is no extremist. He is
a highly respected, thoughtful, fair-minded judge who is well
within the judicial mainstream. Look no further than the letter
the Committee received from over 40 members of the Supreme
Court bar supporting Judge Kavanaugh's nomination. Among the
signers are people like Lisa Blatt, Deanne Maynard, and
Kathleen Sullivan. These are nationally renowned attorneys who
practice frequently before the Supreme Court and the Federal
courts of appeals, and they are not conservatives.
To the contrary, they are among the most prominent liberal
attorneys at the bar today and in the country. But they know
Judge Kavanaugh. They know his work. They know his character.
And they know that he is an outstanding judge, and they know
that he will make an outstanding Justice.
If we could just get the politics out of this, I think we
could all agree that Judge Kavanaugh is an indisputably
qualified nominee with strong backing in the legal community
who is well within the judicial mainstream. Go ask anyone who
practices regularly before the Supreme Court who does not have
a partisan agenda, and they will tell you Judge Kavanaugh is
exactly the kind of person we should have on the Court or we
should want on the Court.
Indeed, no less than Bob Bennett, Bill Clinton's personal
lawyer during Clinton's Presidency, wrote to the Committee
urging support for Judge Kavanaugh's nomination. Here is what
he intended to say: ``As a Washington attorney, I can attest to
the high esteem in which the bar holds Judge Kavanaugh. Lawyers
love arguing before him for good reason because they know he
will approach every case with an open mind.'' Bennett
continues, ``Brett is the most qualified person any Republican
President could possibly have nominated.''
[Disturbance in the hearing room.]
Senator Hatch. ``Were the Senate to fail to confirm Brett,
it would not only mean passing up the opportunity to confirm a
great jurist but would also undermine civility in politics
twice over, just in playing politics with such an obviously
qualified candidate and then again in losing the opportunity to
put such a strong advocate for decency and civility on our
Nation's highest court.''
Again, this is President Clinton's personal lawyer during
Clinton's Presidency who litigated against Judge Kavanaugh.
Those who know Judge Kavanaugh hold him in highest regard. This
is true of both Republicans and Democrats.
Unfortunately, we have all these interest groups streaming
from the sidelines and putting pressure on my Democratic
colleagues to make this hearing about politics, to make it
about pretty much anything except Judge Kavanaugh and his
qualifications. We have folks who want to run for President,
who want their moment in the spotlight, who want that coveted
TV clip. Frankly, I wish we could drop all of the nonsense.
Judge Kavanaugh is unquestionably qualified. He is one of
the most widely respected judges in the country. He is well
within the judicial mainstream. Anyone who wants to argue
otherwise wants to banish half the country from the mainstream.
So, Judge, I am glad you are here today. I am sorry you are
going to have to go through some of this nonsense that is about
to come your way, but I hope you do it well. You are smart. You
are smart, and you are a fundamentally decent, good person.
[Disturbance in the hearing room.]
Senator Hatch. Anyone who actually knows you knows that to
be true. Now, Mr. Chairman, I do not know that the Committee
should have to put up with this type of insolence that is going
on in this room today. And frankly, these people are so out of
line they should not even be allowed in the doggone room.
Now, Judge Kavanaugh, I am proud of you. I know how good
you are. I know you deserve this position. I am proud of the
President for nominating you, and frankly, I wish you the best
because we are going to confirm you.
Chairman Grassley. Out of courtesy to Ranking Member
Feinstein, she wants to introduce people who are in the
audience, and so she can take what time she wants right now.
Senator Feinstein. Thank you. I will be very fast.
I would like to recognize Marc Morial, the president of the
National Urban League; Melanie Campbell, the president and CEO
of the National Coalition on Black Civic Participation;
Reverend Al Sharpton, the president of National Action Network;
Vanita Gupta, president and CEO, Leadership Conference of Civil
and Human Rights; Derrick Johnson, president and CEO, NAACP;
Sherrilyn Ifill, president, NAACP Legal Defense Fund; Kristen
Clarke, president and executive director, Lawyers' Committee
for Civil Rights; and Fatima Goss Graves, president and CEO,
National Women's Law Center.
I would also like to recognize Fred Guttenberg, the father
of Jaime, one of 17 killed in the Parkland shooting; Kelly
Gregory, former Airman First Class, single mother, business
owner, living with stage IV metastatic breast cancer; Sarah
McBride, an advocate for LGBT rights and protections for
patients; Tia Nelis, who works on behalf of people with
disabilities; Angel Young, an enrolled member of the Standing
Rock Lakota and a veteran; Kim Jorgensen Gane, who advocates
for a woman's right to choose; Bobby Jenkins, a longtime
resident of Randolph County, Georgia, and a voting rights
advocate; Kerry Chen, who has been fighting for marriage
benefits for same-sex couples; and Carlotta LaNier, a member of
Little Rock Nine.
Thank you for this courtesy. I really appreciate it.
Chairman Grassley. Thank you.
Senator Leahy.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. And I was perfectly
happy to yield to Senator Feinstein for that.
Mr. Chairman, the last few minutes we have heard a lot of
rhetoric. I think it might serve the Committee well to have
some reality. I have served in the Senate for 44 years. During
that span, I have been able to vote on 19 nominations to the
Supreme Court.
I mention this because I have a sense of history. Now I
have never seen in that 44 years so much at stake with a single
seat, but I have also never seen such a dangerous rush to fill
it. President Trump promised he would only nominate judges to
the Supreme Court who would overturn Roe v. Wade, judges who
would dismantle the Affordable Care Act, judges who would
reshape our judiciary.
Now if that is not judicial activism, I do not know what
is. And Judge Kavanaugh, with your nomination, the President
has made it very clear that he is following through on his
promises, and many of us feel he is.
It seems that you may have intrigued him for another
reason, your expansive view of Executive power and Executive
immunity. You have taken the unorthodox position that
Presidents should not be burdened with a criminal or civil
investigation while in office. This is for now we have a
President who has declared in the last 24 hours that the
Department of Justice should not prosecute Republicans.
It is ``Alice in Wonderland,'' and I find it difficult to
imagine that your views on this subject escaped the attention
of President Trump, who seems increasingly fixated on his own
ballooning legal jeopardy. When questioning you about these
concerns, we will certainly look to your record on the bench.
All of us, Republicans and Democrats, agree that we should.
Indeed, your 12 years on the D.C. Circuit Court of Appeals
will loom large during these hearings. But the unknown looms
even larger. Before sitting on the bench, you were a political
operative involved in the most political and partisan
controversies of our time.
During this time, you shared your personal view on
contentious issues without regard to restrictions imposed by
precedent or stare decisis. And it is precisely those views
that are being hidden from us today. The Judiciary Committee's
Supreme Court hearings are meant to be an unsparing examination
of a nominee to a lifetime appointment to our highest court.
They are intended to give the American people--all, all,
all the American people a genuine opportunity to scrutinize the
nominee's judicial philosophy, beliefs, and character because
if confirmed with a stroke of a pen, a nominee may impact their
lives for a generation or more. And how far we have fallen.
Judge Kavanaugh, there are so many things wrong with this
Committee's vetting of your record that it is hard to know
where to begin.
I have been on this Committee under both Republican and
Democratic leadership. I never thought the Committee would sink
to this. In fact, you should not be sitting in front of us
today. You should be sitting in front of us only after we have
completed a review of your record. Your vetting is less than 10
percent complete.
In critical ways, our Committee is abandoning its tradition
of exhaustively vetting Supreme Court nominees. First,
inexplicably, my Republican friends refused to request records
from your 3 years as White House staff secretary, even though
you describe those as the most formative for you as a judge,
when you provided advice on any issue that may cross the
President's desk.
Now we know those issues include abortion, same-sex
marriage, and torture. And torture. But 6 weeks ago, Senate
Republicans huddled in a private meeting with the White House
Counsel who is here today, and hours later, the American people
were told those records would be off limits.
And second, in a stark departure from Committee precedent,
certainly the Committee precedent I have seen for 44 years,
Chairman Grassley sent a partisan records request to the
National Archives. Not only did it omit all 1 million records
from your 3 years as staff secretary, it did not even request a
privileged log.
That means this Committee is in the dark as to what
specific documents are being withheld and why. We do not even
know what is being hidden. Such a move is simply incompatible
with transparency.
And third, the Archives told us it could not even produce
this partial records request until the end of October. That is
the nonpartisan Archives. Surely, I would----
[Disturbance in the hearing room.]
Senator Leahy. Mr. Chairman, I do not intend at any point
to continue what I have to say with such interruptions. I do
not care whose side they are on.
Now the Archives have said they could not produce this
partial records request until the end of October. Surely I
would think that the United States Senate could wait until
then, even if it means a Supreme Court with eight Justices for
a short time.
After all, Senate Republicans established a tradition of
having just eight Justices. They did that with their treatment
of Chief Judge Merrick Garland that showed they were willing to
have patience with filling Supreme Court vacancies when the
first time ever they refused to have a vote on a Supreme Court
nominee either up or down during a Presidential election year.
And I have been here when they have had in the past such votes.
But Republicans instead cast aside the Archives. They
swapped the nonpartisan review process used for every nominee
since Watergate for a partisan one. And I think you only have
to look at Watergate to see why we have that nonpartisan
process. It is followed by every nomination since Watergate
until today, and my question still recurs. What is being hidden
and why?
Every White House record that we have received was
handpicked by your deputy in the Bush White House, a hyper-
conflicted lawyer who also represents a half dozen Trump
administration officials who are under investigation by
prosecutors in the Russia investigation. And this partisan
lawyer decided which of your records the Senate, but more
importantly, the American people, the American people get to
see.
Fourth, countless documents that have been provided to the
Committee contain apparent alterations and omissions with zero
explanation. No court in this country, certainly no court that
I ever argued cases before would accept this as a legitimate
document production, and the United States Senate should not
either.
And fifth, more than 40 percent of the documents we have
received, almost 190,000 pages, are considered ``committee
confidential'' by Chairman Grassley. For the vast majority of
them, there is not even a conceivable argument to restrict
them.
Compare this to the mere 860 documents that were designated
``committee confidential'' for Justice Kagan. In that, the
request was made by the nonpartisan Archives, not by this
Committee, and we still had 99 percent of her records.
And six, on Friday, we learned that President Trump is
claiming executive privilege over an additional 102,000 pages
of your records. Such a blanket assertion of executive
privilege is simply unheard of in the history of this country,
and the reason it is unheard of is because it is so outrageous.
The last time a President attempted to hide a Supreme Court
nominee's record by invoking executive privilege was when
President Reagan did this for Justice William Rehnquist. But
then Republicans and Democrats came together. We demanded the
documents be released, and President Reagan said okay, and they
were released. Boy, how times have changed.
And seven, to date, we have received less than half of
Chairman Grassley's partial records request, meaning we are
moving forward even though we have received a fraction of the
records even Republicans claim they needed to vet your
nomination just a few weeks ago. And then we received an
additional 42,000 pages from your record a few hours ago. The
notion that anyone here has properly reviewed them or even seen
them at all is laughable. It is laughable. It does not pass the
giggle test.
That alone would be reason to postpone during normal times,
but nothing about this is normal. All told, only 4 percent, 4
percent of your White House record has been shared with the
public. Only 7 percent has been made available to this
Committee. The rest remains hidden from scrutiny.
Compare this to the 99 percent of Justice Kagan's White
House record that was available to all Americans as a result of
the bipartisan process I ran with then-Ranking Member Jeff
Sessions. When Senator Sessions and I requested it, we got 99
percent. What is being hidden and why?
And if I have not been clear, I will be so now. Today, the
Senate is not simply phoning in our vetting obligation, we are
discarding it. It is not only shameful. It is a sham.
I felt, on the day when I took my oath of office the first
time 44 years ago, I was told by both the Republican and
Democratic leadership of the Senate, people I highly respected,
that the Senate should be and can be the conscience of the
Nation. I represented Vermont here for 44 years. I served with
pride here, believing that the Senate can be and should be the
conscience of the Nation.
Today, with this hearing, it is not being the conscience of
the Nation. And from the bits and pieces of your record that we
have received, it appears you have provided misleading
testimony about your involvement in controversial issues at the
Bush White House during your previous confirmation hearing,
misleading testimony. I asked you about these concerns last
month, and I want to alert you that I will return to those
concerns when you are under oath and I am asking you questions.
What I fear is the American people will not know the full
truth until your full record is public. And unfortunately,
Republicans have done their best to ensure that will not
happen. So we begin these hearings with gaping holes spanning
multiple years of your career that deeply influenced, by your
own words, your thinking as a judge.
And any claim that this has been a thorough and transparent
process is downright Orwellian. This is the most incomplete,
most partisan, least transparent vetting for any Supreme Court
nominee I have ever seen, and I have seen more of those than
any person serving in the Senate today.
So, Judge Kavanaugh, this hearing is premature. I hope you
will use it, though, to answer our questions directly, clearly,
and honestly because the American people have real concerns
about how your confirmation would affect their lives.
Now I will conclude with this. The Supreme Court is a
guarantor of our liberties and our republic. Few, I would
argue, are worthy of taking a seat. Only those with
unimpeachable integrity. Only those who believe that truth is
more important than party. Only those who are committed to
upholding the rights of all Americans, not just those in power.
As you know, inscribed in Vermont marble above the Court's
entrance are the words, ``Equal justice under law.'' For the
millions of Americans fearful that they are on the verge of
losing hard-fought rights, that aspiration has never been more
important than it is today. Frankly, as a member of the Supreme
Court bar and as a United States Senator, I feel it has never
been more at risk.
Thank you.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Grassley. Chairman Grassley. Before I call on
Senator Cornyn, how ridiculous it is to say that we do not have
the records that it takes to determine this person qualified to
be on the Supreme Court when all the documents we have add up
to more than we have had for the last five Supreme Court
nominees. How did we make those decisions for those other five?
Senator Booker. Mr. Chairman?
Chairman Grassley. Senator Cornyn.
Senator Booker. Mr. Chairman, if I could just respond to
that point, because you are not giving the whole picture, sir.
Ninety percent of the documents we have not seen. It is not the
number of documents.
Chairman Grassley. And I will be glad to respond to that,
but I----
Senator Booker. We would not hire an intern, sir, without
90 percent of their resume.
Chairman Grassley. Senator----
Senator Booker. We are putting somebody on the Supreme
Court.
Chairman Grassley. Senator Cornyn. Senator Cornyn.
OPENING STATEMENT OF HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman.
Judge Kavanaugh, welcome to you and your family and
friends. I am amazed at the poker faces I have seen on the
front row during all of this pandemonium, unlike anything I
have seen before in a confirmation hearing.
In my view, it is not because your opponents do not know
enough about you. It is because they do know all they need to
know, apparently, to oppose your nomination. And even before
you have had a chance to answer our questions, including their
questions, many of them have made up their minds. But the
American people have not been introduced to you before. This is
an opportunity for all of us to engage in a question-and-answer
format that will hopefully illuminate why it is so important to
have judges who actually are tethered to the text of the laws
passed by Congress, signed by the President, as well as the
Constitution of the United States.
The Senate Judiciary Committee undertakes few more
important tasks than the one before us today. Last year, the
Committee considered and advanced the nomination of Justice
Neil Gorsuch, who was just one of many outstanding judicial
nominees by President Trump. This Congress has proudly
confirmed not just Judge Gorsuch but 26 judges to the appellate
courts across the Nation. This includes three outstanding
Texans to the Fifth Circuit Court of Appeals.
Historically, the confirmation of judges to our highest
courts was somewhat routine. Routine. Justice Gorsuch was
unanimously confirmed by a simple voice vote to the Court of
Appeals. Not one Senator voted against Justice Kennedy who both
you and Justice Gorsuch clerked for and who you will succeed on
the Court. Not one Senator voted against Justice Scalia's
confirmation, who you have called a ``role model'' and a
``hero.''
But that was before judges were viewed as policymakers
rather than fair and neutral interpreters of the Constitution
and the laws drafted by Congress. Today, as I suggested, is a
wonderful opportunity to re-examine the proper role for judges
under our Constitution and the difference between legislators
and judges.
As Justice Gorsuch wrote before he joined the Supreme
Court: ``Upholding and enforcing this distinction between
legislators and judges was the great project of the late
Justice Scalia's career. Justice Scalia would always remind us
that legislators may appeal to their own moral convictions and
to claims about social utility. But judges instead should
strive to apply the law as it is, looking to the text,
structure, and history, not to decide cases based on their own
moral convictions or the policy consequences.''
[Disturbance in the hearing room.]
Senator Cornyn. So this hearing is an outstanding way to
remind the American people the proper role of judges under our
Constitution. Our Constitution provides for a Federal
Government of limited and delegated powers with a Bill of
Rights to further protect our individual liberties.
To that end, the Framers----
[Disturbance in the hearing room.]
Senator Cornyn [continuing]. Created three coequal
branches, as you know: the legislature to enact laws, the
executive to enforce them, and the judicial branch to settle
disputes about the meaning of those laws and the Constitution.
[Disturbance in the hearing room.]
Senator Cornyn. Of course, the legislature could change the
laws, but only an amendment can change the Constitution. For
this reason, Alexander Hamilton wrote in the Federalist
Papers----
[Disturbance in the hearing room.]
Senator Cornyn. Mr. Chairman, could I pause there until the
room is cleared?
Chairman Grassley. Yes.
Senator Cornyn. Thank you.
For this reason, Alexander Hamilton wrote in the Federalist
Papers that the judiciary will always be the least dangerous
branch because, as he famously wrote, ``judges would have
neither force nor will but merely judgment.''
Today the Judiciary Committee is gathered to consider
whether Judge Kavanaugh will honor that limited role for judges
under our Constitution and whether he will properly exercise
the modest and humble power of judgment entrusted to him under
our Constitution.
I am confident that the Senate will find that Judge
Kavanaugh will faithfully and fairly interpret the Constitution
and the laws of this great Nation, and I look forward to him
succeeding Justice Kennedy. One reason for that is because I
have been acquainted with Judge Kavanaugh for about 18 years
and I can personally attest to his skills as a lawyer.
[Disturbance in the hearing room.]
Senator Cornyn. When I was Attorney General of Texas, as
the Judge will recall, he helped me get ready for a Supreme
Court argument.
[Disturbance in the hearing room.]
Senator Cornyn. May I proceed, Mr. Chairman?
Chairman Grassley. Yes.
Senator Cornyn. As I was saying----
[Disturbance in the hearing room.]
Senator Cornyn [continuing]. When I was Attorney General of
Texas, I had a chance to argue a couple of cases in front of
the United States Supreme Court. One case Judge Kavanaugh
helped me prepare for was one involving the question of school
prayer at a high school football game at the Santa Fe
Independent School District High School.
After that, I was pleased to introduce Judge Kavanaugh to
the Judiciary Committee when President Bush first nominated him
to be a judge on the D.C. Circuit. What I said back then still
stands the test of time today. Judge Kavanaugh has an
unparalleled academic and professional record of service. Many
will cite his education, his clerkships, his time arguing cases
before the court, his experience working for the executive
branch. But I think one of the most important factors to me is
he has already exercised excellent judgment in marrying a
Texan, Ashley, from Abilene. So I know he is a good judge. In
fact, Judge Kavanaugh is one of the most respected and
thoughtful judges in the country.
I am disappointed that, despite his exemplary
qualifications and outstanding record, so many of our
colleagues across the aisle have announced their opposition
even before he was nominated.
[Disturbance in the hearing room.]
Senator Cornyn. The level of disingenuousness and hyperbole
even by today's standards is extraordinary. Members from the
other side of the aisle, including some who serve on this
Committee, have claimed that confirming Judge Kavanaugh would
somehow be complicit in evil and result in the destruction of
the Constitution. Some have even claimed that you testified
falsely--we have already heard that alluded to--before the
Committee when you were serving our country in the Bush White
House.
[Disturbance in the hearing room.]
Senator Cornyn. I hope you will have a chance to explain
the apparent misunderstanding on the part of some Senators. And
I sincerely hope this week we can all take a deep breath--we
are not doing very well so far----
[Laughter.]
Senator Cornyn [continuing]. And get a grip and treat this
process with the respect and gravity it demands.
As others have alluded, the American Bar Association, which
some have called the ``gold standard'' for judicial
evaluations, have unanimously rated you as ``well qualified''
for service on the Supreme Court. And as we have heard, a
number of lawyers and judges across the spectrum have talked
about your qualifications and sung your praises. And I am
confident at the end of this hearing your stellar credentials
and your body of work as a judge will demonstrate that you
properly understand the role of a judge under the Constitution,
and I am confident you will demonstrate that you will
faithfully and fairly interpret the text of the law and the
Constitution and dutifully apply them to the disputes that come
before you.
Finally, Judge, I expect we will have a conversation or two
about this book which you contributed to and the law of
judicial precedent because I know that there is a number of
questions by Members of the Senate about how you will regard
previously decided cases in the Supreme Court. And I trust you
will give us a scholarly and detailed explanation of that and
demonstrate that many of the concerns that have been expressed
about a new Justice coming on the Court somehow wiping away
previous decisions singlehandedly, not even with the help of
other members of the Court, is just plain ridiculous. And we
look forward to asking those questions and getting your
answers.
Thank you very much.
Chairman Grassley. Senator Durbin.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thank you, Mr. Chairman.
Judge Kavanaugh, it is good to see you again. I thank the
members of your family who are weathering this hearing. Thank
you very much for being here today.
This is a different hearing for the Supreme Court than I
have ever been through. It is different in what has happened in
this room just this morning. What we have heard is the noise of
democracy. This is what happens in a free country when people
can stand up and speak and not be jailed, imprisoned, tortured,
or killed because of it. It is not mob rule.
There have been times when it is uncomfortable, and I am
sure it was for your children. I hope you can explain this to
them at some point. But it does represent what we are about in
this democracy.
Why is this happening for the first time in the history of
this Committee? I think we need to be honest about why it is
happening. I think it is the same reason why when I go home to
Illinois, after being in this public service job for over 30
years, I hear a question that I have never, ever heard before,
repeatedly, as people pull me off to the side and say,
``Senator, are we going to be all right? Is America going to be
all right? '' They are genuinely concerned about the future of
this country.
You come to this moment of history in a rare situation. You
are aspiring to be the most decisive vote on the Supreme Court
on critical issues. Justice Kennedy did that for 12 years, and
you are called to that responsibility, and we realize the
gravity of that opportunity and that responsibility.
Second, of course, your record and the statements of others
suggest there is real genuine concern about changing life-and-
death values in this country because you see things
differently. We have heard that over and over again, and I
think you must understand the depth of feeling about that
possibility.
And, third, try as they might, I am afraid the Majority
just cannot get beyond the fact that there are parts of your
public life that they want to conceal. They do not want America
to see them. I think that is a serious mistake, and I am going
to make a suggestion at the end of my remarks.
But over and above all of those things is this: You are the
nominee of President Donald John Trump. This is a President who
has shown us consistently that he is contemptuous of the rule
of law. He has said and done things as President which we have
never seen before in our history. He has dismissed the head of
the Federal Bureau of Investigation when he would not bend to
his will. He harasses and threatens his own Attorney General on
almost a daily basis in the exercise of his office. And I did
not vote for Jeff Sessions, but I have to tell you, there
should be some respect at least for the office that he serves
in. And it is that President who has decided you are his man;
you are the person he wants on the Supreme Court; you are his
personal choice.
So, are people nervous about this? Are they concerned about
it? Of course, they are. I am sure there will be a shower of
Tweets sometime later in the day harassing people in the
Cabinet, people in the White House, maybe even dismissing them.
And maybe he will go after me again. Be my guest.
But the point I am getting to is if you wonder why this
reaction is taking place, it is because what is happening in
this country. There are many of us who are concerned about the
future of this country and the future of democracy, and you are
asking for a lifetime appointment to the highest court in the
land where you will make decisions, the deciding vote on things
that will decide the course of history and where we are headed.
The Senate has a constitutional responsibility to evaluate
your nomination. We do know that before you became a judge, you
were faithfully advancing the Republican Party agenda. I
jokingly said in one of your previous appearances that you are
like the Forrest Gump of Republican politics. You always show
up in the picture. Whether it is the Ken Starr investigation,
Bush v. Gore, the Bush White House, you have been there.
We also know that before naming you, President Trump made
it clear that he would appoint Justices--only appoint Justices
to the Supreme Court who would overturn Roe v. Wade and the
Affordable Care Act. Those were his litmus tests.
Now, he did not ask you the question. What he did was to
delegate this responsibility to two special interest groups:
the Federalist Society and the Heritage Foundation. And the
other groups that are spending millions of dollars in support
of your candidacy, they are confident that you are going to
favor the interests of corporations over workers and give the
President wide berth when it comes to Executive authority.
And your own law clerks, men and women you chose, men and
women who wrote the words that had your signature at the bottom
of the page, have told us what they think of you. One wrote in
an article entitled, ``Brett Kavanaugh said Obamacare was
unprecedented and unlawful.'' That is from one of your clerks.
Another wrote, when it comes to ``enforcing restrictions on
abortion, no court of appeals judge in the Nation has a
stronger, more consistent record than Judge Brett Kavanaugh.''
Big corporate interests, solidly behind your nomination.
Chamber of Commerce, full support. And President Trump, whose
lawyers say they will fight any effort to subpoena or indict
him all the way to the Supreme Court, that President seems
personally eager to have you confirmed as quickly as possible.
Why are your supporters so confident you will rule on these
issues as they wish? Why do they think you are such a sure bet
to take their side when, in the words of one of your former
clerks, ``This is no time for a gamble.''
Unfortunately, I do not think you are going to tell us much
this week. It is interesting to me that people in your position
write all these law review articles, make all these speeches,
and come to this room and clam up, do not want to talk about
any issues. But that is what I expect.
Instead, we will be asked to trust that, if you are
confirmed, you will have an open mind, that you will follow the
law rather than move the law in the direction of your views. I
would like to trust you, but I agree with President Ronald
Reagan: Trust, but verify.
I wanted to trust you the last time you testified before
this Committee in 2006, but after you were confirmed to the
D.C. Circuit, reports surfaced that contradicted your sworn
testimony before this Committee. You said to me unambiguously
under oath the following: ``I was not involved and am not
involved in the questions about the rules governing detention
of combatants.''
But later, just a week or so ago, you acknowledged in my
office that you were involved. For 12 years, you could have
apologized and corrected this record, but you never did.
Instead, you and your supporters have argued we should ignore
that simple declarative sentence which you spoke and somehow
conclude your words mean something far different. You are a
committed textualist, Judge Kavanaugh. If you are going to hold
others accountable for their words, you should be held
accountable for your own words.
So after my personal experience, I start these hearings
with a question about your credibility as a witness. I know
from my history with you that things you said need to be
carefully verified.
That brings us to a major problem. I will not retread the
ground about all the documents that are being withheld, but I
will show you a little calendar here that is interesting. There
is a 35-month black hole in your White House career where we
have been denied access to any and all documents. Thirty-five
months in the White House. And I asked you in my office, during
that period of time, President Bush was considering same-sex
marriage, an amendment to ban it; abortion; Executive power;
detainees; torture; Supreme Court nominees; warrantless
wiretapping.
One of these issues bears special mention as we mourn the
passing of John McCain. In 2004 and 2005, I joined John McCain
when he led the effort to pass an amendment affirming that
torture and cruel and inhuman and degrading treatment would be
illegal in America. As a survivor of unspeakable torture, John
McCain spoke with powerful moral authority about American
values during the time of war. You were in the Bush White House
when that McCain Amendment passed.
The Bush administration did everything in its power to stop
John McCain's Torture Amendment. Then after we passed it 90-9,
a veto-proof margin, President Bush issued a signing statement
asserting his right to ignore the law that John McCain had just
passed in Congress. When we met in my office, you acknowledged
that you worked on that signing statement. Yet we have been
denied any documents disclosing your role or your advice to
President Bush.
I asked you if you wrote, edited, or approved documents
about these and other issues while you were staff secretary.
Time and again you said, ``I cannot rule it out.''
Judge Kavanaugh, America needs to see those documents. We
cannot carefully review, advise, and decide whether to consent
to your nomination without clarity on the record. The period of
time when you worked in the Republican White House led to a
change in position on an issue which we have to address
directly. Your views on Executive power and accountability have
changed dramatically. When you worked for Special Counsel Ken
Starr in the late 1990s, you called him ``an American hero''
for investigating President Bill Clinton, and you personally
urged Starr to be aggressive, confrontational, and even graphic
in his questions. We have seen your memo on that one.
But a few years later, after working in a Republican White
House, you totally reversed your position and argued the
President should be above the law and granted a free pass from
criminal investigation while in office. What did you see in
that Bush White House that dramatically changed your view? What
are your views about Presidential accountability today?
Judge Kavanaugh, at this moment in our Nation's history,
with authoritarian forces threatening our democracy, with the
campaign and administration of this President under Federal
criminal investigation, we need a direct, credible answer from
you. Is this President or any President above the law? Equally
important, can this President ignore the Constitution in the
exercise of his authority?
You dissented in the Seven-Sky case when the D.C. Circuit
upheld the Affordable Care Act's constitutionality. You
criticized a law, a law which this President has said many
times he wants to ignore and abolish, and you said, ``The
President may decline to enforce a statute that regulates
private individuals when the President deems''--``when the
President deems''--``the statute unconstitutional, even if a
court has held or would hold the statute constitutional.''
This statement by you flies in the face of Marbury v.
Madison, our North Star on the separation of powers. It gives
license to this President, Donald John Trump, or any President
who chooses to ignore the Constitution to assert authority far
beyond that envisioned by our Founding Fathers.
There are many people who are watching carefully. I am
going to make a suggestion to you today, and it will not be
popular on the other side of the aisle. If you believe that
your public record is one that you can stand behind and defend,
I hope that at the end of this you will ask this Committee to
suspend until we are given all the documents, until we have the
time to review them, and then we resume this hearing. What I am
saying to you is basically this: If you will trust the American
people, they will trust you. But if your effort today continues
to conceal and hide documents, it raises a suspicion.
I will close Mr. Chairman. I know you are anxious. When I
was a practicing lawyer a long time ago in trial and the other
side either destroyed or concealed evidence, I knew that I was
going to be able to have a convincing argument to close that
case. What were they hiding? Why will they not let you see the
speed tape on that train or the documents that they just cannot
find? You know that presumption now is against you because of
all the documents that have been held back.
For the sake of this Nation, for the sanctity of the
Constitution that we both honor, step up. Ask this meeting,
this gathering, to suspend until all the documents of your
public career are there for the American people to see.
Thank you, Mr. Chairman.
[The prepared statement of Senator Durbin appears as a
submission for the record.]
Chairman Grassley. Senator Lee.
OPENING STATEMENT OF HON. MICHAEL S. LEE,
A U.S. SENATOR FROM THE STATE OF UTAH
Senator Lee. Thank you, Mr. Chairman. Thank you, Judge
Kavanaugh. And thank you also, Ashley and Margaret and Liza,
for being here.
I want to start by saying that the fact that there is so
much angst over a single nominee, a single judicial nominee,
tells you everything you need to know about why it is that we
need judges now more than ever who are willing to read the law
and interpret it based on what the law says rather than on the
basis of something else.
It also tells you more than anything else you could need to
know about the need to restore a discussion of civics in this
country, to restore a discussion about federalism and
separation of powers, about where power is concentrated and
where it should not be, and what the role of each branch of the
Federal Government is and is not.
Many of the comments, many of the outbursts that we have
had today suggest that we need to return to some of those
fundamental principles, and I do not care whether you are a
liberal Democrat or a conservative Republican or something in
between. These principles apply. They are principles to which
we have sworn an oath, and they are principles that I think we
would do well to restore and focus on once again. If ever we
are to return to an era of civility, we will return to that era
on the basis of those foundational, structural principles
within our Constitution.
Over the next few days, Judge Kavanaugh, a number of
Members of this Committee are going to ask you questions,
questions about cases that you have handled as a lawyer, cases
that you have decided as a judge, about your record, about your
qualifications.
Well, on that point about your record and your
qualifications, the suggestion that you misled this Committee
at any point in your previous hearings is absurd, and the
absurdity of that suggestion will be borne out in the coming
days. I am certain of it.
Some of the questions that will be asked of you will, in
fact, be fair, and others will be unfair, and I think it is
important for us to acknowledge that at the outset.
When you look back at history, answering these kinds of
questions, this is sort of how the practice of holding these
hearings began, so that Senators could ask nominees how they
might vote, how they might rule in particular cases. But this
did not always happen. In fact, it was not until 1916 that this
even started. You see, there have been 113 Justices confirmed
to the Supreme Court so far. The first 66 were confirmed
without even holding a hearing. The idea of a hearing is
relatively new. It is about 102 years old. We went for between
125 and 130 years under our constitutional republic without
ever having a hearing. But, regardless, we started having
hearings just over a century ago.
The very first Supreme Court confirmation hearing occurred
in 1916 with Justice Louis Brandeis. After Louis Brandeis was
nominated to the Court, some called for a hearing. Now, if we
are honest with ourselves, if we are honest about history, I
think a lot of this maybe had to do with some anti-Semitic
fervor and the fact that Justice Brandeis was Jewish. But
Senators also wanted to determine whether Brandeis would use
his seat on the Supreme Court to advocate for some of the
things that he had advocated for as a private citizen, as a
public interest attorney. They wanted to know how he might vote
in particular cases. They did not ask Justice Brandeis to
testify, significantly, but they did, in fact, ask some outside
witnesses what they thought about his nomination.
The next important moment, one could argue, occurred in
1939 when Felix Frankfurter became the first nominee to himself
testify before the Committee. At the time Frankfurter was
controversial in part because he was born overseas, but
Senators also worried that Frankfurter was a radical based on
his defense of anarchists in court. So, again, Senators wanted
assurances about how Frankfurter might rule in particular
cases, in particular what results he might reach in a
particular type of case. Frankfurter, however, significantly,
declined to engage with Senators on those topics and insisted
that his public record spoke for itself.
Justice Stewart's nomination in 1959 was another turning
point. Senators seeking to resist Brown v. Board of Education
wanted to grill Stewart on his views on integration. Others
still wanted to grill Stewart about his views on national
security. So Senators turned up the heat a little bit more in
that hearing. Like Frankfurter before him, Justice Stewart did
not provide substantive answers to their questions. When they
wanted to know how he might rule in particular cases, he
appropriately declined, just as his predecessors had.
Twenty-eight years later, 28 years after Justice Stewart
came through this Committee, the Senate considered Robert
Bork's nomination to the Supreme Court. This was another
significant turning point and, in my view, remains something of
a rock-bottom moment for the Senate and for the Senate
Judiciary Committee. Without getting into any of the gory
details here, I think it suffices to say that Senator Ted
Kennedy and Judge Bork did not agree on certain matters of
constitutional law. And Kennedy's response was to savage--
unfairly, in my opinion--the results that Judge Bork would
reach if confirmed to the Supreme Court.
History shows that over the better part of a century the
Judiciary Committee has gradually created something of a new
norm, a norm in which Members demand that nominees speak about
specific cases in return for favorable treatment from the
Committee as the jurists are going through this process.
Now, nominees for the most part have gracefully resisted
trading confirmation in exchange for promises about how they
might vote in particular cases brought before them. To give two
famous examples, Justice Scalia refused to say whether Marbury
v. Madison was settled law on the ground that it could come
before him. And, sure enough, last term, in Ortiz v. United
States, the Supreme Court considered a case implicating the
scope of Marbury. Likewise, Justice Ruth Bader Ginsburg created
the so-called, ``Ginsburg standard'': no previews, no
forecasts, no hints. Every current member of the Supreme Court
has adhered to a similar principle, what we might call the
``Ginsburg standard.'' Even though nominees have not caved to
the pressure, I still believe that there are some aspects of
the Senate's approach here that might do a disservice to the
country and might be frowned upon by future historians.
If Senators repeatedly ask nominees about outcomes, then
the public will be more entitled or at least more inclined to
think that judges are supposed to be outcome-minded, that that
is supposed to be their whole approach to judging, that that is
supposed to be what judging is, in fact, about. But this, of
course, undermines the very legitimacy of the courts
themselves, the very legitimacy of the tribunal you have been
nominated by the President to serve on. Over time, no free
people would accept a judiciary that simply imposes its own
policy preferences on the country absent fidelity to legal
principle.
There is a better way for the Senate to approach its work.
This process, in my opinion, should be about your
qualifications, about your character, and perhaps most
importantly, about your approach to judging, your own view
about the role of the Federal judiciary. It should not be about
results in a select number of cases.
Now, you are obviously exceptionally well qualified. Even
your staunchest critics would not claim otherwise--your
academic pedigree, your experience as a practicing lawyer, your
experience in Government, and your 12 years' experience sitting
on what many refer to as the ``second highest court in the
land,'' the U.S. Court of Appeals for the D.C. Circuit.
You are independent. You have written that, ``Some of the
greatest moments in American judicial history have been when
judges stood up to the other branches, were not cowed, and
enforced the law.'' You have said that judges cannot be
buffaloed, influenced, or pressured into worrying too much
about transient popularity when we are trying to decide a case,
and that one of the most important duties of a judge is to
stand up for the unpopular party who has the correct position.
And you have lived up to your words during your time on the
bench. Everyone knows that you served in the Bush
administration, and yet when you became a judge, in only 2
years you ruled against the Bush administration a total of
eight times. For you, it simply does not matter who the parties
are. It simply does not matter that you may have worked for an
administration before you became a judge. The only thing that
matters is your commitment to correctly applying the law to the
facts of any particular case.
As far as your approach to judging, you have appropriate
respect for precedent. You have co-authored an 800-page book on
precedent that, among other things, explains that a change in a
court's membership alone should not throw former decisions open
to reconsideration or justify their reversal.
You have explained that for precedent to be overruled, it
must not be just wrong but a case with serious practical
consequences. You voted to overturn Circuit precedent only four
times during your time on the D.C. Circuit, and each of those
cases involved a unanimous decision reached by your colleagues.
And you follow binding precedent even if you believe that
binding precedent was itself wrongly decided.
You decide cases based on legal merits, not based on the
identity of the parties, and certainly not based on any
political beliefs that you may harbor. We have already heard
that your nomination will somehow be bad for women, for the
environment, for labor unions, for civil rights, for a whole
host of other things that Americans hold near and dear. I have
a laundry list of cases in which you have ruled for people in
each of those groups.
But there is a more fundamental point here that I think
needs to be made. The judiciary's decisions are legitimate only
to the extent that they are based on sound legal principle and
reasoning, and ruling for a preferred party is not itself a
sound legal principle. It is quite to the contrary. Jury-
rigging decisions and backfilling legal reasoning to reach a
particular result, a particularly politically acceptable result
in a particular case, no matter how desirable that result might
be in any instance, is not a legitimate mode of judicial
decisionmaking. And no free people purporting to have an
independent judiciary should ever be willing to settle for
that.
So my plea to my colleagues today is that we ask Judge
Kavanaugh hard questions. I believe we are required to do so.
The Senate is not and never should be a rubber stamp,
particularly when it comes to issuing lifetime appointments,
even lifetime appointments on the highest court in the land.
But if you disagree with an opinion he has written, make a
legal argument as to that issue. Explain why you think it is
wrong. Do not complain about the results as if the result
itself is proof that he is wrong, when you separate out the
result from the legal analysis, from the facts and how they
interact with the law in that particular case. And do not ask
him to make promises about outcomes in particular cases. If it
is unacceptable for the President to impose a litmus test, it
is surely unacceptable for the United States Senate to do so.
Judge Kavanaugh, I look forward to your testimony, and I am
grateful to you and your willingness to serve our country and
to be considered for this important role.
Thank you, Mr. Chairman.
[The prepared statement of Senator Lee appears as a
submission for the record.]
Chairman Grassley. Senator Whitehouse.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Mr. Chairman.
When is pattern evidence of bias? In court, pattern is
evidence of bias all the time, evidence on which juries and
trial judges rely to show discriminatory intent, to show a
common scheme, to show bias.
When does a pattern prove bias? I wish this were an idle
question. It is relevant to the pattern of the Roberts' Court
when its Republican Majority goes off on partisan excursions
through the civil law. That is, when all five Republican
appointees--the ``Roberts Five,'' we can call them--go riding
off together and no Democratic appointee joins them.
Does this happen often? The Roberts Five has gone on almost
80 of these partisan excursions since Roberts became Chief.
That is a lot of times. And there is a feature to these 80
cases. They almost all implicate interests important to the big
funders and influencers of the Republican Party. When the
Republican Justices go off on these five-Justice partisan
excursions, there is a big Republican corporate or partisan
interest involved 92 percent of the time.
The tiny handful of these cases that do not implicate an
interest of the big Republican influencers is so flukishly few
that we can set them aside. Let us look at the 73 cases that
all implicate a major Republican Party interest. Again, 73 is a
lot of cases at the Supreme Court.
Is there a pattern to these 73 cases? Oh, yes, there is.
Every time a big Republican corporate or partisan interest is
involved, the big Republican interest wins. Every time.
Let me repeat. In 73 partisan decisions where there is a
big Republican interest at stake, the big Republican interest
wins every damned time. Thus, the mad scramble of big
Republican interest groups to protect a Roberts Five that will
reliably give them wins, really big wins sometimes.
I note that when the Roberts Five saddles up, these so-
called conservatives are anything but judicially conservative.
They readily overturn precedent, toss out statutes passed by
wide bipartisan margins, and decide on broad constitutional
issues that they need not reach. Modesty, originalism, stare
decisis--all these supposedly conservative judicial principles
all have the hoofprints of the Roberts Five all across their
backs wherever those principles got in the way of those wins
for the big Republican interests.
The litany of Roberts Five decisions explains why big
Republican interests want Judge Kavanaugh on the Court so
badly--so badly that Republicans trampled so much Senate
precedent to push him through.
So let us review the highlights reel. What do big
Republican interests want?
Well, first, they want to win elections. What has the
Roberts Five delivered? Help Republicans gerrymander elections.
Vieth v. Jubelirer, 5-to-4, license to gerrymander.
Help Republicans keep minority voters away from the polls.
Shelby County, 5-to-4, and Bartlett v. Strickland, 5-to-4, and
Abbott v. Perez, 5-to-4, despite the trial judge finding the
Texas Legislature actually intended to target and suppress
minority voters.
And the big one, help corporate front-group money flood
elections. Big money interests love unlimited power to buy
elections, lobby, and threaten and bully Congress. McCutcheon,
5-to-4, counting the concurrence; Bullock, 5-to-4; and the
infamous, grotesque 5-to-4 Citizens United decision, which I
believe stands beside Lochner on the Court's ``roll of shame.''
What else do big influencers want? To get out of
courtrooms. Big influencers hate courtrooms because their
lobbying and electioneering and threatening does not work, or
at least it is not supposed to. In a courtroom, big
influencers, used to getting their way, have to suffer the
indignity of equal treatment. So the Roberts Five protects
corporations from group class action lawsuits: Wal-Mart v.
Dukes, 5-to-4; Comcast, 5-to-4; and this past term, Epic
Systems, 5-to-4.
The Roberts Five helps corporations steer customers and
workers away from courtrooms and into mandatory arbitration:
Concepcion, Italian Colors, and Rent-A-Center, all Roberts
Five. Epic Systems does double duty here because now workers
cannot even arbitrate their claims as a group.
Hindering access to the courthouse for plaintiffs
generally, Iqbal, 5-to-4. Protecting corporations from being
taken to court by employees harmed through pay discrimination,
Ledbetter, 5-to-4. Age discrimination, Gross, 5-to-4.
Harassment, Vance, 5-to-4. And retaliation, Nassar, 5-to-4.
Even insulating corporations from liability for international
human rights violations, Jesner, 5-to-4.
Corporations are not in the Constitution. Juries are.
Indeed, courtroom juries are the one element of American
Government designed to protect people against encroachments by
private wealth and power. So, of course, the Roberts Five rules
for wealthy, powerful corporations over jury rights every time,
with nary a mention of the Seventh Amendment.
What is another one? Oh, yes, a classic--helping big
business bust unions: Harris v. Quinn, 5-to-4, and Janus v.
AFSCME this year, 5-to-4, overturning a 40-year precedent.
Lots of big Republican influencers are polluters who like
to pollute for free. So the Roberts Five delivers partisan
decisions that let corporate polluters pollute. To pick a few,
Rapanos, weakening wetland protections, 5-to-4; National
Association of Home Builders, weakening protections for
endangered species, 5-to-4; Michigan v. EPA, helping air
polluters, 5-to-4; and in the face of emerging climate havoc,
there is the procedurally aberrant 5-to-4 partisan decision to
stop the EPA Clean Power Plan. Pattern.
Then come Roberts Five bonus decisions advancing a far-
right social agenda: Gonzales v. Carhart, upholding restrictive
abortion laws; Hobby Lobby, granting corporations religion
rights over the healthcare rights of their employees; NIFLA,
letting States deny women truthful information about their
reproductive choices. All 5-to-4. All Republican.
Add Heller and McDonald, which reanimated for the gun
industry a theory a former Chief Justice once called a
``fraud,'' both decisions, 5-to-4.
This year, Trump v. Hawaii, 5-to-4, rubberstamping the
Muslim travel ban. And in case Wall Street was feeling left
out, helping insulate investment bankers from fraud claims,
Janus Capital, 5-to-4.
Pattern.
No wonder the American people feel the game is rigged. Here
is how the game works. Big business and partisan groups fund
the Federalist Society, which picked Gorsuch and now, you. As
the White House Counsel admitted, they insourced the Federalist
Society for this selection. Exactly how the nominees were
picked and who was in the room where it happened and who had a
vote or a veto and what was said or promised, that is all a
deep, dark secret.
Then big business and partisan groups fund the Judicial
Crisis Network, which runs dark money political campaigns to
influence Senators in confirmation votes, as they have done for
Gorsuch and now, for you. Who pays millions of dollars for that
and what their expectations are is a deep, dark secret.
These groups also fund Republican election campaigns with
dark money and keep the identity of big donors a deep, dark
secret. And, of course, 90 percent of your documents are to us
a deep, dark secret.
Then once the nominee is on the Court, the same business
front groups with ties to the Koch brothers and other funders
of the Republican political machine file friend-of-the-court or
amicus briefs to signal their wishes to the Roberts Five. Who
is really behind those friends is another deep, dark secret.
It has gotten so weird that Republican Justices now even
send hints back to big business interests about how they would
like to help them next, and then big business lawyers rush out
to lose cases--to lose cases--just to rush up before the
friendly court pronto. That is what happened in the Friedrichs-
Janus episode.
The U.S. Chamber of Commerce is the biggest corporate lobby
of them all, for big coal, big oil, big tobacco, big pharma,
big guns, you name it. And this year, with Justice Gorsuch
riding with the Roberts Five, the Chamber won nine out of 10
cases it weighed in on. The Roberts Five, since 2006, has given
the Chamber more than three-quarters of their total votes. This
year, in all civil cases they voted for the Chamber's position
fully 90 percent of the time, and in these 5-to-4 cases I have
highlighted, 100 percent.
People are noticing. Veteran court watchers like Jeffrey
Toobin, Linda Greenhouse, and Norm Ornstein describe the
Court's service to Republican interests. Toobin wrote that on
the Supreme Court, Roberts has ``served the interests of the
contemporary Republican Party.'' Greenhouse has said the
``Republican-appointed majority is committed to harnessing the
Supreme Court to an ideological agenda.'' Ornstein described
the new reality of today's Supreme Court: it is ``polarized
along partisan lines in a way that parallels other political
institutions and the rest of society in a fashion we have never
seen.''
And the American public knows it, too. The American public
thinks the Supreme Court treats corporations more favorably
than individuals--compared to vice-versa--by a 7-to-1 margin;
49 percent of Americans think corporations get special
treatment there.
Now let us look at where you fit in. A Republican political
operative your whole career who has never tried a case. You
made your political bones helping the salacious prosecution of
President Clinton and leaking prosecution information to the
press. As an operative in the Second Bush White House, you
cultivated relationships with political insiders like
nomination guru Leonard Leo, the Federalist Society architect
of your Court nominations.
On the D.C. Circuit, you gave more than 50 speeches to the
Federalist Society. That looks like auditioning.
On the D.C. Circuit, you showed your readiness to join the
Roberts Five with big political wins for Republican and
corporate interests, unleashing special interest money into
elections, protecting corporations from liability, helping
polluters pollute, striking down commonsense gun regulations,
keeping injured plaintiffs out of court against corporations,
and perhaps most important for the current occupant of the Oval
Office, expounding a nearly limitless vision of Presidential
immunity from the law.
Your alignment with right-wing groups who came before you
as friends of the court, 91 percent. When big business trade
associations weighed in, 76 percent. This, to me, is what
corporate capture of the courts looks like.
There are big expectations for you. The shadowy dark money
front group, the Judicial Crisis Network, is spending tens of
millions in dark money to push for your confirmation. They
clearly have big expectations about how you will rule on dark
money.
The NRA has poured millions into your confirmation,
promising their members that you will break the tie. They
clearly have big expectations on how you will vote on guns.
White House Counsel Don McGahn admitted, ``There is a
coherent plan here where, actually, the judicial selection and
the deregulatory effort are really the flip side of the same
coin.'' Big polluters clearly have big expectations for you on
their deregulatory effort.
Finally, you come before us nominated by a President named
in open court as directing criminal activity and a subject of
ongoing criminal investigation. You displayed expansive views
on Executive immunity from the law. If you are in that seat,
sir, because the White House has big expectations that you will
protect the President from the due process of law, that should
give every Senator pause.
Tomorrow we will hear a lot of confirmation etiquette. It
is mostly a sham. You know the game. In the Bush White House,
you coached judicial nominees to just tell Senators that they
have ``a commitment to follow Supreme Court precedent, that
they will adhere to statutory text, that they have on
ideological agenda.'' Fairy tales.
At his hearing, Justice Roberts infamously said he would
just call balls and strikes, but this pattern, 73-0, of the
Roberts Five qualifies him to have NASCAR-style corporate
badges on his robes.
Alito said in his hearing what a strong principle stare
decisis was, an important limitation on the Court. Then he told
the Federalist Society, ``Stare decisis means to leave things
decided when it suits our purposes.''
Gorsuch delivered the key fifth vote in the precedent-
busting and union-busting Janus decision. He, too, had pledged
in his hearing to follow the law of judicial precedent, assured
us he was not a philosopher king, and promised to give equal
concern to every person, poor or rich, mighty or meek. How did
that turn out? Great for the rich and mighty. Gorsuch is the
single most corporate-friendly Justice on a Court already full
of them, ruling for big business interests in over 70 percent
of cases and in every single case where his vote was
determinative.
The President early on assured evangelicals his Supreme
Court picks would attack Roe v. Wade. Despite confirmation
etiquette assurances about precedent, your own words make clear
you do not really believe Roe v. Wade is settled law since the
Court, as you said, ``can always overrule its precedent.''
Mr. Chairman, we have seen this movie before. We know how
it ends. The sad fact is that there is no consequence for
telling the Committee fairy tales about stare decisis and then
riding off with the Roberts Five, trampling across whatever
precedent gets in the way of letting those big Republican
interests keep winning 5-to-4 partisan decisions, 73-0, Mr.
Kavanaugh, every damned time.
Thank you, Mr. Chairman.
[The prepared statement of Senator Whitehouse appears as a
submission for the record.]
Chairman Grassley. Senator Cruz.
Senator Whitehouse. Mr. Chairman, I have some documents to
support this. May I ask unanimous consent they be entered into
the record?
Chairman Grassley. Without objection, so ordered.
Senator Whitehouse. Thank you.
[The information appears as submissions for the record.]
OPENING STATEMENT OF HON. TED CRUZ,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cruz. Thank you, Mr. Chairman. Judge Kavanaugh,
welcome. Welcome to your family, to your friends. Demonstrating
your good judgment, your wife was born and raised in West
Texas, and you and she have been friends of Heidi and mine for
20 years. Thank you for your decades of public service, and I
am sorry that your daughters had to endure the political circus
of this morning. That is, alas, the world that is Washington in
2018.
I want to discuss what this hearing is about and what it is
not about.
First, this hearing is not about the qualifications of the
nominee. Judge Kavanaugh is by any objective measure
unquestionably qualified for the Supreme Court. Everyone agrees
he is one of the most respected Federal judges in the country.
He has impeccable academic credentials, even if you did go to
Yale. And you served over a decade on the U.S. Court of Appeals
for the D.C. Circuit, often referred to as the ``second highest
court in the land.'' So our Democratic colleagues are not
trying to make the argument that Judge Kavanaugh is not
qualified. Indeed, I have not heard anyone even attempt to make
that argument.
Second, this hearing is not about his judicial record.
Judge Kavanaugh has over 300 published opinions which
altogether amount to over 10,000 pages issued in his role as a
Federal appellate judge. Everyone agrees a judge's record is by
far the most important indicium of what kind of Justice that
nominee will be. And, tellingly, we have heard very little
today from Democratic Senators about the actual substance of
Judge Kavanaugh's judicial record.
Third, it is important to understand today is also not
about documents. We have heard a lot of arguments this morning
about documents. There is an old saying for trial lawyers: ``If
you have the facts, pound the facts. If you have the law, pound
the law. If you have neither, pound the table.'' We are seeing
a lot of table pounding this morning.
The Democrats are focused on procedural issues because they
do not have substantive points strong enough to derail this
nomination. They do not have substantive criticism with Judge
Kavanaugh's actual judicial record, so they are trying to
divert everyone with procedural issues. But let us talk about
the documents for a moment.
The claims that the Democrats are putting forward on
documents do not withstand any serious scrutiny. Judge
Kavanaugh has produced 511,948 pages of documents. That
includes more than 17,000 pages in direct response to this
Committee's written questionnaire, which is the most
comprehensive response ever submitted to this Committee. The
more than a half million pages of documents turned into this
Committee is more than the number of pages we have received for
the last five Supreme Court nominees combined.
Listen to that fact again. The over a half million
documents turned over to this Committee is more than the last
five nominees submitted to this Committee combined.
So what is all the fuss over the documents that are not
turned over? Most of those concern Judge Kavanaugh's 3 years as
the staff secretary for President George W. Bush. Now, many
people do not know what a staff secretary does, but that is the
position in charge of all of the paper that comes into and out
of the Oval Office. Critically, the staff secretary is not the
author of the paper coming into and out of the Oval Office.
That paper is typically written by the Attorney General, by the
Secretary of State, by other Cabinet members, by other senior
White House officials. The staff secretary is simply the funnel
for collecting their views and then for transferring the paper
back and forth.
In other words, those documents written by other people say
nothing, zero, about Judge Kavanaugh's views, and they say
nothing, zero, about what kind of Justice Judge Kavanaugh would
make. But they are by necessity the most sensitive and
confidential documents in a White House. They are the documents
that are going to the President. This is the advice and
deliberations of the President at the senior level, and the
staff secretary is the conduit for those documents. So why is
it that the Democrats are putting so much energy in saying hand
over all of those documents? Because they know, they know
beyond a shadow of doubt, that President George W. Bush's White
House team is not going to allow every piece of paper that went
to the President to be made public any more than any other
White House would. Republican or Democrat, no White House would
allow every piece of paper that went to and from the President
to be made public. Indeed, there are rules and laws and
procedures for when and how Presidential papers become public.
And the reason the Democrats are fighting so loudly on this
issue is they are making a demand they know is impossible to
meet and, by the way, is utterly irrelevant to what actually
Judge Kavanaugh thinks, believes, or has said.
It would open up all sorts of fishing expeditions to
attack, relitigate George W. Bush's record as President and
what various Cabinet members and senior advisers might or might
not have said. But it is at the end of the day simply an
attempt to distract and delay. And, indeed, the multiple
motions we have seen from Democrats, ``Delay this confirmation,
delay this confirmation,'' that reveals the whole joke. Their
objective is delay.
So what is this fight about? If it is not about documents,
if it is not about Judge Kavanaugh's credentials, if it is not
about a judicial record, what is this fight about?
I believe this fight is nothing more and nothing less than
an attempt by our Democratic colleagues to relitigate the 2016
Presidential election. 2016 was a hard-fought election all
around, and it was the first Presidential election in 60 years
where Americans went to the polls with a vacant seat on the
Supreme Court, one that the next President would fill.
Americans knew who had been in that seat: the late Justice
Antonin Scalia, one of the greatest jurists ever to sit on the
U.S. Supreme Court. And it was the first time since President
Dwight D. Eisenhower's reelection campaign that a Supreme Court
seat was directly on the ballot.
Both candidates knew the importance of the vacant Supreme
Court seat, and it was a major issue of contention in the
Presidential election. Donald Trump and Hillary Clinton were
both clear about what kind of Justices and judges they would
appoint. During all three Presidential debates, both candidates
were asked what qualities were most important to them when
selecting a Supreme Court Justice.
Secretary Clinton's answer was clear. She wanted a Supreme
Court Justice who would be a liberal progressive willing to
rewrite the U.S. Constitution, willing to impose liberal policy
agendas that she could not get through the democratic process,
that the Congress of the United States would not adopt, but
that she hoped five unelected lawyers would force on the
American people. That is what Hillary Clinton promised for her
judicial nominees.
Then-Candidate Donald Trump gave a very different answer.
He said he was looking to appoint judges in the mold of Justice
Scalia. He said he wanted to appoint judges who would interpret
the Constitution based on its original public meaning, who
would interpret the statutes according to the text, and who
would uphold the rule of law and treat parties fairly
regardless of who they are or where they come from.
Then-Candidate Donald Trump also did something that no
Presidential candidate has done before. He published a list of
nominees that he would choose from when filling Justice
Scalia's seat, providing unprecedented transparency to the
American people. All of this was laid before the American
people as they went to the polls on November 8, 2016, and the
American people made a choice that night.
Now, my Democratic colleagues are not happy with the choice
the American people made, but as President Obama famously said,
``Elections have consequences.'' Because the American people
had the chance to vote, a national referendum on the direction
of the Supreme Court, I have said a number of times that
Justice Gorsuch's nomination and Judge Kavanaugh's nomination
have almost a super legitimacy in that they were ratified, they
were decided by the American people in a direct vote in 2016.
And so the Democratic obstruction today is all about trying
to reverse that election. They are unhappy with the choice the
American people want. And there is a reason that the American
people want strong constitutionalists on the U.S. Supreme
Court. Most Americans, and I know the overwhelming majority of
Texans, want judges who will follow the law and will not impose
their policy preferences on the rest of us and who will be
faithful to the Constitution and the Bill of Rights; Justices
who will uphold fundamental liberties like free speech, like
religious liberty, like the Second Amendment. That is what this
election was about, and if you look at each of these--let us
take free speech. It is worth noting that in 2014 every
Democratic Member of this Committee voted to amend the United
States Constitution to repeal the free speech provisions of the
First Amendment. And, sadly, every Democrat in the Senate
agreed with that position, voting to give Congress
unprecedented power to regulate political speech. It was a sad
day for this institution.
Years earlier, Ted Kennedy, the great liberal lion, had
opposed a very similar effort, and Ted Kennedy said, ``We have
not amended the Bill of Rights in over 200 years. Now is no
time to start.'' Ted Kennedy was right then, and not a single
Democrat in the U.S. Senate had the courage to agree with Ted
Kennedy and support free speech. Indeed, they voted party line
to repeal the free speech provisions of the First Amendment.
That is radical, that is extreme, and it is part of the reason
the American people voted for a President who would put
Justices on the Court who will protect our free speech.
How about religious liberty? Religious liberty is another
fundamental protection that the Democrats in the Senate have
gotten extreme and radical on. Indeed, our Democratic
colleagues want Justices who will rubber stamp efforts like the
Obama administration's efforts litigating against the Little
Sisters of the Poor, litigating against Catholic nuns, trying
to force them to pay for abortion-inducing drugs, and others.
That is a radical and extreme proposition. And to show just how
dramatic Senate Democrats have gotten, every single Senate
Democrat just a few years ago voted to gut the Religious
Freedom Restoration Act, legislation that passed Congress with
overwhelming bipartisan support in 1993, was signed into law by
Bill Clinton, and yet, two decades later, the Democratic Party
has determined that religious freedom is inconvenient for their
policy and political objectives. They want Justices that will
further that assault on religious liberty.
And, finally, let us take the Second Amendment. In the
Presidential debate, Hillary Clinton explicitly promised to
nominate Justices who would overturn Heller v. District of
Columbia. Heller is the landmark decision issued by Justice
Scalia, likely the most significant decision of his entire
tenure on the Bench, and it upheld the individual right to keep
and bear arms.
Now, Hillary Clinton was quite explicit. She wanted judges
who would vote to overturn Heller, and, indeed, a number of our
Democratic colleagues, that is what they want as well.
Overturning Heller, I believe, would be a truly radical
proposition. To understand why, you have to understand what the
four dissenters said in Heller. The four dissenters in Heller
said that the Second Amendment protects no individual right to
keep and bear arms whatsoever, that it protects merely a
collective right of the militia. The consequence of that
radical proposition would mean that Congress could pass a law
making it a felony, a criminal offense, for any American to own
any firearm, and neither you nor I nor any American would have
any individual right whatsoever under the Second Amendment. It
would effectively erase the Second Amendment from the Bill of
Rights. That is a breathtakingly extreme proposition. It is
what Hillary Clinton promised her Justices would do. And at the
end of the day, it is what this fight is about.
We know that every Democratic Member of this Committee is
going to vote ``no.'' We do not have to speculate. Every single
one of them has publicly announced they are voting ``no.'' It
does not depend on what they read in documents. It does not
depend on what Judge Kavanaugh says at this hearing. They have
announced ahead of time they are voting ``no,'' and most of the
Democrats in the Senate have announced that in the full Senate.
But everyone should understand Judge Kavanaugh has handed over
more documents than any nominee, more than the last five
combined, Republican and Democratic nominees. This is not about
documents. It is not about qualification. It is not about
record. What it is about is politics. It is about Democratic
Senators trying to relitigate the 2016 election and, just as
importantly, working to begin litigating the 2020 Presidential
election.
But we had an opportunity for the American people to speak.
They did. They voted in 2016, and they wanted judges and
Justices who will be faithful to the Constitution. That is why
I am confident, at the end of what Shakespeare would describe
as, ``a lot of sound and fury, signifying nothing,'' I am
confident that Judge Kavanaugh will become Justice Kavanaugh
and will be confirmed to the United States Supreme Court.
Thank you, Mr. Chairman.
Chairman Grassley. We are going to take a break now, and--
wait a minute. We are going to take a break now, and 30 minutes
is what the Democrats would like to have, so we will return at
1:17. And Justice Gorsuch returned about 10 minutes later than
that, so be on time, please.
[Laughter.]
[Whereupon the Committee was recessed and reconvened.]
Chairman Grassley. First of all, thanks, Judge Kavanaugh,
for getting back on the exact time.
Before I call on Senator Klobuchar, I think that some of my
colleagues have raised some issues that I think demand an
answer, and I want to speak to those points. But this issue has
never come up from my colleagues, but I thought, as I sat here
and listened to some people criticize the Supreme Court for, in
a sense, being ``bought''--and they always tend to criticize
the President of the United States for somehow interfering in
the judiciary, and I hear all about the criticism of Trump--it
seems odd to me that we do not have criticism of people that
are saying the same thing about the Supreme Court.
So, I want to read. Whenever the President criticizes the
judiciary or judicial decisions, we hear wails of anguish from
my Democratic colleagues. They attack the President for
threatening the independence and the integrity of the
judiciary, and they applaud the judiciary for standing up to
the President.
I just listened to some of my colleagues here. One of them
spent 18 minutes attacking the personal integrity of Justices
of the Supreme Court. He said that five Justices have been
bought and sold by private interests. He accused them of
deciding cases to the benefit of favored parties. So I think it
is pretty clear: a double standard. And we should not have to
tolerate such double standard, and particularly from a press
that is a policeman of our whole democratic process. That
without a free press, our Government would be less than what it
is. And it seems to me that that is something that I hope some
of you will take into consideration, probably will not, but at
least I said my piece.
Then also, several Senators have brought up about the 6
percent and the 99 percent and things like that that I thought
I ought to clear up because I could say myself that when I
first started finding out how much paper Judge Kavanaugh had on
his record--I mean, for his background, I started talking about
100 million pages. And then when we finally get 488,000, then I
could say, well, I got about 48 percent of what we ought to
have. But there is a good explanation of why we do not have it,
so I want to read.
Some of my colleagues keep saying that we have only 6
percent of Judge Kavanaugh's White House records but that 99
percent of Justice Kagan's White House records were made public
before the hearing. This is ``fuzzy math.'' My colleagues
calibrate their phony 6 percent figure on two inaccurate
numbers. First, their 6 percent figure counts the estimated
page count by career archivists at the National Archives based
upon their historical practice, before the unprocessed emails
and attachments are actually reviewed.
Judge Kavanaugh's White House emails that we have received,
the actual number of pages ended up being significantly less
than the number the National Archives estimated before the
actual review. One reason is because we were able to use
technology to cull out the exact duplicate emails. Instead of
having to read 13 times an email that Judge Kavanaugh sent to
12 White House colleagues, we only had to read the email once.
Second, the 6 percent figure counts millions and millions
of pages of irrelevant staff secretary documents that we never,
ever requested or needed. More importantly, we received 100
percent of the documents we requested from Judge Kavanaugh's
time as an executive branch lawyer. And while we may have
received 99 percent of Justice Kagan's White House records, we
received zero records from her most relevant legal service as a
Solicitor General, the Federal Government's top Supreme Court
advocate. We received much less than 99 percent of her records
as a lawyer. And we did not receive 60,000 emails from Justice
Kagan, so 99 percent is an overestimate.
And even though we never received them, Justice Kagan's
Solicitor General records were much more needed at the time
because Kagan was a blank slate as a judge. Instead, unlike
Judge Kavanaugh with his 12 years of judicial service and over
10,000 pages of judicial writings on the Nation's most
important Federal circuit court, Justice Kagan had zero years
of judicial service and zero pages of judicial writing before
her appointment to the highest court.
Senator Klobuchar.
Senator Klobuchar. Well, thank you, Mr. Chairman.
And before I begin my opening statement, I just wanted to
respond to just a few things. One, none of that takes away from
the fact that 42,000 documents were dumped on us last night,
and I do not think anyone would go to trial and allow a trial
to go forward or allow a case to go forward if one side got
42,000 documents the night before and the other side--and you
cannot simply review them. As pointed out by Senator
Whitehouse, you would have to review 7,000 documents every
hour. That happened last night.
Chairman Grassley. Let me respond without taking time away
from you.
Senator Klobuchar. Thank you.
Chairman Grassley. Democrats got exactly the same amount of
money we did to do the massive amount of work we had to do, and
we got it done at 11 o'clock last night.
Proceed.
Senator Klobuchar. The point is, that no one could prepare
and review 42,000 documents in one evening. We know that, no
matter how much coffee you drink.
And the second point is, that it is true that executive
privilege has never been invoked before to block the release of
Presidential records to the Senate during a confirmation
hearing, so I will begin my opening statement, but those are
two points I do not believe are refuted so----
Chairman Grassley. Okay. Well, I will refute it from this
standpoint. There were 5,000 documents, 42,000 pages.
Senator Klobuchar. Okay.
Chairman Grassley. Proceed.
OPENING STATEMENT OF HON. AMY KLOBUCHAR,
A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. Thank you. Welcome, Judge Kavanaugh. We
welcome your family as well. On its face, this may look like a
normal confirmation hearing. It has all the trappings. All of
us up here, all of the cameras out there, the statement, the
questions, all of it looks normal, but this is not a normal
confirmation hearing.
First, as we have debated this morning, we are being asked
to give advice and consent when the administration has not
consented to give us over 100,000 documents, all of which
detail a critical part of the Judge's career, the time he spent
in the White House. And, in addition, the Majority party has
not consented to make 189,000 of the documents we do have,
public.
As a former prosecutor, I know that no lawyer goes to court
without reviewing the evidence and record. I know--and I know
you know, Judge Kavanaugh--that a good judge would not decide a
case with only 7 percent of the key documents. A good judge
would not allow a case to move forward if one side dropped
42,000 pages of documents on the other side the night before a
case started. And yet, that is where we are today. This is not
normal. It is an abdication of the role of the Senate and a
disservice to the American people, and it is our duty to speak
out.
Second, this nomination comes before us at a time when we
are witnessing seismic shifts in our democracy. Foundational
elements of our Government, including the rule of law, have
been challenged and undermined. Today, our democracy faces
threats that we never would have believed occurring not that
long ago.
Our intelligence agencies agree that a foreign adversary
attempted to interfere in our most recent election, and it is
happening again. In the words of the President's Director of
National Intelligence, ``The lights are blinking red.''
There is an extensive ongoing investigation by a special
counsel. The President's private lawyer and campaign chairman
have been found guilty of multiple Federal crimes.
The man appointed as special counsel in this investigation,
a man who has served with distinction under Presidents from
both parties, has been under siege. The dedicated public
servants who work in our Justice Department, including the
Attorney General and the FBI, have been subjected to repeated
threats and have had their work politicized and their motives
questioned.
In fact, just this past weekend, Federal law enforcement
was called out--was rebuked--by the President of the United
States for simply doing their jobs: for prosecuting two white-
collar defendants, one for insider trading, one for campaign
theft. Why? Because the defendants were personal friends and
campaign supporters of the President of the United States. As a
former prosecutor, as someone who has seen Federal law
enforcement do their jobs, this is abhorrent to me, so no, this
is not normal.
And the last branch, the third branch of Government--our
courts and individual judges--have been under assault, not just
by a solitary disappointed litigant but by the President of the
United States. Our democracy is on trial. And for the pillars
of our democracy and our Constitution to weather this storm,
our Nation's highest court must serve as a ballast in these
turbulent times. Our very institutions, and those nominated to
protect these institutions, must be fair, impartial, and
unwavering in their commitment to truth and justice.
So, today, we will begin a hearing in which it is our duty
to carry on the American constitutional tradition that John
Adams stood up for many centuries ago, and that is to be, in
his words, ``a government of laws and not men.'' To me, that
means figuring out what your views are, Judge, on whether a
President is above the law. It is a simple concept we learned
in grade school, that no one is above the law. So I think it is
a good place to start.
There were many highly credentialed nominees like yourself
that could have been sitting before us today, but, to my
colleagues, what concerns me is, that during this critical
juncture in history, the President has handpicked a nominee to
the Court with the most expansive view of Presidential power
possible, a nominee who has actually written that the
President, on his own, can declare laws unconstitutional.
Of course, we are very pleased when a judge submits an
article to the University of Minnesota Law Review and even more
so when that article receives so much national attention. But
the article you wrote that I am referring to, Judge, raises
many troubling questions. Should a sitting President really
never be subject to an investigation? Should a sitting
President never be questioned by a special counsel? Should a
President really be given total authority to remove a special
counsel?
In addition to the article, there are other pieces of this
puzzle which demonstrate that the nominee before us has an
incredibly broad view of the President's Executive power. Judge
Kavanaugh, you wrote, for example, in Seven-Sky v. Holder that
a President can disregard a law passed by Congress if he deems
it to be unconstitutional, even if a court has upheld it.
What would that mean when it comes to laws protecting the
special counsel? What would that mean when it comes to women's
healthcare? The days of the divine rights of kings ended with
the Magna Carta in 1215, and centuries later, in the wake of
the American Revolution, a check on the Executive was a major
foundation of the U.S. Constitution. For it was James Madison,
who may not have had a musical named after him but was a top
scholar of his time, who wrote in Federalist 47: ``The
accumulation of all powers, legislative, executive, and
judiciary, in the same hands may justly be pronounced the very
definition of tyranny.''
So what does that warning mean in real-life terms today?
Here is one example: It means whether people like Kelly
Gregory, an Air Force veteran, mother, and business owner who
is here from Tennessee, and who is living with stage IV breast
cancer, can afford medical treatment. At a time when the
administration is arguing that protections to ensure people
with pre-existing conditions cannot be kicked off their health
insurance are unconstitutional, we cannot and should not
confirm a Justice who believes the President's views alone
carry the day.
One opinion I plan to ask about? When judges appointed by
Presidents of both parties joined in upholding the Consumer
Financial Protection Bureau, you, Judge, dissented. Your
dissent concluded that the Bureau, an agency which has served
us well in bringing back over $12 billion to consumers for
fraud from credit cards to loans to mortgages, was
unconstitutional.
Or, in another case, you wrote a dissent against the rules
that protect net neutrality, rules that help all citizens and
small businesses have an even playing field when it comes to
accessing the internet.
Another example that seems mired in legalese but is
critical for Americans: Antitrust law. In recent years, a
conservative majority on the Supreme Court has made it harder
and harder to enforce the Nation's antitrust laws, ruling in
favor of consolidation and market dominance. Yet two of Judge
Kavanaugh's major antitrust opinions suggest that he would push
the Court even further down this pro-merger path. We should
have more competition and not less.
Now to go from my specific concerns and end on a higher
plane. All of the attacks on the rule of law and our justice
system over the past year have made me--and I would guess some
of my other colleagues on this Committee--pause and think many
times about why I decided to come to the Senate and get on this
Committee and, much further back, why I even decided to go into
law in the first place.
Now, I will tell you that not many girls in my high school
class said they dreamed of being a lawyer. We had no lawyers in
my family, and my parents were the first in their families to
go to college. But somehow my dad convinced me to spend a
morning sitting in a courtroom watching a State court district
judge handle a routine calendar of criminal cases. The judge
took pleas, listened to arguments, and handed out misdemeanor
sentences. It was certainly nothing glamorous like the work for
the job you have been nominated for, Judge, but it was
important just the same.
I realized that morning that behind every single case there
was a story and there was a person, no matter how small. Each
and every decision the judge made that day affected that
person's life. And I noticed how often he had to make gut
decisions and had to take account of what his decisions would
mean for that person and his or her family.
This week, I remembered that day, and I remembered I had
written an essay about it at the ripe old age of 17. I went
back and looked at what I had said. It is something that I
still believe today and that is, that ``to be part of an
imperfect system, to have a chance to better that system'' was
and is a cause worth fighting for, a job worth doing.
Our Government is far from perfect, Judge, nor is our legal
system, but we are at a crossroads in our Nation's history
where we must make a choice. Are we going to dedicate ourselves
to improving our democracy, improving our justice system, or
not? The question we are being asked to address in this
hearing, among others, is whether this judge, at this time in
our history, will administer the law ``with equal justice'' as
it applies to all citizens, regardless of if they live in a
poor neighborhood or a rich neighborhood, or if they live in a
small house or the White House.
Our country needs a Supreme Court Justice who will better
our legal system, a Justice who will serve as a check and
balance on the other branches, who will stand up for the rule
of law without consideration of politics or partisanship, who
will uphold our Constitution without fear or favor, and who
will work for the betterment of the great American experiment
in democracy. That is what this hearing is about.
Thank you.
[The prepared statement of Senator Klobuchar appears as a
submission for the record.]
Chairman Grassley. Senator Sasse.
OPENING STATEMENT OF HON. BEN SASSE,
A U.S. SENATOR FROM THE STATE OF NEBRASKA
Senator Sasse. Thank you, Mr. Chairman.
We need to get to Judge Kavanaugh, but I really want to
riff with Amy for a while. Senator Klobuchar, you did Madison,
Lin-Manuel Miranda, the Magna Carta, and your dad----
Senator Klobuchar. Thank you. Thank you, I----
Senator Sasse [continuing]. Taking you to court.
Senator Klobuchar [continuing]. Appreciate that.
Senator Sasse. Well done.
Senator Klobuchar. Thank you.
Senator Sasse. I had all that on my bingo card.
[Laughter.]
Senator Sasse. I have little kids, and I have taken my two
little girls to court a few times, too, mostly to juvie just to
scare them straight, not to turn them into attorneys but that
is not----
Senator Klobuchar. Who said that that was not what my dad
was doing, Senator Sasse?
[Laughter.]
Senator Sasse. That was wisdom in Minnesota.
Congratulations, Judge, on your nomination. Actually,
congratulations and condolences. This process has to stink. I
am glad your daughters could get out of the room, and I hope
they still get the free day from school.
Let us do some good news/bad news, the bad news first.
Judge, since your nomination in July, you have been accused of
hating women, hating children, hating clean air, wanting dirty
water. You have been declared a quote/unquote ``existential
threat'' to our Nation. Alumni of Yale Law School, incensed
that faculty members at your alma mater praised your selection,
wrote a public letter to the school saying, quote, ``People
will die if Brett Kavanaugh is confirmed.''
This drivel is patently absurd, and I worry that we are
going to hear more of it over the next few days. But the good
news is it is absurd, and the American people do not believe
any of it. This stuff is not about Brett Kavanaugh when
screamers say this stuff for cable TV news. The people who know
you better, not those who are trying to get on TV, they tell a
completely different story about who Brett Kavanaugh is. You
have earned high praise from the many lawyers, both right and
left, who have appeared before you during your 12 years on the
D.C. Circuit and those who have had you as a professor at Yale
Law and at Harvard Law. People in legal circles invariably
applaud your mind, your work, your temperament, your
collegiality. That is who Brett Kavanaugh is. And to quote Lisa
Blatt, a Supreme Court attorney from the left who has known you
for a decade, quote, ``Sometimes a superstar is just a
superstar, and that is the case with this judge. The Senate
should confirm him,'' close quote.
It is pretty obvious to most people going about their work
today that the deranged comments actually do not have anything
to do with you, so we should figure out why do we talk like
this about Supreme Court nominations now? There is a bunch that
is atypical in the last 19, 20 months in America. Senator
Klobuchar is right. The comments from the White House yesterday
about trying to politicize the Department of Justice, they were
wrong, and they should be condemned. And my guess is Brett
Kavanaugh would condemn them.
But really the reason these hearings do not work is not
because of Donald Trump. It is not because of anything in the
last 20 months. These confirmation hearings have not worked for
31 years in America. People are going to pretend that Americans
have no historical memory and supposedly there have not been
screaming protestors saying women are going to die at every
hearing for decades, but this has been happening since Robert
Bork. This is a 31-year tradition. There is nothing really new
the last 18 months.
So the fact that the hysteria has nothing to do with you
means that we should ask what is the hysteria coming from? The
hysteria around Supreme Court confirmation hearings is coming
from the fact that we have a fundamental misunderstanding of
the role of the Supreme Court in American life now. Our
political commentary talks about the Supreme Court like they
are people wearing red and blue jerseys. That is a really
dangerous thing. And, by the way, if they have red and blue
jerseys, I would welcome my colleagues to introduce the
legislation that ends lifetime tenure for the judiciary because
if they are just politicians, then the people should have
power, and they should not have lifetime appointments. So until
you introduce that legislation, I do not believe you really
want the Supreme Court to be a politicized body, though that is
the way we constantly talk about it now.
We can and we should do better than this. It is predictable
that every confirmation hearing now is going to be an overblown
politicized circus, and it is because we have accepted a new
theory about how our three branches of Government should work
and, in particular, how the judiciary should work.
What Supreme Court confirmation hearings should be about
is, an opportunity to go back and do ``Schoolhouse Rock!''
civics for our kids. We should be talking about how a bill
becomes a law and what the job of Article II is, and what the
job of Article III is, so let us try just a little bit. How did
we get here, and how can we fix it?
I want to make just four brief points. Number one: In our
system, the legislative branch is supposed to be the center of
our politics.
Number two: It is not. Why not? Because for the last
century, and increasing by the decade right now, more and more
legislative authority is delegated to the executive branch
every year. Both parties do it. The legislature is impotent,
the legislature is weak, and most people here want their jobs
more than they really want to do legislative work, and so they
punt most of the work to the next branch.
Third consequence is that this transfer of power means the
people yearn for a place where politics can actually be done,
and when we do not do a lot of big actual political debating
here, we transfer it to the Supreme Court, and that is why the
Supreme Court is increasingly a substitute political
battleground in America. It is not healthy, but it is what
happens, and it something that our Founders would not be able
to make any sense of.
And fourth and finally, we badly need to restore the proper
duties and the balance of power from our constitutional system.
So, point one: The legislative branch is supposed to be the
locus of our politics properly understood. Since we are here in
this room today because this is a Supreme Court confirmation
hearing, we are tempted to start with Article III, but really,
we need Article III as part of the Constitution that sets up
the judiciary. We really should be starting with Article I,
which is us. What is the legislature's job? The Constitution's
drafters began with the legislature. These are equal branches,
but Article I comes first for a reason, and that is because
policymaking is supposed to be done in the body that makes
laws.
That means that this is supposed to be the institution
dedicated to political fights. If we see lots and lots of
protests in front of the Supreme Court, that is a pretty good
litmus-test barometer of the fact that our republic is not
healthy because people should not be thinking they are
protesting in front of the Supreme Court. They should be
protesting in front of this body.
The legislature is designed to be controversial, noisy,
sometimes even rowdy because making laws means we have to hash
out the reality that we do not all agree. Government is about
power. Government is not just another word for things we do
together. The reason we have limited government in America is
because we believe in freedom. We believe in souls. We believe
in persuasion. We believe in love. And those things are not
done by power. But the Government acts by power. And since the
Government acts by power, we should be reticent to use power.
And so it means when you differ about power, you have to have a
debate. And this institution is supposed to be dedicated to
debate and should be based on the premise that we know since we
do not all agree, we should try to constrain that power just a
little bit, but then we should fight about it and have a vote
in front of the American people.
And then what happens? The people get to decide whether
they want to hire us or fire us. They do not have to hire us
again. This body is the political branch where policymaking
fights should happen. And if we are the easiest people to fire,
it means the only way the people can maintain power in our
system is if almost all the politicized decisions happen here,
not in Article II or Article III.
So that brings us to a second point. How do we get to a
place where the legislature decided to give away its power? We
have been doing it for a long time. Over the course of the last
century but especially since the 1930s and then ramping up
since the 1960s, a whole lot of the responsibility in this body
has been kicked to a bunch of alphabet-soup bureaucracies. All
the acronyms that people know about their Government or do not
know about their Government are the places where most actual
policymaking--kind of, in a way, lawmaking--is happening right
now. This is not what ``Schoolhouse Rock!'' says. There is no
verse of ``Schoolhouse Rock!'' that says give a whole bunch of
power to the alphabet-soup agencies and let them decide what
the governance decisions should be for the people because the
people do not have any way to fire the bureaucrats.
And so what we mostly do around this body is not pass laws.
What we mostly do is decide to give permission to the Secretary
or the Administrator of bureaucracy X, Y, or Z to make lawlike
regulations. That is mostly what we do here. We go home and we
pretend we make laws. No, we do not. We write giant pieces of
legislation, 1,200 pages, 1,500 pages long that people have not
read filled with all these terms that are undefined and we say
the Secretary of such-and-such shall promulgate rules that do
the rest of our dang jobs. That is why there are so many fights
about the executive branch and about the judiciary because this
body rarely finishes its work.
And the House is even worse. I do not really believe that.
It just seemed like you needed to try to unite us in some way.
So I admit that there are rational arguments that one could
make for this new system. The Congress cannot manage all the
nitty-gritty details of everything about modern government, and
this system tries to give power and control to experts in their
fields where most of us in Congress do not know much of
anything about technical matters for sure, but you could also
impugn our wisdom if you want. But when you are talking about
technical complicated matters, it is true that the Congress
would have a hard time sorting out every final dot and tittle
about every detail.
But the real reason at the end of the day that this
institution punts most of its power to executive branch
agencies is because it is a convenient way for legislators to
be able to avoid taking responsibility for controversial and
often unpopular decisions. If people want to get reelected over
and over again and that is your highest goal, if your biggest
long-term thought around here is about your own incumbency,
then actually giving away your power is a pretty good strategy.
It is not a very good life, but it is a pretty good strategy
for incumbency.
And so at the end of the day, a lot of the power delegation
that happens from this branch is because the Congress has
decided to self-neuter. Well, guess what? The important thing
is not whether the Congress has lame jobs. The important thing
is that when the Congress neuters itself and gives power to an
unaccountable fourth branch of government, it means the people
are cut out of the process. There is nobody in Nebraska, there
is nobody in Minnesota or Delaware who elected the deputy
assistant administrator of plant quarantine at the USDA.
And yet if the deputy assistant administrator of plant
quarantine does something to make Nebraskans' lives really
difficult, which happens to farmers and ranchers in Nebraska.
Who do they protest to? Where do they go? How do they navigate
the complexity and the thicket of all the lobbyists in this
town to do executive-agency lobbying. They cannot. And so what
happens is they do not have any ability to speak out and to
fire people through an election.
And so, ultimately, when the Congress is neutered, when the
administrative state grows, when there is this fourth branch of
Government, it makes it harder and harder for the concerns of
citizens to be represented and articulated by people that the
people know that they have power over. All the power right now
or almost all the power right now happens off-stage, and that
leaves a lot of people wondering who is looking out for me?
And that brings us to the third point. The Supreme Court
becomes our substitute political battleground. It is only nine
people. You can know them. You can demonize them. You can try
to make them messiahs, but ultimately, because people cannot
navigate their way through the bureaucracy, they turn to the
Supreme Court looking for politics. And knowing that our
elected officials no longer care enough to do the hard work of
reasoning through the places where we differ and deciding to
shroud our power at times, it means that we look for nine
Justices to be super-legislators. We look for nine Justices to
try to right the wrongs from other places in the process. When
people talk about wanting to have empathy from their Justices,
this is what they are talking about. They are talking about
trying to make the Justices do something that the Congress
refuses to do, as it constantly abdicates its responsibility.
The hyperventilating that we see in this process and the
way that today's hearing started with 90 minutes of theatrics
that are preplanned with certain Members of the other side
here, it shows us a system that is wildly out of whack.
And thus, a fourth and final point. The solution here is
not to try to find judges who will be policymakers. The
solution is not to try to turn the Supreme Court into an
election battle for TV. The solution is to restore a proper
constitutional order with a balance of powers. We need
``Schoolhouse Rock!'' back. We need a Congress that writes laws
and then stands before the people and suffers the consequences
and gets to go back to our own Mount Vernon if that is what the
electors decide. We need an executive branch that has a humble
view of its job as enforcing the law, not trying to write laws
in the Congress' absence. And we need a judiciary that tries to
apply written laws to facts and cases that are actually before
it.
This is the elegant and the fair process that the Founders
created. It is the process where the people who are elected,
two and 6 years in this institution, 4 years in the executive
branch, can be fired because the Justices and the judges, the
men and women who serve America's people by wearing black
robes. They are insulated from politics. This is why we talk
about an independent judiciary. This is why they wear robes.
This is why we should not talk about Republican and Democratic
judges and Justices. This is why we say justice is blind. This
is why we give judges lifetime tenure. And this is why this is
the last job interview Brett Kavanaugh will ever have because
he is going to a job where he is not supposed to be a super-
legislator.
So the question before us today is not what does Brett
Kavanaugh think 11 years ago on some policy matter. The
question before us whether or not he has the temperament and
the character to take his policy views and his political
preferences and put them in a box marked irrelevant and set it
aside every morning when he puts on the black robe. The
question is does he have the character and temperament to do
that. If you do not think he does, vote no, but if you think he
does, stop the charades because, at the end of the day, I think
all of us know that Brett Kavanaugh understands his job is not
to rewrite laws as he wishes they were. He understands that he
is not being interviewed to be a super-legislator. He
understands that his job is not to seek popularity. His job is
to be fair and dispassionate. It is not to exercise empathy. It
is to follow written laws.
Contrary to The Onion-like smears that we hear outside,
Judge Kavanaugh does not hate women and children. Judge
Kavanaugh does not lust after dirty water and stinky air. No.
Looking at his record, it seems to me that what he actually
dislikes are legislators that are too lazy and too risk-averse
to do our actual jobs. It seems to me that if you read his 300-
plus opinions, what his opinions reveal to me is a
dissatisfaction--I think he would argue a constitutionally
compelled dissatisfaction--with power-hungry executive branch
bureaucrats doing our job when we fail to do it.
And in this view, I think he is aligned with the Founders.
For our Constitution places power not in the hands of this
city's bureaucracy, which cannot be fired, but our Constitution
places the policymaking power in the 535 of our hands because
the voters can hire and fire us. And if the voters are going to
retain their power, they need a legislature that is responsive
to politics, not a judiciary that is responsive to politics.
It seems to me that Judge Kavanaugh is ready to do his job.
The question for us is whether we are ready to do our job.
Thank you, Mr. Chairman.
Chairman Grassley. Yes. The example I always use to back up
what Senator Sasse says about the Congress not doing its job
and delegating too much is the Obamacare legislation that was
2,700 pages and there was 1,693 delegations of authority to
bureaucrats to write regulations because Congress did not know
how to reorganize health care.
Senator Coons.
OPENING STATEMENT OF HON. CHRISTOPHER A. COONS,
A U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Coons. Thank you, Mr. Chairman.
Welcome, Judge Kavanaugh. Welcome to you and to your family
and to your friends who are here. As you know well, we went to
the same law school. We clerked in the same courthouse in
Wilmington, Delaware, so I have known you and your reputation
for nearly 30 years, and I know well that you have a reputation
as a good friend, a good classmate, a good roommate, as a good
husband and family man, that you have contributed to your
community. I think we will hear later today that you have even
been a great youth basketball coach.
But frankly, we are not here to consider you as the
president of our neighborhood civic association or even to
review whether you have been a great youth basketball coach. We
are here to consider you for a lifetime appointment to the
United States Supreme Court where you will help shape the
future of this country and have an impact on the lives of
millions of Americans for literally decades to come.
And to make that decision to exercise our constitutional
role, we have to look closely at your decisions, your
statements, your writings to understand how you might interpret
our Constitution. The next Justice will play a pivotal role in
defining a wide range of critical issues, including the scope
of the President's power in determining whether the President
might be above the law. The next Justice will impact essential
rights enshrined in our modern understanding of the
Constitution, including the right to privacy, rights to
contraception, intimacy, abortion, marriage, the freedom to
worship as we choose, the ability to participate in our
democracy as full citizens, and the promise of equal
protection.
That is because the cases that come before the Court are
not just academic or esoteric or theoretical. They involve real
people and have real and lasting consequences.
With stakes this high, I deeply regret the process that has
gotten us to this point, the excesses and partisan gamesmanship
of the last few years, and that history bears briefly
repeating.
When Justice Scalia passed in February 2016, I called the
White House and urged then-President Obama to nominate a jurist
who could gain support from both sides of the aisle and help
build a strong center on the Court, and he did just that when
he nominated Merrick Garland, chief judge of the D.C. Circuit,
whom I know you also admire. But my Republicans refused to even
meet with him, must less hold a hearing or vote on his
confirmation.
During the 400 days that the Majority refused to fill the
Supreme Court vacancy, then-Candidate Trump also released a
list of potential nominees to the Court, a list compiled by two
highly partisan organizations: the Federalist Society and the
Heritage Foundation. And after our President was elected, he
picked from that list and nominated Neil Gorsuch to the Supreme
Court.
When Judge Gorsuch testified before this very Committee, he
told us repeatedly how deeply he understood and respected
precedent. He even cited a book on precedent he co-authored
with you. But in his first 15 months of service, Justice
Gorsuch has already voted to overrule at least five important
Supreme Court precedents and to question many others. To name
just one, given it was just Labor Day, Justice Gorsuch voted to
gut public-sector unions, overturning a 41-year-old precedent
on which there were great reliance interests in impacting
millions of workers across the country.
My point is, that Justice Gorsuch was confirmed to the
Court in one of the most concerningly partisan processes in
Senate history, and only after the Majority deployed the
nuclear option to end the filibuster for Supreme Court
nominations. This brings us, Judge, to today and your
nomination.
When Justice Kennedy announced his retirement, I once again
called the White House and urged, through White House Counsel,
that President Trump consider selecting someone for this seat
who could win broad support from both sides of the aisle. And,
Judge Kavanaugh, I am concerned you may not be that nominee.
Your record prior to joining the bench places you in the midst
of some of the most pitched and partisan battles in our
lifetimes, from Ken Starr's investigation of President Clinton,
to the 2000 election recount, to the controversies of the Bush
administration, including surveillance, torture, access to
justice, and the culture wars.
So, Judge, it is critical that this Committee and the
American people fully examine your record to understand what
kind of Justice you would be. And, unfortunately, as we have
all discussed at length here today, that has been rendered
impossible. The Majority has blocked access to millions of
pages of documents from your service in a critical role in the
White House. For the first time since Watergate, the
nonpartisan National Archives has been cut out of the process
for reviewing and producing your records.
Senate Republicans have worked to keep ``committee
confidential'' nearly 200,000 pages of documents so that the
public cannot view them, and we cannot question based on them,
and your former deputy is in charge of designating which
documents this Committee and the American people get to see.
Not only that, but for the first time in our history, the
President has invoked executive privilege to withhold more than
100,000 pages of documents on a Supreme Court nominee from the
Judiciary Committee. This leads to a difficult but important
question, which is, ``What might President Trump or the
Majority be trying to hide?''
Mr. Chairman, I want to make an appeal to work together to
restore the integrity of this Committee. We are better than
this process. We are better than proceeding with a nominee
without engaging in a full and transparent process. This
Committee is failing the American people by proceeding in this
way, and I fully support the motions made by my colleagues
earlier in this hearing and regret that we proceeded without
observing the rules of this Committee.
That said, Judge Kavanaugh, I have reviewed the parts of
your record that I have been able to access and what I have
been able to see from available speeches, writings, and
decisions, and I have to say it troubles me. While serving on
the bench, you have dissented at a higher rate than any circuit
judge elevated to the Supreme Court since 1980, and that
includes Judge Bork. Your dissents reveal some views and
positions that fall well outside the mainstream of legal
thought. You have suggested, as has been referenced, that the
President has the authority to refuse to enforce a law such as
the Affordable Care Act were he to decide it was
unconstitutional.
You have voted to strike down net neutrality rules, gun
safety laws, the organization of the Consumer Financial
Protection Bureau, and many of your dissents would undercut
environmental protections or workers' rights or any
antidiscrimination laws, and you have recently praised Justice
Rehnquist's dissent in Roe. You have embraced an approach to
substantive due process that would undermine the rights and
protections of millions of Americans, from basic protections
for LGBT Americans to access to contraception, to health care
and the ability for Americans to love and marry whom they wish.
I am concerned your writings demonstrate a hostility to
affirmative action and civil rights. And, most importantly, I
believe you have repeatedly and enthusiastically embraced an
interpretation of Presidential power so expansive that it could
result in a dangerously unaccountable President at the very
time when we are most in need of checks and balances.
I want to pause for a moment on this last point, because
the context of your nomination troubles me the most. In
reviewing your records, Judge, you have questioned the
lawfulness of United States v. Nixon, a historic decision in
which a unanimous Court said the President had to comply with a
grand jury subpoena. You have questioned the correctness of
Morrison v. Olson, a 30-year-old precedent, holding that
Congress can create an independent counsel with the authority
to investigate the President, who the President cannot just
fire on a whim. You have questioned whether a President and his
aides should be subject to any civil or criminal investigations
while in office.
And, given these positions about Presidential power, which
I view as being at one extreme of the record of circuit judges,
we have to confront an uncomfortable but important question
about whether President Trump may have selected you, Judge
Kavanaugh, with an eye toward protecting himself.
So, Judge Kavanaugh, I am going to ask you about these
issues, as we did when we met in my office, and I expect you to
address them. When we spoke, you agreed that we have a shared
concern about the legitimacy of the Supreme Court, that it is
critical to our system of rule of law. In my view, it is today
in jeopardy. You are participating in a process that has
featured unprecedented concealment and partisanship around your
record. And a few moments ago, Senator Durbin proposed a bold
step, which would be for you to support suspending this hearing
until all your records are produced and available to this
Committee and the American people, and I encourage you to do
this.
There are also Members of both parties who have not stated
how they will vote on your nomination, and I urge you to answer
our questions about your prior work, about your writings, about
precedent and the Constitution itself, to trust the American
people, and to help build our trust in the Court on which you
may well soon serve.
I have been to too many hearings in which judicial nominees
have told us that they will evenhandedly apply the text of laws
or the Constitution only to watch them ascend to the Bench and
whittle away the individual rights of Americans or narrow and
overturn long-settled precedent.
This Supreme Court vacancy comes at a critical time for our
country, when our institutions of law and the very foundations
of our democracy are being gravely tested. If we are going to
safeguard the rule of law in this country, our courts--and in
particular, our Supreme Court--must be a bulwark against
unprecedented violations of law, deprivations of freedom, and
abuses of power by anyone--including our President.
No one said it better than our former colleague, Senator
McCain, who once asked about America, what makes us
exceptional? Is it our wealth, our natural resources, our
military power, our big and bountiful country? No, it is our
founding ideals and our fidelity to them and our conduct in the
world, they are the source of our wealth and power, that we
live under the rule of law. That enables us to face threats
with confidence that our values make us stronger than our
enemies.
Judge Kavanaugh, we are here to determine whether you would
uphold or undermine those founding ideals and the rule of law.
We are here to determine whether you would continue in the
traditions of the Court or transform it into a body more
conservative than a majority of Americans. We are here to
determine whether your confirmation would compromise or
undermine the legitimacy of the Court itself. I urge you to
answer our questions and to confront these significant
challenges. These are weighty questions, and the American
people deserve real answers.
Thank you, and I look forward to your testimony.
[The prepared statement of Senator Coons appears as a
submission for the record.]
Chairman Grassley. Yes. You can easily get the impression,
not just from Senator Coons but other Senators, that somehow
you, Judge Kavanaugh, are out of the mainstream in some way. So
I looked at your record in the D.C. Circuit and have found that
judges have agreed with you and your rulings in an overwhelming
majority of matters across the board. Ninety-four percent of
the matters Judge Kavanaugh heard were decided unanimously. In
97 percent of the matters Judge Kavanaugh heard, he voted with
the majority. Judge Kavanaugh issued dissenting opinions in
only 2.7 percent of the matters that you heard.
I would also like to clarify what the Presidential Records
Act requires. Our documents process has fully complied with the
Presidential Records Act. Under the Federal statute, President
Bush has the right to request his own administration records.
He also has the authority to review his records before the
Senate receives them. Indeed, the Archives may not produce them
to the Committee without giving President Bush and his
statutory representatives an opportunity to review first. This
is what President Bush has done, and the National Archives does
not have the authority to second-guess President Bush's
decision to release records to us.
The National Archives was not cut out of the process. As
President Bush's representative informed the Committee, quote,
``Because we have sought, received, and followed NARA's''--that
means the Archivist's--``views on any documents withheld as
personal documents, the resulting productions of documents to
the Committee is essentially the same as if the `Archivist' had
conducted its review first, and then sought our views and the
current administration's views, as required by law,'' end of
quote.
Senator Flake.
OPENING STATEMENT OF HON. JEFF FLAKE,
A U.S. SENATOR FROM THE STATE OF ARIZONA
Senator Flake. Thank you, Mr. Chairman.
Congratulations, Judge Kavanaugh, and congratulations to
your family as well.
Let me just say a few things about the issue that has been
discussed here a lot today, the issue of documents and document
production. The standard historically that we use to look at
nominees is what is relevant and probative. I would suggest
that we certainly get that from the 12 years you have served on
the circuit court, on the D.C. Circuit Court, that considers,
when you look at the docket, items that, you know, more than
any other circuit court, that the Supreme Court would be
perhaps called to rule on.
In the past, Senators on this panel have argued on both
sides of the aisle that confirming a judge, the best we can
look at is his or her judicial record. You have that record,
and it is a long one, over 300 opinions, and I would suggest
that that is where we need to start. A lot of the other records
that have been discussed are mainly duplicative, administrative
documents. Many do not meet the standard of relevant or
probative. They may not demonstrate the type of Justice that
you will be.
Senator Sasse talked about what we are called to do here is
to look at your temperament and your judgment and your
character, and I think you can see a lot of that by the type of
life you have lived outside of the courtroom. When we met in my
office, I was impressed obviously with your respect for the law
and quick intellect but also struck by kindness and decency. I
found out that we share a deep love of sports. We both played
football back in the day. I am sure you are looking forward to
this weekend not just when these hearings are concluded but
when the Redskins and Cardinals play on Sunday.
I have learned that you have run the Boston Marathon twice.
I wonder if the ABA took that into account when they gave you a
favorable rating. I am not sure what that says about your
soundness of mind myself. But, in all seriousness, training for
a marathon, completing two marathons like this, is a huge
accomplishment. It demonstrates not just your competitive
spirit but a strong sense of purpose and commitment and says
something about your temperament and character.
Of course, you have no greater commitment than to your
family, your wife Ashley and your two daughters. I know that
you beamed with pride when talking about them and talking
about, as has been mentioned earlier, coaching your daughter's
elementary-school basketball teams.
I have a letter for the record written by a group of
parents whose girls play for basketball teams that Judge
Kavanaugh coaches, and, Mr. Chairman, without objection, I
would like to enter that letter into the record.
Chairman Grassley. So ordered.
[The information appears as a submission for the record.]
Senator Flake. The team's parents' note that Judge
Kavanaugh has been a devoted coach and a mentor to their
daughters. As these parents note, Coach K--and that is new,
you, not the Duke, a famous one--stresses the importance of
playing as a team and has provided the girls the opportunity to
learn about teamwork, honesty, integrity, humility, respect,
discipline, hard work, and competitiveness. Again, we are going
back to temperament and character. Judge Kavanaugh's dedication
and commitment as a volunteer basketball coach I think
demonstrates and says a good deal about that character.
And congratulations to you and the Blessed Sacrament
Bulldogs for winning the city championship this past year. I
know you must be proud of your team.
Now, aside from running marathons, winning basketball
championships, you have spent, as I mentioned, the last 12
years as a Federal Appeals Court Judge on the D.C. Circuit. You
have earned a reputation among legal commentators and
colleagues on both sides of the aisle of a solid, careful
judge; a thorough and clear writer; and someone who promotes
collegiality on the court, working with people across
ideological lines.
I have also a New York Times article for the record written
by Professor Akhil Amar, a self-professed liberal who describes
Judge Kavanaugh as one who appreciates the craft of judging
with seriousness and commands wide and deep respect among
scholars, lawyers, and jurists across the political spectrum.
Mr. Chairman, I would like to submit that for the record as
well.
Chairman Grassley. Without objection, so ordered.
[The information appears as a submission for the record.]
Senator Flake. As I mentioned, Judge Kavanaugh has amassed
an astonishingly distinguished and extensive record, writing
more than 300 opinions, joining his colleagues in issuing
thousands of additional cases, and that is where we need to
look first when we are looking at how you will judge on the
Supreme Court.
Now, I know--and it has been brought up today--that a lot
of the concern on the other side of the aisle stems from the
concern of an administration that does not seem to understand
and appreciate separation of powers and the rule of law. I have
that concern as well. If you just look at what was said just
yesterday by the President, I think it is very concerning. He
said in a tweet, ``Two long-running Obama-era investigations of
two very popular Republican Congressmen were brought to a well-
publicized charge just ahead of the midterms by the Jeff
Sessions Justice Department,'' he calls it. ``Two easy wins now
in doubt because there is not enough time. Good job, Jeff.''
That is why a lot of people are concerned about this
administration and why they want to ensure that our
institutions hold. Thus far they have, gratefully. Jeff
Sessions has resisted pressure from the President to punish his
enemies and relieve pressure on his friends, and many of the
questions that you will get on the other side of the aisle and
from me will be how you view that relationship, where you
believe the Article I powers end and Article II powers of the
administration begin.
So I expect to have a number of questions on that subject.
I again appreciate your willingness to put yourself through
this process, and I look forward to the hearing moving ahead in
the next week.
Thank you, Mr. Chairman.
Chairman Grassley. Okay.
Senator Blumenthal.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Blumenthal. Thank you, Mr. Chairman. Thank you, Mr.
Chairman, for your conducting these hearings as fairly and
patiently as you have, and I am going to be remarking further
on what procedurally I think is appropriate here.
But I want to begin by thanking Judge Kavanaugh and your
family for your commitment to public service. I want to thank
the many, many Americans who are paying attention to this
hearing, not only in this room but also across the country. I
want to thank them for their interest and indeed their passion.
That is what sustains democracy, that commitment to ordinary,
everyday Americans participating and engaging in this process.
There is a T-shirt worn by a number of folks walking around
this building that says, ``I am what's at stake.'' This vote
and this proceeding could not be more consequential in light of
what is at stake: whether women can decide when they want to
have children and become pregnant; whether the people of
America can decide whom they would like to marry; whether we
drink clean water and breathe clean air; whether consumers are
protected against defective products and financial abuses; and
whether we have a real system of checks and balances or,
alternatively, an imperial Presidency.
I will not cast a vote more important than this one, and I
suspect few of my colleagues will, as well. And what is at
stake is, indeed, also the rule of law. My colleague, Senator
Flake, quoted the President's tweet yesterday. I am going to
repeat it: ``Two long-running Obama-era investigations of two
very popular Republican Congressmen were brought to a well-
publicized charge just ahead of the midterms by the Jeff
Sessions Justice Department. Two easy wins now in doubt because
there is not enough time. Good job, Jeff.''
I have had my disagreements with this Department of
Justice. I want to note for the record that at least one high-
ranking member of the Department of Justice was in this room. I
want to urge the Department of Justice to stand strong and hold
fast against this onslaught which threatens the basic
principles of our democracy.
And I want to join my colleague, Senator Sasse, in his hope
that you, Judge Kavanaugh, would condemn this attack on the
rule of law and our judiciary. Because, at the end of this dark
era, when the history of this time is written, I believe that
the heroes will be our independent judiciary and our free
press.
You are nominated by that very President who has launched
this attack on our Department of Justice, on the rule of law,
on law enforcement like the FBI, law enforcement at every level
whose integrity he has questioned, and your responses to our
questions will be highly enlightening about whether you join us
in defending the judiciary and the rule of law.
That very President has nominated you in this unprecedented
time, unprecedented because he is an unindicted co-conspirator
who has nominated a potential Justice who will cast the swing
vote on issues relating to his possible criminal culpability;
in fact, whether he is required to obey a subpoena to appear
before a grand jury, whether he is required to testify in a
prosecution of his friends or associates or other officials in
his administration, and whether, in fact, he is required to
stand trial if he is indicted while he is President of the
United States.
There is a basic principle of our Constitution, and it was
articulated by the Founders: No one can select a judge in his
own case. That is what the President is potentially doing here,
selecting a Justice on the Supreme Court who potentially will
cast a decisive vote in his own case. That is a reason why this
proceeding is so consequential.
Senator Sasse urged us to do our job. I agree. Part of our
job is to review the record of the nominee as thoroughly and
deliberately as possible, looking to all the relevant and
probative evidence. We cannot do that on this record.
Mr. Chairman, you have said multiple times that your staff
has already reviewed the 42,000 pages of documents produced to
this Committee at 5:41 p.m. yesterday. Both sides are using the
same computer platform to review the documents from Mr. Burck.
The documents had to be loaded into this platform overnight and
could not be concluded until 6:45 a.m. this morning. How is it
possible that your staff concluded its review last night before
the documents were even uploaded? That is this platform that
both sides are using here. It is simply not possible, Mr.
Chairman, that any Senator has seen these new materials, much
less all of the other relevant documents that have been
screened by Bill Burck, who is not the National Archivist.
And this situation, when we say it is unprecedented, is
truly without parallel in our history, and I am going to quote
from the National Archivist: It is ``something that has never
happened before.'' And the Archivist continued, ``This effort
by former President Bush does not represent the National
Archives or the George W. Bush Presidential Library,'' end
quote.
So, Mr. Chairman, I renew my motion to adjourn so that we
have time to conclude our review of these documents and so that
also, my request under the Freedom of Information Act, which is
now pending to the National Archivist, to the Department of
Justice, to other relevant agencies, can be considered and
judged. That Freedom of Information Act will require some time,
I assume, to conclude.
I renew my motion, Mr. Chairman, and ask for a vote on the
motion to adjourn. As I said earlier, Rule IV provides, quote,
``The Committee Chairman shall''--shall, not may--``shall
entertain a non-debatable motion to bring a matter before the
Committee to a vote.'' That seems pretty clear to me, Mr.
Chairman. I have made a motion to bring before the Committee a
motion to adjourn under the rules. With all due respect, you
are required to entertain my motion.
And I would just add this final point. All of these
documents will come out. They will come out eventually, as soon
as 2019 and 2020. By law, these documents belong to the
American people. They do not belong to President Bush or
President Trump. They belong to the American people. It is only
a matter of time, my Republican colleagues, before you will
have to answer for what is in these documents. We do not know
what is in them. But the question is, what are they concealing
that you will have to answer to history for?
Mr. Chairman, I renew my motion to adjourn.
Chairman Grassley. You quote the rules very accurately, but
those rules apply to executive business sessions. We are not in
an executive business session, so I deny your motion.
Senator Blumenthal. Mr. Chairman, with all due respect, I
ask you to point out to me the language in Rule IV or anywhere
else in our rules that limits its scope to executive business
meetings. There is no such language, Mr. Chairman.
Chairman Grassley. I would have you quote language to the
contrary.
Senator Blumenthal. Could you quote me that language?
Chairman Grassley. No. I am asking you, you quote me
language to the contrary of what I ruled.
Senator Blumenthal. There is no language to the contrary. I
am asking for a vote in this session now. There is nothing that
precludes a vote in our hearing at this exact time.
Chairman Grassley. I have ruled. Do you want to proceed? Do
you?
Senator Blumenthal. Well, if the Chair, with all due
respect, is ruling against me, I move to appeal the ruling of
the Chair. With all due respect, the Chairman is not above the
Rules of the Committee. I ask for a roll call vote to overturn
the ruling of the Chair and to allow for a vote on my motion to
adjourn these proceedings.
Chairman Grassley. That would be an appropriate motion if
we were in executive business session, but we are not in
executive business session, so it is denied.
Senator Blumenthal. Mr. Chairman, I will proceed under
protest. We have had a lot of rhetoric so far about rules and
norms. I am very regretful that the Chair has adopted this
stance, which in my view, contradicts our basic norms and
rules. But I will proceed.
[Disturbance in the hearing room.]
Senator Blumenthal. Mr. Chairman, I have fears about what
this nominee will do with respect to our rule of law, but also
about basic rights that have been established by past Supreme
Court precedent. And the only way to test what his fidelity to
the rule of law is, in fact, is to ask, as I have asked every
single judicial nominee coming before me when I have served on
this Committee in hearings, whether he believes past decisions
of the Supreme Court were correctly decided.
So I am going to be asking you, Judge Kavanaugh, whether
you believe Roe v. Wade was correctly decided.
Senator Cornyn. Mr. Chairman?
Senator Blumenthal. I am going to be asking you----
Senator Cornyn. Mr. Chairman, may I ask a question? I was
under the impression each of us had 10 minutes for an opening
statement. We will have 15 minutes for questions, but----
Chairman Grassley. Let me clarify.
Senator Cornyn. And then--plus, Mr. Chairman----
Senator Blumenthal. Well, I do not----
Senator Cornyn [continuing]. Various Members have been
making speeches all day long and have not been confined to
their 10-minute opening statement.
Chairman Grassley. Yes. Okay. Well, like I told you----
Senator Blumenthal. I think I have time left.
Chairman Grassley [continuing]. You will have time. I am
going to let you finish. Just a minute.
I was hoping that the 10-minute rule would stand, but we
got off to a very bad start.
[Disturbance in the hearing room.]
Chairman Grassley. And we got off to a bad start, and
everybody started exceeding their time limit. So I guess as
long as we have to stay here and get this all done today, if we
have to stay into the night, we are going to stay, but I am not
going to cut anybody off now that I did not do it right away.
And like you said, mob rule. I have always said to myself when
I am advising other people, either you run the Committee or the
Committee runs you, and I let the----
[Disturbance in the hearing room.]
Chairman Grassley [continuing]. And I let the Committee run
me this time. So let's just proceed as we have and let Senator
Blumenthal take what time he wants. I hope you will not go too
long.
Senator Blumenthal. I will be very judicious, Mr. Chairman.
Thank you.
Chairman Grassley. I do not know what that means.
[Laughter.]
Chairman Grassley. I am sorry, Senator Cornyn, I cannot
agree with you. We will just proceed.
Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman.
Senator Cornyn. Next time, Mr. Chairman.
Senator Blumenthal. So I will be asking, Judge Kavanaugh,
whether you believe Roe v. Wade was correctly decided, whether
you believe Brown v. Board of Education was correctly decided.
Judicial nominees have figured out all kinds of ways to avoid
answering the question. At first they said they thought it
would violate the canons of ethics. There are no canons of
ethics that preclude a response. Then they said that they felt
a decision might come before them, an issue in a case that
might arise, and more recently they have adopted the mantra
that they think all Supreme Court decisions are correctly
decided.
But you are in a different position. You have been
nominated to the highest court in the land, and your decisions
as a potential swing vote could overturn even well-settled
precedent. There are indications in your writings, your
opinions, as well as the articles you have written and some of
the memos that have come to light, that you believe, for
example, Roe v. Wade could be overturned. And that is why I
want to know from you whether you think it was correctly
decided in the first place, and other decisions that are
regarded as well-settled or long-established.
In fact, I have these fears because, Judge Kavanaugh, the
system and process has changed so radically. In fact, you have
spent decades showing us in many ways what you believe. Or to
put it more precisely, you have spent decades showing those
groups like the Federalist Society and the Heritage Foundation
and others what you believe. They are the ones who have really
nominated you because the President outsourced this decision to
them.
In those opinions and writings and statements and
interviews, you have done everything in your power to show
those far-right groups that you will be a loyal soldier on the
Court. I am going to use some of those writings and some of the
timing and other indications to show that you are more than a
nominee, in fact a candidate in a campaign that you have
conducted. That seems to be, unfortunately, the way the system
has worked in your case.
The norms have been dumbed down, and the system has been
degraded, but I think that we have an obligation to do our job
and elicit from you where you will go as a Justice on the
United States Supreme Court based on what you have written and
said, and also what you will tell the American people in these
hearings.
I join in the request that has been made of you that you
show the initiative and ask for a postponement of these
hearings. I think that this process has been a grave disservice
to you, as well as this Committee and the American people. If
you are confirmed after this truncated and concealed process,
there will always be an asterisk after your name, ``appointed
by a President named as an unindicted co-conspirator after the
vast majority of documents relating to the most instructive
period of his life were concealed.'' The question will always
be why was all that material concealed?
You have coached and you have mentored judges going through
this process. You are as sophisticated and knowledgeable as
anyone who will ever come before us as a judicial nominee. So
you know that we have an obligation to inquire as to everything
that can be relevant.
And it is not the numbers of documents. It is the
percentage. There were no emails when Justice Ginsburg was the
nominee. The documents that we have been provided contain
duplicates. They are full of junk. We need everything that is
relevant, including the 3-years that you served in the Bush
White House as staff secretary, the most instructive period of
your professional career.
So let me just conclude by saying what we share, I think,
is a deep respect and reverence for the United States Supreme
Court. I was a law clerk, as you were. I have argued cases
before the Court. Most of my life has been spent in the
courtroom as U.S. Attorney or as Attorney General. The power of
the Supreme Court relies not on armies or police forces. It has
none. But on its credibility, the trust and confidence of the
American people. I ask you to help us uphold that trust by
asking this Committee to suspend this hearing and come back
when we have a full picture with the full sunlight that our
Chairman is so fond of espousing, so that we can fully and
fairly evaluate your nomination.
Thank you, Mr. Chairman.
[The prepared statement of Senator Blumenthal appears as a
submission for the record.]
Chairman Grassley. Once again, I would remind everybody we
have----
[Disturbance in the hearing room.]
Chairman Grassley [continuing]. We have a half-a-million
documents on this gentleman's record. And also----
[Disturbance in the hearing room.]
Chairman Grassley [continuing]. I would like to respond to
the fact that you cannot go 42,000 pages, which I guess is way
over the number of documents that we actually received. The
Majority and Minority received documents in two ways. One is a
format that can be uploaded to reviewing platforms, and the
second is in a standard document file format called PDFs.
Given the importance of reviewing documents in a timely
manner, my staff reviewed the PDF versions. The production was
relatively small, and therefore there was no need to upload
them to a reviewing----
[Disturbance in the hearing room.]
Chairman Grassley. Senator Kennedy, you are next.
Senator Kennedy. Say again?
Chairman Grassley. You are next, Senator Kennedy.
[Disturbance in the hearing room.]
OPENING STATEMENT OF HON. JOHN KENNEDY,
A U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Kennedy. Thank you, Mr. Chairman.
I have listened with interest today. I agree so much with
what Senator Sasse said. I listened today, and it is no wonder
to me that so many Americans think that the United States
Supreme Court is nothing more than a little Congress, a
political body like the United States Senate.
Let me try to explain what I am looking for in a Supreme
Court Justice. I want a judge. I do not want a politician. Now,
I am not naive. It is true, Senator Booker and I are new to the
Senate. We did not come here when Moses walked the earth. But
we are not new to politics. And I understand that human
relations are about politics. I get that. But I do not think
our Founders ever intended for the United States Supreme Court
to become a political body. I do not.
I am not looking for an ideologue. I am not looking for a
hater. What I am looking for is somebody who is smart, who is
intellectually curious, who writes cleanly and crisply, who
knows what a semicolon is for, and who is willing to protect
the United States Constitution and the Bill of Rights, and
understands that the Bill of Rights is not an a la carte menu.
Every one of them counts.
Let me try to explain further why I agree with so much of
what Senator Sasse said. This is not a news flash. Our country
is divided. We have been divided before. We will be divided
again. We will survive this. But I confess, the division in our
country today seems to me to be especially sharp. And what
concerns me so much about that division is the basis for it. It
is not honest disagreement. So much of it is anger.
There have been thousands, millions of pages written about
the genesis of that anger. We all have opinions. You know what
they say about opinions. Here is mine. I think a big part of
the anger in America today is because we have too many
Americans who are not sharing in the great wealth of this
country, not economically, not socially, not culturally, and
not spiritually. And those Americans believe that the American
dream has become the American game, and that that game is
fixed.
Let me give you one example why I say that. I do not hear
it so much today. I am biased, but I happen to think the Tax
Cuts and Jobs Act bill worked. But when I ran 2 years ago, I
would hear it every single day. People would stop me and they
would say, ``Kennedy, do you know what is wrong with us
economically?'' They would tell me, ``I look around, Kennedy,
and I see too many undeserving people''--I emphasize
undeserving. I do not want to paint with too broad a brush.
They would tell me, ``Kennedy, I look around and I see too many
undeserving people at the top getting bailouts, and I see too
many undeserving people at the bottom getting handouts. And I
am here, just a working schmuck in the middle, stuck in the
middle, and I cannot pay the freight anymore because my health
insurance has gone up and my kid's tuition has gone up and my
taxes have gone up, but I will tell you what has not gone up--
my income.''
Now, I happen to think we are doing better in that regard,
but we still have a long way to go. But here is the point: Who
is supposed to fix that for the American people? It is us. It
is the United States Congress. It is not the United States
Supreme Court that is supposed to fix this country culturally,
economically, socially, spiritually.
And that is why I say I agree with so much of what Senator
Sasse said. It has almost become a cliche, but the role of the
judge is, or at least should be, to say what the law is, not
what the law ought to be. Now, that has become cliche, but
cliches become cliches because they are true. Judges are not
put there to try to bypass the ballot. Courts should not try to
fix problems that are within the province of the United States
Congress, even if the United States Congress does not have the
courage to address those problems. Our courts were not meant to
decide these kinds of issues.
Again, I am not naive. I know that judges are not robots.
We cannot replace you and should not try to replace you with a
software program based on artificial intelligence. You have
discretion. We are going to talk about that if we ever get to
the questioning part of this exercise.
But I want to say it again. I understand why, listening
today, so many Americans believe that the law, which I think
all of us revere, has become politics just pursued in another
way. It is not the way it is supposed to be, judge. That is not
what I am looking for.
Now, I am going to end. I still have plenty of time left. I
think I have 2 hours allotted, Mr. Chairman?
[Laughter.]
Senator Kennedy. Somebody talked about--said they had seen
this movie before. I commented to my friend, Senator Tillis,
this thing is as long as a movie.
These are the words of Justice Curtis in 1857, when he
dissented in the Dred Scott case: ``When a strict
interpretation of the Constitution according to the fixed rules
which govern the interpretation of laws is abandoned, and the
theoretical opinions of individuals are allowed to control its
meaning, we have no longer a Constitution. We are under the
government of individual men who, for the time being, have
power to declare what the Constitution is according to their
own views of what it ought to mean.'' That is not the rule of
law.
Justice Scalia put it another way, and I truly will end
with that. He said, ``The American people love democracy, and
the American people are not fools. The people know their value
judgments are quite as good as those taught in any law school,
maybe better. Value judgments, after all, should be voted on,
not dictated.''
And that is what I am looking for, Judge.
Thank you, Mr. Chairman.
Chairman Grassley. Senator Hirono.
OPENING STATEMENT OF HON. MAZIE K. HIRONO,
A U.S. SENATOR FROM THE STATE OF HAWAII
Senator Hirono. Thank you, Mr. Chairman.
Judge Kavanaugh and your family, welcome.
Mr. Chairman, earlier on today, I pointed to an op-ed that
had been written by two former White House staff secretaries,
John Podesta and Todd Stern, entitled ``Staff Secretaries
Aren't Traffic Cops: Stop Treating Kavanaugh Like He Was One.''
And I note in their op-ed what they said. I will quote part of
it.
They say that, ``When we handled the job for Bill Clinton
in much the same way that staff secretaries did for President
George H.W. Bush, we wrote concise cover memos for every
decision memo that went to the President. We summarized the
underlying memo, identified the core decision points and
options, and conveyed the views of key senior staff members
from whom we had sought comments. We wrote hundreds of these
memos.'' It is no wonder that Judge Kavanaugh has deemed his
time as White House staff secretary so important to his
performance as a judge. But unfortunately, as we have said many
times already, we do not have any of these documents during
Judge Kavanaugh's time as staff secretary.
Dana Sabraw. Michael Baylson. Ketanji Brown Jackson.
Colleen Kollar Kotelly. Naomi Reice Buchwald. John Bates. Derek
Kahala Watson.
These are the names of some of the Federal judges across
this country who have vindicated my faith in the rule of law
over the last year and a half. These are the women and men,
appointed by Republican and Democratic Presidents, who ordered
the Government to reunite parents with the children ripped from
their arms at the border; who rejected attempts to deny Federal
funds to cities refusing to be drawn into the war against
immigrants; who stopped Executive orders aimed at kneecapping
public-sector unions; who stopped the implementation of an ugly
ban on transgender Americans serving in our military; who ruled
that public officials cannot block citizens from their Twitter
feeds; and who stopped the Government from banning Muslims from
entering the United States.
These judges stood firm in defense of the Constitution, the
American values it expresses, and the system of checks and
balances it enshrines. At this moment of peril for our
democracy, it is these judges, and others like them, who have
pushed back against the efforts of a President eager to wield
unlimited and unchecked power.
In normal times, we would be here today to determine the
fitness of a nominee to the Supreme Court of the United States
chosen for his or her legal talent and reputation for fairness.
But these are not normal times.
Instead, we are here to decide whether or not to rubber
stamp Donald Trump's choice of a pre-selected political
ideologue, nominated precisely because he believes a sitting
President should be shielded from civil lawsuits, criminal
investigation, and prosecution, no matter the facts.
Let's not forget. During his campaign, Donald Trump needed
to shore up support from the Republican base who questioned
whether he was sufficiently conservative. To help, he turned to
the Federalist Society and the Heritage Foundation to build a
pre-approved list of names, and promised to pick from among
them when selecting nominees for the Supreme Court.
These groups are longstanding right-wing organizations that
advocate for conservative causes and legal positions. The
Heritage Foundation focuses on developing policy to, among
other things, oppose climate change, repeal the Affordable Care
Act, and reduce regulations for big business. The Federalist
Society focuses on changing the American legal system to align
with an ultraconservative interpretation of the Constitution,
including the overturning of Roe v. Wade.
When given the opportunity to nominate a new Supreme Court
Justice, Donald Trump did exactly as he promised. He did not
select someone who demonstrates independence and fidelity to
the rule of law. Instead, Donald Trump selected a pre-approved
name in order to guarantee a fifth vote for his dangerous anti-
worker, anti-consumer, anti-women, pro-corporate, and anti-
environment agenda.
And Donald Trump selected Brett Kavanaugh from this list
for an even more specific reason. The President is trying as
hard as he can to protect himself from the independent,
impartial, and dogged investigation of his abuse of power,
before the walls close in on him entirely.
Because if there is one thing we know about Donald Trump,
it is that he is committed to self-preservation every minute,
every hour, every day.
Judge Kavanaugh's appointment should be considered in a
broader context. The President has been packing our courts with
ideologically driven judges who come to the bench with firm
positions and clear agendas, who then go on to rule in ways
consistent with those agendas.
For example, Trump nominee James Ho, now a judge on the
Fifth Circuit, has written in favor of unlimited campaign
contributions and, in another case, publically aired his
personal views in opposition to abortion.
Trump nominee Don Willet, now a judge on the Fifth Circuit,
has already voted to curtail the independence of a Federal
agency that helped rescue the economy after the mortgage crisis
of 2008.
Trump nominee Stephanos Bibas, now a judge on the Third
Circuit, wrote a dissent to explain that he does not believe
Title IX requires school districts to provide transgender
students appropriate changing facilities and bathrooms.
Trump nominee Amy Coney Barret, now a judge on the Seventh
Circuit, ruled to keep out of court employees trying to
challenge an arbitration proceeding, and cast the deciding vote
to allow a business to continue to segregate its work force.
And Trump nominee John K. Bush, now a judge on the Sixth
Circuit, ruled to keep out of court a woman accusing her
employer of age discrimination, despite a dissenting judge's
view that there was sufficient evidence to go forward.
When these Trump-nominated judges came before the Judiciary
Committee as nominees, my Democratic colleagues and I tried to
find out how they would go about deciding tough cases, what
they would base their decisions on when the law did not give a
clear enough direction, as is often the case.
Time and again, we were told: Do not worry about my
personal background or my history as a partisan, political
advocate. Do not worry about what I have done, written, or said
until now. When I get on the bench, I will just follow the law.
But clearly, they have not. Why should we expect this Supreme
Court nominee, you, to be any different?
President Trump selected Brett Kavanaugh because of his
fealty to the partisan political movement he has been a part of
his entire professional life.
From his clerkship with Judge Alex Kozinski, to his
apprenticeship with Ken Starr, to his work on George W. Bush's
legal team during the Florida recount and in the White House,
Judge Kavanaugh has been knee-deep in partisan politics.
The first reward for that service was his nomination to the
D.C. Circuit. It was a tough fight, but Republican-aligned
special interests fought for more than 3 years to get him
confirmed.
And for the last 12 years as a judge, he has ruled, whether
in dissent or majority, in ways in line with their political
and ideological agenda.
Now, President Trump has selected Judge Kavanaugh to
provide the decisive fifth vote in cases that will change some
of the most basic assumptions Americans have about their lives
and their Government.
There are more than 730 Federal judges working on thousands
of cases across the country every day. Most of these cases end
in trial courts. Some of them are appealed and heard in
appellate courts. The closely divided Supreme Court hears very
few cases, many times fewer than 100, every year.
Before Justice Kennedy retired, so many important
Constitutional rights were hanging in the balance, decided on
narrow grounds by 5-to-4 votes.
And now that Justice Kennedy has left the Court, the forces
opposed to workers' rights, women's rights, LGBTQ rights,
voting rights, civil rights of all kinds, and environmental
protections are eager to secure a solid majority on the Court
to support their right-wing views.
These ultra-right-wing forces have been working for decades
to prepare for this moment because they know that a single vote
from one Justice is all it would take to radically change the
direction of this country.
It could take just one vote on the Supreme Court to
overturn Roe v. Wade and deny women control over their
reproductive rights.
It could take just one vote to declare the ACA's pre-
existing condition protections unconstitutional.
It could take just one vote to dismantle environmental
protections that keep our air safe to breathe and our water
clean to drink.
It could take just one vote to dismantle commonsense gun
safety laws that keep our communities safe.
And it could take just one vote to further erode
protections for working people and unions.
Since this nomination was announced, I have been asked many
times why the Democrats would even bother to go through the
motions when we know that our Republican colleagues will do
anything to support this administration's judicial nominees.
There are battles worth fighting regardless of the outcome.
A lifetime appointment to the Supreme Court, of someone who
will provide the fifth vote on issues impacting the lives of
every working American, is a battle worth fighting.
So, I intend to use this hearing to demonstrate to the
American people precisely why who sits on the Supreme Court
matters, why a fifth ideologically driven conservative and
political vote on the Court is dangerous for our country, why
the Senate should reject this President's latest attempt to rig
the system in his favor.
As Senators begin to ask their questions in the coming
days, I ask the American people to listen carefully to what the
nominee says and compare it with what we heard only a short
time ago from Neil Gorsuch at his confirmation hearing.
Just 18 months ago, Judge Gorsuch told us that, ``All
precedent of the United States Supreme Court deserves the
respect of precedent, which is quite a lot. It's the anchor of
the law.''
Judge Gorsuch said, ``It's not whether I agree or disagree
with any particular precedent. That would be an act of hubris.
Because a precedent, once it's decided, it carries far more
weight than what I personally think.''
Judge Gorsuch made these promises when he was asking for
our votes. But earlier this year, he joined a majority of the
Court to overturn precedent in a 41-year-old case that
protected Government workers and their ability to form a union
in a 5-to-4 decision.
I expect Judge Kavanaugh to make similar promises over the
next few days, only to do, sadly, the exact opposite if
confirmed.
Our job here is important, because every American should be
concerned about what our Government and country would look like
if Judge Kavanaugh is confirmed.
We owe it to the American people, and to all of the
independent-minded judges I mentioned at the beginning of my
remarks, to preserve the integrity of our Constitution and the
fairness and order of a system that has served us well for so
long.
Judge Kavanaugh, what may be going through your mind right
now is to simply and stoically endure this hearing. But do you
not think you owe it to the American people to disclose all of
the documents being requested? Because you have nothing to
hide. Because you have nothing to hide.
I agree with my colleague, Senator Durbin, Judge Kavanaugh.
If you stand behind your full record in public life,
fundamental fairness will dictate that you join us in our call
for this Committee to suspend until we receive all relevant
documents and have a chance to review them. Your failure to do
so would reflect a fundamental mistrust of the American people.
Thank you, Mr. Chairman.
[The prepared statement of Senator Hirono appears as a
submission for the record.]
Senator Hirono. And I would like to have entered into the
record the op-ed piece that I referred to by John Podesta and
Todd Stern.
Chairman Grassley. Without objection, it will be entered.
[The information appears as a submission for the record.]
Chairman Grassley. Let's go to Senator Crapo next.
OPENING STATEMENT OF HON. MIKE CRAPO,
A U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. Thank you, Mr. Chairman.
Judge Kavanaugh, welcome. Thank you for your service to
this country, and thank you for the willingness you have
expressed to take this additional assignment. And thank you to
your family. We welcome them as well.
The process upon which we are about to embark is one of, if
maybe not the most, important duties entrusted to the Senate,
advise and consent on judicial nominations. Ultimately, a fair
and proper judge, Supreme Court or otherwise, must follow the
law and not make laws from the bench.
Upon receiving his nomination to serve as an Associate
Justice of the Supreme Court, Judge Kavanaugh stated, ``My
judicial philosophy is straightforward. A judge must interpret
statutes as written, and a judge must interpret the
Constitution as written, informed by history and tradition and
precedent.''
Isn't that the ideal of a judge steadfastly committed to
the law?
No one seriously questions Judge Kavanaugh's qualifications
to serve as an Associate Justice on our Nation's highest court.
He is vastly experienced and widely respected for his
intellect, his honesty, and his legal acumen. With over 300
offered opinions and 12 years of service on the bench, he is a
judge with a clear record demonstrating that he applies the law
as written and enforces the Constitution. He values precedent
and has written, along with Justice Gorsuch and others, the law
of judicial precedent, a scholarly piece on the importance of
stare decisis.
Sadly, much of the discourse surrounding Judge Kavanaugh's
nomination deals not with the content of his legal opinions,
his judicial philosophy, or temperament, but rather, as today's
discussion has shown, the spurious notion that our
distinguished Chairman has not been rigorous or fair or
transparent in navigating the requisite document production
efforts required by this Committee.
Those claims are wholly without foundation. There have been
57 days since the announcement of Judge Kavanaugh's nomination
on July 9 and today's confirmation hearing. This is a longer
period of time than Senators had for Justices Sotomayor, Kagan,
and Gorsuch. Justice Kavanaugh also submitted over 17,000 pages
with his bipartisan Judiciary Committee questionnaire, the most
extensive questionnaire ever returned by a nominee to the
Supreme Court.
The Committee also received more than 440,000 pages of
documents related to his service in the executive branch. This,
too, is more than any Supreme Court nominee to date. As has
been said earlier, in fact, it is more than the last five
nominees combined.
I applaud Chairman Grassley and his dedicated staff for
their tireless work in reviewing these documents and making the
vast majority publicly available as quickly as possible. And
frankly, Mr. Chairman, I believe the American people appreciate
your efforts, your transparency, and your commitment to a fair
process.
Now, I want to make one side note. It was said here today
that the number of documents provided by now-Justice Kagan, who
was also a nominee who had served in the White House and had
many, many documents related to her service, that 99 percent of
the documents requested for her were provided. One problem with
that fact, and that is that when Justice Kagan was before us,
she had been the solicitor General. There were probably more
pages relevant to her service there than to your service. We do
not know the number because the Republicans agreed after a
strong disagreement with the Democrats that we would not
request those documents because the White House claimed they
were sensitive.
The Democrats have not made that agreement with the
Republicans this time. But I think it is incredibly important
to note that this argument that is going on today about the
balance of document production is simply a trumped-up argument.
These facts aside, many of my colleagues continue to
criticize this process. Their motives are clear: use any means
available to attempt to delay the confirmation process of a
well-qualified jurist fit for the job, indefinitely.
I strongly agree with the comments of many of my colleagues
here today. Senator Cruz pointed out what was really at stake.
Senator Sasse pointed out why it is that Congress needs to be
the part of our Federal Government that makes the law, not the
judiciary. Senator Kennedy has followed up on that thought, as
have many of my colleagues here today.
I think that one point that Senator Cruz mentioned deserves
repeating. Much of what we are hearing today and will hear for
the remainder of this process is ultimately an effort to re-
litigate the last Presidential election. In fact, we have just
heard Judge Kavanaugh attacked and stated to be unqualified
because he is a Trump nominee. Other Trump nominees have also
been attacked here today.
The attack is on President Trump, not on their nominees,
because of an unwillingness to accept the outcome of the last
Presidential election. Judge Kavanaugh as the nominee has been
widely recognized for his judicial temperament and his detailed
legal writings in defense of the Constitution. His opinions are
widely cited by his fellow appellate judges, and even the
Supreme Court. And although his integrity was just challenged,
stating that no matter what he says to this Committee he will
vote the other way once put into office, put into the Supreme
Court, the fact is that his record, as the Chairman has already
outlined, disproves that.
He serves on the D.C. Circuit Court of Appeals, a court on
which more of the judges who serve have been appointed by
Democratic Presidents than Republican Presidents. Yet he has
voted 97 percent of the time with his colleagues in the
majority on that court, showing that he will follow the law and
that he does so with the majority support of broad and--I was
going to say bipartisan, but nonpartisan judges who are
appointed by Republican and Democratic Presidents and who
consider some of the most important cases in America today.
That is the judge we have before us. He is a judge's judge.
Many critics argue that Justice Kavanaugh would play an
instrumental role in reversing a number of Supreme Court
precedents. However, I wonder how one can draw that conclusion
given his record of exhaustive and weighty consideration of
important legal questions on a court such as the D.C. Circuit.
I recognize that it is politics driving these attacks, and
so do the American people. They know what is at stake.
Moreover, in his legal opinions, Judge Kavanaugh has
consistently demonstrated a willingness to rein in both
Congress and the executive branch when they overstep their
respective constitutional grounds. Judge Kavanaugh understands
and is focused on the principle that a judge is a servant of
the law, not a maker of it. We should take him at his own
words. The judge's job is to interpret the law, not to make the
law or policy.
So, read the words of the statute as written. Read the text
of the Constitution as written, mindful of history and
tradition. Do not make up new constitutional rights that are
not in the text of the Constitution. Do not shy away from
enforcing constitutional rights that are in the text of the
Constitution. Those are Judge Kavanaugh's words. That is the
man who sits before us nominated to be a Justice on the highest
court of our land.
Judge Kavanaugh has the backing of his former law clerks
and law students, his colleagues on the bench appointed by both
Republican and Democratic Presidents, and many members of his
local community in which he remains so closely involved. He is
a man of honor, integrity, and well-respected in the legal
community. There is no dispute he is qualified to serve on our
Nation's highest court.
Mr. Chairman, I look forward to the hearing to hear from
the nominee himself when we all get done with our statements.
[Disturbance in the hearing room.]
Senator Crapo. The next few days will prove insightful as
we discuss with Judge Kavanaugh for the public to hear in his
own words the proper role of the judge in our constitutional
system. I look forward to this hearing, and again, Judge
Kavanaugh, thank you for being willing to be here.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you.
Senator Booker.
OPENING STATEMENT OF HON. CORY A. BOOKER,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Booker. Thank you, Mr. Chairman.
Welcome, Judge Kavanaugh. And I want to say welcome to your
family sincerely as well. We are all Americans taking part in
what is truly an historic moment.
Mr. Chairman, Chairman Grassley, I hope you do not think
earlier this morning that in any way I was questioning your
integrity or your decency. I was appealing to it earlier
before, and you have been conducting this hearing giving myself
and others the opportunity to at least speak and make our case,
and even though you have not ruled in our favor, of which I am
disappointed, I do hope you understand that I value your
friendship, and frankly some of the most valuable moments I
have had in the Senate. I still remember shaking your hand and
coming to agreement with you on criminal justice reform. I have
come to have a deep respect for you, sir. So I hope you do not
think I was doing that earlier.
Chairman Grassley. If you worry about our friendship being
affected, it will not be. And that gives me an opportunity to
say something to the public at large, and that is about this
Committee.
You would think that Republicans and Democrats do not talk
to each other, but I would like to remind the public that when
they think that happens, they ought to think of the record of
this Committee, not just this Chairman but this Committee in
the 3\1/2\ years and maybe even before I got to be Chairman.
But in the 3\1/2\ years I have been Chairman, every bill that
got out of this Committee has been a bipartisan bill.
Proceed, Senator Booker.
Senator Booker. Thank you very much, sir. I appreciate
that. It does not detract from the fact that I just
fundamentally disagree with the way you have been concluding
today.
When I first got to the Senate I was very fortunate that a
lot of senior statesmen, yourself and Senator Hatch included,
pulled me aside and gave me hard wisdom at times. You will
remember, I came to the Senate in a special election at a time
when we were changing some of the Senate rules. Senator Levin
brought me aside and gave me a hard talking to. Senator McCain
gave me a hard talking to. And all of them made similar points
about this idea that sometimes you need to be as objective as
possible and see how you would react if the pendulum had swung
the other way. In other words, they warned me that what goes
around in this place comes around, and to really think as if
the shoe was on the other foot.
And I have been struggling with that, sir, in all honesty,
of what the Republicans would be saying and what we would be
saying if we had a Democratic President right now, a Democratic
nominee right now, and this process was in the reverse. And I
would like to believe how I would behave, and I am pretty
confident, would be willing to bet that if the Republicans were
being denied effectively about 90 percent of the documents
about a person's public record, I actually do believe that some
of the analogies that are made to Justice Kagan and her
Solicitor General time is not a fair analogy.
This is a part of the nominee's history that he himself has
said was one of his most formative times. I would not hire an
intern in my office knowing only 10 percent of their resume.
There is not a person here who would buy a home only seeing 10
percent of the rooms.
I just believe what we are doing here, just on the
objective view of fairness, is sincerely unfair and is
insulting to the ideals that we try to achieve with some sense
of comity and some sense of rules.
But I want to go deeper than that. I am trying to figure
out what the jeopardy would be if we just waited for the
documents. Last night we had a document dump of tens of
thousands of pages, tens of thousands of pages. As has been
said already, there is no judge that would allow a court
proceeding to go on, no judge that would move forward if one of
the parties had just gotten documents as of 5 o'clock last
night, or potentially as of 11 o'clock.
What I do not understand is, what is the jeopardy of just
waiting, not just to digest these documents but other
documents? The reality is that, Senator Grassley, you have
yourself asked for a specific, more finite set, a more limited
set of documents that you have not even gotten.
So whether it is not seeing 90 percent of the resume of the
gentleman before us, or 50 percent, or 40 percent, that should
come within time, and there is no jeopardy when we have a
lifetime appointment. He will be there, should he be confirmed,
for decades and decades and decades. Waiting another week or 5
days or 2 weeks for those documents that you yourself have
requested, which is a more limited subset, for even those
documents to come through, I do not understand what the rush
is, especially given all that is at stake.
So those are the reasons why I say to you with sincere
respect that this is an absurd process. It just seems unfair to
me, and it could easily be solved by us putting a pause here in
this process, waiting for the documents, evaluating the
documents, and it will be a much more robust set of hearings on
this nominee.
As I said, I would not hire an intern if I had not seen--if
I had only seen 10 percent of their resume. And here, to have a
fuller body of the work of this gentleman before us, who one of
my colleagues called popping up in some of the most interesting
times in the last decade or two on some of the most important
issues, already the limited amount, 7 percent of the documents
that I have seen, unfortunately those are things that are being
held Committee confidential, which I do not even know if I can
use in my question here. I think the penalty is being ousted
from the Senate.
But even the limited documents has made potentially my
questioning far more rich, far more substantive, to get to the
heart of the issues of the individual nominee. And again, sir,
I try to summon the spirit of some of the elder statespeople I
had the privilege of serving with, from Rockefeller to Levin to
McCain, to summon that spirit to be as objective as possible. I
do not think it is unreasonable for us to wait for a week or
two to get the full body of those documents. It will cause no
harm or damage except to have more of a full telling of what is
at stake here.
The stakes are too high in what this nominee represents for
us to rush through this process without a full sharing of the
documents. And with that, I will continue, sir, with my opening
statement.
I have said before already that----
Chairman Grassley. Since you have not begun your opening
statement----
[Laughter.]
Chairman Grassley. I will take this opportunity to probably
say that you said, I did not get all the documents I requested.
You probably heard the first sentence of something I said after
our break, and that was, that I first started talking about
expecting a million documents, and we end up, I think, with
488,000. But then I went on to explain that the process with
all the software and everything else that can speed things up,
duplicates were eliminated, and, et cetera, et cetera. And so,
we have gotten all the documents I requested, just to correct
you.
Senator Booker. Sir, and to my understanding----
Chairman Grassley. Go ahead with your opening statement.
Senator Booker. No, sir, but I just want to make a point to
that, if you do not mind. You requested a limited set of
documents of his time as a--in the White House Counsel's
Office. We have not received all the documents from his time
there. They are still being vetted slowly through our system of
a--not a representative from the Committee, but the Bill Burck
individual still--is still reading through those documents as
we speak. I imagine some of them will be dumped on us as this
process is going on, and I predict, with quite confidence, that
some of those documents might still be trickling out in the
days before the actual full Senate vote. Please, sir.
Chairman Grassley. You are talking about ``committee
confidential,'' and you have access to them right now. They
just--there has not been a determination that, like, 80 percent
of all the documents are on the website so the public can see
them, but in regard to some, they were forwarded to us without
a second review. That second review gives an opportunity to
then get them out to the public if there is no reason that they
are excluded under the law, and you can read those committee
confidential documents right now.
Senator Booker. Well, sir, we sent a letter days ago asking
for that. I will--I will re-send it with you in these next 24
hours before our hearing tomorrow.
Chairman Grassley. We responded to your letter.
Senator Booker. Again, sir, you did not respond to our
letter by allowing committee confidential documents to be----
Chairman Grassley. Please go to your opening statement.
Senator Booker. Thank you very much, sir. And, look, I
was--you know, former Senator--now former Vice President Biden
talked about not questioning your colleagues' motives, and some
of the colleagues across the aisle have called the efforts by
some of us sincerely to get access to these documents a sham, a
charade. I can go through a lot of the words that were used
calling into question the motivations that I have or doing what
I believe, sir, is perhaps the most grave and important duty
that I have as a Senator, to advise and consent. And, yes, as
Senator Cornyn pointed out, I have announced my decision
already, but my duty to the people of the State of New Jersey,
and others, is to fully vet an individual. That is why I think
these documents are important, that his full record is made
clear, and that we have a chance to ask questions about it.
I also have said that I oppose this nomination happening
right now because of the moment we are in American history,
which is very unprecedented. I remind you that we have had
bipartisan statements by Senators working in tangent about the
attack on the United States of America, which was an attack
going to the core of what our democracy is about: the voting
processes. A special counsel was put into place, and that has
led to dozens of people being indicted, people all around the
President of the United States. It has led to dozens and dozens
of charges, and that investigation is ongoing. We have seen the
President of the United States credibly accused by his own
personal lawyer to--as being an unindicted co-conspirator.
In all of this, we have one judge being chosen who was not
on the original list. He was not on the outsourced Federal
Society's original list. He was not on the second version of
that list. He got onto that list after this special
investigation got going; in other words, after the President
was in jeopardy. He was added to the list, and then the
President pulled the one person from all of that list late--
that was added late that would give him, in a sense, the
ability to pick a judge that has already spoken vastly about a
President's ability to be prosecuted, about a President's
ability to dismiss or end an investigation. And so, that is the
second reason why I have asked for us to put a pause on this
process.
Fundamental to this Nation's very beliefs--Judge Learned
Hand said this--as powerful and profound as the documents of
this country, our founding documents, they are not worth much
if the people themselves lose faith in them. And I believe the
nomination of a judge through all of this, who so powerfully
speaks to a President's de facto immunity from ongoing
investigation prosecution, will shake the faith that millions
and millions of Americans have in the fairness of the process
and the system. And I have asked Judge Kavanaugh time and time
again to recuse himself, to restore that faith, to alleviate
the concerns of Americans, and he has thus far refused to do
so.
Now, I am upset about the process, and this is not
manufactured outrage. This is sincere concern for a process
that seems wrong and just not objective and fair. I am
concerned about, as many colleagues are on both sides of the
aisle, a Russian attack on our Nation. But there is a lot more
going on here that makes this nomination of great concern, and
it is, frankly, some of the things I have heard from both sides
of the aisle tonight, is when we travel this country and what
we are hearing from individuals, and how that is related to a
position on the Supreme Court.
Right now, millions of American families are watching this
in sincere concern and fear. I have heard them. I have gotten
the calls. I have traveled this country. I have talked to
Republicans and Democrats. They are fearful about where the
Supreme Court is going and what it will do when it has the
power to shape law, shape the lives and liberties for
individuals, for decades to come. I have talked to workers all
over my State, all over this Nation, workers that now work in a
country where wages are at a 60-year low as a portion of our
GDP, whose labor protections--workers whose labor protections
are being diluted and whose unions are under attack.
So many of those individuals are asking whether the Supreme
Court of their lifetimes will be an institution that elevates
the dignity of American workers, or one that allows powerful
corporate interests to continue to weaken labor protections
that did not just happen, labor protections that were fought
for, that people struggled for, that some, you know, in the
labor movement actually died for. Are these labor rights going
to become aggravated, are they going to become limited, further
increasing the vast disparities of wealth and power in our
country?
We know this. We have talked to them on both sides of the
aisle. We have talked to cancer survivors, Americans with
disabilities, survivors of domestic abuse, parents with
beautiful children that happen to have disabilities, who,
because of the Affordable Care Act, can no longer be denied
coverage because of, quote, ``a pre-existing condition.'' There
is a Texas case where that is being challenged right now. That
is moving up. It could likely go before the Supreme Court.
Well, knowing your record, it is right that these
Americans, so many of them with pre-existing conditions, are
asking whether the Supreme Court will be an institution that
affirms and protects the rights of people with access to
healthcare, some--many people who rightfully believe when they
read our founding documents that talk about life, liberty, and
the pursuit of happiness, that healthcare they believe is
fundamental. We all know too many people who have set aside
prescription drugs because they are too high because of what
corporations are doing there, people who have put off going to
see the doctor because a visit is too expensive. That is in the
balance with this nomination.
I have gone across the State, and, Senator Durbin, I do not
know if I have told you this. I was in your State talking to a
Republican farmer about how the farm country is changing so
dramatically the livelihoods of so many independent family
farmers, are being threatened by the consolidation of large
multinational corporations. These corporations have acquired so
much power. This consolidation now--from the seeds that they
buy, the prices going up, to who they have the ability to side
to. This abuse of corporation consolidation is driving so many
farmers out of business. You see, one farmer was telling me
about the suicide rates.
Now, people are saying that this is histrionics, this is
not life or death. Well, I know these things actually are often
a matter of life or death. When insurance rates go up--when
insurance rates go down rather, more people without healthcare
often lose their lives. There are--there is not one Senator on
the Republican side or the Democratic side who has not seen--I
have only been here 5 years, and I have seen the culture of
Washington change because of the obscene amount of dark money
pouring into our political process, corrupting our political
process, rigging the system. This nomination will have an
effect on that.
I have seen Americans all over this country with the
bipartisan work that I have done with Senators on either side
who feel entrapped by a broken criminal justice system, one
that is--we know and unassailably disproportionately targets
Black and Brown Americans, where many Americans believe, and
one famous American said, we have a system that now treats you
better if you are rich and guilty, than poor and innocent.
These issues are in the balance now.
And everyone who is concerned about these issues and more
are wondering what the story of America is. We have this great
leader, a man named King, who said, ``The arc of the moral
universe is long, but it bends toward justice.'' There are so
many Americans who fought for these fundamental rights, family
members who they remember, union organizers, civil rights
activists, women's rights activists who fought for, struggled
for, and died for many of these rights, the right for women to
make their own medical decisions, including the right to an
abortion and not a back alley butcher, the right of all
Americans to marry who they love, the right to vote, and to
work free of discrimination regardless of race and the rights
of all Americans. These are our rights. These are American
rights.
And so, we know the answer to these questions. I have
looked through the record I have had access to to see the
pattern of your decisions, and that is the pattern that really
troubles me, Judge. And I know we are going to get a chance to
go through this, and I know my colleagues will as well. But it
seems so clear that in your courts, the same--the same folks
seem to win over and over again--the powerful, the privileged,
big corporations, special interests--over and over again. Folks
that lose are the folks that why I came to Washington to fight,
working folks, consumers, women, immigrants, minorities, the
disadvantaged, the poor.
This is the challenge before us. This is why so much is at
stake. I love that my colleagues keep going back to the
Constitution, but understand this. I laud our Founders. I think
they were geniuses, but you got to understand that there are
millions of Americans who understand that they were also flawed
people. We are the oldest constitutional democracy. We are the
oldest one. We were founded in a break with human events. You
know this, Judge. I have read your writings. We were not
founded on some kind of tribalism as much as we think it is
breaking out in our country. We were not founded because we all
look alike, we all pray alike, because we are all of the same
race. We are not a monarchy or theocracy. We broke with the
course of human events and formed this Nation. God bless
America. God bless our Founders.
But we know our Founders and their values and their ideals,
we know that they--that they were flawed, and you can see that
in the documents. Native Americans were referred to as
``savages.'' Women were not referred to at all. African
Americans, Black slaves, were referred to as fractions of human
beings. As one civil rights activist, I think it was Stokely
Carmichael, used to always say, ``constitute, constitute, I can
only say three-fifths of the word.''
Chairman Grassley. Senator Booker----
Senator Booker. I am almost done, sir.
Chairman Grassley. Okay, go ahead.
[Laughter.]
Senator Booker. I have got about three more minutes.
Chairman Grassley. The only reason--the only reason I
stopped you at this point is I thought that I would let people
go at least as far as Senator Blumenthal went, and you have
reached that point.
Senator Booker. I appreciate that. I am a bit of a
trailblazer, sir. I am going to push just two or three more
minutes.
Chairman Grassley. Okay.
Senator Booker. My point--my point, sir, is that I am proud
of this history.
Chairman Grassley. Your clock, when it reaches 10, is your
2\1/2\ minutes----
Senator Booker. And I just want to point out right here
from the activism in Stonewall, Selma, Seneca Falls. There is
an activism that I worry, rights that were gained were rolled
back. And the example I have here is, there is an amazing
activist here right now, Ms. Carlotta Walls LaNier. And Ms.
LaNier, I thank her for coming today. It was 61 years ago on
this very day on September 4th, 1957, that Ms. LaNier at the
age of 14, faced crowds that were shouting racial slurs. She
was jeered. And on that day, Ms. LaNier joined eight other
students, a group that would become known as the Little Rock
Nine, to try to desegregate an all-White high school in Little
Rock, Arkansas. We know what they did that day was much more--
much bigger than a first day of school. It was the first major
test of the Supreme Court's landmark decision, the 1954 Brown
v. Board of Education decision.
I have been shocked sitting here that there are now some
judges that Trump has appointed that refuse to even say--and I
am not saying this is you, sir--that that is settled law. There
are people, like Ms. LaNier, who were part of gaining rights in
this country, advancing the ideals of this Nation toward the
purity of the ideals put forth by the Founders despite the
imperfections. And now, the fear and the worry is, what the
trend of the Court is doing, is rolling back those gains. It is
undermining that progress. It is restricting individual rights
as the rise of corporations, the rise of dark money, the rise
of the interests of the powerful and the privileged and the
elite.
And so, I just say in conclusion, sir, and I said this to
you in a heart-to-heart moment in the last seconds that you
were--you came to my office to meet with me one-on-one, which I
appreciated. I pointed to the map behind my desk, which is the
central ward of Newark, New Jersey, a place with mighty people.
It is a low-income community, people still struggling for the
fullness and the richness of the promises of America. That is
the concern that I have right now. That is what is at stake.
And so, I say in conclusion, sir, this to me is a profound and
historical moment. I cannot support your nomination not just
because of the body of your work, but also the perverse process
by which this comes forward. We should not vote now. We should
wait, and if we are not waiting, we should object to your
nomination.
Thank you.
Chairman Grassley. Senator Tillis.
OPENING STATEMENT OF HON. THOM TILLIS,
A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Tillis. Thank you, Mr. Chairman.
I have a 12-minute preamble and 18 minutes of comments.
[Laughter.]
Senator Tillis. In all seriousness, I hope to beat Senator
Flake in being brief.
First of all, to Ashley, I know that Margaret and Liza are
gone, but you have gone through a very difficult day, and you
have held up well. To your parents, Judge Kavanaugh, I have got
to compliment you on your mother's composure. I am pretty sure
my mother would have been out of the chair by now.
[Laughter.]
Senator Tillis. So, I appreciate all that you have--all you
have done. You have obviously raised your son right.
You know, I think we need to go back and recognize we were
going to be here. This was not going to be a ``Kumbaya''
moment. We had every Member on this Committee either publicly
state or participate in a press conference before the sun had
set on the first 24 hours of your nomination that they were
going to vote against you. Now, we are asking for all kinds of
documents, and you are getting them. As a matter of fact, I
think the Chair has done an extraordinary job. He started on
this process by offering--acquiring as many as a million
documents. We determined because of duplication and relevance
it was only a half a million, and they have all been provided.
And I am not an attorney, but I am a technologist, and I am
also a process person, and I know damn well that if you get
documentation electronically, you can get through in a matter
of hours. And for the documents that got sent yesterday, you
could get through it in a matter of hours. They have plenty of
time to get documents. They only need to run up the score
because they already know they are going to vote against you.
I also want to compliment you on your composure. You have
taken a lot of notes, and I for one tomorrow am going to spend
more of my time listening to your responses rather than talking
over you and trying to simplify things into ``yes''/``no''
answers that you know you cannot respond to. So, I look forward
to your testimony tomorrow.
You know, as the hearing was going on, there were two
things that just caught me. I am not going to do my prepared
statements. I will submit them for the record, Mr. Chair. But
we're talking about all this dark money and efforts going on on
the other side. Well, I just got an email from Organizing for
Action--you all would know that as the legacy campaign of
President Obama--telling me to oppose you because you are going
to deny reproductive rights, deny healthcare coverage, advance
climate change in a bad way, and gun violence prevention. I do
not know near as much about the institutions of Government as,
let us say, Senator Sasse, but I am pretty sure once you get
confirmed on the Bench, you are not going to be able to file a
bill to do any of that. What you may end up doing is finding
out that we got lazy, we did not work hard enough, we did not
understand the Constitution, we did not reach across the aisle
to create enduring value, which is largely the reasons why
people get frustrated with you. They want you to do our job.
Justice Gorsuch said numerous times in his confirmation
hearing that I had the privilege of participating in, ``It is
not my job to do your job, Mr. Senator.'' If you are frustrated
and worried about the prospects of somebody being denied
coverage for pre-existing conditions, then let us fix it. That
is why I filed a bill a couple of weeks ago. Let us fix it. Do
not play politics and blame the Supreme Court for your
inadequate architecture of a bill. Let us fix it. If you are
worried about the balls and strikes that Judge Kavanaugh has
called on the bench around regulatory issues, it seems to me
you have called balls and strikes on both sides of the
Administrative Procedures Act, and there seem to be flaws in
there that need to be fixed.
For the attorneys in the room who are studied on the law,
rather than trying to get Judge Kavanaugh to commit one way or
another on these policy initiatives that President Obama and
others around this table are interested in, get them to explain
to you the legal theory behind his position that may have, in
fact, produced an outcome that he did not particularly like,
but because he did it based on his interpretation of the
Constitution and the laws. Do not expect him to be a
politician.
And as for motivations, you know, I have to say that it has
been said by at least one person on this Committee that on the
one hand we should not question other people's motivations. On
the other hand, I find it personally insulting to think that
because I think we have before us an imminently qualified
judge, someone who is going to call balls and strikes, to
suggest that because I am inclined to support him, that I am
complicit in evil really makes me wonder the sincerity about
questioning other people's motives.
So, Judge Kavanaugh, I am glad that you are before us. I
believe that you have 300 opinions that people should look at
and read and try and spar with you on the basis of your legal
knowledge, your constitutional understanding and the statutory
constructs. It would be great, and I hope that people are
actually taking time to look at the single most important
factor in your resume. It is not maybe where you went to
school. I guess that is good. It is not maybe where you
practiced law, but it is the 307 different opinions you can
read and the dissents you can read. Spar on the basis of your
legal knowledge those of you who want to prove to be the
smartest lawyer in the room, and see if you can actually prove
a better theory that may actually give Judge Kavanaugh pause.
But that is not what this hearing has been about, and I am
so glad that I am one of the last people to do an opening
statement because what I hope I hear tomorrow--and by the way,
just from a process standpoint, the--we are going to have 30-
minute rounds, which in Senate time is about an hour and a half
per Member----
[Laughter.]
Senator Tillis [continuing]. Tomorrow, and then we are
going to have 20-minute rounds the following day. Everybody
take time to actually talk about legal theory. Stop the
theater, and start talking about what is really meaningful
here. And I think if we do that, I have every confidence, Judge
Kavanaugh, you are going to be Justice Kavanaugh, and I am
proud to actually see you compose yourself the way you have
today.
I will be asking you several questions on some judgments
that, frankly, I did not like, but I know you probably made the
right decision. And I believe that when you get confirmed to
the Bench, you are actually going to take some other opinions
that I do not like because it is what it is, what I wished you
could do for me because we failed to get it done here, but it
will be done for the right reasons.
And I think if people objectively look at your record, they
are going to be hard-pressed to take all this theater we have
heard today and boil it down into something that makes you look
like you are an activist judge just waiting to be one of the
members of that nine-member legislative branch down the street.
I think you are one of the single greatest opportunity--great
opportunities that we have to make the Supreme Court make us do
our job and to reign in the dangerously high amount of
authority that our administration branch has, and that is all I
want you to do. And I look forward to asking you questions
tomorrow.
I yield back the rest of my time.
[The prepared statement of Senator Tillis appears as a
submission for the record.]
Chairman Grassley. Senator Harris.
Senator Harris. I see Senator Graham has rejoined us. I
think he was here before me. He is more senior.
Chairman Grassley. We go back and forth.
Senator Harris. Okay, great.
OPENING STATEMENT OF HON. KAMALA D. HARRIS,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Harris. So, I thank you, Mr. Chairman.
I would like to restate my objection from earlier for the
record, which is my motion to postpone this hearing.
A number of comments have been made by my honored and
respected colleagues. I would like to address a few of them.
One, there was some mention of a concern about Elena Kagan's
hearing and that the White House at the time, there was an
agreement that those--certain records and should, therefore,
not be disclosed. It is my understanding that as a point of
distinction between that time and today that those were active
cases in the White House, and for that reason, there was an
understanding and agreement that they were of a sensitive
nature and should not be disclosed.
In terms of the point that has been made about playing
politics and blaming the Supreme Court, I think that we have to
give pause when those kinds of concerns are expressed to also
think about the fact that there have been many a political
campaign that has been run indicating an intention to use the
United States Supreme Court as a political tool to end things
like the Affordable Care Act, the Voting Rights Act, and
campaign finance reform, which makes this conversation a
legitimate one in terms of a reasoned concern about whether
this nominee has been nominated to fulfill a political agenda
as it relates to using that Court and the use of that Court.
As it relates to the 42,000 documents or 42,000 pages of
documents, I find it interesting that we get those documents
less than 24 hours before this hearing is scheduled to begin,
but it took 57 days for those documents to be vetted before we
would even be given those documents. So, there is some
suggestion that we should be speed readers and read 42 pages--
42,000 pages of documents in about 15 hours when it took the
other side 57 days to review those same documents. So, the
logic, at least on the math, is not applying.
Now, the Chairman has requested 10 percent of the nominee's
documents. That is 10 percent of 100 percent of his full
record. The nominee's personal lawyer has only given us 7
percent of his documents, 7 out of 100 percent of the full
record. Republicans have only given 4 percent of these records
or made them public. That is 4 percent of 100 percent of a full
record. Ninety-six percent of his record is missing. Ninety-six
percent of his record is missing. It is reasonable--it is
reasonable--that we should want to review his entire record,
and then we can debate among us the relevance of what is in his
record to his nomination. But it should not be the ability of
this--the leadership of this Committee to unilaterally make
decisions about what we will and will not see in terms of its
admissibility instead of arguing about the weight of whatever
is made admissible.
The late Senator Kennedy of Massachusetts called these
hearings of Supreme Court nominees, ``a job interview with the
American people,'' and by that standard, the nominee before us
is coming into his job interview with more than 90 percent of
his background hidden. I would think that anyone who wanted to
sit on the Nation's highest court would be proud of their
record and would want the American people to see it. I would
think that anyone privileged to be nominated to the Supreme
Court of the United States would want to be confirmed in a
process that is not under a cloud, that respects due process. I
would think that anyone nominated to the Supreme Court of the
United States would want to have a hearing that is
characterized by transparency, and fairness, and integrity, and
not shrouded by uncertainty, and suspicion, and concealment,
and doubt. We should not be moving forward with this hearing.
The American people deserve better than this.
So, Judge Kavanaugh, as most of us know, and I will mention
to you, and you have young children, and I know they are very
proud of you, and I know you are a great parent, and I applaud
all that you have done in the community. And so, as you know,
as we all know, this is a week when most students in our
country go back to school, and it occurs to me that many years
ago, right around this time, I was starting kindergarten. And I
was in a bus, a school bus, on my way to Thousand Oaks
Elementary School as part of the second class of students as
busing desegregated Berkley, California, public schools. This
was decades after the Supreme Court ruled Brown v. Board of
Education that separate was inherently unequal.
And as I have said many times, had Chief Justice Earl
Warren not been on the Supreme Court of the United States, he
could not have led a unanimous decision, and the outcome then
of that case may have been very different. Had that decision
not come down the way it did, I may not have had the
opportunities that allowed me to become a lawyer or a
prosecutor. I likely would not have been elected District
Attorney of San Francisco or the Attorney General of
California. And I most certainly would not be sitting here as a
Member of the United States Senate.
So, for me, a Supreme Court seat is not only about academic
issues of legal precedent or judicial philosophy. It is
personal. When we talk about our Nation's highest court and the
men and women who sit on it, we are talking about the impact
that one individual on that Court can have, impact on people
you will never meet and whose names you will never know:
whether a person can exercise their constitutional right to
cast a ballot, that may be decided if Judge Kavanaugh sits on
that Court; whether a woman with breast cancer can afford
healthcare or is forced off lifesaving treatment; whether a gay
or transgender worker is treated with dignity or maybe treated
as a second class citizen; whether a young woman who got
pregnant at 15 is forced to give birth or, in desperation, go
to a back alley for an abortion; whether a President of the
United States can be held accountable, or whether he will be
above the law.
All of this may come down to Judge Kavanaugh's vote, and
that is what is at stake in this nomination. And the stakes are
even higher because of the moment we are in, and many of us
have discussed this. These are unprecedented times. As others
have already observed, less than 2 weeks ago, the President's
personal lawyer and campaign chairman were each found guilty or
pleaded guilty to eight felonies. The President's personal
lawyer under oath declared that the President directed him to
commit a Federal crime. Yet, that same President is racing to
appoint to a lifetime position on the highest court in our
land, a court that very well may decide his legal fate.
And, yes, that is essentially what confirming Judge
Kavanaugh could mean, so it is important, more important, I
would say, than ever that the American people have transparency
and accountability with this nomination. And that is why it is
extremely disturbing that Senate Republicans have prevented
this body and, most importantly, the American people, from
fully reviewing Judge Kavanaugh's record, and have disregarded
just about every tradition and practice that I heard so much
about before I arrived in this place.
Judge Kavanaugh, when you and I met in my office, you said
with respect to judicial decisions that rushed decisions are
often bad decisions. I agree with you. I agree with you. And
when we are talking about who will sit on the Supreme Court of
the United States, I believe your plank could not be more
important.
Mr. Chairman, when Judge Kavanaugh was nominated in July,
he expressed his belief that a judge must be independent, must
interpret the law, and not make law. But in reviewing this
nominee's background, I am deeply concerned that what guides
him is not independence or impartiality. It is not even
ideology. I would suggest it is not even ideology. What I
believe guides him and what his record that we have been able
to see shows is what guides this nominee is partisanship. This
nominee has devoted his entire career to a conservative
Republican agenda, helping to spearhead a partisan
investigation into President Clinton, helping George W. Bush's
legal team ensure that every vote was not counted in Bush v.
Gore, helping to confirm partisan judges and enact partisan
laws as part of the Bush White House. And in all of these
efforts, he has shown that he seeks to win at all components,
even if that means pushing the envelope.
And if we look at his record on the D.C. Circuit and in his
recent writings and statements, it is clear that the nominee
has brought his political bias to the bench. He has carried out
deeply conservative partisan agenda as part--as a judge
favoring big business over ordinary Americans, polluters over
clean air and water, and the powerful over the vulnerable.
Just last year, Judge Kavanaugh praised the dissent in Roe
v. Wade and ruled against a scared 17-year-old girl seeking to
end her pregnancy. He has disregarded the Supreme Court
precedent to argue that undocumented workers were not really
employees under our labor laws. We have witnessed horrific mass
shootings from Parkland to Las Vegas to Jacksonville, Florida,
yet Judge Kavanaugh has gone further than the Supreme Court and
has written that because assault weapons are ``in common use,''
assault weapons and high-capacity magazines cannot be banned
under the Second Amendment. When he was part of an independent
counsel investigation into the Democratic President, the
nominee was dogged in demanding answers, and yet he has since
changed his tune, arguing that Presidents should not be
investigated or held accountable, a position that I am sure
that is not lost on this President.
These positions are not impartial. They are partisan. Judge
Neil Gorsuch, Judge Kavanaugh's classmate, insisted before this
Committee that judges are not merely ``politicians in robes.''
I fear that Judge Kavanaugh's record indicates that is exactly
what he may very well be.
Now, I know Members of this Committee and the nominee's
friends and colleagues have assured us that he is devoted to
his family, and supportive of his law clerks, and volunteers in
his community, and I do not doubt that at all, but that is not
why we are here. I would rather that we think about this
hearing in the context of the Supreme Court of the United
States and the impact that it will have on generations of
Americans to come. And do we want that Court to continue a
legacy of being above politics and unbiased, or are we prepared
to participate in a process that is tainted and that leaves the
American public questioning the integrity of this process?
And I will close by saying this. We have a system of
justice that is symbolized by a statue of a woman holding
scales, and she wears a blindfold. Justice wears a blindfold
because we have said in the United States of America, under our
judicial system, justice should be blind to a person's status.
We have said that in our system of justice, justice should be
blind to how much money someone has, to what you look like or
who you love, to who your parents are, and the language they
speak, and every Supreme Court Justice must understand and
uphold that ideal.
And, sir, should those cases come before you, Judge
Kavanaugh, I am concerned whether you would treat every
American equally, or instead show allegiance to the political
party and the conservative agenda that has shaped and built
your career. I am concerned your loyalty would be to the
President who appointed you and not to the Constitution of the
United States. These concerns I hope you will answer during the
course of this hearing.
I believe the American people have a right to have these
concerns. I also believe the American public has a right to
full and candid answers to the questions that are presented to
you during the course of this hearing. I will paying, of
course, very close attention to your testimony, and I think you
know the American public will be paying very close attention to
your testimony.
Thank you.
[The prepared statement of Senator Harris appears as a
submission for the record.]
Chairman Grassley. Senator Graham.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Am I the last person?
Chairman Grassley. Yes.
Senator Graham. All right.
Chairman Grassley. But do not forget, we are going to hear
from the nominee and his introducers before you can go home and
go to bed.
[Laughter.]
Senator Graham. Okay, thank you.
I was going to ask you to take me to dinner, but that is
not going to happen.
Chairman Grassley. You know the answer to that.
[Laughter.]
Senator Graham. You know that. That is right.
So, to my colleagues on the other side, I look forward to
working with you, but we have a different view here. I think
you got to be blind as to what is going on here. Have you heard
of Justice Breyer? Do you know him? He cannot say anything, I
guess. Where did he come from? He was Ted Kennedy's Senate
Judiciary person. Where do you think Republicans are going to
go find a judge?
The whole argument is, you can be a conservative Republican
President, but you got to nominate a liberal to be fair to the
country. That is absurd. Where do you think Ruth Bader Ginsburg
came from? She was the general counsel of the ACLU. Wonderful
person. What groups do you all use to pick from? This is
shaping up to be the hypocrisy hearing, and that is hard to do
in the Senate in today's time to be hypocritical, but let me
just point to a few of these things.
Clinton. It did not bother anybody for Clinton to nominate
Breyer while he was under investigation. We actually did it. It
did not bother any of you all that a Ted Kennedy staff person
was his pick. It did not bother me either because that is who I
expected you to pick. This is ridiculous.
You are one of the best choices any Republican could make.
As I said with Justice Gorsuch, I am glad you are here because
there were days I was wondering who he would have picked.
[Laughter.]
Senator Graham. And this is a homerun from my point of
view.
Let us talk about Roe v. Wade. Who would ever play politics
on the campaign trail with Roe v. Wade ? What a bastard Donald
Trump is, until you hear about Hillary Clinton. February the
3rd, 2016, this is what Hillary Clinton said. When asked, does
she have a litmus test for SCOTUS nominations--Supreme Court
nominees, ``I do have a litmus test. I have a bunch of litmus
tests, because the next President could get as many as three
appointments,'' and I hope she is right. ``We have got to make
sure to preserve Roe v. Wade, not let it be nibbled away or
repealed.'' She sounds very open-minded. October 2016, ``We
need a Supreme Court that will stand up on behalf of women's
rights. It is important that we not reverse Roe v. Wade. I want
a Supreme Court that will stick with Roe v. Wade and a woman's
right to choose.'' I understand where she is coming from.
Anybody running for President over there, I dare you to
disagree with her. You will wind up like I did, getting 1
percent.
[Laughter.]
Senator Graham. If you even suggest that you will pick a
nominee that is not going to uphold Roe v. Wade, that is the
end of you. But you have figured that out. You do not need me
to tell you. So, this is the way we do politics. This is a big
decision called Roe v. Wade. There are two sides and a bunch of
nuances.
Here is what I know about you. You are going to take it as
precedent. You wrote a big book, which I will never read, and
you are going to tell us what it takes to overturn longstanding
precedent. Nobody on this side will care if you overturn
Citizens United. As a matter of fact, they will cheer you on.
Somebody will challenge Citizens United, and you will probably
say, let me hear both sides of the story, then I will tell you
whether or not I should uphold it. So, Hillary Clinton, we know
where she is at, on Roe v. Wade, and that is just the way it
is.
Now, what other things? Executive power, this idea that
Trump picked you to save him. Amazing concept, since you said
what you said back in 1998 and 2008. The bottom line is, when
Clinton was being impeached, my good friend, and this is true,
he is my good friend, on February the 12th, 1999, introduced
into the record during the deliberations of the Clinton
impeachment trial, an article by Brett Kavanaugh suggesting
that you should wait, if there is an indictment, until after
the President is out of office.
The same concept we are talking about here today, when the
shoe was on the other foot, here is what Joe said about your
thinking. ``The President is not simply another individual. He
is unique. He is the embodiment of the Federal Government and
the head of a political party. If he is to be removed, the
entire Government likely would suffer, and the military or
economic consequences to the Nation could be severe. . . .
Those repercussions, if they are to occur, should not result
from the judgment of a single prosecutor--whether it be the
Attorney General or special counsel--and a single jury.
Prosecution or nonprosecution of a President is, in short,
inevitably and unavoidably a political act. Thus, as the
Constitution suggests, the decision about the President while
he is in office should be made where all great national
political judgments in our country should be made--in the
Congress of the United States,'' according to Joe Biden--the
gift that keeps on giving for us. I think that is pretty
hypocritical. During the Clinton days, you were right, but all
of a sudden you are a danger to the republic.
Let us talk about--oh, there are so many--how many minutes
do I have here? The bottom line is----
Chairman Grassley. Do not exceed what Whitehouse had.
Senator Graham. I will not.
Senator Cornyn. That would be impossible.
Senator Graham. Guns. Somehow you are going to make sure
that Congress--the bottom line on guns--Dianne Feinstein is a
wonderful lady and has passion on this issue about assault
weapons. She was able to succeed politically. After 10 years,
the gun assault weapons ban expired and it has been hard to get
it re-established. She introduced legislation in 2013 that got
60 ``no'' votes, 16 Democrats. So, I do not believe they see
you as a threat to the Nation if you come out on the idea that
the Second Amendment has some meaning. In other words, the
political process, when it comes to guns, is a work in
progress, and I would rather us decide that than you.
When it comes to the pillar of virtue, Comey.
Harry Reid: That he has been a supporter of Comey and led
the fight to get him confirmed as he believed Comey was a
principled public servant. ``With the deepest regret, I now see
that I was wrong.''
Mr. Nadler from New York: ``The President can fire him for
cause and ought to. He violated all the guidelines and put his
thumb on the scale of an election.''
Mr. Cohen from Tennessee, a Democrat, called on Comey to
resign his position effective immediately. ``I am sure upon
reflection of this action, he will submit his letter of
resignation for the Nation's good.'' To my Democratic friends,
you were all for getting rid of this guy. Now all of a sudden,
the country is turning upside down because Trump did.
There is a process to find out what happened in the 2016
election. It is called Mr. Mueller. And I will do everything I
can to make sure he finishes his job without political
interference. And I am here to tell anybody in the country who
listens that this is so hypocritical of my friends on the other
side. When it was their President, Kavanaugh was right. When
you are talking about Roe v. Wade, it is okay to promise the
Nation it will never be overturned. It is okay to pick a
Democratic staff member of this Committee, but it is not okay
to pick somebody who has been a lifelong Republican.
People see through this. You had a chance and you lost. If
you want to pick judges from your way of thinking, then you
better win an election. I voted for two of your choices,
Sotomayor and Kagan. Got a lot of crap. I would suggest you
think long and hard if you got a political ambition of voting
for this guy because it will not play well on your side. And
why did I do it? I thought they were qualified by any
reasonable measure given the history of the Senate.
But we have turned the history of the Senate upside down. I
found that they were different than I would have picked,
Sotomayor and Kagan, but by any reasonable measure they are
qualified. You have been on the court for 12 years. You have
had 307 decisions. You have been approved before, so I hope
people in the country understand this game. It is a game that I
am sad to be part of. It has gotten really bad.
The antidote to our problems in this country when it comes
to judges and politics is not to deny you a place on the
Supreme Court. This is exactly where you need to be. This is
exactly the time you need to be there, and I am telling
President Trump you do some things that drive me crazy, you do
some great things. You have never done anything better in my
view than to pick Gorsuch and Kavanaugh because you had an
opportunity to put well-qualified conservatives on the Court,
men steeped in the rule of law, who will apply analysis, not
politics, to their decisionmaking, and you knocked it out of
the park. And to my friends on the other side, you cannot lose
the election and pick judges. If you want to pick judges, you
better win.
Chairman Grassley. Let me tell you what--let me tell
everybody what the rest of the day holds for us. Judge
Kavanaugh, you can take a break now that we had originally
scheduled for 15 minutes, and it may take 15 minutes, but we
got to put a different table in here for the people that are
going to introduce you. So, if your staff will watch, and if we
get done in less than 15 minutes, I would like to start just as
soon as the table is set.
So, we will take a 15-minute break now, and then we have
the introducers, and then we will give the oath to the nominee,
and then we will hear the statement from the nominee, and then
we will adjourn until 9:30 tomorrow morning. And tomorrow
morning, my approach is going to be the same for the 30 minutes
as it would be for the 5 minutes that we normally have in just
an otherwise normal hearing, and that is that if you got 1
second left, you can ask a question, but do not take all day to
ask a question. And I hope you can give a short answer if their
time is up. Then we will--then we will--we will move on to the
next person.
So, I want tomorrow not to happen--maybe I better speak to
myself. I am not going to let happen tomorrow what I should not
have let happen today because I have been instructing people
that run Committees either you run the Committee or it runs
you, and you guys have been very successful today in running
the Committee. I do not want it to happen tomorrow.
Take your--take your time, sir, I mean, until we get the
table set.
Recess.
[Whereupon the Committee was recessed and reconvened.]
Chairman Grassley. We are fortunate to have Condoleezza
Rice, Senator Rob Portman, and Lisa Blatt to introduce the
nominee.
We will now start with Condoleezza Rice.
INTRODUCTION OF HON. BRETT M. KAVANAUGH, NOMINEE TO BE AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY
HON. CONDOLEEZZA RICE, Ph.D., FORMER U.S. SECRETARY OF STATE;
SENIOR FELLOW, HOOVER INSTITUTION; AND PROFESSOR, STANFORD
UNIVERSITY, STANFORD, CALIFORNIA
Dr. Rice. Thank you very much.
Chairman Grassley, Senator Feinstein, Members of the
Committee, I am really honored to join Lisa Blatt and Rob
Portman in introducing Brett Kavanaugh at these hearings to
consider his confirmation as a Justice of the Supreme Court of
the United States of America.
My personal relationship with Judge Kavanaugh goes back 17
years to our time as White House colleagues in the
administration of George W. Bush. Those were remarkable times,
and I loved serving. They were, however, not easy times, and
the guidance and counsel of those with whom I worked was both a
joy and a blessing.
I am so grateful to have had Brett Kavanaugh as a
colleague. He was always supportive and strong and caring and
someone whose integrity and good judgment I valued enormously.
I knew Brett early in his years as a family member. As a
matter of fact, I was there when he married Ashley. I remember
well the birth of his children. He is a great father and
husband and son. In short, he is just a very good human being.
Since the nomination of Brett Kavanaugh, I have been able
to reflect back on those times and what my experience tells me
about Brett in this crucial role. Many have given testimony to
his extraordinary legal mind, the depth of his experience, his
intellect, and his good common sense. You have heard and you
will hear from his clerks and other jurists and great legal
figures, as well as colleagues from throughout his career. I do
not need to repeat their praise, only to say that I know
firsthand that Brett is really, really smart.
Here is the Brett Kavanaugh that I know. He is hard-
working. He has a sense of humor. He seeks truth in facts.
There is no detail too small to gain his attention. He makes
those around him better. Brett is wise. He is an old soul who
is made to help steady us in these complicated times.
Brett listens, especially to those with whom he disagrees.
And in our charged environment, when we have become almost
tribal, living in echo chambers and often finding comfort in
the company of only those with whom we agree, this is an
indispensable quality for the responsibilities of the Supreme
Court.
The only thing that would be better is if Brett had gone to
the same college that his mentor and friend Anthony Kennedy
went to. That would be Stanford University. But for that, I
will forgive him, and I have to say Yale University seems to
have done a pretty good job.
In recent weeks, we have also had the chance to reflect on
our Constitution, the Supreme Court itself, and the trust that
we place in the Justices of it. As a scholar and as a diplomat,
I have watched the struggle of people across the world to
achieve democracy and to keep it. Every day, I am more amazed
by the brilliance of the institutional design that the Framers
left to us.
They carefully balanced powers and responsibilities between
the three branches of Government. Knowing that human beings are
fallible, they constructed institutions that both enable and
constrain those who would govern us.
Scholars often speak of the American spirit of
constitutionalism. We Americans believe that the Constitution
is our personal protection. We take our rights very seriously,
and we will go all the way to the Supreme Court if we think
those rights have been violated.
A democracy is only stable when there is that kind of trust
in the institutions, a belief that those institutions will be
fair and just and secure the rights of citizens. The strength
of America's institutions is a cause for optimism, but they
cannot be taken for granted.
The Supreme Court's special role in protecting the careful
balances that the Constitution seeks to achieve is crucial to
our democratic stability. This is true even as times and
customs change, and it is more important with every passing
year in our increasingly complicated Nation.
As a little girl born in segregated Birmingham, Alabama,
who grew up to be Secretary of State, I know personally our
country's long journey to guarantee equal rights. I know the
power of the Constitution, and I know the gift of our
democracy. The Supreme Court is a crucial guardian--both of our
Constitution and of our democracy. That is why I am so honored
to introduce Brett Kavanaugh for these hearings.
He will be an outstanding Supreme Court Justice. His
intellect is unquestioned. His judgment is highly regarded, and
I can personally attest to his character and integrity as a
colleague. Brett Kavanaugh will thoroughly and faithfully
uphold the trust that is our heritage, the Constitution of the
United States of America, the most remarkable governing
document in human history.
Thank you.
Chairman Grassley. Thank you, Secretary Rice.
Now, our colleague, Senator Portman.
INTRODUCTION OF HON. BRETT M. KAVANAUGH, NOMINEE TO BE AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY
HON. ROB PORTMAN, A U.S. SENATOR FROM THE STATE OF OHIO
Senator Portman. Chairman Grassley, Ranking Member
Feinstein, and colleagues on this Committee on the Republican
and the Democratic side, it is a privilege to join Condi Rice
and Lisa Blatt here this afternoon in introducing a friend,
Judge Brett Kavanaugh.
I have known Brett and his wife, Ashley, since before they
were married, and I had the opportunity to work with Brett
during his service in the George W. Bush White House. As
Secretary Rice has just said very well, those of us who worked
with him universally praise his work ethic, his intelligence,
and his integrity.
I visited with George W. Bush a few days ago, and we talked
about Brett. He put it simply: Brett Kavanaugh is a class act.
In endorsing Brett, former lawyer to President Bill
Clinton, Bob Bennett, called him ``a strong advocate of decency
and civility.''
By the way, of all the attributes you look for in a judge,
what could be more important than good judgment? Brett
definitely showed good judgment in marrying Ashley. So did she,
and they are a great family. It is wonderful to have their
daughters, Margaret and Liza, with us here today.
Brett's parents, Edward and Martha, are also here. That is
especially appropriate since Brett's first introduction to the
law came from listening to his mom practice closing arguments
at the dinner table. She was a trailblazer. She went to law
school at age 34 and eventually became a trial judge. Brett has
said, to him, Martha Kavanaugh will always have been the true
Judge Kavanaugh.
During the process of this hearing, there will be more
spirited discussions about Brett's legal philosophy and his
experience and background as a lawyer and a judge. I heard
quite a bit of it already today, and there should be this
discussion. This is about a lifetime appointment to the highest
court in the land. In my view, there is not a better qualified
person to be on that Court.
Just last Friday, the American Bar Association gave Judge
Kavanaugh a unanimous ``well qualified'' rating, which is the
highest rating they offer, unanimous.
I saw how he conducted himself as Associate Counsel to the
President in the White House Counsel's office, the job I once
had in the first Bush White House. And I have watched him for
the past 12 years on the D.C. Circuit, where he has been
praised as fair, smart, and independent.
He has authored more than 300 published opinions, an
impressive number. And the Supreme Court has adopted his
reasoning a remarkable 13 times, a testament to his thoughtful
and well-reasoned decisions and a record that few, if any,
other appellate judges can match. Again, no one more qualified.
For more than a decade, he has also taught classes at
Harvard, Yale, and Georgetown Law Schools. He is a well-
respected judge and a well-respected professor and a thought
leader among his peers. That is why so many of his former
students, his law clerks, his judicial colleagues, and legal
scholars--by the way, from across the political spectrum--have
come out in support of his nomination.
Judge Kavanaugh is guided by the Constitution and by the
rule of law. He has said the judge's job is to interpret the
law, not to make the law or make policy. I agree, and by the
way, as do most of the people we represent. Judges should not
be legislating from the bench. Clearly, Brett Kavanaugh has the
right qualifications, and he has a judicial philosophy that is
very much in the mainstream.
Just as important to me is the kind of person you want on
the Supreme Court. I have known Brett not so much as a legal
scholar or a judge or a professor, but as a friend, a father,
and a husband. He is thoughtful and compassionate and someone
who has a big heart and the humility to listen. To me, that
might be the single most important attribute for a member of
the Supreme Court, the humility to listen.
Throughout this confirmation hearing, I hope the American
people will get to know the Brett Kavanaugh I have had the
privilege of knowing. A couple days after he was announced,
Brett came to my office one evening to discuss his
confirmation, just as he has been to your offices. He then went
straight from our meeting to serve dinner to the homeless
through his church, a regular occurrence that was long
scheduled--scheduled long before his nomination.
I only found out about it because that night someone
recognized him and took a photo that got tweeted, and it was a
photo of him in a baseball cap in the soup kitchen. It is
classic Brett that he did not tell me this was where he was
going after meeting with me.
To my colleagues, I know the man. He does things because it
is the right thing to do.
Brett is also involved, as some of you know, in his
daughters' sports teams. Last season, Margaret's sixth grade
girls basketball team he coached had an undefeated season and
went on to win a citywide championship.
Way to go, Margaret.
[Laughter.]
Senator Portman. To show you where his priorities are,
Judge Kavanaugh, or ``Coach K,'' as he is known by his players,
has the team photograph and trophy prominently displayed in his
judicial chambers.
Julie O'Brien, whose daughter goes to school with Margaret,
has another telling story about Brett. A few years ago, Julie's
husband passed away. With no one to accompany her daughter to
the annual father-daughter dance, Brett stepped up. That year
and every year since, Brett has taken her daughter alongside
his own to the dance.
That is the kind of person he is. That is the Brett
Kavanaugh I know. I am proud to introduce Brett Kavanaugh
before this Committee, and I am proud to strongly support his
nomination to be the next Associate Justice of the United
States Supreme Court.
I know these are partisan times here in Washington, but
this is an extraordinary nominee in every respect. Based on his
record, his qualifications, and his character, I believe he
deserves broad support. My hope, Mr. Chairman, is that, as was
the case with Justices Sotomayor and Kagan nominated by
President Obama, this Committee will report his nomination
favorably, and the full Senate will confirm him with a strong
bipartisan vote that he deserves.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, my colleague.
Ms. Lisa Blatt.
INTRODUCTION OF HON. BRETT M. KAVANAUGH, NOMINEE TO BE AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY
LISA S. BLATT, PARTNER, ARNOLD & PORTER, WASHINGTON, DC
Ms. Blatt. Thank you, Mr. Chairman and Committee Members.
It is a privilege to appear before you today. My name is
Lisa Blatt, and I know Judge Kavanaugh in my capacity as an
appellate lawyer here in Washington. I have argued 35 cases
before the Supreme Court of the United States, more than any
other woman in history. I am also a liberal Democrat and an
unapologetic defender of a woman's right to choose.
My hero is Justice Ruth Bader Ginsburg, for whom I had the
great fortune of serving as a law clerk. I proudly voted for
Hillary Clinton. I voted for President Obama twice. And with my
apologies, Mr. Chairman, for this one, I wish Senator Feinstein
were chairing this Committee.
And yet, I am here today to introduce Judge Kavanaugh and
urge the Senate to confirm him as the next Associate Justice of
the Supreme Court. I have received many angry calls from
friends and even strangers for supporting Judge Kavanaugh. But
I was raised to call it like I see it, and I do not see the
choice before you as difficult.
By any objective measure, Judge Kavanaugh is clearly
qualified to serve on the Supreme Court. After law school, he
clerked for Justice Anthony Kennedy, the Justice he would
succeed. He spent 12 years on the Nation's most prestigious
court of appeals, the United States Court of Appeals for the
District of Columbia Circuit. His opinions are invariably
thoughtful and fair, and many are known as instant classics not
just because they are important, but because they are written
so clearly and well. The Supreme Court has adopted the
reasoning in his opinions more than a dozen times.
Judge Kavanaugh's judicial temperament and integrity are
also flawless. He is meticulously prepared, and he treats
litigants with respect, asking probing questions of both sides.
He approaches judging by determining what the law requires, no
matter his personal preference.
Judge Kavanaugh has taught at the Nation's top law schools,
published thoughtful Law Review articles, and co-authored a
leading treatise on judicial precedent. And as just mentioned,
the ABA strongly endorsed him because, ``He meets the very
highest standards of integrity, professional competence, and
judicial temperament.''
On a personal level, I just cannot say enough nice things
about the Judge. I first met him almost 10 years ago when he
emailed me completely out of the blue to say that he liked an
article I had written about arguing before the Supreme Court.
Since then, we have become friends, and he has become a mentor
to me in my career.
Judge Kavanaugh has spent countless hours listening to me
talk about the challenges I have faced as a working mother in a
profession dominated by men. He has been a great source of
advice on these and many other issues about work/life balance.
He understands that life is not always perfect, and he responds
to life's challenges with a self-deprecating sense of humor.
More generally, Judge Kavanaugh has been remarkably
committed to promoting women in the legal profession. More than
half of his law clerks have been women, something that is sadly
by no means common. And almost all of his clerks, women and
men, have gone on to clerk at the Supreme Court, including for
Justices Kagan and Sotomayor.
As his former women law clerks told this Committee, the
legal profession is ``fairer and more equal because of Judge
Kavanaugh.'' He has mentored countless other women through the
classes he teaches at Yale and Harvard Law Schools.
Obviously, I know that Judge Kavanaugh has a conservative
judicial outlook, and if he is confirmed, he will have one of
nine votes to definitively decide the meaning of the
Constitution, including just how far to read it to protect the
reproductive rights of women.
Now if it were up to me, Justice Ginsburg would have all
nine votes. But that is not our system, and the reality is that
the Presidency and the Senate are in Republican hands. Judge
Kavanaugh is the best choice that liberals could reasonably
hope for in these circumstances. I am sure that some Members of
the Senate knew that they would disagree with Justice
Ginsburg's legal views when she was a nominee, but Justice
Ginsburg was confirmed 96-3.
This body has obviously treated some nominees differently
since then, to the detriment of our courts. I strongly disagree
with the Senate's treatment of Judge Garland. Judge Kavanaugh
himself spoke glowingly of Judge Garland during his pending
nomination, stating that, quote, ``Chief Judge Garland is a
brilliant jurist. He is thoughtful. He is considerate. He is
collegial. He works well with others. He is a good man, great
integrity, and he is supremely qualified by the objective
characteristics of experience, temperament, writing ability,
scholarly ability for the Supreme Court.''
All of this is equally true of Judge Kavanaugh. I do not
think it is fair to hold Judge Kavanaugh responsible for the
fact that Judge Garland is not a Justice today. Instead, I
would urge this Committee to treat him as we expect him to
treat litigants that appear before him: on his own merits and
with an open mind toward someone whose views may differ from
our own. Our judicial system is not well served by tit-for-tat
politics.
At the end of the day, I enthusiastically support Judge
Kavanaugh, and I am proud to introduce him because he is
unquestionably qualified by his extraordinary intellect,
experience, and temperament, and he does easily fit within the
mainstream of legal thought.
I look forward to the Committee over the next few days
getting to know the Judge Kavanaugh that I know. And at the end
of that process, I hope you will agree that he should be
confirmed to succeed his former boss on the Supreme Court.
Chairman Grassley. Thank you, Ms. Blatt.
Thanks each of the panel for their introduction, and you
are dismissed now.
And then, Judge Kavanaugh, can you shake your head? I was
told that you might want 5 minutes right now. Do you need that?
Judge Kavanaugh. No.
Chairman Grassley. Okay. Then just stay seated until we
change the table a little bit, and then we will get to you.
[Pause.]
[Witness is sworn in.]
Chairman Grassley. Thank you.
Proceed with your statement or anything else that you want
to tell the Committee right now.
STATEMENT OF HON. BRETT M. KAVANAUGH, NOMINEE TO SERVE AS AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Judge Kavanaugh. Thank you, Mr. Chairman, Senator
Feinstein, Members of the Committee.
I thank Secretary Rice, Senator Portman, and Lisa Blatt for
their generous introductions. They are patriots who represent
the best of America. I am humbled by their confidence. I am
proud to call each of them a friend.
Over the past 8 weeks, I have witnessed firsthand the
Senate's deep appreciation for the vital role of the American
judiciary. I have met with 65 Senators, including almost every
Member of this Committee. Those meetings are sometimes referred
to as ``courtesy calls,'' but that term understates how
substantive and personal our discussions have been.
I have greatly enjoyed all 65 meetings. In listening to all
of you, I have learned more about our country and the people
you represent. Every Senator is devoted to public service and
the public good, and I thank all the Senators for their time
and their thoughts.
I thank President Trump for the honor of this nomination.
As a judge and as a citizen, I was deeply impressed by the
President's careful attention to the nomination process and by
his thorough consideration of potential nominees.
I am also very grateful for his courtesy. At the White
House on the night of the announcement, the President and Mrs.
Trump were very gracious to my daughters, my wife, and my
parents. My family will always cherish that night, or, as my
daughter Liza calls it, her debut on national television.
[Laughter.]
Judge Kavanaugh. As a nominee to the Supreme Court, I
understand the responsibility I bear. Some 30 years ago, Judge
Anthony Kennedy sat in this seat. He became one of the most
consequential Justices in American history. I served as his law
clerk in 1993. To me, Justice Kennedy is a mentor, a friend,
and a hero.
As a member of the Court, he was a model of civility and
collegiality. He fiercely defended the independence of the
judiciary, and he was a champion of liberty. If you had to sum
up Justice Kennedy's entire career in one word, liberty.
Justice Kennedy established a legacy of liberty for ourselves
and our posterity.
I am here today with another of my judicial heroes, my mom.
Fifty years ago this week, in September 1968, my mom was 26,
and I was 3. At that time, my mom started as a public school
teacher at McKinley Tech High School here in Washington, DC.
1968 was a difficult time for race relations in our city
and our country. McKinley Tech had an almost entirely African-
American student body. It was east of the park. I vividly
remember days as a young boy sitting in the back of my mom's
classroom as she taught American history to a class of African-
American teenagers. Her students were born before Brown v.
Board of Education or Bolling v. Sharpe.
By her example, my mom taught me the importance of equality
for all Americans. Equal rights, equal dignity, and equal
justice under law. My mom was a trailblazer. When I was 10, she
went to law school at American University and became a
prosecutor.
I am an only child. My introduction to law came at our
dinner table when she practiced her closing arguments on my dad
and me. Her trademark line was, ``Use your common sense. What
rings true? What rings false?''
One of the few women prosecutors at the time, she overcame
barriers and was later appointed by Democratic Governors to
serve as a Maryland State trial judge. Our Federal and State
trial judges serve on the front lines of American justice.
My mom taught me that judges do not deal in abstract
principles. They decide for real cases, for real people in the
real world, and she taught me that good judges must always
stand in the shoes of others. The Chairman referred to me today
as Judge Kavanaugh, but to me, that title will always belong to
my mom.
For 12 years, I have been a judge on the U.S. Court of
Appeals for the D.C. Circuit. I have written more than 300
opinions and handled more than 2,000 cases. I have given it my
all in every case. I am proud of that body of work, and I stand
behind it. I tell people do not read about my judicial
opinions, read the opinions.
I have served with 17 other judges, each of them a
colleague and a friend on a court now led by our superb Chief
Judge Merrick Garland. My judicial philosophy is
straightforward. A judge must be independent and must interpret
the law, not make the law. A judge must interpret statutes as
written. A judge must interpret the Constitution as written,
informed by history and tradition and precedent.
In deciding cases, a judge must always keep in mind what
Alexander Hamilton said in Federalist 83, ``The rules of legal
interpretation are rules of common sense.''
A good judge must be an umpire, a neutral and impartial
arbiter who favors no litigant or policy. As Justice Kennedy
explained in Texas v. Johnson, one of his greatest opinions,
judges do not make decisions to reach a preferred result.
Judges make decisions because the law and the Constitution as
we see them compel the results.
Over the past 12 years, I have ruled sometimes for the
prosecution and sometimes for criminal defendants, sometimes
for workers and sometimes for businesses, sometimes for
environmentalists and sometimes for coal miners. In each case,
I have followed the law. I do not decide cases based on
personal or policy preferences. I am not a pro-plaintiff or
pro-defendant judge. I am not a pro-prosecution or pro-defense
judge. I am a pro-law judge.
As Justice Kennedy showed us, a judge must be independent,
not swayed by public pressure. Our independent judiciary is the
crown jewel of our constitutional republic. In our independent
judiciary, the Supreme Court is the last line of defense for
the separation of powers and for the rights and liberties
guaranteed by the Constitution.
The Supreme Court must never, never be viewed as a partisan
institution. The Justices on the Supreme Court do not sit on
opposite sides of an aisle. They do not caucus in separate
rooms. If confirmed to the Supreme Court, I would be part of a
Team of Nine, committed to deciding cases according to the
Constitution and laws of the United States. I would always
strive to be a team player on the Team of Nine.
Throughout my life, I have tried to serve the common good,
in keeping with my Jesuit high school's motto, ``Men for
others.'' I have spent my career in public service. I have
tutored at Washington Jesuit Academy, a rigorous, tuition-free
school for boys from low-income families. At Catholic Charities
at 10th and G, I serve meals to the homeless with my friend
Father John Enzler.
In those works, I keep in mind the message of Matthew 25
and try to serve the least fortunate among us. I know I fall
short at times, but I always want to do more and do better.
For the past 7 years, I have coached my daughters'
basketball teams. I love coaching. All the girls I have coached
are awesome, and special congratulations to the girls on this
year's sixth grade CYO championship team--Anna, Quinn, Kelsey,
Ceane, Chloe, Alex, Ava, Sophia, and Margaret.
I love helping the girls grow into confident players. I
know that confidence on the basketball court translates into
confidence in other aspects of life.
Title IX helped make girls' and women's sports equal. And I
see that law's legacy every night when I walk into my house as
my daughters are getting back from lacrosse or basketball or
hockey practice. I know from my own life that those who teach
and coach America's youth are among the most influential people
in our country.
With a kind word here and a hint of encouragement there, a
word of discipline delivered in the spirit of love, teachers
and coaches change lives. I thank all of my teachers and
coaches who have gotten me to this point, and I thank all of
the teachers and coaches throughout America.
As a judge, I have sought to train the next generation of
lawyers and leaders. For 12 years, I have taught constitutional
law to hundreds of students, primarily at Harvard Law School. I
teach that the Constitution's separation of powers protects
individual liberty. I am grateful to all my students. I have
learned so much from them, and I am especially grateful to the
dean who first hired me, now Justice Elena Kagan.
One of the best parts of my job as a judge is each year
hiring four recent law school graduates to serve as my law
clerks for the year. I hire the best. My law clerks come from
diverse backgrounds and points of view. A majority of my 48 law
clerks have been women. More than a quarter of my law clerks
have been minorities, and I have had far more African-American
law clerks than the percentage of African-American students in
U.S. law schools. I am proud of all my law clerks.
I am grateful for my friends. This past May, I delivered
the commencement address at Catholic University Law School. I
gave the graduates this advice: ``Cherish your friends. Look
out for your friends. Lift up your friends. Love your
friends.'' Over the last 8 weeks, I have been strengthened by
the love of my friends, and I thank all my friends.
I am grateful to have my family behind me. My mom rightly
gets a lot of attention, but a few words about my dad. He has
an unparalleled work ethic and the gift for making friends with
people, regardless of who they are or where they come from.
My dad and I are both passionate sports fans. When I was 7,
he took me to the 1972 NFC Championship Game at RFK stadium
just 2 miles from here--upper deck, Section 503, Row 3, Seats 8
and 9. When I was 17, we sat in the same seats for the 1982 NFC
Championship Game.
In 1995, when I was 30, we were at Camden Yards together
when Cal Ripken played in his 2,131st consecutive game and
broke Lou Gehrig's seemingly unbreakable record. And so many
other games with my dad, a lifetime of friendship forged in
stadium seats over hot dogs and beer.
My daughters, Margaret and Liza, will be in and out of this
hearing room over the next few days. They are strong girls,
dedicated students, outstanding athletes. In the time since you
last saw them at the White House ceremony on July 9th, I am
pleased to report that Margaret has gotten her braces off and
has turned 13. Margaret is the sweetest girl you will ever
know. As for Liza, I tell her every night that no one gives a
better hug than Liza Kavanaugh.
Finally, I thank my wife, Ashley. She is a strong West
Texan, a graduate of Abilene Cooper Public High School and the
University of Texas at Austin. She is now the popular Town
Manager of our local community.
This has not exactly been the summer she had planned for
the family, but I am grateful for her love and inspiration.
Ashley is a kind soul. She always sees the goodness in others.
She has made me a better person and a better judge. I thank God
every day for my family.
Mr. Chairman, Senator Feinstein, Members of the Committee,
I look forward to the rest of the hearing and to answering your
questions. I am an optimist. I live on the sunrise side of the
mountain, not the sunset side of the mountain. I see the day
that is coming, not the day that is gone.
I am optimistic about the future of America. I am
optimistic about the future of our independent judiciary. I
revere the Constitution. If confirmed to the Supreme Court, I
will keep an open mind in every case. I will do equal right to
the poor and to the rich. I will always strive to preserve the
Constitution of the United States and the American rule of law.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Judge Kavanaugh.
I have something I want to say to the Committee, but before
that, we have been here approximately 8 hours. You have had a
lot to hear today and listen to. I think it is very noteworthy
that no one has seriously questioned your qualifications to
receive a promotion to the Nation's highest court, and they
have learned a lot about you being an exceptional teacher,
coach, volunteer, and dad, in addition to being an exceptional
judge.
So I thank you very much for your statement.
Questions for the record are due Monday, September the
10th, at noon. We will notice Judge Kavanaugh's markup meeting
for Thursday, September 13th. This timeline is consistent with
how we have handled past Supreme Court nominations. I want
everybody to know that right now, so that Members and their
staff can be working on written questions throughout the week.
With that, we will recess until tomorrow morning at 9:30,
when we will start the first round of questions. Again, each
Senator will have 30 minutes for the first round of questions,
and I intend to go like we have with Gorsuch, that people will
have a chance to ask the questions they want to ask. But we
start out with the 30 minutes, then the 20-minute second round.
So everybody is going to have a chance for a 50-minute crack at
this strong judge.
Meeting adjourned.
[Whereupon, at 4:55 p.m., the Committee was recessed.]
[Additional material submitted for the record for Day 1
follows Day 5 of the hearing.]
CONTINUATION OF THE
CONFIRMATION HEARING ON THE
NOMINATION OF HON. BRETT M. KAVANAUGH
TO BE AN ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES
----------
WEDNESDAY, SEPTEMBER 5, 2018
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:35 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
Booker, and Harris.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Good morning, everybody. And we welcome
everybody back again and especially Judge Kavanaugh and his
wife, Ashley.
Yesterday, each Senator made their opening remarks. We also
heard from three people who had the honor of introducing Judge
Kavanaugh--Secretary Rice, Senator Portman, and attorney Lisa
Blatt. And we heard for the first time directly from Judge
Kavanaugh. He made a powerful, compelling, and convincing
statement demonstrating his exceptional background and
qualifications to serve our Nation's highest court.
NBC News reported that Democratic Members of the Committee
plotted with the Minority Leader to disrupt the hearing
yesterday. Democratic Senators interrupted the hearing 63 times
before lunch, and in the audience, 70 people were arrested
yesterday who were following their lead.
All probably very constitutionally prepared to do that,
doing what the Constitution says, the right of freedom of
speech. But we also were able to finally conduct our hearing
the way it should be conducted.
[Disturbance in the hearing room.]
Chairman Grassley. Yesterday was just opening statements.
It was only--it was only our time as Committee Members that we
wasted on disruption and disorder over procedural matters. But
today is different.
[Disturbance in the hearing room.]
[Pause.]
Chairman Grassley. It was our time, as Committee Members,
yesterday to make our case. Today is different. Today is the
day that the American people are supposed to hear from the
nominee. This morning, we will begin our questioning of Judge
Kavanaugh. We will get through all Members' first rounds of
questions today, no matter how long it takes.
Members are allotted 30 minutes for the first round. If
your time expires, your remaining questions may be continued,
of course, in the second round tomorrow.
We will take a lunch break as well as probably two other
15-minute breaks throughout the day. For now, let us plan our
first break after five Senators or so have completed their
questions. I assume that this will be around 12:15 p.m., which
will hopefully coincide with the floor vote that is already
scheduled. This would be a 3-minute--or 30-minute break for
vote and lunch.
But, Judge, if you would like to take a break any other
time, let us know. We are happy to accommodate that. And with
that, I will start the questioning of my 30 minutes.
Judge, for the last 12 years, you have served as a Federal
circuit judge on one of the most influential Circuits in
America. You have authored 307 judicial opinions and joined
hundreds more, totaling more than 10,000 pages of record. You
have decided some of the most pressing legal issues facing our
country. The Supreme Court of the United States, the one you
are nominated to be on, has adopted a legal position--your
legal position from at least 12 opinions.
The Senate Judiciary Committee has received dozens of
strong letters of support from hundreds of people, many of whom
you know best, from all across the political and ideological
spectrum. And the American Bar Association has given you its
highest rating, unanimously ``well qualified.'' My Democratic
colleagues have said that this is the ``gold standard'' of
judicial nomination.
There is no dispute that you are one of the most qualified
Supreme Court nominees. Some people say the most qualified, and
I do not disagree with their judgment, and that could be for
anybody coming before the United States Senate. I am not the
only one who says that because we have a letter from Robert
Bennett, surprisingly, President Clinton's attorney and your
opposing Counsel during the independent counsel investigation
of President Clinton. He wrote a very strong letter in support
of your confirmation: ``Brett is the most qualified person any
Republican President could possibly have nominated. Were the
Senate to fail to confirm Brett, it would not only mean passing
up the opportunity to confirm a great jurist, but it would also
undermine civility in politics twice over, first in playing
politics with such an obviously qualified nominee and then
again in losing the opportunity to put such a strong advocate
of decency and civility on our Nation's highest court.''
Mr. Bennett also speaks highly of your integrity and to
your fairness and open-mindedness. And so, without objection, I
would enter that letter in the record.
[The information appears as a submission for the record.]
Chairman Grassley. Now to a question. I imagine that your
12 years of judicial service on the second-highest court in the
land has given you plenty of opportunity to think about my
first question, which is what makes a judge a good one, and
what influences in your life have shaped your vision of how a
judge should go about doing his job?
Judge Kavanaugh. Thank you, Mr. Chairman.
I think the first quality of a good judge in our
constitutional system is independence. Independence comes
directly from Article III of the Constitution. The independence
of the Federal judges really is guaranteed by the Framers in
our life tenure and our protection from pay reduction. So
because we have life tenure, we are independent and immune from
political or public pressure.
So I think the first thing that makes a good judge is
independence, not being swayed by political or public pressure.
That takes some backbone. That takes some judicial fortitude.
The great moments in American judicial history, the judges
had backbone and independence. You think about Youngstown
Steel. You think about, for example, Brown v. Board of
Education, where the Court came together and knew they were
going to face political pressure and still enforced the promise
of the Constitution.
You think about United States v. Nixon, which I have
identified as one of the greatest moments in American judicial
history, where Chief Justice Burger, who had been appointed by
President Nixon, brought the Court together in a unanimous
decision to order President Nixon, in response to a criminal
trial subpoena, to disclose information. Those great moments of
independence and unanimity are important.
Respect for precedent is another one. We are a system of
constitutional precedent. Precedent is not just a judicial
policy. It is sometimes stated that it is just a policy.
Precedent comes right from Article III of the Constitution.
Article III of the Constitution refers to the judicial
power. What does that mean? What does ``judicial power'' mean?
Judicial power, you look at Federalist 78, and what is
described there is a system of precedent. So precedent is
rooted right into the Constitution itself, and it is
constitutionally dictated to pay attention and pay heed to
rules of precedent.
Beyond that, being a good judge means paying attention to
the words that are written, the words of the Constitution, the
words of the statutes that are passed by Congress. Not doing
what I want to do, not deferring when the Executive rewrites
the laws passed by Congress, but respect for the laws passed by
Congress, respect for the rule of law, the words put into the
Constitution itself. That is part of being a good judge. That
is part of being independent. That is part of precedent.
And then I would say being a good judge, there are human
qualities in terms of the interaction. Although these
confirmation processes focus on one person, as if you are
making all of the decisions, as I said yesterday, I am joining
a Team of Nine, if I were fortunate enough to be confirmed. And
that means something. It means something in sports. It means
something in judging.
I do not make decisions by myself. For the last 12 years, I
have not been making decisions by myself. Every case has been
in a panel of at least three judges, and you learn from each
other when you are deciding cases. You work with each other
when you are deciding cases.
And so having collegiality and civility, as Justice Kennedy
showed us so powerfully repeatedly with how he conducted
himself over the years. That is very important because those
great moments that I was talking about at the beginning like
United States v. Nixon, like Brown v. Board, the Court came
together in unanimous decisions. And the unanimity of the
decisions added force. That took personal interaction. That
took collegiality.
So I think, you know, I have tried to be a very collegial
judge. I have tried to be civil. I want, Mr. Chairman, the
losing party, the losing party in every case to come out and
say, ``Kavanaugh gave me a fair shake. He was well prepared. He
wrote a clear opinion. He explained everything. I disagree, but
at least I get it.''
So I want the losing party and I want both parties to walk
out at oral argument and say, ``He had an open mind. He gave me
a fair shake.'' And I think I have done that for 12 years. I
have tried to do that consistently. Everything you do as a
judge matters in terms of being a good judge--oral argument,
writing opinions, how you decide.
So those are the qualities. I guess the last thing I always
remember about it is the thing I said my mom told me from the
first instance. Judging is not just about theory. It is not
theory. It is not just what a Law Review article is. Judging is
real people in the real world, and every decision we make, no
matter how high-minded it might sound, affects real people in
the real world with real interests. And we have to remember
that in how we explain the decisions.
Thank you, Mr. Chairman.
Chairman Grassley. Now following up on the wise words of
Senator Sasse yesterday on separation of powers, your record
before the Senate includes more than 10,000 pages of judicial
writings over your dozen years. We have over 440,000 pages of
emails and other records from your legal service at the White
House and Judge Starr. And you have written extensively on the
issue of our Constitution, separation of power among the three
branches. And a key component of the separation of powers is
the independent judiciary.
Obviously, everybody learns in eighth grade civics about
judges interpreting law. The judiciary must continue to be the
least political and least dangerous branch. A judge's sole job
is to find and apply the law evenly and fairly without regard
to the President who nominated him, the Senators who voted for
him, the parties before him, and the political consequences of
his judicial decisions.
So, Judge, let us discuss judicial independence from the
executive branch. No one, not even the President, is above the
law. Some of my colleagues have criticized your views of
Presidential authority, suggesting--wrongly, in my opinion--
that your views of Presidential authority would not allow any
meaningful check on the President, particularly this one.
Please tell us what judicial independence means to you,
including whether you have any trouble ruling against a
President who appointed you and against the executive branch in
any case before you. You have partly talked about independence,
but apply it specifically to a ruling against a President or
the executive branch generally.
Judge Kavanaugh. Thank you, Mr. Chairman.
To begin with, you are correct. No one is above the law in
our constitutional system. Federalist 69, Hamilton makes clear
all the ways that the executive branch, as designed by the
Framers of the Constitution, was different from the monarchy.
Under our system of Government, the executive branch is subject
to the law, subject to the court system, and that is an
important part of Federalist 69. It is an important part of the
constitutional structure.
In general, so, too, we, as judges, are separate from the
Congress. We are not supposed to be influenced by political
pressure from the Executive or from the Congress. We are
independent. We make decisions based on law, not based on
policy, not based on political pressure, not based on the
identity of the parties. No matter who you are in our system,
no matter where you come from, no matter how rich you are or
how poor you are, no matter your race, your gender, no matter
your station in life, no matter your position in Government, it
is all equal justice under law.
And again, look at our examples in history. I always will
go back to the great moments in our history where these
principles, which sound abstract if you are just describing
them, were actually implemented. And I go back to Youngstown
Steel, and you think about it, it is a 6-to-3 decision where
the Supreme Court rules that President Truman has violated the
law by seizing the steel mills.
Now this is a time of war, a time of war where lots of
Americans were killed, and the Supreme Court is under pressure
to defer to the President's war effort in a 6-to-3 decision.
But what is interesting to me, Justice Clark--we do not usually
talk about Justice Clark in that decision. Why is he important?
He is important. He was appointed by President Truman to
the Supreme Court. What a moment of judicial independence there
to rule in that case.
You think about Justice Jackson, who had been working for
President Roosevelt, and then he dissents in the Korematsu
case. Stands up and says letting racism like this is like
letting a loaded weapon lie around.
[Disturbance in the hearing room.]
Judge Kavanaugh. Dissents against President Roosevelt's
decision. Justice Jackson's----
Senator Feinstein. Ask him to suspend.
Judge Kavanaugh. Justice Jackson's concurrence in
Youngstown, which is, of course, what has become the law, that
three-part test--Category 1, Category 2, Category 3. But again,
he writes that concurrence in Youngstown. Why is that a moment
of judicial independence? He had taken positions contrary to
that when he had worked in the executive branch in the
Roosevelt administration. Yet, when he is a judge, he sees it
differently as an independent judge.
How about Chief Justice Burger? United States v. Nixon.
Writes the opinion, unanimous. Moments of judicial
independence. So it is resisting public pressure, political
pressure. It is treating everyone equally, no matter where you
are, what station.
When I was a--became a judge on the D.C. Circuit, I had a
case called Hamdan v. United States. Who is Hamdan?
[Disturbance in the hearing room.]
Judge Kavanaugh. So in the Hamdan case, Hamdan is one of
bin Laden's associates. You will never have a nominee--Mr.
Chairman, should I proceed?
Chairman Grassley. This is coming out of my time, but that
is okay. Let these people have their free speech and interrupt
the other 300 million people listening, that this is your
opportunity to speak to the American people and for them to
make a judge about it. If they want to affect what the other
300 million people hear from you, then that is just too bad.
You proceed now.
Judge Kavanaugh. Hamdan is one of bin Laden's associates
involved before September 11th, worst attack ever on American
soil. He was prosecuted before a military commission, signature
prosecution of the Bush administration.
Comes to the D.C. Circuit. I am on the panel. I write the
opinion saying that his military commission prosecution is
unconstitutional, violates ex post facto principles.
You will never have a nominee who has ruled for a more
unpopular defendant than ruling for Salim Hamdan. And why did I
do that in that case? Why did I rule for someone who had been
involved in the September 11th? It is because the law compelled
it.
As Justice Kennedy showed us in the Texas v. Johnson case,
we do not make decisions based on who people are or their
policy preferences or the moment. We base decisions on the law.
Justice Kennedy's example of independence is something I have
tried to follow.
And it means, you know, you are not a pro--as I said
yesterday, not a pro-plaintiff or pro-defense judge, not a pro-
prosecution or pro-defense judge. I am a pro-law judge, and I
have ruled for parties based on whether they have the law on
their side.
That is part of being an independent judge is ruling for
the party no matter who they are, so long as the party is
right. If you walk into my courtroom and you have the better
legal arguments, you will win.
Chairman Grassley. I think you answered my next question
based upon what you said about Hamdan. But there are probably
other examples. You do not need to go into detail. But you have
President----
[Disturbance in the hearing room.]
Chairman Grassley. President Bush appointed you. Are there
other cases that--there has been other cases presumably you
have ruled against the administration of the person that
appointed you?
Judge Kavanaugh. Absolutely, Mr. Chairman. There were a
slew of cases on everything from Freedom of Information Act to
some of the administrative law cases. The Hamdan one is
certainly the one that comes to mind most because of the
importance of that case. Yet I ruled that it was unlawful.
Chairman Grassley. Yes. Now did anyone ask you to make any
promises or assurances at all about the way that you would rule
in certain cases?
Judge Kavanaugh. No.
Chairman Grassley. Were you asked about your views on Roe
v. Wade?
Judge Kavanaugh. No.
[Disturbance in the hearing room.]
Chairman Grassley. We were talking about separation of
powers. Have you ever written any decisions where you use the
Tenth Amendment? I am talking about division of powers between
Federal and States.
Judge Kavanaugh. Mr. Chairman, most of the cases that come
to the D.C. Circuit are at the national level and, therefore,
involving questions of separation of powers between the
legislative, executive, and judicial branches. Of course,
federalism is a critical part of our constitutional structure
as well.
The genius of our system, Federalist 39, as described by
Madison, is that we have both a national Government and a
Federal Government simultaneously. And the House of
Representatives really represents in some ways the national
part, proportional representation. This body, with two Senators
from each State, represents in many ways the Federal part, each
State represented equally.
And the federalism system by which the States are allowed
to regulate local matters, and some of the Commerce Clause
cases, such as United States v. Lopez and United States v.
Morrison, reinforce the idea that there is a core of authority
that is exclusively in the province of the States and beyond
the scope of the Federal Government.
The Tenth Amendment----
[Disturbance in the hearing room.]
Judge Kavanaugh. The Tenth Amendment reinforces the
structure of federalism that is in our constitutional system.
It is important always to remember the role of the States in
our constitutional systems, and it is important to recognize as
individual citizens something we often forget, particularly in
a process like this. Our rights and liberties are protected by
the Federal Constitution and by the Federal courts, but they
are also protected by State constitutions and State courts.
A great judge on the Sixth Circuit, Judge Jeff Sutton, has
written a new book about using State constitutions to help
protect your individual liberties and rights, too. This whole
document, through the separation of powers and the federalism,
tilts toward liberty----
[Disturbance in the hearing room.]
Judge Kavanaugh. Tilts toward liberty.
Chairman Grassley. Now we have talked about your
independence from a President. There is also the question of
independence from the legislative branch, equally as important.
You are going to be asked about your personal views on a
variety of topics and whether you believe various Supreme Court
cases were correctly decided. Presumably, this is because
Senators are going to try to predict how you will rule in cases
before you. The idea is that if you agree with your personal
views--if they agree with your personal views on particular
issues of morality or on Supreme Court precedent, they maybe
would vote to confirm you. If not, they might not.
Of course, that is improper. Judges should never promise
their future votes on the bench in exchange for a Senator's
vote for them. If you answer these questions about your views
on specific Supreme Court cases or public controversies of the
day, you would be showing the opposite of independence from the
legislative branch.
Politicians can make promises about how they will vote on
issues. Judges, by the very nature of the job, should never
promise any outcome. If a nominee answers these questions, it
threatens to undermine judicial independence.
Of course, there may be times where it is appropriate to
reconsider certain decisions, especially if more recent
opinions have called into question the rationale of the
original decisions. So with this in mind, I would like to
explore the approach that you would take toward Supreme Court
precedent.
Could you tell us your views on the value of precedent? I
think you have already done that, but if you want to expand on
it, go ahead. Have you ever followed precedent of the Supreme
Court when doing so conflicted with your personal beliefs?
Judge Kavanaugh. My personal beliefs are not relevant to
how I decide cases. The role of precedent in our system, which
I said is rooted in Article III of the Constitution, it is not
just a judicial policy. The role of precedent is to ensure
stability in the law, which is critically important.
It is also to ensure predictability of the law. People who
order their affairs around judicial decisions need to know that
the law is predictable. Whether you are an individual or
business or worker, you need to have predictability.
People rely on the decisions of the courts, and so reliance
interests are critically important to consider as a matter of
precedent. They are one of the reasons we have the system of
precedent, so that people can rely on the decisions.
Precedent also reinforces the impartiality and independence
of the judiciary. The people need to know in this country that
the judges are independent and that we are not making decisions
based on policy views. Part of that is to understand we are
following a system of precedent, of what has been done before.
The Court, every time someone gets on it, is not just
bouncing around to, ``What do I think is best? '' It is, ``What
is the precedent of the Supreme Court? '' is always part of the
analysis, an important part.
And for 12 years, I have been applying precedent of the
Supreme Court and of my court. Every day for 12 years, I have
not been getting up saying how can I rewrite the law? I have
been getting up for 12 years every day saying, okay, how can I
apply this Fourth Amendment precedent to this fact pattern that
comes before me? Or how can I apply this First Amendment
precedent to this fact pattern that comes before me?
So precedent is the foundation of our system. It is part of
the stability. It is ensuring predictability, and it is just
foundational to the Constitution, as Article III and Federalist
78 make clear.
Chairman Grassley. Now you will be asked by other Members
which Supreme Court precedents you like and do not like. But as
you know, it is inappropriate for a nominee to answer those
questions. And this refers to Justice Ginsburg. She said, ``A
judge sworn to decide impartially can offer no forecasts, no
hints, for that would show not only disregard for the specifics
of a particular case, it would display disdain for the entire
judicial process.''
The underlying reason for this, of course, is that making
promises or giving hints undermines the very independence that
we have discussed. Would you agree with that?
Judge Kavanaugh. I do, Senator, Mr. Chairman. And one of
the things that I have to remember sitting in this seat is that
this moment is a moment of judicial independence with how I
interact with this Committee.
And what I have done in each of the jobs I have had, and
particularly as a judge over the last 12 years, but also in the
executive branch, you always ask--I always ask myself and I
tell people I am working with to ask how has it been done
before? How has it been done before? So, as a judge, how has it
been done before as precedent? That is, how has it been done
before?
When I am sitting here, what did I do? I went and studied
all the nominee precedent. I have studied. I have read Thurgood
Marshall's hearing and Justice Brennan's hearing, and I have
read the hearings of the eight Justices currently sitting on
the Supreme Court. It is what I call nominee precedent.
And so all of the nominees currently sitting on the Supreme
Court, all the Justices have made clear a couple things. First
of all, they cannot discuss cases or issues that might come
before them. As Justice Ginsburg said, no hints, no forecasts,
no previews.
That also means with respect to at least the vast body of
Supreme Court precedent going back, you cannot give a thumbs up
or thumbs down on the case. That is Justice Kagan's
formulation. She said repeatedly no thumbs up or thumbs down
when she was asked, ``What do you do think about this case?
What do you think about that case? '' I liked her formulation
there. No thumbs up or thumbs down.
That nominee precedent, as I call it, is now, in my view,
part of the independence of the judiciary, and that nominee
precedent is something I need to adhere to when I am here as a
nominee now. Because that is--one of my jobs here is not to
advance my own interests, but remember I am a representative of
the judiciary as a whole, and I have a responsibility to do
judicial independence right here, right now as a nominee. So
following that nominee precedent is going to be critical.
Now there is an exception that the eight Justices have
drawn currently sitting on the Court, if you read all the
hearings, for some older cases. And I will be happy to give
some older cases where nominee precedent does allow the
Justices--has allowed them to talk about a few older cases.
And again, why do we do this? Why is this nominee
precedence there? When eight Justices of widely ranging views
do this, there must be a reason. The reason is judicial
independence. What does that mean? It means two things in this
context.
One, the litigants who come before us have to know we have
an open mind, that we do not have a closed mind, that we have
not committed something in this process that is going to affect
how we decide a case because we feel bound by what we promised
to this Committee. And believe me, judges do feel bound by what
they said to this Committee.
So if I say something and a case comes before me 5 years
from now, I am going to feel morally bound by what I said here.
And if I have crossed the line of what I should say, then I am
not going to have an open mind in that case. That is a
violation of judicial independence.
Second, as Chief Justice Roberts described perhaps better
than anyone, if I get into some kind of process that appears to
be a bargaining process where I say, well, I will agree with
this decision in exchange for your vote, it is never that
explicit. But that is--as Chief Justice Roberts described it,
that is kind of what seems to be going on sometimes. Well, that
is a complete violation of judicial independence because then
the judges are not making the decisions based on their reading
of the law. It is really, as Chief Justice Roberts described
it, it is the Senate or the Senate Judiciary Committee really
sending a nominee as a delegate to the judiciary and really
doing what the Senate Judiciary Committee thinks is the right
thing to do.
Chief Justice Roberts explained very forcefully that doing
that would be a violation of judicial independence. That
nominee precedent weighs heavily on me as a nominee here
because it is rooted in judicial independence. And I have said
repeatedly already that I am going to be an independent judge.
Well, I have to be an independent nominee as well, so I am
going to have to adhere to the lines drawn by those prior
nominees, Mr. Chairman.
Chairman Grassley. There is only 25 seconds left. I am
going to reserve that time and go to Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Good morning, Judge.
Judge Kavanaugh. Thank you.
Senator Feinstein. I am sorry about the circumstances, but
we will get through it.
I wanted to talk to you this morning about guns, and go
back to Roe v. Wade, if I might. My office wrote the assault
weapons legislation in 1993. It was law from 1994 to 2004, and
it essentially prohibited the transfer, sale, and manufacture
of assault weapons. It did not at the time affect possession.
I happen to believe that it did work and that it was
important. And I have watched case after case, and I think I
mentioned earlier, school shootings, which are just--I never
thought this would happen in our country, that someone would
bring a semi-automatic assault weapon into a school and just
mow down children and staff.
And so I have been very interested in your thinking on
assault weapons. You specifically argued that the DC assault
weapons ban was unconstitutional, and I think because you said
these weapons were in common use. What did you base your
conclusion that assault weapons are in common use, and what
evidence or study did you use to do that?
Judge Kavanaugh. Thank you, Senator Feinstein, for the
question.
I understand, of course, your role on that issue and your
long leadership on that issue and appreciate that. I faced a
decision where, as in every other decision just about on the
D.C. Circuit, I had to follow precedent, precedent of the
Supreme Court. I do not get to pick and choose which Supreme
Court precedents I get to follow. I follow them all.
And so, in the Second Amendment context, the Supreme Court
in the Heller decision, written by Justice Scalia, had held
that there was an individual right to keep and bear arms. And
then in explaining what that meant and what exceptions would be
allowed to that right, Justice Scalia's opinion for the Court
in Part 3 of the opinion went through this does not mean that
there is no gun regulation permissible.
So that was an important part of the opinion, Part 3 of the
Supreme Court's opinion, where it pre-identified a number of
exceptions that would be allowed. Felon in possession laws,
concealed carry laws, possession of mentally ill, possession of
guns in schools, possession in certain kinds of buildings, he
pre-identified that.
As to the weapons, the way I understood what he said there,
and what was said in the McDonald case later, was that
dangerous and unusual weapons could be prohibited. And what he
referred to specifically is machine guns could be prohibited.
So it is very important to recognize, under the Heller
decision, machine guns can be prohibited. And machine----
Senator Feinstein. They were in the Firearms Act a long
time ago.
Judge Kavanaugh. Yes, and that is----
Senator Feinstein. Machine guns have been prohibited.
Judge Kavanaugh. Yes, Senator. And Justice Scalia's opinion
did not disturb that longstanding regulation. In fact, it
specifically reaffirmed that machine guns could be prohibited.
The Court in Heller, the Supreme Court upheld--or struck down a
DC ban on handguns, most of which are semi-automatic----
Senator Feinstein. I do not mean--let me interrupt you
because I think we are on totally different wavelengths. I am
talking about your statement on ``common use''--``common use''
being a justification. And assault weapons are not in common
use.
Judge Kavanaugh. And Justice Scalia's opinion used that
phrase, and I think the next sentence of the opinion talked
about dangerous and unusual weapons. And the Court in Heller
itself, the Supreme Court, struck down a DC ban on handguns.
Now most handguns are semi-automatic. That is something
that not everyone appreciates. Most handguns are semi-
automatic. And the question came before us of semi-automatic
rifles, and the question was, can you distinguish as a matter
of precedent--again, this is all about precedent for me, trying
to read exactly what the Supreme Court said if you read the
McDonald case. And I concluded that it could not be
distinguished as a matter of law semi-automatic rifles from
semi-automatic handguns.
And semi-automatic rifles are widely possessed in the
United States. There are millions and millions and millions of
semi-automatic rifles that are possessed. So that seemed to fit
common use and not being a dangerous and unusual weapon. That
was the basis of my dissent.
But in a nutshell, the basis of my dissent was I was trying
to follow strictly and carefully the Supreme Court precedent.
And I know you have read the opinion----
Senator Feinstein. You are saying the numbers determine
common use? Common use is an activity. It is not common storage
or possession. It is use. So what you said was that these
weapons are commonly used. They are not.
Judge Kavanaugh. They are widely possessed in the United
States, Senator, and they are--they are used and possessed. But
the question is, are they dangerous and unusual? They are
certainly dangerous. All weapons are dangerous. Are they
unusual? And given how prevalent they are in the United States,
it seemed under Justice Scalia's test, and if you look at the
majority opinion in McDonald, the same thing.
I want to reiterate the Supreme Court made clear that
machine guns can be banned. Machine guns can be banned.
Senator Feinstein. Let me speak to you. I am talking about
the Heller case. Let me be specific. And you specifically
argued that it was unconstitutional to defend assault weapons
because they are--to ban assault weapons because they are in
common use. And that, I believe, was your dissent in the case.
Judge Kavanaugh. Yes, and I was referring to some semi-
auto--some kinds of semi-automatic rifles that are banned by DC
are widely owned in the United States. And that seemed to be
the test that the Supreme Court had set forth in the Heller and
McDonald cases. In other words, if a type of firearm is widely
owned in the United States.
Now whether I agree with that test or not was not the issue
before me. I have to follow the precedent of the Supreme Court
as it is written, and that is what I tried to do in that case.
It is a very long opinion.
I also made clear, Senator Feinstein, at the end of the
opinion, I am a native of this area. I am a native of an urban/
suburban area. I grew up in a city plagued by gun violence and
gang violence and drug violence. So I fully understand, as I
explained in the opinion, the importance of this issue.
I specifically referenced that Police Chief Cathy Lanier's
goals of reducing gang and gun violence was something I
certainly applauded, but that I had to follow the precedent of
the Supreme Court in that case. And as I read it, that is what
it said--I am sorry?
Senator Feinstein. How do you reconcile what you have just
said with the hundreds of school shootings using assault
weapons that have taken place in recent history? How do you
reconcile that?
Judge Kavanaugh. Senator, of course, the violence in the
schools is something we all detest and want to do something
about, and there are lots of efforts, I know, underway to make
schools safer. I know at my girls' school, they do a lot of
things now that are different than they did just a few years
ago in terms of trying to harden the school and make it safer
for everyone.
Guns, handguns, and semi-automatic rifles are weapons used
for hunting and self-defense. But as you say, Senator, you
rightly say, they are used in a lot of violent crime and cause
a lot of deaths. Handguns are used in lots of crimes that
result in death, and so are semi-automatic rifles. That is one
of the--that is what makes this issue difficult.
As I said in the last two pages of my dissent in Heller, I
fully understand the gang violence, gun violence, drug violence
that has plagued various cities, including Washington, DC. This
was known as the murder capital of the world for a while, this
city. And that was a lot of handgun violence at the time.
And so I understand the issue. But as a judge, my job, as I
saw it, was to follow the Second Amendment opinion of the
Supreme Court, whether I agreed with it or disagreed with it.
At the end of the opinion, I cited Justice Kennedy's Texas v.
Johnson quote, which I read yesterday, as the guiding light for
the lower court judges and all judges.
Senator Feinstein. Let me give you a couple of other quotes
because I am going to change the subject. Do you agree with
Justice O'Connor that a woman's right to control her
reproductive life impacts her ability to, quote, ``participate
equally in the economic and social life of the Nation''?
Judge Kavanaugh. Well, as a general proposition, I
understand the importance of the precedent set forth in Roe v.
Wade. So Roe v. Wade held, of course, and it reaffirmed in
Planned Parenthood v. Casey, that a woman has a constitutional
right to obtain an abortion before viability, subject to
reasonable regulation by the State up to the point where that
regulation constitutes an undue burden on the woman's right to
obtain an abortion.
And one of the reasons for that holding, as explained by
the Court in Roe, and also in Planned Parenthood v. Casey more
fully, is along the lines of what you said, Senator Feinstein,
about the quote from Justice O'Connor. So that is one of the
rationales that undergirds Roe v. Wade. It is one of the
rationales that undergirds Planned Parenthood v. Casey.
Senator Feinstein. Well, let me give you another one--
rationale. In the 1950s and 1960s, the two decades before Roe,
deaths from illegal abortions in this country ran between
200,000 and 1.2 million. That is according to the Guttmacher
Institute. So a lot of women died in that period.
So the question comes, and you have said today--not today,
but it has been reported that you have said that Roe is now
settled law. The first question I have of you is what do you
mean by ``settled law''? I tried to ask earlier do you believe
it is correct law?
Have your views on whether Roe is settled precedent or
could be overturned, and has your views changed since you were
in the Bush White House?
Judge Kavanaugh. Senator, I said that it is settled as a
precedent of the Supreme Court, entitled the respect under
principles of stare decisis. And one of the important things to
keep in mind about Roe v. Wade is that it has been reaffirmed
many times over the past 45 years, as you know, and most
prominently, most importantly, reaffirmed in Planned Parenthood
v. Casey in 1992.
And as you well recall, Senator, I know when that case came
up, the Supreme Court did not just reaffirm it in passing. The
Court specifically went through all the factors of stare
decisis in considering whether to overrule it, and the joint
opinion of Justice Kennedy, Justice O'Connor, and Justice
Souter, at great length went through those factors. That was
the question presented in the case.
Senator Feinstein. Could I interrupt you to say, since you
mentioned stare decisis, and I have sat on nine of these
hearings. And when the subject comes up, the person says, ``I
will follow stare decisis,'' and they get confirmed, and then,
of course, they do not.
So I think knowing going into it how you make a judgment on
these issues is really important to our vote as whether to
support you or not. Because I do not want to go back to those
death tolls in this country, and I truly believe that women
should be able to control their own reproductive systems within
obviously some concern for a viable fetus.
Judge Kavanaugh. And I understand your point of view on
that, Senator, and I understand how passionate and how deeply
people feel about this issue. I understand the importance of
the issue. I understand the importance that people attach to
the Roe v. Wade decision, to the Planned Parenthood v. Casey
decision.
I do not live in a bubble. I understand. I live in the real
world. I understand the importance of the issue. And----
Senator Feinstein. Well, my staff just passed me a note.
Let me read it to you because I think it is good. Have your
views about whether Roe is settled precedent changed since you
were in the Bush White House?
Judge Kavanaugh. My----
Senator Feinstein. ``Yes'' or ``no''?
Judge Kavanaugh. Well, I will tell you what my views--I am
not sure what it is referring to about ``Bush White House,''
but I will tell you what my view right now is. Which is, it is
important precedent of the Supreme Court that has been
reaffirmed many times. But then Planned--and this is the point
that I want to make that I think is important. Planned
Parenthood v. Casey reaffirmed Roe and did so by considering
the stare decisis factors.
So Casey now becomes a precedent on precedent. It is not as
if it is just a run of the mill case that was decided and never
been reconsidered, but Casey specifically reconsidered it,
applied the stare decisis factors, and decided to reaffirm it.
That makes Casey a precedent on precedent.
Another example of that, because you might say, are there
other cases like that, Miranda. So Miranda is reaffirmed a lot,
but then in the Dickerson case in 2000, Chief Justice Rehnquist
writes the opinion, considering the stare decisis factors and
reaffirming Miranda. Even though Chief Justice Rehnquist, by
the way, had been a fervent critic of Miranda throughout his
career, he decided that it had been settled too long, had been
precedent too long, and he reaffirmed it.
So precedent on----
Senator Feinstein. What----
Judge Kavanaugh. I am sorry to interrupt.
Senator Feinstein. I am sorry to interrupt, but I want to
switch subjects, and one last question. What would you say your
position today is on a woman's right to choose?
Judge Kavanaugh. Well, as a judge----
Senator Feinstein. As a judge.
Judge Kavanaugh. As a judge, it is an important precedent
of the Supreme Court. By ``it,'' I mean Roe v. Wade, and
Planned Parenthood v. Casey, they have been reaffirmed many
times. Casey is precedent on precedent, which itself is an
important factor to remember. And I understand the significance
of the issue, the jurisprudential issue, and I understand the
significance as best I can--I always try and I do hear--of the
real world effects of that decision, as I try to do, of all the
decisions of my court and of the Supreme Court.
Senator Feinstein. Well, I thank you for that. Let us go to
Presidential power for a moment. You were part of Ken Starr's
independent counsel team, which conducted a sweeping
investigation into possible wrongdoing by President Clinton and
the first lady. At the time, you argued for aggressive
questioning of the President. You did not take the position
that President Clinton was immune from investigation.
Since then, you have taken the opposite position. In fact,
you have said that, and I quote, ``If the President were the
sole subject of a criminal investigation, I would say no one
should be investigating that at all.'' What did you mean by
that, and what are the circumstances where a sitting President
could be subject to criminal investigation?
Judge Kavanaugh. And I appreciate the sign there. Senator,
the last sign, I should have mentioned while it was up, the
Second Amendment sign actually had brackets around part of my
quote. And I am not sure if it was the exact quote.
But this one--I just wanted to point that out.
Senator Feinstein. Is this accurate?
Judge Kavanaugh. Here is what I was saying, Senator. Let me
explain it, this one.
Senator Feinstein. Oh.
Judge Kavanaugh. The last one may or may not have been
accurate. I just wanted to point that out for the record. It
had brackets for my quote.
This one, so what happens after the Starr investigation?
Then I work 5\1/2\ years in the White House. So let me just
give you, if I can, some context here, and I am going to get
specifically to your question.
So I work on the independent counsel investigation, and
that is obviously difficult, controversial, a moment for our
country that I wish had not happened. We all wish it had not
happened. And I reflect on that. I wrote a Georgetown
University Law Journal article in 1999 reflecting on some of my
thoughts about that. This seems to be a tendency of mine to go
through an experience, write an article reflecting on it.
And then I work in the Bush White House for 5\1/2\ years,
and I write an article in the Minnesota Law Review, Senator
Klobuchar, in 2009, when President Obama is in office, I should
point out, and I reflected on a number of things I had learned
working in the independent counsel office and then working in
the White House. And I thought there were a number of things
Congress could take a look at that I had experienced.
One of them was I proposed timelines for consideration of
judicial nominees. I proposed a 180-day, up-or-down vote for
every judicial nominee. That was something that from my
experience I thought would avoid controversy and have rules of
the road set in advance, and I proposed that specifically for
Congress to consider.
Other aspects, I said----
Senator Feinstein. Well----
Judge Kavanaugh. Another thing I proposed was, for Congress
to consider whether it should look at Clinton v. Jones or the
principle of Clinton v. Jones. So, you recall, Clinton v. Jones
had said a President is subject to civil suit while in office,
the Paula Jones suit. That was a controversial decision, but
the Supreme Court made clear at the end of the decision,
Congress could provide extra deferral of suits, not immunity,
but deferral of suits for Presidents, if Congress so wanted.
And so in the Minnesota Law Review article, I put out some
ideas about whether Congress may want to think about that. And
why did I do that? I think Senator Durbin asked yesterday, what
changed that made me think about that from the time? What
changed was September 11th. That is what changed.
So after September 11th, I thought very deeply about the
Presidency, and I thought very deeply about the independent
counsel experience, and I thought very deeply about how those
things interacted. And I thought very deeply about seeing
President Bush, when he came into the Oval Office on September
12, 2001, in the morning, President Bush said this will not
happen again. This will not happen again.
And he was of single-minded focus. Every morning for the
next 7 years for President Bush was still September 12, 2001.
Single-minded focus. And then thinking back to the independent
counsel experience and August 1998. So I proposed some ideas
for Congress to consider.
Here is the bottom-line point. They were ideas for Congress
to consider. They were not my constitutional views. If a case
came up where someone was trying to say this is a
constitutional principle, I would have a completely open mind
on that because I have never taken a position on the
Constitution on that question. I have only put out proposals
for you all to study to think about the balance of a President
fighting a war, leading a war, and a President subject to, say,
ordinary civil lawsuits as in the Clinton v. Jones case.
Senator Feinstein. Let me ask you. You have become very
good. You are learning to filibuster.
[Laughter.]
Senator Feinstein. But let me ask this question precisely.
The Supreme Court has unanimously ruled that a President can be
required to turn over information. It upheld the subpoena for
the tapes of Oval Office conversations that revealed President
Nixon's efforts to cover up the Watergate break-in. This, as
you know, was U.S. v. Nixon.
You have said that the Nixon case might have been wrongly
decided. Was U.S. v. Nixon wrongly decided in your view?
Judge Kavanaugh. So that quote is not in context and is a
misunderstanding of my position that is up there. I have
repeatedly called U.S. v. Nixon one of the four greatest
moments in Supreme Court history. So I have called that--the
four I have always identified are Marbury v. Madison,
Youngstown Steel, Brown v. Board of Education, and United
States v. Richard Nixon.
And why have I--Brown v. Board, by the way, the single
greatest----
Senator Feinstein. Was it rightly decided?
Judge Kavanaugh. So I have said that--I have said, yes,
that the Court's holding that a criminal trial subpoena to a
President in the context of the special counsel regulations in
that case for information, a criminal trial subpoena for
information under the specific regulations in that case, I have
said that holding is one of the four greatest moments in
Supreme Court history.
So, not only what I was--I can explain how that
misunderstanding came up because that is--I know there was a
news story about that, and that is just not correct impression
of my views. My views have been consistently why was it one of
the greatest moments? It was one of the greatest moments
because of the political pressures of the time. The Court stood
up for judicial independence in a moment of national crisis.
The Supreme Court, we need the Supreme Court to decide the
things we can foresee. But one of the things that is really
important for the Supreme Court, we are going to have crisis
moments at the Supreme Court on things we cannot even predict,
and we need people on the Supreme Court who are prepared for
that. And U.S. v. Nixon----
Senator Feinstein. My time is going to run out very
quickly. Let me just ask you this. Can a sitting President be
required to respond to a subpoena?
Judge Kavanaugh. So that is a hypothetical question about
what would be an elaboration or a difference from U.S. v.
Nixon's precise holding. And I think going with the Justice
Ginsburg principle, which is really not the Justice Ginsburg
alone principle, it is everyone's principle on the current
Supreme Court. And as a matter of the canons of judicial
independence, I cannot give you an answer on that hypothetical
question.
Senator Feinstein. So you cannot give me an answer on
whether a President has to respond to a subpoena from a court
of law?
Judge Kavanaugh. My understanding is that you are asking me
to give my view on a potential hypothetical, and that is
something that every--each of the eight Justices currently
sitting on the Supreme Court when they were sitting in my seat
declined to decide potential hypothetical cases.
I can tell you about the U.S. v. Nixon precedent, and I did
about Chief Justice Burger's role in forging a unanimous
opinion, and really all the Justices worked together on that.
But Chief Justice Burger, who had been appointed by President
Nixon--been appointed by President Nixon, writes the opinion in
U.S. v. Nixon, 8-to-0. Rehnquist was recused--8-to-0, ordering
President Nixon to disclose the tapes in response to a criminal
trial subpoena.
A moment of crisis argument, I think July 8, 1974. They
decided 2 weeks later. A really important opinion. A moment of
judicial independence. Important precedent of the Supreme
Court. But how that would apply to other hypotheticals, I best,
as a sitting judge and as a nominee, follow the precedent of
the nominees who have been here before and as a matter of
judicial independence not give you a precise answer on a
hypothetical that could come before me.
Senator Feinstein. I understand. Thank you very much for
being forthcoming. I appreciate it.
Judge Kavanaugh. Thank you, Senator.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Grassley. I assume you want to reserve your 3
minutes?
Senator Feinstein. Can I do that?
Chairman Grassley. Yes.
Senator Feinstein. I will.
Chairman Grassley. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. Before I
begin, I would like to enter into the record three letters and
an op-ed supporting Judge Kavanaugh's confirmation. The first
letter, which I mentioned yesterday in my opening statement, is
a letter from 41 attorneys who are members of the Supreme Court
Bar. The signers include people like Lisa Blatt, Deanne
Maynard, and Kathleen Sullivan. As the letter notes, the
signers ``hold a broad range of political, policy, and
jurisprudential views,'' but they ``speak as one in supporting
Judge Kavanaugh's nomination.'' The letter's authors write,
``Based on our experience with Judge Kavanaugh and his work
over 12 years of distinguished judicial service, we are
confident that he possesses the character, temperament, and
intellect that will make him an asset to our Nation's highest
court.''
Now, the second letter is from Carolyn Williams, a partner
at the venerable DC law firm, Williams & Connolly, who served
on the ABA Standing Committee on the Federal judiciary. She
writes that she has followed Judge Kavanaugh's legal career
since 1990 when she was the hiring partner at the firm and he
was a law student. Ms. Williams says, that Judge Kavanaugh
``has all the qualities litigants and lawyers hope to find in a
Supreme Court Justice: superb intellect and legal acumen,
fundamental fairness and decency, abiding respect for precedent
and the rule of law.''
And I also want to enter into the record a letter--a letter
and op-ed by Jay Lefkowitz. The op-ed appeared in National
Review and is entitled, ``Brett Kavanaugh is a Mensch.'' In it,
Mr. Lefkowitz writes that Judge Kavanaugh ``has a strong
commitment to protecting Americans' freedom of religion, no
matter what their faith.'' And Mr. Lefkowitz should know. He
and Judge Kavanaugh worked together in private practice on a
pro bono religious freedom case representing a Jewish synagogue
in Maryland, and they won the case, vindicating the right of
the congregation to build a place of worship in their
neighborhood.
[The information appears as a submission for the record.]
Senator Hatch. Now, let me just begin with this. Before I
begin, Judge, I would like to ask you to keep your answers to
my questions as concise as you can so I can get through as many
of them as time allows. Some of my colleagues have suggested
that President Trump nominated you because he thought you would
rule in his favor should certain issues come before the Court.
Suppose you had a case involving President Trump or an issue
near and dear to the President, what assurances can you provide
that you will not allow the President's personal views on a
case or personal interest to impact your decision?
Judge Kavanaugh. Senator, I am independent judge. For 12
years I have been deciding cases based on the law and the
precedent in each case. If confirmed to the Supreme Court, that
is how I will do it as well, be part of a Team of Nine. I will
decide cases based on the Constitution, the law, the precedents
of the Supreme Court working with that, the other eight
Justices, without fear or favor, independently, without
pressure from any quarter. And the person who has the best
arguments on the law and the precedent is the person who will
win in--with me.
Senator Hatch. Well, thank you. If at the end of the
process--of this process you are confirmed to the Supreme
Court, which I expect you will be, what sort of loyalty will
you owe to the--to the President? How will that loyalty differ
from the loyalty you owe to, say, the American people?
Judge Kavanaugh. Senator, if confirmed to the Supreme Court
and as a sitting judge, I owe my loyalty to the Constitution.
That is what I owe loyalty to, and the Constitution establishes
me as an independent judge, bound to follow the law as written,
the precedents of the Supreme Court as articulated, subject to
the rules of stare decisis. And I would do so.
Senator Hatch. Okay. You were appointed to the D.C. Circuit
by George W. Bush. I think it is fair to say you were close to
President Bush. You worked for him for a number of years. Can
you give us some examples of cases in which you ruled against
the Bush administration, notwithstanding that President Bush
was the one who put you on the bench?
Judge Kavanaugh. Senator, the prominent example is the
Hamdan case.
Senator Hatch. Yes.
Judge Kavanaugh. That was the military commissions case.
That was a signature prosecution of the Bush administration.
They had established, with congressional authorization
eventually after a unilateral effort did not succeed in the
courts, established military commissions. The military
commissions were to try al-Qaeda terrorists who had committed
war crimes. And one case came to us, Salim Hamdan, and the
question was, was the prosecution unlawful because the crime of
which he convicted was not an identified crime as of 2001 when
he was alleged to have committed it, ex post facto principles.
And I wrote the opinion reversing his conviction, even though
it was a signature prosecution of the United States, even
though it was a national security case, because that was the
right answer under the law. And it does not matter who you are,
where you come from, if you are right under the law, you
prevail.
Senator Hatch. I would like to turn now to your work in the
Bush administration. As you know, my Democratic colleagues are
demanding to see every piece of paper or every single scrap of
paper you ever touched during your 6 years in the Bush
administration, in part because they want to know what role, if
any, you played in developing the Bush administration's
interrogation policies. Well, 6 years ago, Ranking Member
Feinstein, who was then the Chairman of the Senate Intelligence
Committee, and a good one at that, issued a lengthy report on
the CIA's detention and interrogation program under President
Bush. The report detailed the origins, development, and
implementation of the program.
In 2014, a declassified version of that report was released
to the public. The declassified version or report runs well
over 500 pages, and your name appears nowhere in it. Now, I
myself spent over 20 years on the Intelligence Committee. I
know the quality of its staff and the work that they do, and I
know the Ranking Member and how diligent she is. If you had
played a role in the Bush administration's interrogation
policies, I think the Ranking Member would have discovered it.
Numerous administration lawyers appear in the report, but not
you, and that should tell us something.
With that said, Judge Kavanaugh, I want you--I want to ask
you for the record, what role, if any, did you play in
developing or implementing the Bush administration's detention
and interrogation policies?
Judge Kavanaugh. Well, the policies that are reflected and
described in Senator Feinstein's extensive, thorough report
were very controversial, as you know, Senator, the enhanced
interrogation techniques.
Senator Hatch. Right. Right.
Judge Kavanaugh. And the legal memos that were involved in
justifying some of those techniques also were very
controversial when they were disclosed in 2004. And I was not
involved--I was not read into that program, not involved in
crafting that program nor crafting the legal justifications for
that program. In addition to Senator Feinstein's report, the
Justice Department did a lengthy Office of Professional
Responsibility report about the legal memos that had been
involved to justify some of those programs. My name is not in
that report, Senator, because I was not read into that program
and not involved.
There were a number of lawyers, and this came up at my last
hearing, a number of lawyers who were involved, including a
couple who were then judicial nominees. At my last hearing, I
recall Senator Durbin asking about whether I also was likewise
involved as these other judicial nominees had been, and the
answer was no, and that answer was accurate, and that answer
has been shown to be accurate by the Office of Professional
Responsibility report, by Senator Feinstein's thorough report.
And I do want to say on Senator Feinstein's report, that is
a--that is an important piece of work that collected facts
about a program, that it is important for us to know those
facts for the future. And I know it was an enormous effort and
a lot of tough work to get all that information for Senator
Feinstein and the Intelligence Committee. But I have looked
through that report and looked through the Office of
Professional Responsibility report. I was not read into that
program, Senator. Thank you for--thank you for asking.
Senator Hatch. Okay. Judge, you have been accused of
misleading this Committee during your 2006 confirmation hearing
regarding your role in developing the Bush administration's
detention policy. Now, you have a strong reputation in the
legal community for honesty and integrity. Read any one of the
dozens we received supporting your nomination, and you will see
that right away. Now, some of my colleagues may not give you
the opportunity to answer this question fully, so I would like
to give you the opportunity now. Did you mislead this Committee
in 2006? If not, what is the source of the confusion about your
prior testimony?
Judge Kavanaugh. I told the truth and the whole truth in my
prior testimony. I was not read into that program. The
subsequent reports of Senator Feinstein and the Office of
Professional Responsibility show that. And that is what I did
then, and that is the answer now. I was not read--I was not
read into that program.
Senator Hatch. Okay. As I mentioned in my opening
statement, 18 of your former women law clerks have written to
the Committee in support of your nomination. That is all of
your former women law clerks who were not precluded by their
current or pending employment from signing the letter. Now,
these women described the mentoring and encouragement that you
have given them in their careers, and they say that you are
``one of the strongest advocates in the Federal judiciary for
women lawyers.'' Quite a compliment. A majority of your clerks,
in fact, have been women.
Now, I understand that you were the first judge in the
history of the D.C. Circuit to have an all-female class of
clerks. Why do you believe it important to encourage young
women lawyers and to ensure that both men and women are well
represented in the legal profession?
Judge Kavanaugh. Senator, I believe in equality, equality
for all Americans, men and women, also regardless of race,
ethnicity. My mom was an example, as I described yesterday, of
breaking barriers, showing me first on racial equality by her
example of teaching at McKinley Tech. Then when she became a
lawyer in the late '70s, there were not many women prosecutors
at the time, definitely male dominated, and how she overcame
barriers, was a great prosecutor, became a State trial judge in
Maryland appointed by Democratic Governors.
She showed me by her example the importance of women's
equality. During college--you have received a letter from 10
college friends of mine who are women, women athletes at Yale,
talked about how I treated them and women's sports with respect
and as equal even when I was in college. You have a letter from
84 women I worked with in the Bush administration who talked
about my efforts to work with them in the tense environment of
the West Wing, especially after September 11th.
Senator Hatch. Did you say 84?
Judge Kavanaugh. Eighty-four women signed a letter who had
worked in the Bush White House--in the Bush White House and
worked in that tense environment. But I came to be a judge in
2006. May 2006. And August 2006, Linda Greenhouse of The New
York Times runs a story in The New York Times about the
scarcity of women law clerks at the Supreme Court that year.
There were seven, I believe, that year out of 37, and she wrote
a story about that.
And that seemed to me very odd and unacceptable, and I
started thinking about what I could do. First of all, why is
that happening, and what can I do about it. What's the problem,
and what can I do. So, the problem seemed to me these networks
that people--judges rely on for clerk hirings. Some professor
networks were getting--were excluding women, or at least women
weren't fully represented in those. That is true with
minorities as well, by the way.
And so, I made sure when I was talking to professors at law
schools, I made sure--I wanted to see a broad pool of
qualified--well-qualified applicants, including women. And in
that year, for example, fall of 2006, which was my first year
on the bench--we hire a year ahead, so I am hiring for 2007--I
hired three women for that clerk class of 2007, three out of
the four: Zina Bash, Brit Grant, and Porter Wilkinson. Zina is
right here.
And that was the start of my efforts to make sure that
women were not being excluded, and I really worked on why is
this happening. So, Yale Law women did a study about 5 years
ago about participation in class, the differences on who gets
on in class, and there are slight differences there, men and
women, who then get selected as research assistants, slight
differences there. And it just keeps building until you get a
disparity in the clerk network, and there is a pipeline
problem.
And I said I am breaking through that problem. I am not--I
am not listening to that. And so, I have been very aggressive
about hiring the best and understanding the best include women.
And as you say, Senator, a majority of my clerks have been
women, 25. I believe 21 of them have gone on to clerk at the
Supreme Court, and they are an awesome group. And if confirmed
to the Supreme Court, I will continue to do this.
What it takes, and I think--my mom showed me this,
President Bush showed me this a little. What it takes is just
not accepting the same old answer, ``Oh, there is a
disparity.'' Well, why? And then, do something about it. And I
tried to figure out why, and we can talk about minority clerks,
too. But on women, why were those disparities existed--existing
as described by Linda Greenhouse, and I tried to figure out
why, and then I did something about it.
I am very proud of that because I do believe that all
people should be treated equally. And the law clerk position,
which may sound ministerial, and, to some extent, the job is
helping the judge, and shortly out of law school. But those
positions are very important launching pads for the next
generation of leaders, the people who will be sitting in these
seats, the people who will be sitting in my seat. Lots of them
are going to come from law clerks.
So, if we are not being inclusive now, that will show up
later, and so, it has just been a critical part. It is
something I am very focused on at all times is equality in the
clerkship hiring process and making sure women are getting the
same opportunities that men are. I appreciate the question,
Senator.
Senator Hatch. Well, thank you, and I appreciate the
answer, and I think everybody in this country should appreciate
the answer, and I think it distinguishes you. Late last year,
allegations against the former Ninth Circuit Judge Alex
Kozinski surfaced when The Washington Post published an article
detailing disturbing allegations of misconduct by the Judge.
You clerked for Judge Kozinski for 1 year in 1991-1992. Some of
your opponents have suggested that you must have known about
these allegations. This seems to me to be an effort at guilty
by association, which is not the way this Committee should
operate in any way.
With that in mind, I want to give you a chance to answer a
few questions about Judge Kozinski so that we are all operating
on the same foundation of facts. First, how long have you known
Judge Kozinksi?
Judge Kavanaugh. I clerked for him in 1991-1992, so I
started the clerkship 27 years ago.
Senator Hatch. Second, I understand from media reports that
Judge Kozinski operated an email list where he would send
inappropriate material. Were you on this email list?
Judge Kavanaugh. I do not remember anything like that,
Senator.
Senator Hatch. How often did you talk with Judge Kozinski
on the phone?
Judge Kavanaugh. Not often. Not often, Senator.
Senator Hatch. How often did you see him in person?
Judge Kavanaugh. Again, not often. Maybe there was a legal
convention or----
Senator Hatch. That is what a lot of people do not seem to
understand, you know.
Judge Kavanaugh. I was not working in the court--he was in
the Pasadena courthouse in California with--a small courthouse
with 10 other court of appeals judges in that courthouse. I, of
course, was working in Washington, DC.
Senator Hatch. When you did see and talk with Judge
Kozinski, what type of things did you talk about?
Judge Kavanaugh. We were among the 12 co-authors of the
Bryan Garner-led book on judicial precedent, so for several
years that was a project all of us were--the 12 of us, I guess
it was, in total were working on that: Diane Wood, Chief Judge
of the Seventh Circuit.
Senator Hatch. Right.
Judge Kavanaugh. Justice Gorsuch was also a co-author, so
we worked on that as a group. And then Justice Kennedy for the
last 30 years had had Judge Kozinski his--run Justice Kennedy's
law clerk hiring process, and in that--in the course of that
process, I would have communications with the Judge.
Senator Hatch. Okay. Did you know anything about these
allegations?
Judge Kavanaugh. Nothing.
Senator Hatch. Okay. Before they became public last year?
Judge Kavanaugh. No. When they--when it became public, you
know, the first thought I had was no woman should be subjected
to sexual harassment in the workplace ever, including in the
judiciary, especially in the judiciary. And when I heard, when
it became public, I think it was in December, it was a gut
punch. It was a gut punch for me.
Senator Hatch. It was for me, too.
Judge Kavanaugh. It was a gut punch for the judiciary, and
I was shocked and disappointed, angry, swirl of emotions. No
woman should be subjected to sexual harassment in the
workplace, and I applaud--Chief Justice Roberts appointed a
committee of judges to establish better procedures. Chief
Justice Garland did the same thing for our court, and those are
first steps. I do not think they are a final steps by any
stretch. And what--this is part of a much, much larger national
problem of abuse and harassment, and one of the things we have
learned is we need better reporting mechanisms.
Women, particularly in the workplace, need to know if they
are the victim of harassment where to report it immediately,
who to report it to. They need to know that they will be safe
if they report it. They need to have a safe working environment
and be safe if they report it. They will not be retaliated
against, and they will be protected if they report it, and that
is part of the steps, or one of the steps, that is, I think,
being improved as a result of the working group--or, the
committee that the Chief Justice has appointed.
And I am interested in doing everything I can to assist
those efforts to make those workplaces safe. Again, it is part
of a broader national problem whether it is priests, or
teachers, or coaches, or doctors, or business people, or news
people. There is a lot--there is a lot--it is a broad national
problem that needs to be addressed, including in the judiciary.
And I applaud Chief Justice Roberts for doing so.
Senator Hatch. Okay. I would like to talk to you now about
the----
[Disturbance in the hearing room.]
Senator Hatch. I would like to talk to you now about the
Chevron doctrine. Now, this is an important judicial doctrine
that takes its name from the Supreme Court case that created it
back in the 1980s. In that case, the Supreme Court instructed
Federal courts to defer an agency's interpretation of the law
if the law is ``ambiguous.'' Some of your academic writings
express skepticism about the Chevron doctrine, and concern that
it allows an administration to impose its policy preference by
avoiding the political process.
I can understand why this would be appealing to an
administration, but I also think it is a threat to the
separation of powers because it transfers power from Congress
and the judiciary to the executive branch. That is why I have
introduced the Separation of Powers Restoration Act to reverse
the Chevron doctrine. Many Members of this Committee have
cosponsored this legislation. And as someone who has written
extensively about the separation of powers, can you tell us why
the separation of powers is so important, and how it helps to
protect individual freedom?
Judge Kavanaugh. The separation of powers protects
individual liberty because it responds to the concern the
Framers had that--something Senator Klobuchar said yesterday
from Federal 47, that the accumulation of all power in one body
would be the very definition of tyranny. So, Federalist 47
talks about that, Federalist 69. So, the separation of powers,
to begin with, protects individual liberty. It does so because
Congress can pass the laws, but you cannot enforce the laws. A
separate body has to decide to enforce the laws.
And then even if the law is enforced, a citizen may say,
well, I want someone who did not pass the law or enforce it to
decide whether I violated the law or whether the law is
constitutional, and that is why we have an independent
judiciary to guarantee, as an independent matter, our rights
and liberties. And the three branches, therefore, do separate
things because it all tilts toward liberty. It is hard to pass
a law, as you know, in the Congress, and then even if it does
get passed and affects your liberty, a separate body has to
decide, usually a U.S. Attorney's office, to enforce the law,
and that is a separate decision. That helps protect your
liberty.
And then even if that happens, you go to a court and you
say either I did not violate that law as I am accused of doing,
or that law is ill--unconstitutional, or they are interpreting
that law in a way that is not consistent with what the law
said. The court independently decides that. It is not the
Members of Congress or the Executive deciding that. That is how
the Constitution's separation of powers tilts toward--toward
liberty in all its respects.
Now, as to your specific question, Senator, one of the
things I have seen in my experience in the executive branch and
in the judicial branch is a natural tendency, but it is a
natural tendency that judges need to be aware and then respond
to. So, here is the natural tendency. Congress passes laws, but
then does not have--cannot update the law. So, maybe it is an
environmental law, or maybe it is some kind of law dealing with
national security. Let us take those two examples to
illustrate.
And then an executive branch agency wants to do some new
policy and proposes a new policy to Congress, but Congress does
not pass the new policy. What often happens, or too often I
have seen, is that the executive branch then relies on the old
law as a source of authority to do this new thing, and they try
to say, well, the old law is ambiguous, so we can fit this new
policy into the old law as justification for doing this new
thing. And I have seen this in national security cases. I have
seen it in environmental cases. You see it all over the place.
It is a natural phenomenon because the executive branch wants
to--wants to implement what it thinks is good policy.
Now, when those cases come to court, it is our job to
figure out whether the executive branch has acted within the
authority given to it by Congress. Have you given them the
authority? And my administrative law jurisprudence is rooted in
respect for Congress. Have you passed the law to give the
authority? I have heard it said that I am a skeptic of
regulation. I am not a skeptic of regulation at all. I am a
skeptic of unauthorized regulation, of illegal regulation, of
regulation that is outside the bounds of what the laws passed
by Congress have said. And that is what is at the root of our
administrative law jurisprudence.
Senator Hatch. Okay. One of the--one of the most important
qualities I look for in a judicial nominee is the ability to
impartially interpret the law and apply it to the case before
the court. Now, this can often be the most difficult part of a
judge's job because it may require the judge to rule against a
litigant that may be sympathetic or against a policy that the
judge may personally agree with. At Justice Sotomayor's
confirmation hearings, Senator Schumer commended her for
``hewing carefully to the text of statutes, even when doing so
results in rulings that go against so-called sympathetic
litigants.''
Do you believe that it is important for a judge to
interpret and apply the laws that Congress has actually passed
rather than seeking to make up or change the law if the judge
does not like what the Congress has done? And if so, why or why
not?
Judge Kavanaugh. I agree completely, Senator. That is at
the foundation of what I view as the proper judicial
philosophy.
Senator Hatch. Okay.
Judge Kavanaugh. The separation of powers system you
described, we have to stick to the laws passed by Congress. You
make the policy. We will follow the policy direction that you
put into the laws that are enacted, passed by the House and
Senate, signed by the President. We do not rewrite those laws.
The executive branch also should not be rewriting those laws
beyond the scope of the authority granted.
Senator Hatch. Okay. Some of my colleagues have criticized
you for purportedly ruling too often against environmental
interests. It seems to me that many of these circumstances boil
down to the fact that some of my colleagues do not like the
environmental laws Congress has actually passed, and are
frustrated that they have not been able to get their own
preferred environmental policies signed into law. Now, I have
looked through your record, and I found that you have not
hesitated at all to uphold environmental regulations when they
were actually authorized by statute. Could you give us a few
examples of cases where you have upheld environmental
regulations because you concluded that Congress had authorized
them?
Chairman Grassley. Limit it to as many--few as you can. His
time has run out.
[Laughter.]
Judge Kavanaugh. Senator, as I said yesterday, I am a pro-
law judge, and in environmental cases, on some cases I have
ruled against environmentalists' interests, and in many cases I
have ruled for environmentalists' interest. And they are big
cases, cases like the American Trucking Associations case where
I upheld the California renegotiating for majority over a
dissent; stricter air quality standards in the National
Association of Manufacturers case; EPA rules for particulate
matter in the UARG case; permanent process applicable to
surface coal mining in the National Mining Association case;
the Murray Energy case rejecting a premature challenge to a
Clean Power Plant regulation; the National Resources Defense
Council case versus EPA, ruling for environmentalist groups in
a case--that was a big money case where the industry wanted an
affirmative defense to be created for accidental emissions. The
affirmative defense was not in the statutes passed by Congress.
The industry came in with their lawyers and said, well just
write the affirmative defense into the law, and I wrote the
opinion saying, no, it is not in the law, and, yes, that might
be a problem for industry, but we follow the law regardless.
And so, there are a large number of cases where I have
ruled in favor of environmentalists' interests because that is
what the law required in that case.
Senator Hatch. Thank you, Judge. I appreciate it.
Judge Kavanaugh. Thank you, Senator.
Chairman Grassley. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman, and good morning,
Judge.
Judge Kavanaugh. Thank you, Senator.
Senator Leahy. You and your family. We have a lot of
questions, and I know you have done a lot of preparation with
some--a couple of our distinguished Republican colleagues about
the questions you might be asked. But let me ask you something
that normally is not an issue during Supreme Court hearings.
You testified before this Committee in both 2004 and 2006 as
part of your nomination to the D.C. Circuit Court. Then, you
were nice enough to come by my office and chat with me last
month. And I asked you if you would change anything in your
prior testimony, and you said, no. Is that still your position?
Judge Kavanaugh. It is, Senator. I told the truth. I was
not read into the programs----
Senator Leahy. No, no, I am not asking about whether you
did or not. I just asked if you would change anything in your--
--
Judge Kavanaugh. Well, I would like to explain if I can.
Senator Leahy. I am going to give you a chance, but I am
going to ask you a couple of questions. Go ahead.
Judge Kavanaugh. Well, I just wanted to explain that at the
last hearing in 2006 in particular, you were concerned,
understandably, because there had been two judicial nominees
who had been involved in the legal memos and the legal
discussions around crafting the enhanced interrogation
techniques and detention policies. You were concerned whether I
also was involved in those, and I made clear in response to
those questions that I was not read into that program. That was
a hundred percent accurate. It is still accurate today. I think
Senator Feinstein's report and the Office of Professional
Responsibility report established that I was not involved in
those programs.
Now, there were two judicial nominees----
Senator Leahy. Okay. I am going to go into that in a little
bit. I do not want to go over my time as the preceding Senator
did. I want to be--stay with----
Judge Kavanaugh. I just want to--Senator, I just want to be
clear--I want to reassure you----
Senator Leahy. I am going to go--I am going to go into it.
I am going to give you a chance to speak a lot more.
Chairman Grassley. Without taking----
Senator Leahy. Well, let me--let me ask----
Chairman Grassley. I am not going to take time away from
you, but I want to explain something. I said yesterday that if
a question is asked within the 30 minutes, that he can finish
the question and it can be answered. So, I--he did not go over
his time.
Senator Leahy. Sorry, I did not mean to hit a sensitive
area.
[Laughter.]
Senator Leahy. Let me ask you this. Between 2001--I am new
here.
[Laughter.]
Senator Leahy. Between 2001 and 2003, two Republican
staffers on this Committee regularly hacked into the private
computer files of six Democratic Senators, including mine.
These Republican staffers stole 4,670 files, and they used them
to assist in getting President Bush's most controversial
judicial nominees confirmed. Now, the theft by these Republican
staffers became public in late 2003 when the Wall Street
Journal happened to print some of the stolen materials. The
ringleader behind this massive theft was a Republican staffer
named Manny Miranda, who had worked for one of the Members of
this Committee. In a way, it was considered by many, both
Republicans and Democrats, as a digital Watergate, a theft not
unlike what the Russians did in hacking the DNC.
Now, during all this, you worked hand-in-hand in the White
House with Manny Miranda to advance these same nominees where
he was stealing material. Not surprisingly, you were asked
extensively about your knowledge of this theft during both your
2004, 2006 hearings, and I do not use the word ``extensively''
lightly. You were asked over 100 questions from six Senators,
both Republicans and Democrats. And you testified, and you
testified repeatedly, that you never received any stolen
materials, you knew nothing about it until it was public. You
testified that if you had suspected anything untoward, you
would have reported it to the White House Counsel, who would
have raised it with Senator Hatch, especially as Mr. Miranda
had worked for him.
Now, at the time we left it there. We did not know any
better. Today, with the very limited amount of your White House
record that has been provided to this Committee, and it is
limited, for the first time we have been able to learn about
your relationship with Mr. Miranda and your knowledge of these
events. So, my question is this: Did Mr. Miranda ever provide
you with highly specific information regarding what I, or other
Democratic Senators, were planning on asking certain judicial
nominees?
Judge Kavanaugh. Senator, well, let me contextualize
because I am looking at what you are putting up here first.
Senator Leahy. The question----
Judge Kavanaugh. That--what is up there is a hundred
percent accurate. As my memory.
Senator Leahy. Okay. So, let me ask you this. That is----
Judge Kavanaugh. ``Never knew or suspected,'' true. ``Never
suspected anything untoward,'' true. ``Had I suspected
something untoward, I would have talked to Judge Gonzales''----
Senator Leahy. And I have already----
Judge Kavanaugh. ``I would have talked to Senator Hatch.''
That is all a hundred percent true.
Senator Leahy. And that is what I had already said. But,
did Mr. Miranda ever provide you with highly specific
information regarding what I, or other Democratic Senators,
were planning in the future to ask certain judicial nominees?
Judge Kavanaugh. Well, one of the things we would do as a
White House is, on judicial nominations--and I am coming to
your answer, but I want to explain--is to meet up here, and
this happens on both sides all the time, with teams up here
about, okay, their judicial nominations: our judicial nominees
are coming up, how are we going to get them through, here's a
hearing coming up. And during those meetings, of course, it
would be discussed, well, I think here is what Senator Leahy is
going to be interested in. That is very common. I am sure in
President Obama's administration when they had similar
meetings, they would probably have meetings and say, well, I
think this is what Senator Graham will be interested in. That
is what you do in meetings with--so, ``highly specific'' would,
I think--I am not sure what you are getting at by ``highly
specific.''
Senator Leahy. Judge, I have been here over 40 years. I
know--I know what both Republicans and Democratic
administrations do in preparing. I am not asking about that. I
am asking you why, before this, did Mr. Miranda send you an
email asking you, on July 19th, 2002, asking you and another
Bush official why the Leahy people were looking into financial
ties between two special interest groups and Priscilla Owen, a
particular, controversial nominee to the Fifth Circuit. You had
handled the Owen nomination. As you know, as a judge she had
received a lot of contributions. Did Mr. Miranda send you an
email asking you why the Leahy people were looking into her
financial ties?
Judge Kavanaugh. Is that what this email is?
Senator Leahy. I am just asking you.
Judge Kavanaugh. Could I take a minute to read it?
Senator Leahy. Of course.
Judge Kavanaugh. Okay.
Senator Leahy. And this says it was 4 days before her
hearing on July 23rd.
[Brief pause.]
Judge Kavanaugh. Did I send any of the emails on this
chain? I do not think so. I think I am cc'd. In any event, if
he said why are the Leahy people looking into this--from Manny
Miranda--I do not really have a specific recollection of any
this, Senator, but it would have been--it would not have been
at all unusual for--and this happens all the time I think,
which is, the Leahy people are looking into this, and the Hatch
people are looking into that, I think.
Senator Leahy. You say, ``all the time.'' Two days before
the hearing, he told you that the Democrats were passing around
a related ``60 Minutes'' story, and he said his ``intel--
intelligence suggests that Leahy will focus on all things
money.'' Well, that appears to come from a stolen email to me--
stolen by the Republican staff member, sent to me the night
before, and then given to you the next morning. Were you aware
that you were getting, from Mr. Miranda, stolen emails?
Judge Kavanaugh. Not at all, Senator. It was part of what
appeared to be standard discussion about--it is common,
Senator, for--at the White House, it would be common to hear
from our Leg Affairs team. This is, in fact, in this process,
that is common to hear, ``This is what Senator X is interested
in.'' ``This is what Senator Y is going to focus''----
Senator Leahy. Was it common to have copies of a private
email sent to a particular Senator?
Judge Kavanaugh. Copies of a private email sent to a
particular Senator?
Senator Leahy. Yes. Would that not jump out at you? For
example----
Judge Kavanaugh. What are you referring to?
Senator Leahy. Well, Mr. Miranda is telling you about
emails sent to me the night before. There would be no way that
he would even have that unless he stole it. Did that raise any
question in your mind?
Judge Kavanaugh. Did he refer to that email in this?
Senator Leahy. Yes.
Judge Kavanaugh. Where is that, Senator?
Senator Leahy. I will let you read it.
Judge Kavanaugh. Well, I am not seeing where you are--I am
not seeing what you are referring to.
Senator Leahy. Okay. Well, let me take you to one that you
do have because you have this information from Mr. Miranda. And
the very limited amount of material that the Republicans are
allowing us to see of your information about you, that at least
did come through. But in January 2003, let me go to something
very specific. Mr. Miranda forwarded you a letter from me and
other Judiciary Democrats to then-Majority Leader Tom Daschle.
The letter was clearly a draft. It had typos and it was not
signed. Somebody eventually--we never put it out, but somebody
eventually leaked the existence of it to Fox News. I am not
sure who. I could guess. It was a private letter. At the time,
I was shocked to learn of its existence had been leaked.
But here is the thing. You had the full text of my letter
in your inbox before anything had been said about it publicly.
Did you find it at all unusual to receive a draft letter from
Democratic Senators to each other before any mention of it was
made public?
Judge Kavanaugh. Well, the only thing I said on the email
exchange, if I am looking at it correctly, Senator, was ``Who
signed this,'' which would imply that I thought it was a signed
letter.
Senator Leahy. It was sent to you. Were you surprised to
get it? I mean, it is obviously a draft. It has got typos and
everything in it. Were you surprised the draft letter
circulated among Democrats ended up in your inbox from Mr.
Miranda?
Judge Kavanaugh. But I think the premise of your question
is not accurately describing my apparent recollection or
understanding of it at the time because I would not have said,
``Who signed this'' if it was a--if I thought it was a draft,
and my email says, ``Who signed this.''
Senator Leahy. So, you did not realize what you had was a
stolen letter signed by--signed by me, that you had a letter
that had not been sent to anybody, had not been made public?
Judge Kavanaugh. Well, all I see that I said was, ``Who
signed this.'' That is all I see.
Senator Leahy. Well, let me ask you some more because so
much of this came from Mr. Miranda, who was a Republican
staffer who was, as we now know, stealing things. Did he ever
ask to meet privately with you in an offsite location somewhere
other than the White House or Capitol Hill?
Judge Kavanaugh. I think sometimes, Senator, that the
meetings with Senate staffers and White House and Justice
Department----
Senator Leahy. I am just asking you about one particular
one, Mr. Miranda.
Judge Kavanaugh. Yes, sometimes--usually it would be either
at the White House or the Senate, but I think sometimes we
would meet--or DOJ, but sometimes it could be somewhere else.
Senator Leahy. Well, did he ask to meet with you privately
so he could give you information about Senator Biden and
Senator Feinstein?
Judge Kavanaugh. I am not remembering anything specific,
that is certainly possible. And, again, Senator, I just want to
be clear here because it is very common when you are in the
judicial selection process to determine what are all the
Senators interested in for an upcoming nominee or an upcoming
hearing. That is the coin of the realm. Senator X is interested
in focusing on administrative law. Senator Y is going to ask
about environmental law. Senator is concerned about your past
work for this client. And that is a very common kind of
discussion.
Senator Leahy. Did he ever ask to have you meet him not at
the White House, not in the--at the Capitol, but at his home?
Judge Kavanaugh. I do not remember that.
Senator Leahy. Okay. Did he ever ask you to meet you
outside of the White House or the Capitol?
Judge Kavanaugh. I cannot rule that out, but, again, that
would not have been typical.
Senator Leahy. Did he--did he ever hand you material
separately from what would be emailed back and forth?
Judge Kavanaugh. Not remembering--if you are referring to
something in particular, I can answer that.
Senator Leahy. Well, let me ask you this. Did you ever
receive information via Mr. Miranda of information marked,
``Confidential'' that informed you, or my staff was sharing
with, other Democrats?
Judge Kavanaugh. I do not know the answer to that, Senator,
but, again, people on the--it is not always the case, at least
my understanding, that the--that the people--for example, your
staff and Senator Hatch's staff were necessarily working at
odds. It seemed like a lot of times the staff was cooperating
at times, not at other times, obviously, but at times about
judicial nominations. And so, it would not have raised anything
in particular in my mind if we learned, oh, Senator Leahy is
concerned about this.
Senator Leahy. Did my staff ever send you confidential
material from Senator Hatch that was stolen from his emails?
Judge Kavanaugh. Not the last part, but the--I certainly
did talk to your when we working on the airline bill--on the
September 20th, 2001 airline bill. I do remember being here all
night one night with your staff, and I am sure we did talk that
night about what other Senators thought. And that was the
airline bill where, as I think you recall, Speaker Hastert was
involved, and we were up there with the OMB team. So, and
that--I worked hard with your staff on that.
It just struck me as very--as not uncommon at all to be
talking with our leg team about what Senators on both sides
thing. I did not strike me that it was always armed camps.
Senator Leahy. But, no, and oftentimes it was not. But here
you are getting obviously very private Democratic emails. You
were not concerned how Mr. Miranda got them?
Judge Kavanaugh. Well, I guess I am not sure about your
premise.
Senator Leahy. Were you at all concerned about----
Judge Kavanaugh. The draft----
Senator Leahy [continuing]. Where Mr. Miranda got some of
the material he was showing you?
Judge Kavanaugh. I do not recall that, but on the premise
of your last question, I want to--I want to step back to that.
I am not sure I agree with the premise.
Senator Leahy. I was just saying, if you are getting
something that is marked ``Confidential,'' would you not assume
that is not something being shared back and forth?
Judge Kavanaugh. Unless it was shared. I mean, this is the
thing, if a staffer said here is what we are sending to--you
all should be aware of this because we are going to make a--we
are going to be really opposed to this judicial nominee. It
seemed--so, just to be clear, it seemed to me sometimes there
were judicial nominees you were very opposed to, sometimes you
were supportive of, sometimes in between, and there would be
messages passed back and forth and sharing of information. Very
cooperative, as I recall.
Senator Leahy. Well, I----
Judge Kavanaugh. You were transparent, in other words. When
you are--when you had problems with a nominee's, I recall,
transparency, and when you were supportive. You were at the May
9th, 2001 event at the White House, I recall, where the
President announced his first 11 court of appeals nominees, and
you were supportive of many of them.
Senator Leahy. Well, as you know--you know, it is a fact I
voted for a lot of Republican nominees.
Judge Kavanaugh. Yes.
Senator Leahy. Both to the Supreme Court, the courts of
appeals--and the district court.
Judge Kavanaugh. Yes.
Senator Leahy. But when I have opposed one, like with Judge
Owen, when I was raising some varied questions about funding
that she was getting from people that were before her court,
that might have raised a red flag that I had some concerns
about her. Now, when you worked at the White House, did anyone
ever tell you they had a mole that provided them with secret
information related to nominations?
Judge Kavanaugh. I do not recall the reference to a mole,
which sounds highly specific, but certainly it is common--
again, the people behind you can probably refer to this. But it
is common, I think, for everyone to talk each other at times
and share information. At least this was my experience--this is
20 years ago almost--where you would talk to people on the
Committee.
Senator Leahy. So, you never received an email from a
Republican staff member with information claiming to come from
spying, a Democratic mole?
Judge Kavanaugh. I do not--I am not going to rule anything
out, Senator, but if I did, I would not have thought that--I
would not have thought the literal meaning of that.
Senator Leahy. Would it have surprised you that--if you got
an email saying you got that from somebody spying on the
Democratic----
Judge Kavanaugh. Well, is there such an email, Senator?
Senator Leahy. Well, we would have to ask the Chairman what
he has in his confidential material.
Judge Kavanaugh. But here is the--if you are referring to
something particular. Here is what I know.
Chairman Grassley. Just stop a minute here. Reference twice
in your 30 minutes, and do not take this off of his time, you
made reference--you made reference. You are talking about the
period of time that he was White House Counsel.
Senator Leahy. Yes.
Chairman Grassley. That material is available to everybody.
Senator Leahy. So, that bit of material about him that is
marked ``committee confidential'' is now public and available?
Is that what you are saying? If that is what the Chairman is
saying, we got a whole new series of questions.
Chairman Grassley. No, not if it----
[Laughter.]
Chairman Grassley. Not if it is ``committee confidential.''
But you have access to it.
Senator Leahy. Not, so I----
Chairman Grassley. But do not forget, 80 percent of the
material we have gotten from the library is on the website of
the Judiciary Committee, so the public has access to it.
Proceed.
Senator Leahy. I want--I want Judge Kavanaugh to have
access so that we can ask him these questions under oath and he
can see them. So, I would ask the--and we will have another
round, but I would ask the Chairman if he might look at some of
these that are marked ``committee confidential,'' which limits
the ability of us to ask you specifically and hand you the
specific emails. But I would state on what has been public----
Chairman Grassley. Let me answer that for you. There is
only one Democratic Senator asked for access to that. Senator
Klobuchar got it. If you are interested in it, you could have
been asking ever since August the 25th, I believe.
Senator Leahy. We have been asking to have that--those made
public. I do not--I am not interested--if I see this in a
closed room where I cannot talk about it. I want Judge
Kavanaugh to see the emails which came from Mr. Miranda and----
Chairman Grassley. Give us a citation of the documents, and
we will get them for you.
Judge Kavanaugh. That testimony up there is true, a hundred
percent.
Senator Feinstein. Can somebody read it? I cannot see it.
Senator Leahy. Well, of course, it would be helpful if we
allowed the National Archives time to complete their review.
Judge Kavanaugh. But I just want to reassure you, Senator,
because you are asking important questions. I want to reassure
that what you have got up on the board is a hundred percent
accurate.
Senator Feinstein. Can somebody move it so we can see it
here?
Senator Leahy. Well, I am concerned because there is
evidence that Mr. Miranda provided you with materials that were
stolen from me, and that would contradict your prior testimony.
It is also clear from public emails, and I am restraining from
not going into the non-public ones, that you have reason to
believe materials were obtained inappropriately at the time.
Now, Mr. Chairman, there are least six documents that you
consider committee confidential that are directly related to
this. Just like the three documents I shared that are already
public, these other six contain no personal information, no
Presidential records, restrictive material. There is simply no
reason they cannot be made public. I hope they will be before
this next round. You know, it is difficult when to ask a
question, I have to ask Republicans, will you allow me to ask a
question. I certainly never did that when I was Chairman.
Now, I asked you in 2006 whether you had seen any documents
related to President Bush's NSA warrantless wiretapping
program, or whether you had heard anything about it. You
answered you learned about it with the rest of us in December
2005 when The New York Times reported it. Now, I know it has
been 12 years, so here is the video of your sworn testimony. It
should be on the TV screens.
[Video is shown.]
Senator Cornyn. Mr. Chairman, can I----
Chairman Grassley. Can I--again, do not take this time away
from him. Now, as far as I know in 15 hearings, so I am going
to read something in just a minute, but preface it with this.
As far as I know, in 15 hearings that I have been involved in
of Supreme Court Justices, there has never been such a video
shown. So, this is precedential, I want to read this: ``The use
of a video at a confirmation is highly irregular, but I see no
reason my colleagues cannot use a video that was provided by
the nominee himself in response to the Senate questionnaire.''
I have been assured that the video is from Judge Kavanaugh's
submission to the Committee. Based on this assurance, we have
allowed this video to be shown.
But I want to emphasize that I expect that video to be used
fairly. The video clip should not be presented in a way that
deprives it of relevant context. This is consistent with
requirements in Federal court. That is why I will insist that
Judge Kavanaugh have the opportunity before he answers this
question to request if any additional video be played, if it
provided appropriate context. So, Judge Kavanaugh, I would ask
you, do you believe that more context is needed to be able to
address the question?
Judge Kavanaugh. Well, I do not think I have heard the
question yet, but I will let you know when I hear the question.
Senator Leahy. Let me--let me ask you this. I will repeat
the question asked before. You said that you heard about this
with the rest of us in December 2005. You said, on there, that
you had no knowledge of anything related to this until The New
York Times article. Now we have a declassified Inspector
General report that, on September 17th, which was before the--
several months before The New York Times article, John Yoo
issued a memo on surveillance of the White House that helped
form the legal underpinnings of the NSA warrantless wiretapping
program.
When you were in the White House in 2001, did you ever work
with John Yoo on the constitutional implications of a
warrantless surveillance program?
Judge Kavanaugh. We are talking about a lot of different
things, Senator, here.
Senator Leahy. Warrantless surveillance program.
Judge Kavanaugh. That is talking about a lot of different
things. So, what you were asking about right there was the
specific--what President Bush called the terrorist surveillance
program. That was his name for it.
Senator Leahy. Which is a warrantless surveillance program.
Judge Kavanaugh. Along with many others, and that is--you
were asking me about the terrorist surveillance program, TSP, I
think he called it. That story was broken. That testimony is a
hundred percent accurate. That story was broken in The New York
Times. I had not been read into that program, and when it came
in The New York Times, I actually still remember my exact
reaction when I read that story. And then the President, that
Saturday, I believe, did a live radio address to explain to the
country what that program was about. There was a huge
controversy, and so, everyone was then working on getting the
speech together. And you asked me if I learned about it before
then. I said ``no,'' and that is accurate.
Senator Leahy. Okay. When you were in the White House, did
you ever work with John Yoo on the constitutional implications
of any warrantless surveillance program?
Judge Kavanaugh. Well, I cannot rule that--right in the
wake of September 11th, it was all hands on deck on all fronts,
and then we were--we were farming out assignments, but we were
all involved. On September 12th when we came in--let us just
back up. On September 12th when we came into the White House,
it was--you know, we have to work on everything. And so, then
over time people figured out what issues they were going to
work on. You know, the airline bill that I was up here on
September 20th when President Bush spoke to Congress that
night, as you recall. And then after that, we were in the
meeting room together, you and I and others, working on the
airline bill, but there were all sorts of other things going
on. The Patriot Act was going on.
Senator Leahy. I was involved with all of those----
Judge Kavanaugh. Yes, I know----
Senator Leahy [continuing]. And I remember the discussions.
But what I want to know, did you ever raise questions about
warrantless surveillance?
Judge Kavanaugh. I cannot rule anything out like that.
There was so much going on in the wake of September 11th,
Senator, as you recall, up here, too, but in the White House,
in particular, and in the Counsel's Office, in particular. We
had eight lawyers in there. Eight or nine as I recall. And
there were so many issues to consider for the President and for
the legal team, and those issues--like I said, for President
Bush, every day for the next 7 years was September 12th, 2001.
You know, for the legal team there was a lot----
Senator Leahy. For a lot of us it was.
Judge Kavanaugh. Yes.
Senator Leahy. Mr. Chairman, I sent a letter, along with
Senators Feinstein and Durbin, August 16th of this year, asking
we make documents related to this issue public. Without them
being public, it is not fair to me and it is not fair to Judge
Kavanaugh that I cannot hand him the actual documents, which I
think would refresh his memory. And I would ask again, you
might look at that before my next turn, can we make those
public?
Chairman Grassley. You tell us what documents you want, and
I will make them available to you, but I cannot say that they
can be made public. Just as I said last year during Justice
Gorsuch's confirmation, I put a process in place that will
allow my colleagues to obtain the public release of
confidential documents for use during the hearing. All I ask
was my colleagues to identify the documents they intended to
use, and I would work to get the Department of Justice and
former President Bush to agree to waive restrictions on the
documents.
Senator Feinstein secured the public release of 19
documents last year under this process, and Senator Klobuchar
secured the release of four documents this year. If my
colleagues truly believe that other committee confidential
documents should have been made public, they never told me
about that.
Senator Leahy. Well----
Chairman Grassley. So, let us know what you want, and then
you can--you can go ahead and we will get them for you.
Senator Leahy. I want the same thing that I requested in
August--on August 16th because it is directly relevant to Judge
Kavanaugh's testimony, directly relevant to his--to the
questions I have been asking here, and directly relevant to his
own emails with John Yoo. So, I would--before my next turn, if
we could take a look at that.
Chairman Grassley. Okay. Well, we will get them for you for
your next turn tomorrow.
Senator Leahy. Now, may--you said everyone agrees the
pardon prerogatives of a President, absolute, unfettered,
unchecked power to pardon every violator of every Federal law.
If the President issued a pardon in exchange for a bribe,
``yes'' or ``no''?
Judge Kavanaugh. Senator, I think that question has been
litigated before, and I do not want to comment about----
Senator Leahy. Well, let me ask you this.
Judge Kavanaugh. Scope of the pardon, the scope about--
there are a couple--there are a couple of things involved in
that question. One is what is the scope--what is the effect of
the pardon, and the other question is, can you be separately
charged with the bribery crime, both the briber and the bribee,
and those are two distinct questions. You would want to--you
would want to keep those two questions separate in thinking
about how the hypothetical----
Senator Leahy. Well, then in that, the----
[Gavel is tapped.]
Senator Leahy. Mr. Chairman, you know, I got interrupted an
awful lot during my----
Chairman Grassley. Yes, okay.
Senator Leahy. I just want to finish this question.
Chairman Grassley. But I--but I made sure that if the timer
did not treat--well, give him another minute.
[Laughter.]
Senator Leahy. Thank you. God bless you. I will be forever
thankful.
[Laughter.]
Senator Leahy. President Trump claims he has an absolute
right to pardon himself. Does he?
Judge Kavanaugh. The question of self-pardons is something
I have never analyzed. It is a question that I have not written
about. It is a question, therefore, that is a hypothetical
question that I cannot begin to answer in this context as a
sitting judge and as a nominee to the Supreme Court.
Senator Leahy. And the other half of that is the obvious
one. Does the President have the ability to pardon somebody in
exchange for a promise from that person they would not testify
against him?
Judge Kavanaugh. Senator, I am not going to answer
hypothetical questions of that sort, and there is a good reason
for it. When we get--judges do not--when we decide, we get
briefs and arguments of the parties. We have a record. We have
an appendix with all the information. We have amicus briefs and
then--I never--I never decide anything alone. I am on a panel
of three, and if I am confirmed to the Supreme Court I would be
on a Team of Nine.
Senator Leahy. Thank you, Mr. Chairman. I hope for the sake
of the country that remains a hypothetical question. Thank you
very much.
Chairman Grassley. And since I gave you an extra minute, I
am not going to let you reserve the 25 seconds.
[Laughter.]
Senator Leahy. I am done.
Chairman Grassley. Senator Graham.
Senator Graham. Thank you very much.
July 21, 1993: ``I certainly do not want you to have to lay
out a test here in the abstract which might determine what your
vote or your test would be in a case you have yet to see that
may well come before the Supreme Court.''
That was wise counsel by Senator Leahy in the Ginsburg
confirmation.
Very directly, did you ever knowingly participate in
stealing anything from Senator Leahy or any other Senator?
Judge Kavanaugh. No.
Senator Graham. Did you ever know that you were dealing
with anything that was stolen property?
Judge Kavanaugh. No.
Senator Graham. As to the terrorist surveillance program,
did you help create this program?
Judge Kavanaugh. No.
Senator Graham. Did you give legal advice about it?
Judge Kavanaugh. No. We are referring to the same program I
was talking about?
Senator Graham. Yes, yes. The one that the article was
about.
So a bit of a kind of run-through here. You are probably
going to get 55 votes, I do not know, 54 to 56 or 57. I do not
know what the number will be. There were 11 undecided Senators
before the hearing, 3 of them Republicans--I like your
chances--8 of them are Democrat. You are in play with about
five or six of them. And I just want you and your family to
know that in other times someone like you would probably get 90
votes. I want your daughters to know that what happened
yesterday is unique to the times that we live in. And I want to
give you a chance to say some things to the people who have
attended this hearing.
I think there is a father of a Parkland student who was
killed. I think there is a mother of a child who has got
terrible health care problems. And there are many other people
here with personal situations.
What would you like to say to them, if anything, about your
job as a Supreme Court Justice?
Judge Kavanaugh. Senator, I understand the real-world
effects of our decisions. In my job as a judge for the last 12
years, I have gone out of my way in my opinions and in oral
arguments, if you listen to oral arguments, to make clear to
everyone before me that I understand the situation, the
circumstances, the facts, for example, as I was saying to
Senator Feinstein earlier, in the Heller II case about the
facts in DC. And I want to reassure everyone that I base my
decisions on the law, but I do so with an awareness of the
facts and an awareness of the real-world consequences, and I
have not lived in a bubble, and I understand how passionately
people feel about particular issues, and I understand how
personally people are affected by issues. And I understand the
difficulties that people have in America.
I understand, for example--well, to start, I understand the
situation of homeless people because I see them on a regular
basis when I am serving meals and----
Senator Graham. So tell me about that. What interaction do
you have with homeless people?
Judge Kavanaugh. Senator, I regularly serve meals at
Catholic Charities at 10th and G with Father John Enzler, who
is the head of Catholic Charities DC, and I have known since I
was 9 years old when I was an altar boy. He was at Little
Flower Parish. And what you learn when you are--I said, I am a
Matthew 25, try to follow the lesson of serving the least
fortunate among us. You know, when I was hungry, you gave me
food; thirsty, you gave me drink; stranger and you welcomed me;
naked and you clothed me; sick and you cared for me; imprisoned
and you visited me. Six groups that--that is not exclusive, but
that is a good place to start with your charitable works in
your private time.
Senator Graham. So describe the difference between Brett
Kavanaugh, the man, and Brett Kavanaugh, the Judge.
Judge Kavanaugh. Well, as a man, I am trying to do what I
can in community service, as a dad, as a coach, as a volunteer,
as a teacher, as a husband, and serving meals to the homeless.
The one thing, Senator, you know, we are all God's children. We
are all equal. People have gotten there because maybe they have
a mental illness; maybe they had a terrible family situation;
maybe they did not have anyone to care for them; maybe they
lost a job and had no family. But every person you serve a meal
to is just as good as me, or better, frankly, because they
have--what they have had to go through on a daily basis just to
get a meal. And you talk to them. That is the other thing. When
you are walking by the street, you see people--and I
understand--I am sure I have done this. I am not--I do not want
to sound better than someone in describing this, but you do not
necessarily look and you do not say, ``How is it going? '' But
when you serve meals to them, you talk to people who are
homeless, and they are just as human and just as good a people
as all of us. You know, we are all part of one community, and
so I think about that. You know, I do not want to sound like I
am--I can always do more and more, and do better. I know I fall
short. But Father John has been a big influence on that, and
thinking about others.
So that is as a person. I try to do--Washington Jesuit
Academy, so I tutor up there. I am now on the board of
Washington Jesuit Academy. That is a little different
situation. Those are low-income--boys from low-income families,
a tuition-free school, one of these 7:30 a.m. to 7 schools. And
I started tutoring up there because I wanted to do some more
tutoring and just be involved more. Judging is important, but I
wanted to be more directly involved in the community. They have
tutoring. You do all your homework there because it was a
situation, you do not want to go home and have anything else to
do. You get three meals there, and you do your homework there.
And I help them do their homework, and you see these great
kids, and they are in a structured environment, and you make an
effect on their lives.
And like I said yesterday, the teachers and coaches
throughout America, they change lives. And for me to be able to
participate--you know, you cannot change everything at once,
but just changing one life, one meal 1 day at the shelter or
one kid that remembers something you said in a tutoring
program, you know, if we all did that more--and I fall short,
too, I know, and I want to do more on that front. But you can
make a big difference in people's lives.
I would just bring that into the judging. I think--I judge
based on the law, but how does that affect me as a judge? I
think, first of all, just standing in the shoes of others. We
could all be that homeless person. We could all be that kid who
needs a more structured educational environment. And one of the
things I was taught by my mom, but also I remember Chris Abell,
my sixth-grade English teacher and religion teacher and
football coach and baseball coach, one of his--and he drove me
to school. One of his--and he is now on the board of Washington
Jesuit Academy with me. But one of his lessons in ``To Kill a
Mockingbird'' was to stand in the shoes of others. And I still
have the ``To Kill a Mockingbird'' that we used in sixth grade.
It is in my chambers still, the same copy.
Senator Graham. Is it fair to say that your job as a judge
is to not so much stand in the shoes of somebody you are
sympathetic to, but stand in the shoes of the law?
Judge Kavanaugh. You are in the shoes of the law, but with
awareness of the impacts of your decisions.
Senator Graham. Right.
Judge Kavanaugh. And that is the critical distinction. You
cannot be unaware. When you write an opinion, how is it going
to affect people?
Senator Graham. Right.
Judge Kavanaugh. And understand, try to explain. I think,
you know, it is--explaining is such an important feature, and
then when people come into the courtroom, and how you treat
litigants. So we are all familiar--we have all been in
courtrooms where the judge is acting a little too full of being
a judge and too--well, we have all been there. I try not to do
that. I cannot say I am perfect, but I try to make sure the
litigants understand that I get it, whether it is a criminal
defendant case--we had a pro se case, a pro se case where a
litigant comes in and argues pro se in our court, which rarely
happens in our court where the pro se actually argues. And it
was a guy who said he had been called the ``N'' word by his
supervisor. And he is arguing pro se, and the question is
whether a single instance of the ``N'' word constitutes racial
harassment under the civil rights laws. And I wrote a separate
opinion explaining, yes, a single instance of the ``N'' word
does constitute a racially hostile work environment. And I
explained--in doing that, I explained the history of racism in
this country and how that word--no other word in the English
language so powerfully or instantly calls to mind our country's
long and brutal struggle against racism, I wrote in that
opinion. And I cited ``To Kill a Mockingbird'' in that opinion,
among other things.
But what I wanted to make clear by bringing this example up
is I understood his situation. I tried to understand what that
would be like, and I decided the case based on the law, but I
understood with the pro se litigant, the point being I always
try to be aware of the facts and circumstances.
Senator Graham. Have you ever made a legal decision that
personally was upsetting to you?
Judge Kavanaugh. Well, I am sure I have, and that is what
Justice Kennedy talked about in Texas v. Johnson. That case, in
case people did not know what I was referring to in Texas v.
Johnson, that is the flag-burning case. Justice Kennedy was in
the majority with Justice Scalia and Justice Brennan and
Justice Marshall and says that a law against flag burning is
unconstitutional under the First Amendment. And that obviously
tore Justice Kennedy--you know, it really bothered him because
he is such a patriot. But he still ruled the way he did because
he read the First Amendment to compel that result, and that is
why he wrote that great concurrence in that case. And that
concurrence is such a great model for judging, a great model of
independence and a great model, to your point, Senator Graham,
of we follow the law but we are aware--we are aware, and you
are a better judge if you are aware.
Senator Graham. Well, I just want to say this to my
colleagues. Everything he said I think has been verified by the
people who know him the best. I cannot say I have read 307 of
your opinions. I can tell you without hesitation I have not. I
did not read Sotomayor's opinions or Kagan's writings. But what
I chose to do was look at the people who knew them the best,
and I think Bob Bennett, who defended President Clinton during
impeachment--I know him very well--said that Brett is ``a
judge's judge, someone doing his absolute best to follow the
law rather than his policy preferences. Brett is an all-star in
both his professional and his personal life.''
I have yet to find anybody that I find credible, really
anybody at all, that would suggest that you were unfair to
litigants. I have yet to find a colleague that thought you were
a politician in a robe. But you are a Republican. Is that true?
Judge Kavanaugh. I registered----
Senator Graham. Was. Okay.
Judge Kavanaugh. Yes.
Senator Graham. The only reason--I am glad to hear you say
that. It makes a lot of sense given who you worked for.
Judge Kavanaugh. I have not--well, I will let you finish
your question.
Senator Graham. You worked for a lot of Republicans.
Judge Kavanaugh. Yes.
Senator Graham. Like the President, who was a Republican.
Judge Kavanaugh. President Bush I worked for, yes.
Senator Graham. So that----
[Disturbance in the hearing room.]
Senator Graham. So I remember--I remember----
[Disturbance in the hearing room.]
Senator Graham. I will tell you what I remember when she
leaves.
So, I asked Elena Kagan about a statement that Greg Craig
made. Do you know Greg Craig, by any chance?
Judge Kavanaugh. I have met him. I have not seen him in
many years, but yes.
[Disturbance in the hearing room.]
Senator Graham. He was one of the defenders of President
Clinton during the impeachment hearing, and somewhere in here I
have got Greg Craig's statement about Kagan. I am looking for
Greg Craig's statement.
Here we go. Here is what--``Kagan was a progressive in the
mold of Obama himself.'' ``Elena Kagan is clearly a legal
progressive and comes from the progressive side of the
spectrum,'' according to Ronald Klein. The first was Greg
Craig.
And I had an exchange with Justice Kagan when she was the
nominee: ``I am not trying to trick you. I do not have anything
on Greg. He said, on May 16th, that you are largely progressive
in the mold of Obama himself. Do you agree with that?''
Ms. Kagan, ``Senator Graham, you know, in terms of my
political views, I have been a Democrat all my life. I worked
for two Democrat Presidents, and that is what my political
views are.''
And I asked, ``Would you consider your political views
progressive?''
Ms. Kagan, ``My political views are generally
progressive.''
Which is true. I really appreciate what she said, because I
expect President Obama to go to someone like Elena Kagan who is
progressive, shares his general view of judging, and who
happened to be highly qualified.
Sotomayor. President Obama nominated Sotomayor because he
wanted someone whose philosophy of judging was his--which, as
applied to the law and constitutional principles was, be ready
to adopt them to a modern context. So President Obama nominated
Sotomayor because he wanted someone whose philosophy of judging
was his.
I expect that to happen. If Donald Trump is President in
2020, he will be our next President. If it is somebody else, I
expect that to happen.
To my colleagues on the other side, what do you really
expect? You should celebrate, even though you do not vote for
him--and I do not know why you would not--the quality of the
man chosen by President Obama. Elena Kagan and Sotomayor came
from the progressive wing of the judging world and of legal
thought. They are absolutely highly qualified, good, decent
people, and they got--let me see if I can find the vote totals.
Ms. Kagan got 63 votes and Sonia Sotomayor got 68. It is going
to bother me that you do not get those numbers. But what
bothers me is, they should have gotten 90. They should have
gotten 95. Anthony Kennedy got 97. Antonin Scalia got 98. Ruth
Bader Ginsburg got 96. So what is happening? Between then and
now, advise and consent has taken on a different meaning.
It used to be the understanding of this body that elections
have consequences, and you would expect the President who won
the election to pick somebody of their philosophy. I promise
you that when Strom Thurmond voted for Ruth Bader Ginsburg, he
did not agree with her legal philosophy. And I doubt if Senator
Leahy agreed with Justice Scalia. Senator Leahy has voted for a
lot of Republicans. I have voted for everyone presented since I
have been here because I find them to be highly qualified,
coming from backgrounds I would expect the President in
question to choose from.
So, as to your qualifications, how long have you been a
judge?
Judge Kavanaugh. I have been a judge for 12 years.
Senator Graham. How many opinions have you written?
Judge Kavanaugh. I have written over 300 opinions.
Senator Graham. Okay. Do you think there is a lot we can
learn from those opinions if we spent time looking at them?
Judge Kavanaugh. Yes. I am very proud of my opinions, as I
mentioned, and I tell people do not just read about the
opinions. Read the opinions. I am very proud of them.
Senator Graham. You were nominated by President Trump on
July the 9th, my birthday, which I thought was a pretty good
birthday present for somebody who thinks like I do--and I think
that may have something to do with that--at 9 o'clock. By 9:23,
Chuck Schumer says, ``I will oppose Judge Kavanaugh.'' By 9:25,
Senator Harris, ``Trump Supreme Court Justice nominee Judge
Kavanaugh represents a direct and fundamental threat to the
rights and health care of hundreds of millions of Americans. I
will oppose his nomination.''
Elizabeth Warren at 9:55, ``Brett Kavanaugh's record as a
judge and a lawyer is clear, hostile to health care for
millions, opposed the CFPB, corporate accountability, thinks
President Trump is above the law,'' on and on and on.
Nancy Pelosi at 10:11, Bernie Sanders at 10:18, ``If Brett
Kavanaugh is confirmed to the Supreme Court, it will have a
profoundly negative effect on workers' rights, women's rights,
and voting rights for the decades to come.''
All I can say, within an hour and 18 minutes of your
nomination, you became the biggest threat to democracy in the
eyes of some of the most partisan people in the country who
would hold Kagan and Sotomayor up as highly qualified and would
challenge any Republican dare vote against them. You live in
unusual times, as I do. You should get more than 90 votes, but
you will not. And I am sorry it has gotten to where it has. It
is got nothing to do about you.
If you do not mind--and you do not have to--what did you
tell your children yesterday about the hearing?
Judge Kavanaugh. They did as they--I will tell what they
told me. I do not think--they gave me a big hug and said,
``Good job, Daddy.'' And Margaret, before she went to bed, made
a special trip down and said, ``Give me a special hug.''
Senator Graham. I just wish we could have a hearing where
the nominee's kids could show up. Is that asking too much?
[Disturbance in the hearing room.]
Senator Graham. So what kind of country have we become?
None of this happened just a couple years ago. It is getting
worse and worse and worse, and all of us have an obligation to
try to correct it where we can.
Roe v. Wade, are you familiar with the case?
Judge Kavanaugh. I am, Senator.
[Laughter.]
Senator Graham. Can you, in 30 seconds, give me the general
holding of Roe v. Wade?
Judge Kavanaugh. As elaborated upon in Planned Parenthood
v. Casey, a woman has a constitutional right, as interpreted by
the Supreme Court under the Constitution, to obtain an abortion
up to the point of viability, subject to reasonable regulations
by the State, so long as those reasonable regulations do not
constitute an undue burden on the woman's right.
Senator Graham. Okay. As to how the system works, can you
sit down with five--you and four other judges and overrule Roe
v. Wade just because you want to?
Judge Kavanaugh. Senator, Roe v. Wade is an important
precedent of the Supreme Court. It has been reaffirmed----
Senator Graham. But do you not have to have a case as a--I
mean, you just cannot--``What are you doing for lunch? '' ``Let
us overrule Roe v. Wade.'' It does not work that way, right?
Judge Kavanaugh. I see what you are asking, Senator. Right.
The way cases come up to us in that context or in other
contexts would be a law is passed----
Senator Graham. Can I give you an example? Because I can do
this quicker.
Judge Kavanaugh. Yes.
Senator Graham. So some State somewhere or some town
somewhere passes a law that runs into the face of Roe. Somebody
will object. They will go to lower courts, and eventually it
might come up to the Supreme Court challenging the foundations
of Roe v. Wade. It would take some legislative enactment for
that to happen. Is that correct?
Judge Kavanaugh. That is correct.
Senator Graham. If there was such an action by a State or a
local government challenging Roe and it came before the Supreme
Court, would you listen to both sides?
Judge Kavanaugh. I listen to both sides in every case,
Senator. I have for 12 years, yes.
Senator Graham. When it comes to overruling a longstanding
precedent of the Court, is there a formula that you use, an
analysis?
Judge Kavanaugh. So, first of all, you start with the
notion of precedent. And as I have said to Senator Feinstein,
in this context this is a precedent that has been reaffirmed
many times over 45 years, including in Planned Parenthood v.
Casey, where they specifically considered whether to overrule,
and reaffirmed and applied all the stare decisis factors. So
that importantly became precedent on precedent in this context.
But you look at--there are factors you look at whenever you are
considering any precedent.
Senator Graham. So there is a process in place that the
Court has followed for a very long time. Is that correct?
Judge Kavanaugh. That is correct, Senator.
Senator Graham. Citizens United, if somebody said Citizens
United has been harmful to the country and made a record that
the effects of Citizens United has empowered about 20 or 30
people in the country to run all the elections, and some State
or locality somewhere passed a ban on soft money, and it got to
the Court, would you at least listen to the argument that
Citizens United needs to be revisited?
Judge Kavanaugh. Of course. I listen to all arguments. You
have an open mind. You get the briefs and arguments. And some
arguments are better than others. Precedent is critically
important. It is the foundation of our system. But you listen
to all arguments.
Senator Graham. Okay. Where were you on September 11, 2001?
Judge Kavanaugh. Initially, I was in my then office in the
EOB, and then after the first, as I recall, as the first
building was hit, I was in the Counsel's office on the second
floor of the West Wing for the next few minutes. Then we were
all told to go down to the bottom of the West Wing. And then we
were all evacuated, and I think the thought was Flight 93 might
have been heading for the White House. It might have been
heading here. And Secret Service--we were being hustled out,
and then kind of panic, started screaming at us, ``Sprint,''
``Run,'' and we sprinted out. My wife was a few steps ahead of
me. She was President Bush's personal aide at the time, and we
sprinted out. She was wearing a black and white checked shirt,
I remember, and we sprinted out the front gate kind of into
Lafayette Park, and no iPhones or anything like that,
BlackBerrys, at that point in time, we did not have that, and
our cell phones did not work, so we were all just kind of out
there. And then I remember somehow ending up seeing on TV--down
more on Connecticut Avenue there were TVs out, Mayflower Hotel.
I remember I was with Sara Taylor who worked at the White
House, and we watched--we were watching as the--I was standing
with her when the two--when the two buildings--when the
buildings fell.
Senator Graham. So when somebody says post-9/11, that we
have been at war and it is called the ``War on Terrorism,'' do
you generally agree with that concept?
Judge Kavanaugh. I do, Senator, because Congress passed the
Authorization for Use of Military Force, which is still in
effect, and that was passed, of course, on September 14, 2001,
3 days later.
Senator Graham. Let us talk about the law and war. Is there
a body of law called ``the law of armed conflict''?
Judge Kavanaugh. There is such a body, Senator.
Senator Graham. Is there a body of law that is called
``basic criminal law''?
Judge Kavanaugh. Yes, Senator.
Senator Graham. Are there differences between those two
bodies of law?
Judge Kavanaugh. Yes, Senator.
Senator Graham. From an American citizen's point of view,
do your constitutional rights follow you? If you are in Paris,
does the Fourth Amendment protect you as an American from your
own Government?
Judge Kavanaugh. From your own Government, yes.
Senator Graham. Okay. So, if you are in Afghanistan, do
your constitutional rights protect you against your own
Government?
Judge Kavanaugh. If you are an American in Afghanistan, you
have constitutional rights as against the U.S. Government. That
is long-settled law.
Senator Graham. Is there not also a long-settled law that
goes back to the Eisentrager case? I cannot remember the name
of it.
Judge Kavanaugh. Johnson v. Eisentrager.
Senator Graham. Right, that American citizens who
collaborate with the enemy are considered enemy combatants?
Judge Kavanaugh. They can be.
Senator Graham. Can be.
Judge Kavanaugh. They can be. They are often--they are
sometimes criminally prosecuted, sometimes treated in the
military----
Senator Graham. Well, let us talk about ``can be.'' I think
the----
Judge Kavanaugh. Under Supreme Court precedent.
Senator Graham. Right. There is a Supreme Court decision
that said that American citizens who collaborated with Nazi
saboteurs were tried by the military. Is that correct?
Judge Kavanaugh. That is correct.
Senator Graham. I think a couple of them were executed.
Judge Kavanaugh. Yes.
Senator Graham. So if anybody doubts there is a
longstanding history in this country that your constitutional
rights follow you wherever you go, but you do not have a
constitutional right to turn on your own Government and
collaborate with the enemy of the Nation. You will be treated
differently.
What is the name of the case, if you can recall, that
reaffirmed the concept that you could hold one of our own as an
enemy combatant if they were engaged in terrorist activities in
Afghanistan? Are you familiar with that case?
Judge Kavanaugh. Yes. Hamdi.
Senator Graham. Okay. So the bottom line is, on every
American citizen, know you have constitutional rights, but you
do not have a constitutional right to collaborate with the
enemy. There is a body of law well developed, long before 9/11,
that understood the difference between basic criminal law and
the law of armed conflict. Do you understand those differences?
Judge Kavanaugh. I do understand that they are different
bodies of law, of course, Senator.
Senator Graham. Okay. If you are confirmed--and I believe
you will be--what is your hope when all of this is said and
done and your time is up, how would you like to be remembered?
[Brief pause.]
Judge Kavanaugh. A good dad. A good judge.
Senator Feinstein. A good husband.
Senator Graham. I think he is getting there.
Judge Kavanaugh. Good husband.
[Laughter.]
Senator Graham. Thanks, Dianne. You helped him a lot.
It is going to be better for you tonight.
[Laughter.]
Judge Kavanaugh. I owe you--I owe you. Good son, I will
quickly add. Good friend. I think about the pillars--the
pillars of my life are being a judge, of course; being a
teacher, I have done that, and either way this ends up I am
going to continue teaching; coaching, as I mentioned, a huge
part of my life, I will try to continue that. Senator Kennedy
advised me when we met, ``Make sure you keep coaching even if
you get''--I am going to follow that. Volunteering and being a
dad and a son and a husband, and being a friend. You know, I
talked about my friends yesterday. I did not really expect--I
got a little choked up talking about my friends.
Senator Graham. That was well said. You have got to tighten
it up because I just ran out of time.
Judge Kavanaugh. Okay. Thank you, Senator. I can go on, as
you know, but I will stop there.
Senator Graham. Thank you.
Chairman Grassley. We are about ready to break for lunch
and the vote that we have, and it will be 30 minutes. But
before I do that, I have letters that Senator Feinstein asked
me to put in the record from--70 letters from people in
opposition to your nomination.
[The information appears as submissions for the record.]
Chairman Grassley. And then we also have letters in support
of Judge Kavanaugh from hundreds of men and women across the
country holding diverse political views. They strongly support
his confirmation. Without objection, those will also be entered
in the record.
[The information appears as a submission for the record.]
Chairman Grassley. And then I wanted to explain the
exchange that I had with Senator Leahy, just so people do not
think that that is something that I did on my own. We had
previously sent out a letter and only Senator Klobuchar up to
that point had taken advantage of the letter to be able to ask
for documents that were committee confidential so that they
could use them at the hearing. And the only thing I have done
for Senator Leahy that was not already in that letter was to
remind people that we did the same thing for the Gorsuch
nomination to the Supreme Court, and it is a policy that
Senator Leahy when he was Chairman of the Committee followed.
So the only courtesy was extended to Senator Leahy, the fact
that he did not make the request by the timeline that was in
the letter, which I think was August 25th.
We are going to adjourn 30 minutes for a lunch break, and I
think that we will be back here exactly in 30 minutes. If not,
Judge Kavanaugh, we will let your staff know if it is going to
be a little later, because you never know what happens in the
United States Senate when you have a vote.
[Whereupon, at 12:16 p.m., the Committee was recessed.]
[Whereupon, at 12:46 p.m., the Committee reconvened.]
Chairman Grassley. Welcome back, Judge Kavanaugh.
The next person to ask questions is Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Judge Kavanaugh. Senator.
Senator Durbin. Judge Kavanaugh, Mrs. Kavanaugh, thank you
for being back today to face this next round.
If I had to pick an area of clear expertise when it comes
to Brett Kavanaugh, it would be the area of judicial
nominations. You have been engaged in that at several different
levels, including your own personal experience. And so I would
like to ask you if you would comment on the strategy of your
own nomination. Specifically, I would like to ask you whether
those who were planning that strategy sat down and cleared with
you their decision on the release of documents.
Judge Kavanaugh. No. I was not involved in the documents
process or substance.
Senator Durbin. No one told you that you would be the first
Supreme Court nominee to assert executive privilege to limit
the access to 100,000 documents relating to your service in the
White House?
Judge Kavanaugh. Senator, there are a couple of things
packed into your question. So, I did study the nominee
precedent, read all the hearings. This came up in Justice
Scalia's hearings, so I read that. There were all his memos
from being the head of the Office of Legal Counsel, and he was
asked about that. And I know with Chief Justice Roberts, there
was 4 years of information when he was Principal Deputy
Solicitor General that those were not disclosed either.
Senator Durbin. But as for White House documents, you are
breaking new ground here, or I should say covering up old
ground here.
Judge Kavanaugh. Well, I guess--I was not involved in the
documents discussions or process or substance in terms of the
decisions that were made. But in terms of thinking about the
issue, in terms of questions that could come to me, like
Justice Scalia and Chief Justice Roberts received, or at least
Justice Scalia did, I guess I do not distinguish. It is all--
executive branch documents, Justice Department documents, and
White House documents are not different.
Senator Durbin. But you realize that when it comes to the
role of the National Archives, we are being asked to give you
special treatment.
Judge Kavanaugh. I cannot comment because I do not know.
Senator Durbin. Judge Kavanaugh, this is your field,
judicial nominations. This is your nomination.
Judge Kavanaugh. Let me ask you what the question is.
Sorry.
Senator Durbin. You are now embarking on this journey in
this Committee, denying us access to documents which were
routinely provided for other judicial nominees. You had to have
known that was taking place.
Judge Kavanaugh. Senator, I think what Justice Scalia said
in his hearing when he was asked about his Office of Legal
Counsel memos is the right thing, which is that is a decision
for the Senate and the executive branch to work out. As a
nominee, I will--and there are long-term privileges and
protections, as he mentioned, that were in effect for that
discussion. It is not for the nominee to make that decision.
Senator Durbin. Well, that is an interesting comment,
because the way you are being presented to the American people,
with only 10 percent of the public documentation that could be
provided to this Committee, it is going to reflect on you and
your nomination. And, of course, you know that.
Judge Kavanaugh. Well, I guess I--again, looking at the
nominee precedent, Senator, that was true in Justice Scalia's
case also. All his memos from 1974 to 1977, when he was head of
the Office of Legal Counsel, a consequential time, at least as
I understand it, those might not have been disclosed. He was
asked about that at his hearing. Chief Justice Roberts, 4 years
of Deputy Solicitor General memos, which would have been----
Senator Durbin. So you are perfectly fine with this notion.
Judge Kavanaugh. No. I said I am--it is up to the Chairman
and you and the Committee, the Senate and the executive
branch----
Senator Durbin. In fairness, Judge Kavanaugh, I think it is
up to you. I think it is up to you. If you said at this moment
to this Chairman and to this Committee, stop, pause, hit the
pause button, I do not want any cloud or shadow over this
nomination, I trust the American people, I want them to trust
me, I am prepared to disclose those public documents--take
Senator Leahy's line of questioning. He was not the only victim
of Manny Miranda. I was, as well. I did not realize that this
Republican staffer had hacked into my computer, stolen my staff
memos, and released them to the Wall Street Journal until they
showed up in an editorial.
So now, your knowledge of this--your role in this, we are
limited to even discuss because of the fact that we are
classifying and withholding information about your nomination.
First is Mr. Bill Burck, who has some magic power to decide
what the American people will see about your role in the White
House. Then the decision by those who put your nomination
before us to take 35 months of your service as staff secretary
to the President of the United States and to exclude the
documents. Then the unilateral classification of documents
coming to this Committee as Committee classified in a manner no
one has ever seen in the history of this Committee.
Judge Kavanaugh, that reflects on your reputation and your
credibility. If you said at this moment, I do not want to have
a cloud over this nomination, I am prepared to suggest to the
Committee and ask the Committee humbly, please withhold further
hearings until you disclose everything, why will you not do
that?
Judge Kavanaugh. Senator, I do not believe that is
consistent with what prior nominees have done who have been in
this circumstance. It is a decision for the Senate and the
executive branch. Justice Scalia explained that very clearly, I
thought, in his hearing.
Senator Durbin. Are you happy with that decision?
Judge Kavanaugh. I do not--it is not for me to say,
Senator. This is a decision--the long-term interests of the
Senate and the executive branch, particularly the executive
branch, are at play. Justice Scalia, again, explained that
well, I thought, in his hearing----
Senator Durbin. I was not here for Justice Scalia, but I
will tell you that----
Chairman Grassley. Let me interrupt without taking time
away from you. So, do not charge him for this time. But here is
something that--the nominee does not need any help for me to
answer this, but we do not care what the nominee thinks. We
have to follow the Presidential Records Act, and that is what
we are following, is the law.
Senator Durbin. Mr. Chairman, with all due respect,
following the Presidential Records Act involves the National
Archives. The National Archives is not involved in this
process. It is a Mr. Bill Burck, who was a former assistant to
the nominee, who has decided what will be withheld, whether it
is going to be Committee confidential. So it is not the
Presidential Records Act, please.
Chairman Grassley. Well, still, let me make clear here, we
anticipated some of this, so let me read. Criticize the
Committee process for obtaining Judge Kavanaugh's records. They
have accused us of cutting the National Archives out of the
process, so this is where I want to set the record straight.
President Bush acted consistently with Federal law when he
expedited the process and gave us unprecedented access in
record time to Judge Kavanaugh's record, but we have worked
hand in glove with the Archives throughout this process, and
the documents this Committee received are the same as if the
Archives had done the initial review.
In fact, the Archives is not permitted by law to produce
records to the Committee without giving both President Bush and
a current President an opportunity to review. The National
Archives was not cut out of the process. As President Bush's
representative informed the Committee, quote from his letter,
``Because we have sought, received, and followed NARA's''--that
is the same as when I use the word, ``Archivist''--``views on
any documents withheld as personal documents, the resulting
production of documents to the Committee is essentially the
same as if NARA had conducted its review first and then sought
our views and the current administration views, as required by
law.''
In other words, the documents this Committee received are
the same as if the Archives had done the initial review. We are
just able to get the documents faster by doing it this way,
which gave the Senate and the American people unprecedented
access in record time to a Supreme Court nominee record.
Continue.
Senator Durbin. Mr. Chairman, the National Archives have
stated publicly that the way we are handling the records for
this nomination is unprecedented, and they have had nothing to
do with it. They have asked until the end of October to produce
records, and they have been told, ``we do not need you, we are
going to finish this hearing long before then.''
I would like to ask that it be placed in the record the
statement from the National Archives related to the records
related to Judge Kavanaugh. Do I have consent to place this in
the record?
Chairman Grassley. I am sorry, what?
Senator Durbin. The statement from the National Archives?
Chairman Grassley. Yes, without objection.
Senator Durbin. Thank you.
[The information appears as a submission for the record.]
Senator Durbin. And now I am going to throw you a pitch
which you have seen coming for 12 years. I want to talk to you
about your 2006 testimony which you gave before this Committee.
It was at a different time. We were very concerned about the
issue of torture and detention and interrogation.
Yesterday I asked you to show the American people that you
have nothing to hide by coming clean with us on this issue, and
I would like to refer specifically to some of the questions
that were raised because of that 2006 testimony. I believe, we
have here a statement of my question, as well as your response.
And I am sure you have seen this because it has been reported
in the paper that you have been waiting for this question for a
long time.
When I was, back in the day, a trial attorney preparing a
witness for interrogation, testimony, deposition, giving
testimony at trial, I said two things: tell the truth, and do
not answer more than you are asked--do not volunteer
information. Judge Kavanaugh, you failed on the second count.
The question I asked you: ``What was your role in the
original Haynes nomination and decision to renominate him? And
at the time of the nomination, what did you know about Mr.
Haynes's role in crafting the administration's detention and
interrogation policies?''
Your response: ``Senator, I did not--I was not involved and
am not involved in the questions about the rules governing
detention of combatants or--and so I do not have the
involvement with that. And with respect to Mr. Haynes's
nomination, I've--I know Jim Haynes, but it was not one of the
nominations that I handled.''
Judge Kavanaugh. Could you raise it a little higher? I
cannot see the bottom.
Got it, okay.
Senator Durbin. I asked you about this when we had a
meeting in my office.
Judge Kavanaugh. Yes.
Senator Durbin. And I still do not understand your answer
in terms of how you could state clearly and unequivocally, ``I
was not involved and am not involved in the questions about the
rules governing detention of combatants.'' You were involved in
the discussions about access to counsel for detainees. You
confirmed this during the meeting that we had in my office, and
there are multiple media reports as well. You were involved in
discussions regarding detained U.S. combatants Yaser Hamdi and
Jose Padilla. You confirmed that in our meetings, and there are
emails that support that fact.
You were involved--and this is one that I want to be
specific about. You were involved with President Bush's 2005
signing statement on Senator John McCain's amendment banning
cruel, inhuman, and degrading treatment of detainees, and you
confirmed that in the meeting.
There were no exceptions in your answer given to me in
2006, not for litigation or detainee access to counsel or the
McCain Torture Amendment. So if those three, based on the
limited documents which we have been given, are obvious, what
were you trying to tell me here? Did you really disclose
accurately your role?
Judge Kavanaugh. Yes. I understood the question then and my
answer then, and I understood----
[Disturbance in the hearing room.]
Judge Kavanaugh. I understood the question then and the
answer then, and I understand the question now and the answer
now to be 100 percent accurate. You were concerned about
whether I was involved in the program that two other nominees
had been involved in, and the report that Senator Feinstein
produced, the Justice Department report, they showed that I was
not. In other words, the program, crafting the program for the
enhanced interrogation techniques for the detainees----
Senator Durbin. Judge Kavanaugh, that is not the question.
Do you see me asking you whether you crafted the program? I did
not. I asked you about your involvement in the Haynes--and then
you went further----
Judge Kavanaugh. Crafting----
Senator Durbin. Yes, and then you went further. You
violated the second rule I give to every witness. You answered
more than I asked.
Judge Kavanaugh. I adhered to the first one. I told the
truth.
Senator Durbin. Well, you volunteered more information than
I asked, and you went further than you should have, because in
the three specific instances that I have given you, you clearly
were involved in questions about rules governing detention of
combatants.
Judge Kavanaugh. So, I understood the question then, and I
understand it now, and my answer about that program. I told the
truth about that, and the reports that have come out
subsequently have shown that I have told the truth about that.
My name is not in those reports.
Now, for the 2005 signing statement, by that time I am in
the staff secretary office, and everything that went to the
President's desk--everything that went to the President's desk,
with a few covert exceptions, would have somehow crossed my
desk on the way. So you ask--I said on the signing statement it
would have crossed my desk on the way. So would a speech draft
on the Iraq war. Those things would have crossed my desk,
prepared by others, not prepared by me, but they cross my desk
on the way to the President.
Senator Durbin. In the 2006 hearing you told Senator Arlen
Specter you gave President Bush advice on signing statements,
including, ``identifying potential constitutional issues in
legislation.'' Did you make any comments regarding the December
30, 2005 signing statement on the McCain Torture Amendment,
including potential constitutional issues?
Judge Kavanaugh. I cannot recall what I said. I do recall
that there was a good deal of internal debate about that
signing statement, as you can imagine there would be. I
remember that it was controversial internally, and I remember
that I thought--and I cannot remember all the ins and outs of
who thought what, but I do remember that the Counsel to the
President was in charge ultimately of signing statements in
terms of the final recommendation to the President.
Senator Durbin. And just a few months later you, under
oath, told us you were not involved in any of the questions
about the rules governing detention of combatants.
Judge Kavanaugh. Senator, again, at least I understood it
then and I understand it now to be referring to the program
that we were talking about that was very controversial that
Senator Feinstein spent years trying to dig into, and I was not
read into that program. I told the truth about that.
Senator Durbin. Let me go to another area of questioning,
if I can. Thank you very much.
In your dissent in Garza v. Hargan, you wrote that the
Court had created ``a new right for unlawful immigrant minors
in U.S. Government detention to obtain immediate abortion on
demand, thereby barring any Government efforts to expeditiously
transfer the minors to their immigration sponsors before they
make that momentous life decision.'' You argued that permitting
the Government additional time to find a sponsor for a young
woman in the case did not impose an undue burden, even though
the Government's conduct in the case had already forced her to
delay her decision on an abortion by several weeks.
We are talking about a young woman, characterized as Jane
Doe, who discovered that she was pregnant after crossing the
border into the United States. She made a personal decision
that she was not ready to be a parent and did not want to
continue her pregnancy. She went through every step necessary
to comply with Texas State law, as well as steps forced on her
by the Federal Government. She visited a religious anti-
abortion crisis pregnancy center, she underwent an ultrasound
for no medical purpose, and she went before a judge and
obtained a judicial bypass of the State's parental consent
requirements.
In other words, this young woman complied with every legal
requirement, including Texas State requirements, placed in
front of her so she could move forward with her decision, a
decision affecting her body and her life.
Do you believe that this was an abortion on demand?
Judge Kavanaugh. Senator, the Garza case involved, first
and foremost, a minor. It is important to emphasize it was a
minor.
Senator Durbin. Yes.
Judge Kavanaugh. So she is in an immigration facility in
the United States. She is from another country. She does not
speak English, and she is by herself. If she had been an adult,
she would have a right to obtain the abortion immediately. As a
minor, the Government argued that it was proper or appropriate
to transfer her quickly first to an immigration sponsor. Who is
an immigration sponsor, you ask? It is a family member or
friend who she would not be forced to talk to but she could
consult with, if she wanted, about the decision facing her.
So we had to analyze this first as a minor, and then for
me, the first question always is, what is the precedent? The
precedent on point from the Supreme Court is there is no case
on exact point, so you do what you do in all cases: you reason
by analogy from the closest thing on point. What is the closest
body of law on point? The parental consent decisions from the
Supreme Court, where they have repeatedly upheld parental
consent laws over the objection of dissenters who thought that
is going to delay the procedure too long, up to several weeks.
I am getting to the point, I am getting to the point.
Senator Durbin. Before you get to the point, you have just
bypassed something. You have just bypassed the judicial bypass,
which she received from the State of Texas when it came to
parental consent. That has already happened here, and you are
still stopping her.
Judge Kavanaugh. I am not. The Government is arguing that
placing her with an immigration sponsor would allow her, if she
wished, to consult with someone about the decision. That is not
the purpose of the State bypass procedure. So I just want to be
very clear about that.
Senator Durbin. But, Judge, the clock is ticking.
Judge Kavanaugh. It is.
Senator Durbin. The clock is ticking, 20-week clock is
ticking. She made the decision early in the pregnancy, and all
that I described to you, the judicial decisions, the clock is
ticking, and you are suggesting that she should have waited to
have a sponsor appointed who she may or may not have consulted
in making this decision.
Judge Kavanaugh. Again, this is--I am a judge. I am not
making the policy decision. My job is to decide whether that
policy is consistent with law. What do I do? I look at
precedent, and the most analogous precedent is the parental
consent precedent. From Casey, has this phrase, page 895:
``minors benefit from consultation about abortion.'' It is a
quote talking about consultation with a parent----
Senator Durbin. So, you are adding a requirement here
beyond the State of Texas requirements that there be some
sponsor chosen who may or may not be consulted for this
decision, and the clock is ticking on her pregnancy.
Judge Kavanaugh. A couple of things there, Senator. You
said, ``you are adding.'' I am not adding, I am a judge. The
policy is being made by others. I am deciding whether the
policy is then consistent with Supreme Court precedent.
There are two things to look at in this context, Senator.
First, is the Government's goal reasonable in some way? And
they say we want the minor to have the opportunity to consult
about the abortion. Well, the Supreme Court precedent
specifically says, specifically says that that is an
appropriate objective. Second----
Senator Durbin. Was it a State requirement?
Judge Kavanaugh. The second question----
Senator Durbin. Was that a State requirement?
Judge Kavanaugh. The second question is the delay, your
point, and the parental consent cases of the Supreme Court
recognized that there could be some delay because of the
parental consent procedures. And, in fact, Justices Marshall,
Brennan, and Blackmun repeatedly dissented in cases because
they thought the delay was too long.
I quoted all that in my Garza opinion, and I made clear it
had to happen very quickly, and I looked at the time of the
pregnancy to make sure, on safety--I specifically talk about
safety. I specifically say the Government cannot use this as a
ruse to somehow prevent the abortion. I spent a paragraph
talking about she was in an undeniably difficult situation.
So, as I was saying to Senator Graham earlier, I tried to
recognize the real-world effects on her. I said consider the
circumstances. She is a 17-year-old, by herself, in a foreign
country, in a facility where she is detained, and she has no
one to talk to, and she is pregnant. Now, that is a difficult
situation, and I specifically recognized and tried to
understand that. And then as a judge, not the policymaker, I
tried to understand whether the Government's policy was
consistent with the Supreme Court's precedents, and I did the
best I could.
And I said--on those parental consent precedents--I said,
some people disagree with those precedents and think those
kinds of statutes should not be allowed. But precedent is not
like a cafeteria where I can take this but not that. I had to
take Casey completely. Casey reaffirmed Roe----
Senator Durbin. I have some other questions, so I would ask
if you would please----
Judge Kavanaugh. Well, it is an important question, though,
and I want to----
Senator Durbin. It is a critical question.
Judge Kavanaugh. And I did my level best in an emergency
posture. So I had basically 2 days to do this case.
Senator Durbin. A 2-to-1 en banc decision which you
dissented from. Correct?
Judge Kavanaugh. I did the best to follow precedent, and as
I always try to do, to be as careful as I can to follow the
precedent of the Supreme Court.
Senator Durbin. Let me ask you a personal question. What is
the dirtiest, hardest job you have ever had in your life?
Judge Kavanaugh. I worked construction in the summer after
I was 16 for a summer, 7 a.m. to 3:30 p.m. My dad dropped me
off every morning at 7, 6:55. He wanted me to be early. And
that is probably the one.
I also, I should say, Senator, I had what--a one-person
lawn business, I guess, for many summers, business. I cut a lot
of lawns, and that is how I made some cash when I was--I
started that probably eighth grade, maybe seventh grade. I cut
my parents' lawn, but then I cut a lot of lawns in the
neighborhood and actually distributed flyers all over the place
to say if you need your lawn cut, call me. So lawn cutting, and
then the construction job, the one summer.
Senator Durbin. My dirtiest job I ever had was four summers
working in a slaughterhouse. I always wanted to go back to
college. I could not wait to get out of there. It was
unbearable. It was dirty, it was hot. The things I did were
unimaginable, and I would not even start to repeat them.
Then came a case before you called Agri Processor Co. v.
NLRB. At least a third of the workers, Judge Kavanaugh, in our
Nation's slaughterhouses are immigrants. In visits to Iowa,
Illinois, Delaware, you pick it, you are going to find a lot of
immigrants doing these miserable, dirty, stinking, hot jobs.
Many of them are undocumented. The work is low-paid and
dangerous. And as the GAO has noted, immigrants are pressured
not to even report injuries on the job.
The Agri Processors case was a notorious meat packing
company owned by Sholom Rubashkin, who was convicted of 86
counts of fraud and money laundering in 2009. His 27-year
sentence recently was commuted by President Trump.
Agri Processors had, at the core of its business model, the
exploitation of undocumented workers. Half their workers,
almost 400 of them, were not authorized. Workers alleged the
company fostered a hostile workplace environment that included
12-hour shifts without overtime pay, exposure to dangerous
chemicals, sexual harassment, and child labor. A truck driver
at Agri Processor's Brooklyn warehouse told reporters, ``We
were treated like garbage, and if we said anything, we got
fired immediately.''
Judge Kavanaugh, you bent over backward to take the
company's side against these workers. In a 2008 D.C. Circuit
case, Agri Processor v. NLRB, your dissent argued that this
company's workers should be prohibited from unionizing because
they did not fit your definition of an ``employee.'' To reach
this conclusion, you imported a definition of ``employee'' from
a totally different statute. You ignored the plain language of
the controlling statute, the National Labor Relations Act,
which has a broad definition of ``employee,'' as well as
binding Supreme Court precedent. The majority in this case--and
you were a dissenter--the majority in this case noted that
their opinion stuck to the text of the National Labor Relations
Act and to the 1986 Immigration Reform and Control Act, which
did not amend the National Labor Relations Act.
They said that your dissent, these other judges said about
your dissent, would, quote, ``abandon the text of the
controlling statute and lead to an absurd result.'' The
majority in this decision included one Republican- and one
Democratic-appointed judge.
Judge Kavanaugh, you claim over and over again, to be a
contextualist, to be carefully weighing every word of a
statute. So why did you go out of your way to interpret the
word ``employee'' in a way that benefited this horrible
business and disadvantaged these exploited workers? Why did you
not stick to the plain language of the controlling statute and
the binding Supreme Court precedent?
Judge Kavanaugh. Because the Supreme Court precedent
compelled me to reach the result that I reached, and here is
why, Senator. Let me explain.
The Supreme Court had a case in 1984 called the Sure-Tan
decision. The Sure-Tan decision considered the interaction of
the National Labor Relations Act and the immigration laws. What
the Supreme Court did in Sure-Tan is, had this question and
said it is at that time permissible to consider an immigrant
unlawfully in the country as an employee under the National
Labor Relations Act. In Part 2(b) of the opinion--you have to
read Part 2(b) of the opinion, of the Supreme Court decision.
If you read Part 2(b) of the opinion, the Court then goes on to
say that because the immigration laws do not prohibit
employment of people unlawfully in the country, it makes clear,
the Supreme Court makes clear--this is when it is being
considered in Congress in '84 and ends up in the '86 Act. The
Court makes clear, as I read Part 2(b), and I think I am
correct on this, that if the immigration laws did prohibit
employment of someone here unlawfully in the country, then that
would also mean that they cannot vote in the union election.
So what I was doing there, Senator, was all about
precedent. I read that and, in my opinion, if you look at the
dissenting opinion, I really parsed this very carefully, and I
went deep into this case. So I went back and pulled from the
Sure-Tan case. I asked for the Marshall papers, the Thurgood
Marshall papers from the library to read all the memos that
went back and forth among the Justices in the Sure-Tan case. I
cited the oral argument to make sure that what I was reading in
there actually reflected what had been going on in the Supreme
Court, and it is quite clear from the oral argument they were
aware that the immigration law was about to be changed, and
they were aware of the interaction between the labor law and
the immigration law.
So I think I stand by what I wrote then, and I think I
correctly analyzed Part 2(b). Now, Senator----
Senator Durbin. I have to--I am running out of time here.
Judge Kavanaugh. I know, but if it ends--if the Supreme
Court Sure-Tan opinion had ended at Part 2(a), 100 percent
would agree with you and my decision would have been different.
If you read Part 2(b), I think you see----
Senator Durbin. You said earlier today you do not get to
pick and choose which Supreme Court precedent you follow. The
majority in the Agri Processor case was following Supreme Court
precedent. In the Sure-Tan case, the Supreme Court, a 7-to-2
decision, said that undocumented immigrants are employees under
the National Labor Relations Act. I quote: ``Since undocumented
aliens are not among the few groups of workers expressly
exempted by Congress, they plainly come within the broad
statutory definition of employee.'' That is a quote from the
case.
Judge Kavanaugh. That is Part 2(a). You have to go to Part
2(b).
Senator Durbin. Well, hang on. Let me tell you some people
who went to both parts and could not disagree with you more.
Everyone else who looked at this question--the administrative
law judge, the National Labor Relations Board, including
Republican appointees, two Appeals Court Judges, including one
Republican appointee--followed the Supreme Court precedent and
came to the opposite conclusion that you did.
I understand you may have preferred the Sure-Tan dissent,
but you failed to follow Supreme Court precedent. This was a
case where the National Labor Relations Act included those who
were undocumented who could unionize to protect themselves in
the workplace. You went out of your way to dissent all the way
along and make sure they did not, in your view, have that
right, that they did not have that right to unionize.
Judge Kavanaugh. I very respectfully disagree, Senator. And
the reason I disagree is that the Supreme Court did say that
the immigrant was covered under the definition of NLRA. If it
ends there, I am with you 100 percent. But then the Supreme
Court goes on to say that we consider also in resolving this
question that conflict between the National Labor Relations Act
and the immigration laws and makes clear, as I read it, if the
immigration laws had made employment of someone here in the
country unlawfully illegal, then that would be prohibited in
the case. And I went back, like I said. If you look at
Justice--I mean, I quote the oral argument transcript from
Sure-Tan in my dissenting opinion.
Look, I had no agenda in any direction on--I am a judge. So
I am just trying to resolve the precedent----
Senator Durbin. Let me just close. Let me close by saying
this. ``I am just a judge, I just follow precedent.'' Gosh, we
have heard that so often, and I hope it is the case, but we
know that there is much more to your job than that.
Judge Kavanaugh. I agree.
Senator Durbin. The fact that you were a dissenter and
everyone else saw this the other way should give us pause when
you say, ``I am just following precedent.''
Judge Kavanaugh. Well, I respectfully, Senator--that
opinion, I am proud of that opinion because I think it
carefully details the law in that case following the Supreme
Court precedent. And to your point that other judges disagree,
there was a case I had about 10 years ago or 8 years ago called
Papagno. It was a case where I ruled in favor of a criminal
defendant on a restitution matter. Every other court before
that disagreed. I wrote the majority opinion with Judge Edwards
and Judge Griffith. Every other court after us disagreed.
Finally we got to the Supreme Court this year in the Lagos
case, and they agreed with our one opinion, the Papagno
opinion. Just to point out that just because other courts might
have disagreed does not necessarily mean we were necessarily
wrong, because the Supreme Court ultimately decides that.
I understand your questions, and I appreciate them. Thank
you.
Chairman Grassley. Senator Cornyn.
Senator Lee is going to chair while I have another
appointment.
Senator Cornyn. Thank you, Mr. Chairman.
Mr. Chairman, I was grateful that today's hearing, at least
as far as the Committee is concerned, is a lot more dignified
and civil. But unfortunately, some of the hijinks continue even
on the Senate floor. I know that Senator McConnell asked
consent for the Judiciary Committee to continue to meet during
today's session of the Senate. Senator Schumer objected, so
Senator McConnell was left with no option but to adjourn the
Senate and allow the Committee to continue to meet. That is
unfortunate.
So, Judge, I believe we met in the year 2000, and just to
take a little walk down memory lane here, when I was Attorney
General of Texas and had a chance to argue a case in front of
the Supreme Court of the United States, you, Ted Olson, and
Paul Clement, I believe----
Judge Kavanaugh. Yes.
Senator Cornyn [continuing]. Helped me get ready. I regret
you did not have better material to work with.
[Laughter.]
Judge Kavanaugh. It was an honor, Senator. It was an honor.
Senator Cornyn. It was a great experience, an educational
experience. I got to appreciate your skills as a lawyer from
that time and have followed your career closely since, and I am
proud to support your nomination based on my personal knowledge
of your skills and your temperament and your character and your
fidelity to the rule of law.
But I do want to pick one bone with you. This is not unique
to you. Based on that experience, that case, as you may recall,
involved a tradition in the Santa Fe Independent School
District, unfortunately, which was the site of the shooting
here in more recent days. But back then, the practice before
football games was that the students would be able to volunteer
to offer a prayer before the football game. They were not
required to do so. The school did not pick them. They could
offer an inspirational saying or read a poem or anything else.
But that was the practice.
Well, until the ACLU filed suit, and unfortunately it was
held to be unconstitutional and a violation of the
Establishment Clause. I am not going to ask for your opinion
because this issue will likely come back before the Court, but
since I mentioned it to Judge Gorsuch--Justice Gorsuch, I am
going to mention it to you.
The thing that has stuck in my craw for the last 18 years
is the dissent written by Chief Justice Rehnquist which takes
exception to the majority's decision saying they distorted
existing precedent. But he goes on to say, even more disturbing
than its holding is, the tone of the Court's opinion. It
bristles with hostility to all things religious in public life.
Neither the holding nor the tone nor the opinion is faithful to
the meaning of the Establishment Clause when it is recalled
that George Washington himself, at the request of the very
Congress which passed the Bill of Rights, proclaimed ``a day of
public thanks-giving and prayer to be observed by acknowledging
with grateful hearts the many signal favors of Almighty God.''
Since I had you here, I thought I would mention that. I am
not asking for your opinion since likely you will be called
upon to decide cases involving the Establishment Clause in the
future. But since we had that history together, I thought I
would tell you that still sticks in my craw.
Judge Kavanaugh. I understand, Senator. We remember,
certainly, cases I lost--I remember, and they still stick in my
craw too, Senator.
Senator Cornyn. Well, I just marvel that under the First
Amendment, that a variety of voices can speak, and that is
generally a good thing, but it can be about violence, sexism,
it can be about almost anything, but you cannot speak about
religion in a public forum.
Judge Kavanaugh. There have been cases from the Supreme
Court I think in more recent years, cases like the Good News
Club case, cases like the Trinity Lutheran case, cases like the
Town of Greece case where I think the Supreme Court has
recognized the importance, of course, of religious liberty in
the United States, and also has recognized, I think, that
religious speakers, religious people, religious speech is
entitled to a space in the public square and not to be
discriminated against.
I think the Trinity Lutheran case is an important one on
that. The Good News Club case, that is a case where there was
an afterschool program at a school gym, I think, or an
auditorium, and that religious group was excluded, and the
Supreme Court made clear, no, you cannot just exclude the
religious group.
So I think there have been some developments since then in
terms of religious equality and religious liberty that are
important. Those cases are always difficult factually, but the
principle you are espousing, I do think, is reflected in some
more recent Supreme Court precedent.
Senator Cornyn. Well, I will just conclude with this. As I
understand the Constitution, it requires the Government to be
neutral. As Chief Justice Rehnquist said in this case, the
Government demonstrated hostility to religious speech in the
public square. That is just one person's opinion. And again, I
am not asking you for any opinion with regard to----
[Disturbance in the hearing room.]
Senator Cornyn [continuing]. That may come before the
Court.
[Disturbance in the hearing room.]
Senator Cornyn. Mr. Chairman, I hope that time will not be
subtracted from my 30 minutes.
Senator Lee [presiding]. It will not be.
Senator Cornyn. Thank you.
So, Judge Kavanaugh, I am intrigued by your comment that
you made earlier about the role of precedent. We have heard a
lot about precedent. You alluded to this book that you and
others, other judges wrote with Bryan Garner on the law of
judicial precedent. I checked it out. It is 900 pages long, and
I have not read every page of it either.
Judge Kavanaugh. I do not think it is meant--it is not
meant to be read word for word. It is a treatise where you go
to a section that might be on point or something.
Senator Cornyn. But let me just ask you a more basic
question, and then we can work our way into that.
When people go to court, should they expect a different
outcome if the judge was nominated by a Republican from a court
where the judge was nominated by a Democrat?
Judge Kavanaugh. No. That is an important principle of
judicial independence and the judicial role where ``the judge
is umpire'' vision that Chief Justice Roberts articulated, and
I have talked about many times, as critical. When you go to a
baseball game, the umpire is not wearing the uniform of one
team or another, and that is a critical principle.
Senator Cornyn. Well, it strikes me as an important point
given the suggestion that one of the reasons that people have
objected to your nomination--I believe the quote was, you
``have Republican blood flowing in your veins.'' That strikes
me as a strange and bizarre statement.
Judge Kavanaugh. I have been a judge for 12 years, Senator,
with 307 opinions. I am very proud of that record and have been
an independent judge for 12 years. As a judge, you are not a
Republican or Democrat, as a Federal judge.
Senator Cornyn. And you talked a little bit about the
constitutional basis for a judge's obligation to apply existing
precedent. Could you expand on that a little bit more? Because
I think most people are under the impression this is sort of a
discretionary matter and you can sort of cherry pick between
what precedents you decide to follow and which ones you do not
follow.
Judge Kavanaugh. Well, there has been a debate sometimes
about what are the origins of precedent, why do you follow
precedent. And as I see it, there are a number of reasons you
would cite: stability, predictability, impartiality, reliance
interests. But all of those are not mere policies in my view.
As I see it, the system of precedent comes from Article III
itself. When Article III refers to, the judicial power shall be
vested in one Supreme Court and such inferior courts as
Congress shall, from time to time, establish--to my mind the
phrase, ``judicial power.'' You think about, what does that
entail? And you look at the meaning, the meaning at the time of
judicial power, and you look, one source of that is Federalist
78. In Federalist 78, it is well explained that judges make
decisions based on precedent. And precedent, therefore, as I
read ``judicial power,'' has constitutional origins and a
constitutional basis in the text of the Constitution.
Senator Cornyn. And I think you have touched on this as
well. Judges, unlike legislators, do not run for election. You
do not have a platform, ``Vote for me, this is what I will do
if elected into office.''
One of the most important elements of limiting the
important role of judges, I think, under the Constitution is
that you are required to decide a case on a case-by-case basis
rather than issuing some sort of oracle saying, ``Henceforth
the law will be thus,'' assuming you could get eight other
judges on the Team of Nine we talked about to agree with you.
[Disturbance in the hearing room.]
Senator Cornyn. Could you talk about the importance of
deciding cases on a case-by-case basis?
Senator Lee. We will add another 20 seconds.
Senator Cornyn. Thank you.
Judge Kavanaugh. Absolutely, Senator. It is important to
understand, and I think Senator Graham alluded to this as well.
As judges, you do not just issue policies or issue opinions out
of the blue. You decide, as Article III says, cases and
controversies, and that means there is a process. Litigants
come into the Federal trial court, for example, and litigate
against one another, and there is a process there, a trial or a
summary judgment motion. The district judge renders a decision.
Then that comes up to the court of appeals in my case, and
there is briefing and oral argument. I like to say there is a
process. I like to say process protects you. That is one of the
things I always like to keep in mind.
You go through a process to help make the decisions, a
deliberative process, and we have a process. Judges are very
focused on process and having that oral argument, having the
briefing, and then talking to your colleagues. You change your
mind. Senator, you have been a judge, of course. You change
your mind sometimes based on the comments of colleagues. So
that process is important.
Then to your point about how you are deciding that case,
you write an opinion. You are not trying to resolve every issue
imaginable in the opinion. You are trying to resolve this case
under the principles and precedents, the text of the law in
question, the text of the statute in question, and decide that
case or controversy. That is how judges build up a system of
precedent over time, by deciding one case at a time and not
trying to do more than they can or more than they should.
[Disturbance in the hearing room.]
Senator Cornyn. Judge, do you not think that what you have
described for us in deciding cases on a case-by-case basis has
an important foundation in fairness to the litigants, the
parties that come to your court? Because how would somebody
feel if they know you have already announced, in all cases that
have to do with subject X, I have made up my mind, I do not
care what the facts are? Is that not unfair to the litigants?
Judge Kavanaugh. It can be, Senator, at least where an
over-broad ruling may resolve things that people who are
affected by it may have thought that, well, I was not part of
that case; why am I now affected in a particular way?
I think one of the things I can say about how I have tried
to write my opinions, the 300 opinions, is that I am always
concerned about----
[Disturbance in the hearing room.]
Judge Kavanaugh. I am always concerned about unintended
consequences. This is one of the reasons I always go through so
many drafts of my opinions and really work through them, is
even just a sloppy footnote or an ambiguous word in an
opinion--it is true when you are drafting laws here too, but--
--
[Disturbance in the hearing room.]
Judge Kavanaugh. You are concerned about unintended
consequences, which is why it is so important to be clear in
the opinions and to be exactly precise and not----
[Disturbance in the hearing room.]
Judge Kavanaugh. To decide too much.
[Disturbance in the hearing room.]
Senator Cornyn. Judge, let me ask you to tell us a little
bit about September 11, 2001. Where were you when you heard
that the planes hit the World Trade Center, and in Washington,
DC, another plane hit the Pentagon here?
Judge Kavanaugh. I remember I was in the West Wing when
they hit the second tower. I remember that, up in the upstairs
Counsel's office, with a couple of other people in the
Counsel's office. And then we were ushered downstairs and then
told to get out, run out, because there was fear, as we later
learned, about Flight 93. I do not know whether it was headed
to the Capitol or the White House or some other target, of
course. And the heroes of Flight 93 saved so many Americans, a
sacrifice that we still, of course, all celebrate in the sense
of celebrating their lives and their heroism for saving all of
us here in Washington. But I ended up out in Lafayette Park
with the rest of the staff, bewildered.
It changed America, it changed the world, it changed the
Presidency, it changed Congress, it changed the course, all the
issues that came before us. It was a new kind of war, as
President Bush described, with an enemy that did not wear
uniforms and that would attack civilians. So new kinds of laws
had to be considered in Congress, had to work through that. And
President Bush had to focus so intently. As I have said before,
my remembrance of September 12, his basic mentality of this
will not happen again. Having traveled with him from 2003 to
2006 everywhere as staff secretary and seeing him up close, I
still think every day I was with him during those years, every
morning when he got up, it was still September 12, 2001, this
will not happen again.
And to see that focus--of course, he had to do all the
other things of the Presidency and all the other legislative
and regulatory and ceremonial aspects. But he was so focused on
that, and I am sure that has been true of the succeeding
Presidents as well, because the threat still exists, of course.
Senator Cornyn. Well, as we came to learn, Osama bin
Laden--and al-Qaeda--was responsible for that attack and has
now morphed into other organizations like ISIS and the like.
But I want to ask you, you had to then sit in judgment
later on in a case, the Hamdan case, which you alluded to
earlier, where the defendant was Osama bin Laden's personal
bodyguard and driver. He was captured by U.S. forces in
Afghanistan after 9/11 and detained in Guantanamo Bay. He
subsequently went through a military tribunal, and then that
case was appealed to your court.
Just correct me if I am wrong, but notwithstanding the
experience that you and everybody you cared about, having been
through this terrible travesty of 9/11, you ruled in favor of
Osama bin Laden's bodyguard and driver; correct?
Judge Kavanaugh. That is correct. I wrote the majority
opinion.
Senator Cornyn. How could you do that? How could you
possibly do that?
Judge Kavanaugh. The rule of law applies to all who come
before the courts of the United States.
Senator Cornyn. Even an enemy combatant?
Judge Kavanaugh. Equal justice under law. Everyone is
entitled to----
Senator Cornyn. Even a non-citizen?
Judge Kavanaugh. Yes. Non-citizens who are tried in U.S.
courts have constitutional rights. And really, my model on
that, my judicial model for thinking about something like that,
because I thought about what you are asking about, Justice
Jackson, of course, Robert Jackson, who had been Franklin
Roosevelt's Attorney General, in the Korematsu case, even
though that was one of President Roosevelt's policies, the
majority opinion now overruled, but Justice Jackson dissented
and ruled against the Roosevelt policy. Justices Clark and
Burton, two appointees of President Truman, are the two
deciding votes in Youngstown Steel. That is a 6-to-3 decision.
Those two are the deciding votes, therefore. They both were
appointees of President Truman, and it is wartime against
Korea. They get to the Supreme Court. They are the deciding
votes in the Youngstown Steel case, which was an extraordinary
national moment, one of the great moments.
So your conception of the role of the judge is that it is
about the law. It is distinct from policy, and our judiciary
depends on having people in it, and we are fortunate to have a
wonderful Federal judiciary, people in it who understand the
difference between law and policy and are willing to apply
principles of equal justice under law to anyone who comes
before the court. Even the most unpopular possible defendant is
still entitled to due process and the rule of law, and I have
tried to ensure that as a judge.
Senator Cornyn. Well, it is hard for me to imagine a more
unpopular defendant than Osama bin Laden's driver and personal
bodyguard. So I find the suggestion that somehow you are
prejudiced against the small guy in favor of the big guy, or
that you are picking and choosing who you are going to render
judgment in favor of based on something other than the rule of
law, I think this answers that question conclusively for me,
the fact that you could separate yourself from the emotional
involvement you had, along with so many people you worked
closely with in the White House on September 11, and you could
then as a judge, after you put on the black robe and take the
oath of office, you could then render a judgment in favor of
Osama bin Laden's bodyguard and driver because you applied the
law equally to everybody that comes to your court.
Let me allude to something I think Senator Sasse was
eloquently speaking about yesterday in terms of the separation
of powers, a very important aspect of our constitutional system
and one that I know you have dealt with often on the D.C.
Circuit Court of Appeals, and that has to do with what I have
read some judges talk about, some constitutional scholars talk
about, a conversation between the branches.
In other words, when the D.C. Circuit Court or the Supreme
Court decides a case, they finally decide that case, but they
do not finally decide what the policy is for the United States
or the American people; correct?
Judge Kavanaugh. That is correct, Senator. I think one of
the important things that judges can do is to adhere, of
course, to the laws passed by Congress, but then in writing the
opinion make clear--and I have done this before, and a lot of
my colleagues do this--is that perhaps the statute needs
updating. But if it does, that is the role of Congress to
update the statute. Or sometimes there will be a hole in a
statute or something that seems unintended in a statute, and to
alert Congress to that.
Chief Judge Katzmann of the Second Circuit, who is a great
judge I serve with on the Judicial Branch Committee, which is
appointed by the Chief Justice, he has written a book about
statutory interpretation, but he has also been the leader of a
project to make sure that Congress is alerted to potential
statutory issues that look like they might have been things
that perhaps Congress would not have intended, or at least
Congress would want brought to its attention so it could fix.
[Disturbance in the hearing room.]
Judge Kavanaugh. So that project has been very successful.
That is Chief Judge Katzmann's project, and it is one--even
without that project, how you write your opinion, I think, is
important. We do not update the statutes. You update the
statutes. But it is good for us to write our opinions in a way
that points out potential issues that Congress might want to be
aware of.
Senator Cornyn. And that is part of the conversation
between the two co-equal branches of Government.
Judge Kavanaugh. Absolutely, and I think that is an
important dialogue to have between Congress and the judiciary,
and the back-and-forth is very important on that front, and I
think that is one thing I am always thinking about in my
opinions. You write the laws, but if the law looks like there
is some issue with it, some flaw or something that might be an
unintended consequence, in the opinion you can identify it, and
that can be something that Congress can turn its attention to
sometimes, because I am well aware that statutory drafting is a
very difficult process.
It is something that I think judges actually need to be
more aware of, how difficult the legislative drafting process
is. Even if you are doing it as one person, it would be
difficult. But then you are doing it as a collective body, and
then you are doing it with the House and with the President
involved. There are a lot of people in it, and it is hard to
have, with all the compromises inherent in that, hard to have
crystal clarity on every possible topic.
So as judges I think, number one, we have to recognize the
process that you go through as legislators. That means adhere
to the compromises that are made, the text as written. But also
when we write our opinions, if there seems to be something that
is not working out, it is appropriate I think for judges to
point that out in their opinions.
Senator Cornyn. And, of course, even if it is the
constitutional basis for your opinion, that can be changed by
constitutional amendment. Correct?
Judge Kavanaugh. Well, that is correct as well. The Framers
did not think the Constitution was perfect by any stretch. They
knew it had imperfections. For starters, the original
Constitution did not have the Bill of Rights, the first 10
Amendments. So there was a lot of discussion at the ratifying
conventions about having a Bill of Rights, and that was quickly
done in the First Congress in New York in 1789, of course, by
James Madison taking the lead on that.
But so, too, they did not think it was perfect. They have
an amendment process that specified in Article V of the
Constitution, and that amendment process was intended to be
used, and we have seen it used to correct structural issues:
the Twelfth Amendment on Presidential elections; the
Seventeenth Amendment, of course, as you all know well, on
Senate elections; the Twenty-second Amendment, which limited
Presidents to only two terms; the Twenty-fifth Amendment, which
corrected some issues with respect to the Vice Presidency. So
too, of course, the Thirteenth, Fourteenth, and Fifteenth
Amendments, the most important amendments in the Constitution
in many respects, because it brought the promise of racial
equality that had been denied at the time of the original
Constitution into the text of the Constitution.
So the job of the people, which is the Congress and the
State legislatures, is to amend the Constitution. It is not the
job of judges to do that on our own. Obviously, that is a basic
divide of constitutional responsibility that is set forth right
in the text of Article V of the Constitution.
Senator Cornyn. I cannot remember who said it, I think
Justice Jackson perhaps, who said the Supreme Court is not
final because it is always right; it is right because it is
final, or words to that effect. But I always thought the more I
got into that, the more I disagreed with that, because it is a
conversation between the branches, and if the American people
believe that it is a constitutional matter, the way the
Constitution is being interpreted, it is within our power as
the American people to change our own Constitution by
amendment. There are provisions in the Constitution itself to
do that.
It is hard, and it should be hard, but ultimately the
authority that we delegate to the Government finds its origin
in the consent of the governed. It is not something dictated to
us from on high, from the marble palace or somewhere like that
here in Washington. It is ultimately our Government, our
responsibility, our authority that provides legitimacy to the
Government itself. Do you agree with that?
Judge Kavanaugh. I agree, of course, with that, Senator.
The people, we the people form the Constitution of the United
States and the sovereignty. The people are the ultimate
authority. And you are right about Justice Jackson's line. I
think it is a clever line, but ultimately I agree with you. I
have always had a little bit of a problem with that line, we
are infallible because we are final. No, both parts of that are
wrong in some sense, because I never want to think of the Court
as infallible, and I also never want to think of it necessarily
in the way you are describing either, because the people always
have an ability to correct through the amendment process.
Now, the amendment process is hard and has not been used as
much in recent decades. But, of course, at the beginning of the
country the amendments were critical, and Dred Scott, of
course, the awful example of just a horrific Supreme Court
decision that is then corrected in part, at least on paper, in
the Fourteenth Amendment--the Thirteenth and Fourteenth
Amendments, and that is an important example, I think, probably
the best example, frankly, of the point you are making about
the people being able to respond to a horrific decision of the
Supreme Court.
Senator Cornyn. Well, in fairness to Justice Jackson, maybe
he was thinking, as I originally thought, about the expression
as being binding on lower court judges, trial judges, appellate
court judges, and the Supreme Court does have the final word in
that food chain of the judiciary, but not in terms of the
fundamental authority of the American people to decide what
laws should govern them.
Judge Kavanaugh. I think that is probably right, Senator. I
do not want to be--Justice Jackson is one of our greatest
Justices. So to question anything, whether it is the Korematsu
dissent or Barnett or Youngstown or Morissette on mens rea,
Justice Jackson wrote some of the greatest opinions, and the
example of judicial independence as well.
But on that one line, I take your point.
Senator Cornyn. Let me just ask you one last question. We
talked a lot about the role of precedent, and Senator Feinstein
talked about stare decisis, that basically cases that have been
decided provide the precedent for future cases.
But on occasion, the Supreme Court has decided that its
decisions were just wrong and has chosen to overrule those
previous decisions. I am thinking of Plessy v. Ferguson, for
example, which was a scar on our body politic that said that
separate but equal educational facilities met the
constitutional requirement of the Fourteenth Amendment.
But can you talk about the extraordinary circumstances
under which the Supreme Court would revisit a precedent?
Judge Kavanaugh. Well, Brown v. Board of Education, of
course, overturned Plessy. Plessy was wrong the day it was
decided. It was inconsistent with the text and meaning of the
Fourteenth Amendment, which guaranteed equal protection.
The Supreme Court in Strauder v. West Virginia in 1880, a
jury selection case, had said, what is this amendment but that
the law shall be the same for the Black and the White? And the
Supreme Court, unfortunately, backtracked from that clear
principle in the Plessy decision, and a horrific decision which
allowed ``separate but equal,'' and then Brown v. Board
corrected that in 1954, of course, corrected it on paper. It is
still decades, and we are still seeking to achieve racial
equality. The long march for racial equality is not over.
But Brown v. Board, as I have said publicly many times
before, the single greatest moment in Supreme Court history,
by, in so many ways, the unanimity which Chief Justice Warren
achieved, which is a great moment; the fact that it lived up to
the text of the Equal Protection Clause; the fact that it
understood the real-world consequences of the segregation on
the African-American students who were segregated into other
schools and stamped with the badge of inferiority; that moment
in Brown v. Board of Education is so critical to remember, and
the opinion is so inspirational. I encourage everyone to--it is
a relatively short opinion, but it is very powerful. It is very
focused on the text of the Equal Protection Clause--and
correcting that awful precedent of Plessy v. Ferguson--a great
example of leadership.
And just the last point I will mention on process, they
knew they were going to face popular backlash. They knew they
were--but they still did it. So that shows independence and
fortitude. But they also had re-argument, which I think is a
good--they had argument originally and then decided there was a
lot going on and maybe not everyone is seeing it the same way
as the Justices, and they had a re-argument. I think it is a
good lesson on process protecting us, and keep working at it
and keep working at it and see--you know, the Team of Nine that
I mentioned yesterday, and mentioned today, keep working at it
as a Team of Nine, and they came out unanimous. Chief Justice
Warren, thankfully, led the Court in that decision. That was a
great moment, the greatest moment in Supreme Court history.
Senator Cornyn. Thank you, Judge.
Senator Lee. Thank you. I awarded two additional minutes to
Senator Cornyn because he was interrupted, by my count, 5 times
during his testimony.
Senator Whitehouse is next.
Senator Whitehouse. Thank you. Good afternoon, Judge
Kavanaugh.
Judge Kavanaugh. Thank you, Senator.
Senator Whitehouse. Are you good for another half hour?
Judge Kavanaugh. I am good.
Senator Whitehouse. All right, good. In my office, you told
me that you could provide no assurance to me that you would
uphold a statute requiring insurance companies to provide
coverage for pre-existing medical conditions. Is that still
true, here in public?
Judge Kavanaugh. Well, I think, Senator, it is important to
understand the principle at play here. The principle----
Senator Whitehouse. We have talked a lot about that, but is
the statement you made--have I recited it accurately, and is it
still true today, that you can give no assurance that you would
uphold----
Judge Kavanaugh. Well, Senator, judges like to explain
their decisions.
Senator Whitehouse. Yep, but I get to ask the questions.
Usually you get to ask the questions because you are the
appellate judge, but today for half an hour I get to. So, is it
still true that you can give no assurance that you would uphold
a statute requiring insurance companies to cover pre-existing
medical conditions?
Judge Kavanaugh. So, to prepare for this moment, I went
back and read----
Senator Whitehouse. I really would like you to be as
careful with your time as you can, because I have a very
limited amount of time with you. So, the quicker you can get to
the answer--it could be as simple as ``yes'' or ``no.''
Judge Kavanaugh. But I can enhance your understanding of my
answer if I explain it, I think.
Senator Whitehouse. I really just want your answer on the
record. I think I am pretty capable of understanding it on my
own.
Judge Kavanaugh. But, well, then everyone to understand my
answer. So, there is nominee precedent of how Justices and
nominees in my position have answered in the past. I will be
succinct, if I can. And all eight sitting Justices----
Senator Whitehouse. I know. You have actually said this in
the hearing, so people who are listening and interested have
actually already heard you say this.
Judge Kavanaugh. Well, I think it is really important, so I
want to----
Senator Whitehouse. Say it again, then.
Judge Kavanaugh. I want to underscore it. All eight sitting
Justices of the Supreme Court have made clear that it would be
inconsistent with judicial independence, rooted in Article III,
to provide answers on cases or issues that could come before
us. Justice Ginsburg, ``no hints, forecasts.'' Justice Kagan,
talking about precedent, ``no thumbs are up or down.''
And I went back. Justice Thurgood Marshall was asked
repeatedly in his hearing, ``What do you think about Miranda
?'' ``What do you think about Miranda ?'' ``What do you think
about Miranda ? ''
Senator Whitehouse. Got it. Everybody else does it, and
your answer is still ``no.''
Judge Kavanaugh. So, the reason everyone else does it,
though, is rooted in judicial independence and my respect for
precedent. So, it is a combination of my respect for precedent,
nominee precedent, and my respect for judicial independence.
So, I cannot give assurances on a specific hypothetical.
Senator Whitehouse. Okay, thank you. Let me go on to
another subject, which is executive privilege. Executive
privilege is a principle that is founded in the Constitution in
the separation of powers, correct?
Judge Kavanaugh. The Supreme Court so ruled in the United
States v. Richard Nixon case. So, that was the first--the key
issue in United States----
Senator Whitehouse. That is all right. I just needed the
answer to the question, and you have answered it.
Judge Kavanaugh. But the source is important.
Senator Whitehouse. As a privilege, it needs to be
asserted, does it not? That is true of privileges generally?
Judge Kavanaugh. I do not know where you are--where this is
going, but the----
Senator Whitehouse. It is a pretty straightforward
question. Do privileges not need to be asserted in order to
apply?
Judge Kavanaugh. Well, privileges are recognized.
Senator Whitehouse. Once they are asserted.
Judge Kavanaugh. I think as a general proposition.
Senator Whitehouse. Fair enough. I am only asking a general
proposition.
Judge Kavanaugh. Yes, in attorney-client privilege, you
would assert the attorney-client privilege.
Senator Whitehouse. Yes, assert it.
Judge Kavanaugh. Yes.
Senator Whitehouse. And who asserts executive privilege?
Judge Kavanaugh. Ordinarily--well, that is a complicated
question, Senator, actually. That----
Senator Whitehouse. Who does it come back to? Ultimately,
who asserts executive privilege?
Judge Kavanaugh. So, it depends what you are talking about.
So, what kind of executive privilege document you are talking
about, it depends. In my experience----
Senator Whitehouse. Ultimately, it is the President.
Judge Kavanaugh. There is not--there is not as much
precedent on that. There is some. The Supreme Court, this was--
the Supreme Court in the United States v. Richard Nixon----
Senator Whitehouse. Is it not fair to say that executive
privilege belongs to the President of the United States, the
Chief Executive?
Judge Kavanaugh. Yes, it can also belong to the former
President in the case of former Presidential records. That is
one caveat I want to put on that.
Senator Whitehouse. Okay, fair caveat. Is the assertion of
executive privilege by the President subject to judicial
review?
Judge Kavanaugh. Well, of course, because under the
precedent, United States v. Richard Nixon----
Senator Whitehouse. Yes.
Judge Kavanaugh. Said two things. It said, one, that
executive privilege is constitutionally rooted. The special
prosecutor in that case argued that actually there was no such
thing as executive privilege, and the Supreme Court rejected
that argument and held that the executive privilege is rooted
in the separation of powers and in Article II. But second----
Senator Whitehouse. The reason I am asking does not have
much to do with you. It goes back to a point that we were
talking about earlier in the hearing, which is that we have
received hundreds and hundreds of pages of documents of your
record that looked like this. They both say ``committee
confidential'' across them at an angle, and then across the
front they say ``constitutional privilege.'' And as a Member of
the Senate--this is not a question, I am speaking to my
colleagues--I find myself in a quandary here about being denied
those particular documents because I cannot find any assertion
of the privilege.
These documents just suddenly appeared and somebody had put
``constitutional privilege'' on the page and wiped out all the
text that was on the page. And my understanding is that there
is ordinarily a process for getting to that determination that
allows for ultimately a judicial review, and we have failed to
get subpoenas out of the Committee for documents, so we cannot
trigger it that way. And there is no apparent assertion of
executive privilege that I can find in the record of how this
particular paper got here.
So, I just wanted to establish some of the basic ground
rules of executive privilege with you because I think we agree
on that. I think that is basically commonly agreed and put that
into the context of what we are looking at, and particularly
with respect to Chairman Leahy's questioning earlier. If some
of the documents he is looking for have now been protected by
this non-assertion assertion of executive privilege, we have a
problem. It is a continuing problem in the Committee. We have
had other witnesses come and do non-assertion assertions of
executive privilege, and so I am sorry to drag Committee
business before you, but I do think it is important that we try
to get this right.
Judge Kavanaugh. Can I make one addendum based on my
experience from the time, which is I do not think formal
assertions usually occur until after there has been a subpoena,
at least from my time working in the Bush----
Senator Whitehouse. Which is why not being able to get a
subpoena kind of bolixes up the process, yes indeed. The role
of the Federalist Society in bringing you here today has been
of interest to me. As you know, we spoke about it quite a lot
when you and I met in my office. Mr. McGahn, who is sitting
very patiently behind you--I can see him over your shoulder----
Judge Kavanaugh. Yes.
Senator Whitehouse [continuing]. Has said that the
Federalist Society was insourced into the White House to make
these recommendations, specifically to make the recommendation
that you should be the nominee. You have said this regarding
President Bush, that he thought it was, and I am quoting here,
``improper to give one group, especially a group with interests
in many issues, a preferred or favored position in the
nomination process.'' That was--those were words speaking, I
guess, to the Federalist Society National Lawyers Convention.
On another occasion, you wrote a draft speech for Attorney
General Gonzales or White House Counsel Gonzales--probably
White House Counsel Gonzales--look at the date--to deliver to
the Federalist Society. And you said in that speech, ``As a
matter of constitutional principle, it is simply inappropriate,
we believe, to afford any outside group a quasi-official role
in the President's nomination process.'' How do you square
those comments about the role of the American Bar Association
in the nomination process with the role of the Federalist
Society in your nomination process, assuming that Mr. McGahn
was speaking accurately when he said they had been insourced to
the White House for this process?
Judge Kavanaugh. Right. So, I can speak to the ABA part of
that. President Bush in 2001 had to make a decision of how the
ABA should play its usual rating role with respect to nominees,
and the ABA takes files, amicus briefs, and takes policy
positions on issues. And, therefore, after some deliberation,
it was decided that there was nothing wrong with the ABA rating
the nominees, but to give an organization that files amicus
briefs and takes policy positions a preferred role in the
constitutional nomination process was unfair in some ways and
favoring----
Senator Whitehouse. Would it be a fair description of the
Federalist Society's role in your selection as the nominee to
say that it was preferred over other groups?
Judge Kavanaugh. Well, my experience was when Justice
Kennedy retired on the Wednesday, Mr. McGahn called me later
that afternoon, said we need to talk on Friday. He came over to
my office on Friday evening or late afternoon. We talked for
three or 4 hours, interview and going through the usual kinds
of questions you would go through when you are embarking on a
process like this. And then I met with the--interviewed with
the President on Monday morning, interviewed----
Senator Whitehouse. So, is it your testimony that you do
not what the role of the Federalist Society was in your
selection?
Judge Kavanaugh. My experience--my personal experience and
what I know is that President Trump made the decision for
starters. President Trump made the nomination, and I know he,
as I explained yesterday, I know he spent a lot of time in
those 12 days on this issue, and I was aware of that. I also
know that Mr. McGahn was directly involved with me and spent a
lot of time on it. And I also know that the Vice President----
Senator Whitehouse. But you have no knowledge to share with
us today about the role of the Federalist Society and how they
were insourced into the White House. That is a mystery to you
as well as to us.
Judge Kavanaugh. I am not sure what Mr. McGahn meant. I
think by that comment--I think Federalist Society members are--
the lawyers in the administration are Federalist Society
members, and so it should not be a surprise that--because it is
an organization----
Senator Whitehouse. Leonard Leo's role specifically from
the Federalist Society?
Judge Kavanaugh. I do not know.
Senator Whitehouse. Okay.
Judge Kavanaugh. I do not know the specifics.
Senator Whitehouse. Well, let us go from specifics to
generals, and let me put up a graphic that shows some of the
folks who fund the Federalist Society.
Senator Whitehouse. It is a pretty significant group of
people who tend to share very conservative and pro-corporate
points of view. It reflects that at least 14 of the donors are
actually anonymous, which is a very unfortunate part of our
current political world. Actually, probably more than that
because Donors Trust here is an organization whose sole purpose
is to launder the identity off of big donors so that a
recipient of funds can report that they got the money from
Donors Trust rather than the true party in interest. So, we do
now know how much anonymous money flowed through them, but I
would contend that this is a pretty strong group of right-wing,
conservative, pro-corporate funders.
And presuming that to be true, should that give you or
anyone in this process pause that groups like this may have had
such a significant role in selecting you to be in this seat
today?
Judge Kavanaugh. Senator, Mr. McGahn was the one who
contacted me. I interviewed with the President, and I know the
President was--I am the President's nominee. He was directly
involved in making that decision. I am sure he consulted with
Mr. McGahn and others. I know he consulted widely with a lot of
people to get input on the--very widely to get input on the--at
least the people who were the finalists. So, that part of it,
my 12-day experience, was with the White House Counsel's Office
and the President and Vice President, too.
Senator Whitehouse. Okay. So----
Judge Kavanaugh. And I also do not--I am not familiar with
all the----
Senator Whitehouse. Whatever the role of the Federalist
Society was in all of this, it was, and there is plenty of
reporting. We do not need to litigate that. Between us, you do
not know is what you have testified, and that is fine.
Judge Kavanaugh. On my process, and, again, yes.
Senator Whitehouse. But you are fairly familiar with the
process generally because you used to run it in the Bush White
House or have a significant role in it, the process of judicial
nomination selection. Judicial nominee selection, correct? You
have been inside that machine.
Judge Kavanaugh. I did not run it. Judge Gonzales, when I
was in the Counsel's Office, was the Counsel. He----
Senator Whitehouse. But you have been inside the process.
Judge Kavanaugh. I have--I have been inside the process,
yes.
Senator Whitehouse. So, the next thing that happens going
forward is that we see the Judicial Crisis Network showing up,
and they spend millions and millions and millions and millions
of dollars to run ads urging Senators to support you. Now, I do
not know whether we can show that those were the same funders
because they are engaged in what is called, as you know, dark
money funding. They do not report their donors. But I would be
prepared to make a very substantial guess that there is
enormous overlap between the funders of the Judicial Crisis
Network campaign for your confirmation and the Federalist
Society donor group, to the extent that we are aware of it
since so many of them are anonymous.
Hypothetically, should the American people have concern
about the role of very, very big spenders and influencers doing
things like being involved in the selection of a Supreme Court
nominee and running dark money campaigns to support the
confirmation of a nominee? Is there any cause for concern there
as a general proposition?
Judge Kavanaugh. Senator, there are a lot of premises in
your question that I am not sure about.
Senator Whitehouse. I am not asking you accept the premises
as true. I am asking it as a hypothetical.
Judge Kavanaugh. Well, I----
Senator Whitehouse. If there were very, very significant
big special interest funding behind the organization that was
responsible for selecting you and recommending to the President
that he nominate you, and again from a very similar group in
supporting the dark money campaigns that are being run on your
behalf for your confirmation, would that be a matter of
concern, or is that all just fine and we should not even care
about getting the answers?
Judge Kavanaugh. So, two things, Senator. One is, I have
described the process I went through with Mr. McGahn, the
President, and the Vice President----
Senator Whitehouse. Yes.
Judge Kavanaugh. And the selection. And that is what I know
about my process. Two, on the ads, there were a lot of ads
against me, as well, and I have seen those, and, you know, our
family has seen those. And then there were ads for me, and we
have seen those, too. And as Chief Justice Roberts said in his
hearing, it is a free country, and there are ads for and
against, and obviously we--as Senator Durbin said----
Senator Whitehouse. Should we as citizens know who they
are, who is funding the ads, just as a matter of citizenship?
Is that----
Judge Kavanaugh. Well, I think that is, first and foremost,
a policy question for the Congress to decide on what disclosure
requirements it wants to put in. And then if those disclosure
requirements were put in or State governments could try to make
disclosure requirements. I think, some have tried, and then
there would undoubtedly be challenges to that, and what is the
First Amendment implications of that. And that would come to a
court, and I would keep an open mind on that case under the
precedent and First Amendment law, and we would think about
that.
The policy question, I think, is really for Congress in the
first place to determine, assess, study exactly what kind of
disclosure requirements should be in place.
Senator Whitehouse. Yes.
Judge Kavanaugh. I understand----
Senator Whitehouse. The potential hazard there is that the
unleashed power of unlimited political dark money then becomes
like a ratchet, the obstacle to solving that problem. And I
hope you can understand that as a matter of political
principle.
Judge Kavanaugh. I do understand the concerns about money
in the political system. When I worked for--and the time it
takes all of you and when I worked for President Bush in the
2004--2003-2004 timeframe, for example, and how many
fundraisers he had to do, and going back to the September 11th
point and the time and burdens on the Presidency, he had to do
a lot of fundraisers. Running for President while being
President----
Senator Whitehouse. It has gotten a lot easier since now
you can just get a huge special interest to set up a 501(c)(4)
and drop tens of millions of dollars in, and it is [snapping of
fingers] like that, and the public does not know who is behind
it. Only the--a very few people are in on what the deal is. So,
it has gotten easier since President Bush, but not better.
Judge Kavanaugh. Well, I think for some Members,
particularly in the House, if you have a--if you are running
for re-election and a third party group comes in against you,
and you do not have--you have to go out fundraising and spend
even more time, I think--at least as I understand it, that is
part of the concern I have heard over the years just generally,
is the time that each of you has to spend and the Members of
the House have to spend.
Senator Whitehouse. So, let me just continue on forward
through this problem of funders. On the Court, on the D.C.
Circuit and potentially on the Supreme Court, you will often
see cases brought by groups, like, for instance, the Pacific
Legal Foundation. Are you familiar with that group?
Judge Kavanaugh. I have seen briefs by the Pacific Legal
Foundation.
Senator Whitehouse. Do you know what they do?
Judge Kavanaugh. I will take your description.
Senator Whitehouse. Okay. My description is that they get
money from right-wing conservative and corporate interests, and
they look for cases around the country that they believe they
can use to bring arguments before the Court. I argued against
them in the Supreme Court at one point. They came all the way
across the country to the shores of Winnapaug Pond, Rhode
Island, to hire a client whose case they could take to the
Supreme Court with a purpose to make a point. And they are not
alone in doing this. There are a number of similar groups who
perform this service.
And it causes me to think that sometimes the true party in
interest is actually not the named party before the Court, but
rather the legal group that has hired the client and brought
them to the Court more or less as a prop in order to make
arguments trying to direct the Court in a particular direction.
Is that an unreasonable concern for us to have about the
process?
Judge Kavanaugh. Senator, I think there are public interest
litigation groups spanning the ideological spectrum that look
for cases to weigh in on as amicus briefs--in amicus briefs,
and there are--also, of course, there have been historically--
you look for--as I understand it, people try to identify
suitable plaintiffs to challenge--and this, again, is across
the entire ideological spectrum.
Senator Whitehouse. What are the signals that that has
gotten out of hand, that there is something rotten in Denmark?
Judge Kavanaugh. That is an interesting question, Senator,
and I think it is an important one, but it is not one that I
think I have a great answer to.
Senator Whitehouse. Well, let me propose one thought to
you, which is that the Supreme Court at least should fix its
rules on who the amici are who turn up, and require some
disclosure of who is really behind them. The only thing the
Supreme Court requires is to disclose who paid for the brief.
The brief itself is not a very big expense. And so, very
powerful interests can come in behind an amicus group that has
a lovely name like Citizens for Peace and Prosperity and
Puppies, and nobody knows who is really in interest. So, that
would be one thing that I think would be a concern.
Judge Kavanaugh. Can I----
Senator Whitehouse. Another thing that would be a concern,
I would think, would be when you see these special interest
groups rushing out trying to lose cases in order to get before
a friendly court. It really seems improbable that somebody who
has actually tried cases, and who has been around courtrooms a
lot, and who has seen a lot of litigation and a lot of great
litigators, I have never seen anybody once try to lose a
legitimate case. So, in the wake of Justice Alito's signaling
about what then became Friedrichs and Janus, to see these
groups rush out and ask the Court to rule against them so they
can get--hot foot up to the Supreme Court where they expect a
good outcome, to me that--there is just something that does not
seem right about that. That seems to me a little bit like faux
litigation; that there is something else going on other than
real parties having real arguments, and the Supreme Court
ultimately settling properly prepared real disputes.
Do you have any concern about the optics of people rushing
to lose cases below to come before what they think is a
friendly Supreme Court? Does that seem just a little bit odd?
Judge Kavanaugh. I will----
[Disturbance in the hearing room.]
Judge Kavanaugh. Acknowledge, Senator, I am not entirely
familiar with that phenomenon.
Senator Whitehouse. Okay.
Judge Kavanaugh. I would be interested in more----
Senator Whitehouse. I might follow up with you with a, you
know, question for the record to get your more deliberate
thoughts about it.
Judge Kavanaugh. And on your amicus thought, I am
interested in the specifics of your proposal, and certainly if
confirmed, I would----
Senator Whitehouse. Because here is the concern. You know
perfectly well that the Court depends on--as much as anything--
on its reputation. You do not have a purse and you do not have
an army, you stand on your reputation in the judiciary, and you
must not only act justly, but be seen to act justly. And what I
have laid out is a scenario in which very big special interests
have a significant role in funding the group that I believe,
and much reporting says, is responsible for getting you to the
top of the greasy pole of----
[Applause.]
Senator Whitehouse [continuing]. Of nominee selection. And
that the same funders are behind the Judicial Crisis Network
operation that is politically pushing for you.
[Disturbance in the hearing room.]
Senator Whitehouse. That the----
Senator Lee. Senator Whitehouse, we are going to add 1
minute to your time.
[Disturbance in the hearing room.]
Senator Whitehouse. That some portion of the Supreme
Court's docket is made up of strategic cases rather than real
litigation in which somebody has gone out to find an
appropriate plaintiff, hire the client, bring them in. And by
the way, when they are done with them, they fire the client
rather unceremoniously, in my experience. And then when the
proper case comes up, you see this flood of special interest
amici with terrible transparency into who is behind them. In
one case, we tracked one of these big funding groups behind 11
different amicus briefs in the same Supreme Court case. So, the
whole amicus thing begins to have a really rank odor to it.
And then at the end of the day, where things really start
to go haywire, in my view, is when you go back to those 5-to-4
decisions that I talked about yesterday, which I think is the
most heartbreaking thing that I experienced in my political
life. I used to argue in front of appellate courts. It was what
I did, not at your level, but I have been in front of the First
Circuit a lot. I have been in front of the Supreme Court once.
I have been in front of the Rhode Island Supreme Court more
than I can remember. I kind of thought that I was a reasonably
good appellate lawyer, and the idea that our Supreme Court is
deciding as many as 80 cases under Justice Roberts on a pure
partisan divide, I think that has a real signaling problem. And
I hope that you will at least consider that that is something
that the Court needs to cure rather than make worse in order to
continue having its credibility.
I think 80 cases in which all the Republicans go one way
and cannot bring a single Democrat appointee with them, that is
a tough data point. And then when you look at that tough data
point and you see that more than 90 percent of those cases, if
you look behind at the outcome, it had a big--one of the
interests that I mentioned that are very, very important to big
special interests that were implicated. And then when you look
at the win/loss rate in those cases, and it is 100 percent--100
percent--for this crowd of big special interests. And then here
is where you come in at the end. This is the Roberts' Five
majority in those 5-to-4 cases where these conservative groups
have come in to make their pitch. They have won 92 percent of
the time in those 5-to-4 cases.
If you figure they have thrown a couple of long balls, you
know, like Hail Marys, and maybe that is the 8 percent, that is
a hell of a record. And then if you look at your record on the
D.C. Circuit where these conservative groups come in, you line
right up: 91 percent, 92 percent. And I think when you put the
whole saga together, from the big special interests lurking
behind the Federalist Society, to the big special interest
funding, the Judicial Crisis Network, to the big special
interests behind the Pacific Law Foundation and the Washington
Law Foundation, and this little array of, I would say,
strategic litigators who are funded by corporative interests
and right-wing interests, and then these amici, we do not know
who is behind them, and then you see this result, that is a
tableaux that is an alarming one, I think, for the Court. And I
would urge you to think hard about whether that is the
direction you would want to continue to go as an Associate
Justice of that Court, because at some point, those numbers
catch up with you. At some point, as I said yesterday, pattern
is evidence of bias.
Judge Kavanaugh. Senator, a couple of thoughts. First, on
the amicus briefs, at least in my experience, I pay attention
to the quality of the arguments in the briefs, not the identity
of the parties on them. But I take your point on the
disclosure. I would be interested in the specifics of anything
you are talking about disclosure requirements for the Supreme
Court.
Two, I do believe deeply in the idea that we are a Team of
Nine and need to be working together. And I take--I take the
point, too, that it is very important if I am confirmed that I
work with, as best I can, and I will, to maintain the
confidence of all the American people in the independence and
impartiality of the Supreme Court at all times. I am aware that
we ultimately----
[Disturbance in the hearing room.]
Judge Kavanaugh. I am aware everything I do, if I were to
be confirmed, would help affect that, how I decide, what I
write in opinions, how I treat litigants in oral argument,
where I speak, when I speak, where I teach, what I say on the
outside, everything goes into how I behave, what I do in my
volunteer time. Everything goes into the impressions of me as
one part, if I am confirmed, of the Supreme Court. And I take
very seriously your broader point about maintaining confidence
of all the American people and the integrity and impartiality
and independence of the Supreme Court. So, I appreciate that
broader point.
[Disturbance in the hearing room.]
Senator Whitehouse. My time has expired, Chairman. There
will be a second round, correct?
Senator Lee. There will be. I am happy to give you an
additional minute in light of the fact that you had two
additional interruptions, if you would like.
Senator Whitehouse. Well, I--just to make a final point,
actually I think this is not an offshore storm. It has made
landfall when you see polling that shows that 49 percent of
Americans think a corporation will get a fairer shot in the
United States Supreme Court than an individual, seven times as
many that think it is the other way. Now, you still have a few
to work with who are undecided on that question, but the fact
that about half of the American people already believe that
corporations will be treated more fairly in the United States
Supreme Court than human beings will, and the alignment of that
with the facts that I have shown you about the Supreme Court's
record of 80 partisan decisions, 92 percent involving big
corporate special interests and a hundred percent win rate for
them in those cases. I think we are at a tough place right now,
and I think we really need to get back away from that. So,
thank you.
Senator Lee. Thank you, Senator Whitehouse.
Judge Kavanaugh, I want to get back to a couple of
questions that colleague, Senator Whitehouse, was asking you a
minute ago. Just to be clear, did anyone from the Federalist
Society contact you about the vacancy after Justice Kennedy
made his announcement that he would be stepping down from the
Court?
Judge Kavanaugh. No.
Senator Lee. And during the campaign of President Trump, as
I recall, he came out with two different lists, two different
lists of possible Supreme Court nominees. The first list had 11
names on it. The second list, if I am not mistaken, had 21
names on it, which included the previous 11. There were reports
at the time that some outside groups had had some involvement
in that. Were you involved in the first list? Were you included
in the first list?
Judge Kavanaugh. I was not.
Senator Lee. Were you included in the second list?
Judge Kavanaugh. I was not.
Senator Lee. Okay. So, you were--you became under
consideration only after President Trump took office, correct?
Judge Kavanaugh. That is my understanding. That is when I
became identified.
Senator Lee. And after he was staffed up, after he had his
own staff, his own staff within the White House. Within the
Supreme Court, is it the case that there is an aisle, much as
there in the United States Senate or the United States House of
Representatives?
Judge Kavanaugh. There is no aisle or separate caucus rooms
in the Supreme Court, either literally or figuratively, in my
view.
Senator Lee. And under most circumstances in most years, in
recent--in the last decade or so, the number of cases that are
decided on a 5-to-4 margin have been very low, less than 20
percent as far as I can count. Is that roughly consistent with
your understanding?
Judge Kavanaugh. That is.
Senator Lee. Meaning that the configuration of 5-to-4 is
much less common than basically all of the others. It is
dwarfed in comparison to those cases that are decided either 9-
to-0, which is often the biggest contingent, or 8-to-1, or 7-
to-2, or 6-to-3. Now, even in those cases that are decided 5-
to-4, does the fact that it was decided 5-to-4 make it any less
of a legitimate decision? Does it make the judgment any less
binding on the parties in that case?
Judge Kavanaugh. No, it is still a decision of the Court no
matter what the--what the ultimate majority opinion is composed
of.
Senator Lee. And would it behoove a lawyer who is an
officer of a court to call into question the subjective
motivations of a court simply because of the fact that the
Court decided a case on a 5-to-4 basis?
Judge Kavanaugh. Well, if I were a lawyer arguing before
the Supreme Court, I probably would refrain from questioning
the motivations of the Justices. I think each of the Justices,
I know them. They are all committed to the Constitution of the
United States in impartially discharging their duties. Of
course, they have different perspectives on certain issues, but
they are all--I think we are fortunate to have eight
hardworking Justices who have outstanding records and are
committed to the Constitution and committed to the independence
of the judiciary.
Senator Lee. What about in the--in the circuit court, in
the D.C. Circuit where you have served? Would it be fair to
suggest that a case is somehow less legitimately decided if
that case were decided along the lines of the--which President
appointed which member of the D.C. Circuit?
Judge Kavanaugh. The precedent stands either way.
Senator Lee. Thank you. I want to get back to a separation
of powers point that has come up along various lines of
questions asked my colleagues today. Is the Constitution
relegated to the judicial branch? Is it something that is to be
upheld and interpreted only by those who wear black robes?
Judge Kavanaugh. No, Senator. Let me take you through the
process, I think. So, Congress, of course, passes laws, and in
considering laws, Congress will also often assess the possible
constitutionality of the laws passed. So, in the first
instance, when you are considering the passage of a law, you
might assess the First Amendment implications, or if it is
national security, the Fourth Amendment implications, and--or
the due process Fifth Amendment implications.
Senator Lee. And we have all taken our own oath to uphold
the Constitution.
Judge Kavanaugh. Right, so you do your best, and then the
executive branch as well, the constitutional--whether to sign
the bill, for example, for the President, if the President has
a constitutional concern or a policy concern, but the President
could veto the bill for that reason. That has certainly
happened historically. And then when it comes to the Court, of
course, we are--we assess in cases or controversies the
constitutionality of a law that is challenged there in the
context of a specific case or controversy. We do not----
President Washington, George Washington, asked the Supreme
Court for an advisory opinion in his first term on a disputed
legal issue. Actually, it might have been his second term. But
President George Washington asked for an opinion, and the
Supreme Court respectfully wrote back and said, we do not
provide advisory opinions on--we only decide cases or
controversies. Thereby, I think, underscoring the point you are
making with your question, which is constitutionality of laws
is assessed in the----
[Disturbance in the hearing room.]
Judge Kavanaugh. Is assessed in the first instance by
Congress and the Executive.
Senator Lee. So, it would be not--it would not be
inappropriate for us as Members of the legislative branch to
decide to protect something that we believe is constitutionally
protected, regardless of where we might place our bets on what
the courts would do it. If we see a particular right that might
be jeopardized by an act of Congress we are considering, it
would not be inappropriate for us to say, look, we are not sure
exactly how far the Supreme Court will go here. Out of an
abundance of caution, out of respect for the Constitution, we
are going to draw the line more carefully so that we make sure
that we do not step into unconstitutional territory.
Judge Kavanaugh. That has happened historically, and I
think happens today. And that underscores how the Constitution
tilts toward liberty in so many different ways. It tilts toward
liberty because it is hard to pass a law, as you know, with
both Houses and the President, and then not only might be there
be policy objections, but Members of Congress might say, well,
even if the Supreme Court would uphold this law based on my
assessment of the Supreme Court, I have a First Amendment
objection, a Fourth Amendment objection, Eighth Amendment,
Cruel and Punishments Clause objection, Equal Protection
objection, and based on my view of the Constitution, I am going
to vote ``no'' on this law. That is another way in which the
constitutional structure all fits together and tilts toward
liberty.
Senator Lee. For that very reason, it would probably lead
to some bad results if we were to not do that. In other words,
if we were always inclined to say let us just pass this, if it
is unconstitutional, the Court will do something about it. And,
of course, you have instances in which they could create
problems.
Judge Kavanaugh. Yes, Senator. I think Justice Kennedy has
written eloquently about this. Each official--each officer in
Congress, each Member of Congress, each Senator, the President
takes an oath, of course, constitutional oath, to abide by the
Constitution. And that is very important for each Member to
understand and underscore, as I know all of you do, and that is
an important part of the separation of powers process. I do not
think that the Framers thought, well, let us pass something
even though we ourselves, meaning the Members of Congress,
think there is a constitutional problem here. That is not how
it has worked historically, nor do I think that is how the
Framers necessarily intended for Congress to work.
Senator Lee. And there are myriad of instances moreover in
which we might enact something that for one reason or another
might not be challenged for a long time, or might be difficult
to challenge due to justiciability issues, somebody lacking
standing, absence of a ripe controversy and so forth.
Judge Kavanaugh. That particularly happens in the national
security context, I think, Senator, because there is often not
someone with standing, especially if it is something being done
in a foreign country against foreign citizens that might be
difficult to get into court in some way or another.
Senator Lee. One of the reasons I focus on this today is
there was an exchange you had with one of my colleagues earlier
today about the indefinite definition of American citizens
apprehended on U.S. soil. There was some discussion surrounding
this, suggesting that Ex Parte Quirin might somehow justify
this. You do not need to respond to this, but I think it is a
point that needs to be mentioned.
Justice Scalia mentioned in his dissent in Hamdan that Ex
Parte Quirin was not this Court's finest hour. And, in fact,
what happened was the case was argued. It was decided the next
day. The saboteurs were taken out and executed the next week.
Then the opinion itself was issued many months later. So,
again, I'm not asking you to opine on the ongoing validity of
Ex Parte Quirin, but the point is, you seem to agree that
Congress certainly has the authority to protect liberty,
notwithstanding the possibility that the Supreme Court might
not step in, in a particular case.
Judge Kavanaugh. Absolutely. A couple of points in response
to that, Senator, if I might. Justice Scalia, of course,
dissented in that case joined by Justice Stephens, one of his
more powerful dissents on individual liberty.
[Disturbance in the hearing room.]
Judge Kavanaugh. One of his more powerful dissents
protecting individual liberty there, ruling, Justice Scalia
with Justice Stephens, that it was impermissible to hold an
American citizen in long-term military detention, and I thought
that was an important opinion of his. When I gave a talk once
about Justice Scalia, I identified that as one of his most
important opinions and a very powerful opinion.
On the Quirin opinion itself, it also dealt with some--many
who were not American citizens. But you are right, there was an
American--there were American citizens involved. The Court, you
are right, of course--you have studied this as much as anyone,
but the Court did resolve the case very quickly. And the
opinion, I have spent many an hour trying to decipher certain
paragraphs of that opinion for cases I have had. It is not
easy.
I will--I will say the Court to its credit--give it a
little credit--did have an 8-hour or something oral argument.
The Attorney General of the United States argued Quirin
personally, and I have read the transcript of that to try to
figure out what was going on in the opinion that did not unlock
the box completely for me on what was going on in the Quirin
opinion. But your point, Justice Scalia did say it is not--was
not the Court's finest hour. It was a rush. It was a rush. And
rushes--sometimes the Court has to rush, but rushed decisions
in a judicial context sometimes are not always the best.
Senator Lee. On that point, would you be open to the idea
of bringing back the era of the 8-hour oral argument?
Judge Kavanaugh. I do not--the 8--hour oral argument. We
did have one in a--in an en banc case maybe 2 years ago that
went all afternoon.
Senator Lee. That sounds like----
Judge Kavanaugh. After we got back to the conference room,
I do not think anyone was saying we should do that in every
case.
Senator Lee. Understood. Understood. Let us talk about
judicial philosophy for a minute. I would like to discuss
Federalist 78. In Federalist 78, Hamilton discusses the
dichotomy between will on the one hand and judgment on the
other; ``will'' being something that is exercised by the
political branches, primarily by the Congress, by the
legislative branch, and ``judgment'' being something exercised
by the judicial branch. What is the difference between those
two?
Judge Kavanaugh. The judicial branch is deciding cases or
controversies according to law. The legislative branch is
making the policy, exercising the will. The judicial branch can
never exercise the policymaking role that is reserved to the
Congress. Now, admittedly that is speaking to the level of
generality and there are tough cases at the margins always in
trying to figure out what the line is here.
But as a general proposition, it is important for every
judge to go in with the mindset of I am not the policymaker. I
am the law interpreter, the law applier in a particular case.
And I think that is a very important part of the Federalist
papers that is woven into the constitutional structure into
Article III. And that judges--I certainly have tried for 12
years as a judge on the D.C. Circuit to incorporate that basic
foundational principle into how I approach each case. And it is
a very critical bedrock principle of what judges do in our
constitutional system.
Senator Lee. Now, within that framework, when we enact a
law, what determines what it is that you have interpret, that
you have to interpret? Is it what we say or is what we
subjectively intended?
Judge Kavanaugh. It is what is written in the text of the
statute, Senator. Just Kagan said it well at a talk 2 years
ago, maybe 3, at Harvard Law School. I was present in the
audience. She said we are all textualists now. She was talking
about Justice Scalia, who, of course, brought about significant
change in the focus of all Federal judges. I have seen it
across the supposed philosophical spectrum. All Federal judges
pay very close attention to the text of the statute, and that
is why I think Justice Kagan said we are all textualists now
because she explained that every judge really cares about the
words that are passed by Congress.
Now, why is that? I think about it both from a formal and a
functionalist perspective. As a formal matter, the law passed
by Congress is the binding law, is what is signed by the
President. It is what has gone through Senate and the House,
and that is the law. But also as a practical or functional
matter, I think having seen the legislative process, I know how
compromises come together in the House and the Senate, within
the Senate, within the House. There are negotiations late at
night over precise words and compromises inevitably.
Legislation is compromise. The Constitution was a compromise
Legislation is a compromise.
And when we depart from the words that are specified in the
text of the statute, we are potentially upsetting the
compromise that you all carefully negotiated in the legislative
negotiations that you might have had with each other. And so,
that is a danger that I try to point out when we are having
oral argument in a case or we are deciding cases, that if we
deviate from what Congress wrote, we are potentially upsetting
this careful compromise. Even if we think we would have struck
the compromise in a different place as judges, that is not
really our role. So, I think both as a formal and functional
matter, it is important to stick to the text.
There are canons of interpretation, which occasionally
cause you a presumption of mens rea, presumption against extra
territoriality and the like that cause you to superimpose a
presumption on the text. But otherwise, sticking to what you
passed is very important.
Senator Lee. But you certainly consider yourself a
textualist, and if you follow Justice Kagan's statement, we are
all textualists now. That is what judging is. Judging is----
Judge Kavanaugh. Judging is paying attention to the text,
in statutory cases paying attention to the text of the statute
informed by those canons of construction such as presumption
against extraterritoriality, presumption of mens rea,
presumption against implied repeals, things like that, that are
settled canons, although some of the canons are not so settled,
which is a whole separate half hour of discussions.
Senator Lee. How does textualism relate to or differ from
originalism?
Judge Kavanaugh. So, originalism, as I see it, has--to my
mind means, in essence, consequential textualism, meaning the
original public meaning of the constitutional text. Now,
originalism, it is very careful when you talk about originalism
to understand that people are hearing different things
sometimes. So, Justice Kagan, again, at her--at her
confirmation hearing said we are all originalists now, which
was her comment. By that, she meant the precise text of the
Constitution matters, and by that, the original public meaning,
of course, informed by history, and tradition, and precedent.
Those matter as well.
There is a different conception that some people used to
have of originalism, which was is there original intent. In
other words, what did the people--some people----
Senator Lee. Subjectively.
Judge Kavanaugh. Subjectively intend the text to mean, and
that has fallen out of the analysis because, for example, let
us just take the Fourteenth Amendment, Equal Protection Clause.
Well, it says right in the text, ``equal protection.''
``Equal'' means ``equal.'' As the Supreme Court said in
Strauder, what is that but the law shall be the same for the
Black and the White, and Brown v. Board focuses on the text.
But there were some racist Members of Congress involved in that
who did not think it should apply in that way to certain
aspects of public life, but we do not--if you are doing--paying
attention to the text, you do not take account of those
subjective intentions, nor is it proper as a general
proposition to take account of the subjective intentions.
They can be evident in certain cases, the First Amendment,
for example, of the meaning of the words----
Senator Lee. Of the original public meaning.
Judge Kavanaugh. Of the original public meaning. They can
be evidence of that, but you are not--you do not follow the
subjective intention. So, original public meaning, originalism,
what I refer to as constitutional textualism, what Senator Cruz
yesterday, I think, referred to as constitutionalism or
constitutionalist. I think those are all referring to the same
things, which is the words of the Constitution matter.
Of course, as I have said repeatedly, you also look at
historical--the history. You look at the tradition. Federalist
37 tells us to look at the liquidation of the meeting by
historical practice over time. And then you look at precedent,
which is woven into Article III, as I said in Federalist 78.
But the--you know, start with the words as Justice Kagan said,
we are all originalists now in that respect of paying at least
some attention to. More than some. Paying attention to the
words of the Constitution.
Senator Lee. So, if we stipulate, for our purposes today,
as we are having this conversation, that originalism refers to
basically textualism applied in the constitutional sphere with
an eye toward identifying the original public meaning of the
constitutional text at issue, you are an originalist.
Judge Kavanaugh. That is correct, and as Justice Kagan
said, I think that is what she meant, we are all originalists
now. And I do not--I think she said what she meant and meant
what she said when said that.
Senator Lee. Sure. What, by the way, would be the argument
against that? To me, that sounds like judging. Why would one
argue against being that type of judge, against being a
textualist originalist?
Judge Kavanaugh. Well, there are different philosophies of
what a judge does, but I think that judges, you know, what the
role of a judge is. But I think the law--Article VI of the
Constitution says this Constitution shall be the supreme law of
the land, and the word ``law'' is very important there. It is
not a set of aspirational principles. It is law that can be
applied in court, and what is the law? The law are the words
that were ratified by the people, and, therefore, can be
applied in the--in the courts of the United States. And it says
the ``supreme law.'' What does it mean by that? It means when
you pass a statute that is inconsistent with the Constitution,
the supreme law controls, namely the Constitution controls over
a contrary statute, and that is, of course, also discussed in
Federalist 78 as well of what is the supreme law of the land,
and the Constitution is the supreme law.
Again, precedent, historical practice subsequent to the
passing of the text. We see that, for example, in the
Establishment Clause cases. The Court will often look at the
text. What is the historical practice and precedent, which I
have said is rooted in Article III. Those things all go into
it, but the words, the original public meaning are an important
part of constitutional interpretation, and has been, I think,
throughout.
Senator Lee. Let us suppose Congress in its infinite
wisdom--with its approval rating that ranges between 9 and 11
percent, making us slightly less popular than Raul Castro in
America, and slightly more popular than the influenza virus,
which is rapidly gaining on us--what if we decided that, you
know, we are all busy. There are parades to attend. There are
political rallies to organize. We get tired of the busy,
drudgerous work of actually making laws, and we also do not
want to make ourselves accountable for the laws we pass. It is
much easier to just pass a broader statement. So, we say we
hereby pass a law that says we in the United States of America
shall have good law, and we hereby delegate to the herewith
created United States commission on the creation of good laws
the power to promulgate, and interpret, and enforce good laws
in the United States. What constitutional issues do you see
there?
Judge Kavanaugh. Senator, the Congress is, of course,
assigned the legislative power in Article I of the
Constitution, so if it delegates wholesale the constitutional
power to another body, then that naturally poses a question of
whether the body exercising that power ultimately has
improperly exercised the legislative power, and whether that
rule or what have you that is enacted by that body is lawful
because it was not enacted by Congress. So, the Framers
intended that Congress would enact the laws, and that the
Executive would enforce the laws, and that the judiciary would,
of course, resolve cases and controversies arising under those
laws.
Senator Lee. And yet in some respects, it is not that far
removed from some of what we do today. We may not pass
something as extreme as what I have described in my
hypothetical, but in some cases we will essentially say we
shall have good law in area X, and we hereby give commission Y
the power to make and enforce good laws in that area. So, is
there some point at which we cross a threshold of
unconstitutional delegation?
Judge Kavanaugh. Well, the Supreme Court, as you know,
Senator, has a non-delegation principle, and at least under
current precedent, it is allowed the delegation--and I do not
want to get too specific here, but it is allowed some
delegation. Some Justices or judges would say actually when the
Executive enacts rules pursuant to those delegations, that is
the exercise of Executive power, but I think there has been
some pushback on that. And in any event, the Supreme Court has
doctrine on the non-delegation principle, and the line is
debated on where that should be drawn. But there is precedent
that does suggest that at some point, Congress can go too far
in how much power it delegates to an executive or independent
agency.
Senator Lee. And when we do that at some point, we are
shirking our own responsibility because we are making lawmakers
rather than laws, and we are also consolidating into one body
the power to make and enforce laws, which is not only something
that can lead to tyranny, it is the very definition of
``tyranny'' itself.
I want to get to the campaign finance discussion that you
were having a few minutes ago with Senator Whitehouse. With
regard to Citizens United, did the Supreme Court uphold the
disclosure requirements at issue in Citizens United?
Judge Kavanaugh. It did. I believe that was an 8-to-1
margin.
Senator Lee. And, in fact, you have written on this, that
there is a distinction for First Amendment purposes, for
constitutional purposes, between laws mandating disclosure and
laws banning the doing or the saying of something. Is that not
right?
Judge Kavanaugh. That is what the Supreme Court has said in
certain context, and that is the law as set forth by the
Supreme Court. Citizens United is a good example of that,
Senator.
Senator Lee. And in a case called EMILY's List v. FEC, you
wrote that disclosure requirements trigger rights that receive
``less First Amendment protection'' than speech prohibitions--
other types of speech prohibitions.
Judge Kavanaugh. And I think that followed from Supreme
Court law and is consistent, I believe, with subsequent Supreme
Court law. Of course, the subsequent Supreme Court law
controls.
Senator Lee. Do you have a favorite among the Federalist
Papers?
[Laughter.]
Senator Lee. I am not asking you to choose here between
Liza and----
Judge Kavanaugh. Yes, no, that is right. Yes. So, I like a
lot of Federalist Papers. Federalist 78, of course, the
independent judiciary, the role of the judiciary. Federalist
69, which says the Presidency is not a monarchy is a very
important one. Hamilton explains all the ways in which the
Presidency is not a monarchy in our constitutional system. I
think that is very important. Federalist 10, which talks about
factions in America, and explains that having the separation of
powers in the federalism system, dividing power in so many
different ways would help prevent a faction from gaining
control of the entire--all the power for the people of the
United States. And that makes it frustrating at times because
it is hard to pass new legislation, but that also--that
division of power helps protect individual liberty, and I think
that comes a bit from Federalist 10.
Federalist 37 and 39 talk about, on the one hand, how we
were just talking, laws or the Constitution over time can be
the term liquidated by historical practice. What does that
mean? That means that as the branches fill out the meaning of
the Constitution over time with practices, those can be
relevant in how the Court subsequently interprets certain
provisions. We see that in Dames & Moore v. Regan, for example.
We talk also about the national and Federal Government, so the
combination in 39, the combination that we have this odd--that
is the genius, right--of having a national government plus
State governments, and then within the national government, the
House is proportional representation, the Senate is State
representation. That interesting compromise which Madison, by
the way, was opposed to, but that compromise at the Convention.
Federalist 47, which Senator Klobuchar mentioned yesterday,
the accumulation of all power in one body is the very
definition of tyranny. I start--so, I start my separation of
powers class every year with that exact quote that you read
yesterday, Senator Klobuchar, because that is very important.
51, if men were angels, we do not--we would not need
government. So, sorry, I have got eight kids.
[Laughter.]
Senator Lee. No, it is brilliant, and I think that is a
greatest hits list. If these were on Spotify, I would say you
put together a list of those. Let us close in the minute and a
half I have got left, and I gave myself an additional 30
seconds because of the two interruptions there. Tell me how you
were informed by Federalist 51, and how that relates to your
role as a jurist, your role as a jurist now on the D.C.
Circuit, the role that you would play if you were confirmed to
the United States Supreme Court. This understanding that
government is an exercise in understanding human nature. If we
were angels, we would not need government, and if we had access
to angels to govern over us, we would not need all these rules,
these cumbersome rules that make government so inefficient and
so frustrating. Why is that important, and how does that affect
you as a judge when trying to interpret the Constitution and
trying to interpret acts taken pursuant thereto?
Judge Kavanaugh. That is an--that is an interesting
question, Senator. I think we recognize that we are all
imperfect, first of all. All of us as humans are imperfect, and
that that includes judges, and that includes legislators, and
it includes all of us are imperfect. And so, we recognize that
in how we go about setting up our Government. If there were
some perfect group of people, we would put all the power in
that one body, but because we are imperfect, putting all the
power in that one body would be, as Senator Klobuchar was
saying, the definition of tyranny.
So, I think the way we deal with the imperfection while
also having a government, because we are imperfect, is dividing
the power, separating the power. And, again, to my mind, that
all reinforces why the Framers, the genius--despite the flaws
in the Constitution, and there were flaws--the genius of
separating the legislative, executive, and judicial powers,
tilting toward liberty in all those respects, and then having a
federalism system where we would still have State governments
that can further protect liberty and be laboratories of
democracy as well. I think all that, because we are imperfect
and because we recognize the imperfections.
It is also why we have things like a jury system and even
within the judiciary we did not trust a judge to do trials on
his or her own, criminal trials or civil trials. We have a jury
system to recognize, and we have usually 12, and that is
designed to recognize that we are imperfect, and sometimes that
is why we group decisionmaking. That is why we have 535
legislators. That is why we have nine Justices. We do not
usually have one person, and so, too, in juries.
So, I think that all maybe stems from the same
philosophical understanding that we are imperfect beings, and
that we divide power, and that we make sure that no one person
in a jury situation or other situations where our liberty can
be affected is exercising total control.
Senator Lee. Great. Thank you very much, Judge. My time has
expired. I am not the Chairman of this Committee, even though I
am playing him on TV. I understand that under the previous
order entered before he left, we are supposed to take a 10-
minute break. We will stand in recess for 10 minutes.
[Whereupon the Committee was recessed and reconvened.]
Chairman Grassley. Welcome back, Judge Kavanaugh.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. I was
just visited by your wife, who is here, and she just told me
you celebrated your 64th wedding anniversary. Is that correct?
Chairman Grassley. Well, nobody's going to believe that.
Senator Klobuchar. Yes, well, that is what she told me. I
thought this was very romantic that you are gathered here.
[Laughter.]
Senator Klobuchar. I want to start, Judge Kavanaugh, going
back to where we started yesterday, and that is about the
documents, the production of documents from the time that you
worked in the White House. Do you personally have any
objections to the release of the documents from your time as
staff secretary?
Judge Kavanaugh. Senator, I am not going to take a
position. That is, in my view, a decision for the Committee in
consultation or discussion with the executive branch and the--
--
Senator Klobuchar. So you are not going to say whether or
not you have a problem with it?
Judge Kavanaugh. I do not think it is my role to say one
way or another, at least, as I analyze the current situation.
That is a decision for the Committee and the executive branch
and the Presidential library. They are President Bush's
documents ultimately.
Senator Klobuchar. Since right now we are not able to
review those documents in addition to the 102,000 that the
White House has deemed ``theirs,'' that we are not able to see
and asserted a privilege that has never happened before in a
Supreme Court nomination hearing, is there anything in those
documents or in the staff secretary documents that you think we
would like to know that is relevant to some of the topics we
have discussed today? I mean, you must know what is in them.
Chairman Grassley. Before you answer, without taking time
off of her time, it is incorrect that ``committee
confidential,'' no Senators can see those records. Any--all 100
Senators can see those records. In fact, we set up separate
terminals so people can go there. We have not had very many
people take us up on the offer.
Senator Klobuchar. Okay. But, Mr. Chairman, not to go into
my time either, to respond to you, I was not talking about
those 189,000 documents. I was talking about the ones that we
are not allowed to see at all from the staff secretary time, as
well as the 102,000 that the White House has asserted privilege
on that we are not able to see. So I am not even talking about
the 189,000. Okay. Thank you.
Chairman Grassley. I stand corrected.
Senator Klobuchar. All right.
So, again, I asked if there is anything in those documents
you think would be relevant to our discussion here?
Judge Kavanaugh. Senator, those documents are President
Bush's documents and for the Committee and the Bush Library and
the executive branch to negotiate about. And as discussed, I
have 12 years of judicial record, and this is not a new issue.
This is an issue that came up in Justice Scalia's hearing and
Chief Justice Roberts' experience with the SG documents with
Justice Kagan.
Senator Klobuchar. Those are Solicitor General. I am
talking about the ones in the White House time.
Judge Kavanaugh. I guess I am not seeing a distinction.
They are both executive branch documents, so there is one
executive branch.
Senator Klobuchar. I think one is involving the ongoing
Solicitor General, but I have just one more question on this
line. You just said that rush decisions are not always the best
in answer to the discussion with Senator Lee. Do you think a
good judge would grant a continuance to someone who just
received 42,000 documents on the day before the start of a
trial?
Judge Kavanaugh. Senator, I am not--that is a decision for
the Committee, and I am not familiar with the circumstances of
the document.
On the Solicitor General documents, I just want to say one
thing. With Chief Justice Roberts, it was not active cases.
Those 4 years of his documents from the time he was Solicitor
General from 1989 to 1993--he was nominated in 2005. It is my
understanding that those documents--so my only point is it is
not a new issue, but it is also not for the nominee to decide
because they are the President's, former President's documents.
Senator Klobuchar. Okay. Why don't we move on to the
Executive power issues. Yesterday I mentioned your submission
to the University of Minnesota Law Review. We thank you for
making our law review so famous over the last month or so. In
that article, you said that a President should not be subject
to investigations while in office. You said in our meeting that
Congress would likely act quickly if the President does
something, in your words, ``dastardly,'' a word you also used
in the article. And I am struggling with the practical
implications of that. What about a President who commits murder
or if she jeopardizes national security or he obstructs an
investigation or a white-collar crime? How do you differentiate
between these crimes when you characterized them as
``dastardly''?
Judge Kavanaugh. So I think there are several issues going
on in that question, Senator. The first thing I want to
underscore is that what I wrote in the Minnesota Law Review was
in 2009 when President Obama was President or becoming
President, was thoughts on a variety of topics reflecting on my
experience----
Senator Klobuchar. I just want to pick up the tempo a
little with my questions because I have so many of them. Could
we get to that point about the ``dastardly,'' if there is a way
to differentiate?
Judge Kavanaugh. Yes, but just to underscore it is real
important. That was a proposal to be considered. It was not a
constitutional position. I did not take any constitutional
position on the issues you are raising. I want to underscore
that. And if a constitutional question came to me, I would have
an open mind and decide that.
On your point----
Senator Klobuchar. But there is not any clear text in the
Constitution that speaks to the question, so instead these are
your own recommendations based on your own views and
experience. Would that be a fair characterization?
Judge Kavanaugh. But there are two different things going
on. The one is about special counsel investigations, for
example, or criminal investigations or civil lawsuits, and that
is a question for Congress to consider whether they want to
supplement the protection provided by Clinton v. Jones because
there was a lot of criticism of Clinton v. Jones.
The second question, getting right to your point, is what
is an impeachable offense, and that is actually a decision for
you, not for me, because the House and the Senate----
Senator Klobuchar. But I am just figuring out how whether
we know something is dastardly or not if we cannot even
investigate it.
Judge Kavanaugh. Well, I think I am going to repeat that is
a question for the--you are asking for--is it a high crime or
misdemeanor?
Senator Klobuchar. I am asking about your position that you
stated in this law review article that a President is not
subject to investigations while in office.
Judge Kavanaugh. The ``dastardly'' comment----
Senator Klobuchar. You are only saying that they should be
subject to investigation as part of an impeachment and that
there is no other investigation that could occur? Is that----
Judge Kavanaugh. No. I was--first of all, on constitutional
position on criminal investigation and prosecution, I did not
take a position on the constitutionality, period. The idea that
I talked about was something for Congress to look at if it
wanted, so that is point one. Point two is the idea that if
the--what is an impeachable offense, and that really is a
question for the House and the Senate.
Senator Klobuchar. Let me move on. This is about actual
opinions and really along the same lines, and I know Senator
Coons is going to talk to you about the special counsel
statute, and we are very concerned about that. But in the
Seven-Sky v. Holder case, I quote, this is you: ``Under the
Constitution, the President may decline to enforce a statute
that regulates private individuals when the President deems the
statute unconstitutional, even if a court has held or would
hold the statute constitutional.''
And so then you told me when we had the talk in my office
that you attempted to clarify your views two years later in the
Aiken County case, but it seems inconsistent to me. So is it
the case, your views, as expressed in actual opinions, not law
review articles, that a President can just ignore a law until a
court upholds it, like you said in Aiken County, or that a
President can continue to ignore a law even after a court
upholds it, like you said in Seven-Sky?
Judge Kavanaugh. So ignore is not--the concept there, as I
think we discussed when we met, and we had a good back-and-
forth on that--the concept is prosecutorial discretion, and
that is the concept I referred to in the Aiken County opinion
to explain the footnote you are referencing. And prosecutorial
discretion is, of course, firmly rooted--United States v.
Richard Nixon case says the executive branch has the absolute--
``exclusive authority and absolute discretion whether to
prosecute a case.'' That is an exact quote from United States
v. Richard Nixon. And then Heckler v. Chaney says that that
applies also in the civil context. And the limits--so
prosecutorial discretion is well recognized. In other words,
the U.S. Attorney's Office might prosecute gang violence, but
let low-level marijuana offenses go, in terms of an exercise of
prosecutorial discretion.
Senator Klobuchar. So if a court has held a statute
constitutional, do you believe that a President should have to
enforce it?
Judge Kavanaugh. So, for example, let us talk about, for
example, the marijuana laws. Those are constitutional. But a
U.S. Attorney or the Attorney General could say, ``We are not
going to devote our resources to low-level marijuana
offenses.'' Those are perfectly constitutional.
Senator Klobuchar. Let me just try one other example, the
Texas case on pre-existing conditions. The administration has
taken the position that that is unconstitutional, that part of
the Affordable Care Act down in the Texas case, taking the
position that you could actually throw people off of their
insurance if they have a pre-existing condition. So let us say
that that law is found to be constitutional. Could the
President choose not to implement the part of the law providing
protections for pre-existing conditions?
Judge Kavanaugh. Senator, that is a pending case, so I
cannot talk about it.
Senator Klobuchar. Okay. This is just my concern because of
this expansive view of Executive power where it brings us and
where we end up.
I want to move on to some consumer issues. In 2016, you
wrote an opinion, which was later overturned by the full D.C.
Circuit, in which you found the Consumer Financial Protection
Bureau unconstitutional. The majority recognized that millions
of people were devastated by the financial crisis, and they
upheld this Bureau, and we know now, in real time, the Bureau
has helped about 30 million consumers obtain more than $12
billion in relief. But you dissented in the case, and I want to
talk about the consequences of this legally. I know you focused
on the Bureau's structure. We talked about that. You looked at
the relevant history, and you said that agencies like the CFPB,
the Consumer Financial Protection Bureau, amount to a headless
fourth branch of our Government, and that they ``pose a
significant threat to individual liberty.''
So does it follow that you think that other independent
agencies are also constitutionally suspect?
Judge Kavanaugh. The Supreme Court has, of course, upheld
since 1935, the Humphrey's Executor decision, the concept and
practice of independent agencies. On the CFPB decision, the
structure of that agency deviated from the traditional
historical practice of independent agencies----
Senator Klobuchar. So you think the Humphrey's case that
was 80 years ago was correctly decided?
Judge Kavanaugh. It is a precedent of the Supreme Court,
and it has been reaffirmed many times. But on that CFPB case, I
need to get this out, which is, I did not say that the agency
had to stop operating. It could continue operating, and it
still operates. What my constitutional concern was, was the
structure with the single-member head, which had never been
done before for an independent agency of that kind, and my
remedy would not have been to invalidate the agency at all but
would have been to make that person removable at will, and then
you could have, if you wanted, amended the statute to have a
multi-member agency.
Senator Klobuchar. It also concerns me because other
agencies like, say, the Social Security Administration, which
you note in the dissent, in the opinion, they are also just
headed up by one person, right? So then, does it follow that
that agency, as well, would be unconstitutional?
Judge Kavanaugh. Again, Senator, my--let us go from the
back door, which is the remedy, if there is a problem, is not
that the agency has to stop operating. The remedy is that the
person, a single person, would be removable at will instead of
for cause. But the agency would continue to operate and perform
its----
Senator Klobuchar. But it would not have anyone heading it
up.
Judge Kavanaugh. No. It would have a single person heading
it up, but removable at will in the case of the CFPB, so the
agency----
[Disturbance in the hearing room.]
Senator Klobuchar. I want to turn to what the majority felt
about your dissent, and I think they recognized that the
dissent would threaten many, if not all, independent agencies.
I think they specifically mentioned the FTC, and I would add
other ones like the Federal Reserve, Securities and Exchange
Commission. Does it follow that you think these agencies are
unconstitutional?
Judge Kavanaugh. No, I did not say anything remotely like
that, respectfully, Senator, in the case. All I was talking
about was a single-headed independent agency.
Senator Klobuchar. But that is like Social Security.
Judge Kavanaugh. But the SEC, the FTC, those are the
traditional--the FERC, the NLRB, are all--the Fed, are all
multi-member independent agencies. And so those agencies are
all the traditional Humphrey's Executor agencies. And the
concern I explained with the single-director independent agency
goes back to your point about Federalist No. 47, which is if
you have an independent agency that is completely unaccountable
to Congress or the President and it is one person in charge,
that becomes an extremely powerful position.
Senator Klobuchar. Okay. But Social Security has been like
that for a long time, and so my issue is, when we were talking
about Executive power, you talked about how Congress has to
step in, right? That is a lot of the argument you have made to
some of my colleagues--Senator Sasse; Congress has to step in.
But in this case, Congress stepped in. Congress said we had
this major financial crisis. That is why we started this
agency. We have done this. And then you come in and in a
minority opinion here, and you say that it is unconstitutional.
And I would throw another Federalist Society back at you,
Federalist quote. You quoted Hamilton yesterday from Federalist
83 when he said, ``the rules of legal interpretation are rules
of common sense.'' Right?
Judge Kavanaugh. Yes. I agree with that.
Senator Klobuchar. All right. So it just does not make
common sense to me that we would throw an agency out like that
or----
Judge Kavanaugh. But I did not.
Senator Klobuchar [continuing]. Even the head of it. You
are basically putting your judgment in the place of Congress.
Judge Kavanaugh. But I did not throw the agency out. I said
the agency could continue operating as it was. The only change
would be instead of being for-cause removal, it would be at-
will removal. That was the only--there was a judge, not me, on
our court who said because of that constitutional flaw, the
whole agency had to stop operating. I specifically and
explicitly rejected that as a remedy and said, no, the agency
can continue operating, doing its important consumer functions.
Senator Klobuchar. Okay. But let us go to one where you
actually did throw out the rules, and that is net neutrality.
Right? And that is in my mind a bedrock of a free and open
Internet, allowing consumers and small businesses to have an
equal playing field. But in U.S. Telecom Association v. FCC, in
your own opinion you went out of your way to dissent against
the protections. This was the full D.C. Court against you, and
the rules were upheld by a panel of judges appointed by
Presidents from both parties. And here you relied on something
else that you came up with called the ``major rules doctrine,''
and I know it has been mentioned in dicta, in a 2015 case, but
in claiming that the FCC lacked authority to issue net
neutrality rules because they were, in your words, ``major.''
So, again, it feels to me like Congress set up the FCC, and
the FCC is doing their job in a really complex policy matter.
They put forward these rules on net neutrality. And then you
insert your judgment to say that they are unconstitutional. So
tell me why I am wrong.
Judge Kavanaugh. The major rules doctrine, or major
questions doctrine, is rooted in Supreme Court precedent, and,
therefore, as a lower-court judge, I was bound to apply it. It
was applied by the majority opinion in the Brown & Williamson
decision. The godfather of the major rules, or major questions
doctrine is Justice Breyer who wrote about it in the 1980s as a
way to apply Chevron. The Supreme Court adopted that in the
Brown & Williamson case, applied it in the UARG case, the one
you referenced Justice Scalia's opinion. And what that opinion
says is, it is okay for Congress to delegate various matters to
the executive agencies to do rules, but on major questions of
major economic or social significance, we expect Congress to
speak clearly before such a delegation, and that had not
happened, in my view, with respect to net neutrality, and I
felt bound by precedent, therefore, to apply the major
questions or major rules doctrine.
Senator Klobuchar. So minor rules would be okay, but not
major? And I know in the decision you said, well, you will know
the difference when you see it, and I think that is why the
other judges on the court, appointed by both parties, went with
the traditional and precedential view of how to look at this,
and you used the 1986 law review article by Justice Breyer, and
then in dicta, from the King v. Burwell case in 2015. And it
just--what I am trying to show here is this pattern where to
say, oh, Congress should step in and do everything, you are
stepping in in these cases.
Judge Kavanaugh. So I would say it is a pattern of adhering
to precedent.
Senator Klobuchar. Okay. Well, it just seems that the
precedent to me when you look at, for instance, Chevron, and I
know the White House touted the fact that you have overruled
the Federal agency action 75 times, and they said that you led
the effort to rein in executive agencies in the press release
when you were announced. How do you explain--what does that
mean, how you led the effort?
Judge Kavanaugh. I do not know. I do not know what that is
referring to. I know my record. I am sure I have upheld agency
decisions dozens and dozens and dozens and dozens of times. We
get agency cases. That is what we do on the D.C. Circuit, and I
have upheld them, I am sure, in the same range, if not many
more times. And so I think my record will show that I have
ruled both ways on those kinds of cases. I do not think I have
a pro this or pro that record.
Senator Klobuchar. One last question in this area on
consumers. The major rules doctrine actually raises questions
to me about your view of Chevron, and as you know, it is that
1984 case--I would think it is settled law, but I will ask you
that--where courts generally defer to reasonable
interpretations of agencies. And what would you replace it with
if you are not going to uphold it?
Judge Kavanaugh. The precedent says that courts should
defer to reasonable agency interpretations of ambiguous
statutes, and the whole question of ambiguity has become a
difficult inquiry. At least it has been in my 12 years of
experience in the D.C. Circuit. How much ambiguity is enough?
And I wrote a law review article in the Harvard Law Review
about that problem of judges disagreeing about ambiguity and
how much is enough. But I also said in that article that
Chevron serves good purposes in cases where it is somewhat of
an overlap with the State Farm doctrine, so statutory terms
like ``feasible'' or ``reasonable'' are terms of discretion
that are granted to agencies and that courts should be careful
not to unduly second-guess agencies. And I have written an
opinion, American Radio Relay League, where I made clear that
courts should not be unduly second-guessing agencies.
Senator Klobuchar. Okay. I want to move to campaign finance
since those were the documents that I received and we are able
to make public. Of course, I think they all should be made
public, the ones that--and I do not like this Committee
classification, what happened, but the Chairman did allow me to
make those public. And in those documents, in one email from
March 2002, you discuss limits on contributions to candidates
saying, ``And I have heard very few people say that the limits
on contributions to candidates are unconstitutional, although I
for one tend to think those limits have some constitutional
problems.''
I just want to know with the Buckley v. Valeo case from
1976 being settled law, it seems like you have some issues with
those rulings. How do you view the precedent created by
Buckley? And would you respect it?
Judge Kavanaugh. The Buckley divide, as you know, Senator,
is that expenditures on the one side, Congress does not have
substantial authority to regulate contribution limits; on the
other side, Congress does have authority to regulate and has
done so.
With respect to contribution limits, however, there are
cases where the contribution limits are too low, so subsequent
to the email you are talking about, the Supreme Court has twice
struck down contribution limits, one in a case Randall v.
Sorrell----
Senator Klobuchar. I am aware of these cases.
Judge Kavanaugh. Justice Breyer wrote. So I do not think
there is--Buckley v. Valeo is an important precedent. There is
a lot of case law subsequent to those emails: McConnell,
Wisconsin Right to Life, Citizens United, which fleshes out
some of those----
Senator Klobuchar. I mean, my issue is that we have had
past nominees who said they would honor precedent, and then
they joined the Citizens United opinion. And when I was hearing
your discussion with Senator Whitehouse in which you talked
about how Congress should step in again, and they did with the
McCain-Feingold bill, and we tried, and then it was struck down
basically with Citizens United. And so, that is the problem. We
are left with nothing now but a constitutional amendment. And I
personally view this as lawmaking from the Court, the Citizens
United case. So I am trying to figure out where you are on
this. Do you think contribution limits have constitutional
problems? And what can Congress actually do to rein in the
flood of money?
Judge Kavanaugh. As a D.C. Circuit judge, I have upheld
contribution limits in two important cases--one ruling against
the RNC in RNC v. FEC, where it was challenging limits on
contributions to political parties, and I rejected that
challenge; in another, Bluman v. FEC, contributions by foreign
citizens to U.S. election campaigns, and I upheld that law.
Senator Klobuchar. Let us just talk about that case because
your opinion left open the possibility of unlimited spending by
foreign nationals in the United States on issue advocacy, the
same kind of activity that we saw by the Russians in 2016. And,
in fact, a Russian company facing charges brought by Special
Counsel Mueller actually cited your opinion in arguing to have
these charges thrown out. Does that concern you at all?
Judge Kavanaugh. Our case dealt with contribution limits,
so that is what I was opining on in that case. So I am not sure
that there are--the state of the law and the expenditure limits
was not before us in that case, and so I do not want to opine
on expenditure limits.
What I did do----
Senator Klobuchar. Well, you should know that it was--that
opinion was cited by----
Judge Kavanaugh. Well, I do not know if it was cited--well,
I do not want to talk about a pending case.
Senator Klobuchar. All right.
Judge Kavanaugh. But my case, I upheld--importantly, I
upheld limits on contributions in the RNC case and in the
Bluman case, and the Supreme Court has upheld contribution
limits generally, but struck them down when they are too low in
cases like Randall v. Sorrell and McCutcheon.
Senator Klobuchar. Okay. In light of the recent
indictments, do you stand by your interpretation of the
Bipartisan Campaign Reform Act in that case, the Bluman case?
Judge Kavanaugh. I am not sure the question----
Senator Klobuchar. We can go back to it on the second
round. I look forward to it.
Judge Kavanaugh. Okay.
Senator Klobuchar. Okay, antitrust. Senator Lee and I run
the Antitrust Subcommittee, and, as you know, in recent years--
we talked about this in my office--the Supreme Court has made
it harder to enforce our antitrust laws in cases like Trinko,
Twombly, Leegin, and, most recently, Ohio v. American Express.
This could not be happening, in my view, at a more troubling
time. We are experiencing a wave of industry consolidation.
Annual merger filings increased by more than 50 percent between
2010 and 2016. I am concerned that the Court, the Roberts
Court, is going down the wrong path, and your major antitrust
opinions would have rejected challenges to mergers that the
majority has found to be anticompetitive. So I am afraid you
are going to move it even further down that path, starting with
the 2008 Whole Foods case where Whole Foods attempted to buy
Wild Oats Markets. It is very complicated, so I am just going
to go to the guts of it from my opinion.
The majority of courts and the--what happened: There was a
Republican majority; FTC challenges a deal; and then you
dissent, and you apply your own pricing test to the merger. My
simple question is: Where did you get this pricing test?
Judge Kavanaugh. Well, I affirmed--I would have affirmed
the decision by the district judge in that case which allowed
the merger, and the district judge, Judge Friedman, an
appointee of President Clinton's to the district court, and I
was following his analysis of the merger. That case is, as I
think we discussed, very fact-specific, really turns on whether
the larger supermarkets sell organic foods or not. And so that
was a fact----
Senator Klobuchar. But where did you get the pricing test,
is what I want to know, because you used a different test? And
I am trying to figure that out, what legal authority actually
requires a Government to satisfy your standard to block a
merger? I think what I remember in our discussion, you cited
these nonbinding horizontal merger guidelines that you used to
come up with this test.
Judge Kavanaugh. Well, you are looking at the effect on
competition and what the Supreme Court has told us, at least
from the late 1970s, is to look at the effect on consumers and
what is the effect on the prices for consumers. And the theory
of the district court and Judge Friedman in this case was that
the merger would not cause an increase in prices because they
were competing in a broader market that included larger
supermarkets that also sold organic food. The question was
really: Is there an organic food market solely, or is there a
broader supermarket market? And that is what the case----
Senator Klobuchar. I was just trying to get to where that
new test came from. So in the second case, you also dissented
in the Anthem case last year, and your opinion would have
allowed a merger between two of the four nationwide health
insurance providers, which was eventually blocked because it
would lead to higher prices for health care in the long term
and what was viewed as poorer quality insurance. And here you
actually went a step farther than Whole Foods. Instead of just
trying to raise the bar on what the Government would have to
prove to block a merger, you also tried to lower the bar for
merging companies trying to justify their deals. And your
opinion suggests you would lower the bar for merging companies
that are trying to prove their deals will not harm competition.
Does that represent your views when it comes to mergers?
Judge Kavanaugh. It is a very fact-specific case, and the
market in question there where two health insurers that were
not selling health insurance in the downstream market but were
acting as purchasing agents for employers in the upstream
market where they negotiated prices with hospitals and doctors,
and so the theory, at least as I understood it, which I agreed
with, was that by having a stronger purchasing agent, they
would be able to negotiate lower prices from hospitals and
doctors for the employers. And I pointed out in the end of my
dissent, Senator, that there might be a problem in the upstream
hospital-doctor market, but I did not think there was a problem
in the market that was at issue in the case. And I specifically
said I would have sent it back to the district court for
analysis of whether the merger was a problem in that other--it
is a three--it is----
Senator Klobuchar. But you did suggest that the Court
should disregard two cases that have been widely relied on for
more than 50 years in antitrust, Brown Shoe and Philadelphia
National Bank. Do you think courts now applying these cases are
wrong to do so?
Judge Kavanaugh. I think the Supreme Court in the 1970s
moved away from the analysis in those cases because those cases
focused on the effect on competition--I mean on competitors,
not competition. And in the 1970s, the Supreme Court moved to
focus on the effect on competition, which in turn is really
consumer--what would be the effect on consumers.
Senator Klobuchar. Okay. Thank you.
Chairman Grassley. Senator Cruz.
Senator Klobuchar. And could I, just one----
Chairman Grassley. Proceed.
Senator Klobuchar. It is just that this antitrust issue is,
as you know, very dense.
Judge Kavanaugh. Yes.
Senator Klobuchar. But, again, I am very concerned about
what is going on with these cases nationally. And then when I
looked at these two cases, it appears to me that you would go
even further. And I think we need less mergers, not more.
Judge Kavanaugh. Can I add one thing?
Senator Klobuchar. And more competition. Yes.
Judge Kavanaugh. When I referred to the overlap of Chevron
and State Farm, that is when I was talking about words like
``feasible'' and ``reasonable.'' I was not sure I was clear on
that.
Senator Klobuchar. Okay. Thank you.
Chairman Grassley. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Welcome back, Judge
Kavanaugh.
Judge Kavanaugh. Thank you, Senator.
Senator Cruz. Thank you, again, for your service.
Before I get into questions, I just want to take a minute
to recognize and thank the outstanding work at this hearing by
the Capitol Police in terms of in a calm and professional
manner dealing with the unfortunate disruptions we have seen
and maintaining an environment where this hearing can focus on
the record and substance of this nominee. And so thank you for
the tremendous work that the men and women here are doing.
Senator Whitehouse. Mr. Chairman, I think we would like to
second--and Senator Cruz--second that sentiment on our side as
well.
Chairman Grassley. Thanks both of you very much. I have
expressed it to many of the policemen individually as I see
them. Proceed. Start his 30 minutes over.
Senator Cruz. Judge Kavanaugh, let us start with just a
general question. What makes a good judge?
Judge Kavanaugh. Senator, a good judge is independent,
first of all, under our constitutional system, someone who is
impartial, who is an umpire, who is not wearing the uniform of
one litigant or another, of one policy or another, someone who
reads the law as written, informed by history and tradition and
precedent in constitutional cases, the law as written, informed
by canons of construction that are settled in statutory cases,
that treats litigants with respect, that writes opinions that
are understandable and that resolve the issues. I think
civility and collegiality help make a good judge. A good judge
understands that real people are affected in the real world,
the litigants in front of them, but also the other people
affected by the decisions the judge decides or the court
decides in a particular case. A good judge pays attention to
precedent, which is in constitutional cases, of course, rooted
in Article III and critically important to the stability and
predictability and reliance interests that are protected by the
law.
So there are a number of things that go into making a good
judge: a work ethic. It is hard work to dig in and find the
right answer in a particular case, and I think that is
critically important as well. Judicial temperament. There are a
lot of factors that go into it, and those are some of them. I
am sure there are more.
Senator Cruz. One of the things I was looking at, it is
striking both the overheated rhetoric we have heard from some
of our Democratic colleagues and also from some of the
protesters over the last 2 days. I took a look at your record
compared to that of Judge Merrick Garland. Judge Garland, of
course, was appointed to the D.C. Circuit by Bill Clinton, and
he was President Obama's nominee to the U.S. Supreme Court.
What I found that was striking is that in the 12 years you have
been on the D.C. Circuit, of all the matters that you and Chief
Judge Garland have voted on together, you voted together 93
percent of the time. Not only that, of the 28 published
opinions that you have authored, where Chief Judge Garland was
on the panel, Chief Judge Garland joined 27 out of the 28
opinions you issued when you were on a panel together. In other
words, he joined 96 percent of the panel opinions that you have
written when he was on a panel with you. And the same is true
in the reverse. Of the 30 published opinions that Chief Judge
Garland has written on a panel, you have joined 28 out of 30 of
them, over 93 percent of those opinions.
What is your reaction to those data and the level of
agreement?
Judge Kavanaugh. Well, I think we are trying hard to find
common ground and to--as I have said before, he is a great
judge, a great Chief Judge. And he is very careful and very
hardworking, and we work well together and try to read the
statute as written, read the precedent as written. And he is a
judge who does not, like I try to be as well, a judge who is
not trying to impose any personal preferences onto the
decision, but take the law as written, and that is what I have
tried to do in those cases, and that probably explains some of
that. I think it also goes back to--I do not think--I think
judges are distinct from policymakers, and I think that shows
up when you dig into the actual details of how courts operate
and go about their business. You, of course, know well,
Senator, from all your arguments and seeing judges decide cases
in real time. And I think those statistics reflect the reality
of how judges go about their business.
I have said several times I think of the Supreme Court as a
Team of Nine, and when you try to be a team player on a Team of
Nine, of course, there are going to be disagreements at times,
so I do not want to overstate, but if you have that mind-set of
where a court, without sitting on different sides of an aisle,
without being in separate caucus rooms, trying to find what the
right answer is, and I think there is a right answer in many
cases, and maybe, you know, a range of reasonable answers in
some others, and I think that is what those statistics reflect
to me.
Senator Cruz. So you talked about the difference between
your own policy preferences and what the law describes or
mandates. How would you describe a judicial activist?
Judge Kavanaugh. I would describe a judicial activist as
someone who lets his or her personal or policy preferences
override the best interpretation of the law, and that can go in
either direction. So a judge who strikes down a law as
unconstitutional when the text and precedent do not support
that result or a judge in the other direction who upholds a law
as constitutional when the text and precedent would suggest
that the law is, in fact, unconstitutional. So, too, in
statutory cases, it is the same principle. When a judge does
not stick with the compromises that you have reached and
written into the text of the statute passed by Congress and
signed by the President, but thinks the judge can improve on it
in some way or maybe picks a snippet out of a Committee report
and says, ``Well, I agree with that view in the Committee
report, and I am going to superimpose that onto the text of the
statute passed by Congress,'' that is to me the textbook
definition of a judicial activist, adding to or subtracting
from the text as informed by the precedent.
Senator Cruz. In your time on the D.C. Circuit, you have
written a number of opinions addressing separation of powers.
Why does separation of powers matter? Why should an American at
home watching this on C-SPAN care about the separation of
powers?
Judge Kavanaugh. People should care about separation of
powers because it protects individual liberty, and it is really
the foundational protection of individual liberty. We think of
the First Amendment, freedom of religion and freedom of speech,
as foundational protections of individual liberty. But as
Justice Scalia used to say, the old Soviet constitution had a
bill of rights, but it was meaningless in operation because
they did not have an independent judiciary, they did not have a
separation of powers system to help protect those individual
liberties. So it works in two ways, I think, or more than two
ways: first, the independent judiciary that helps enforce those
rights; second, the whole structure, as I have explained, tilts
toward liberty in the sense that you start with a system, it is
hard to pass a law to effect what you do or cannot do, hard to
get a law through Congress. And that is by design. The
bicameralism principle, a House and a Senate, as well as adding
the President, was designed to prevent the passions of the
moment from overwhelming and enacting a law based on the
passions as opposed to a more difficult process. That all helps
protect individual liberty.
Then even after you pass a law, the President has, as I was
discussing with Senator Klobuchar, some--or the executive
branch has prosecutorial discretion, when and how to enforce
particular laws. Who is protected by prosecutorial discretion?
Ultimately, it protects individual liberty. And then, even when
the Congress has passed a law and the Executive has enforced a
law, that does not mean you go straight to prison. If you are
charged with a crime, you go before an independent judiciary.
And just to add further protections for liberty, you have
the jury protections that are in the original text of the
Constitution and also reflected in the Bill of Rights. So in
check after check after check, the Constitution tilts toward
individual liberty.
The separation of powers also ensures that there are checks
on the branches. So what do we do--for example, Members of
Congress do not serve for life. You have to run for reelection,
and that is a check, again, to help protect individual liberty,
to help ensure accountability as well. So, too, with
Presidents.
So the document is just chock full with protections of
individual liberty, and that is ultimately why the separation
of powers matters as much as the individual protections that
are in the Bill of Rights and also in Article I, Section 9, and
Article I, Section 10, of the original Constitution.
Senator Cruz. How about the doctrine of federalism? That
has been an issue you have not encountered as much serving on
the D.C. Circuit, but can you share with this Committee why
federalism matters and, again, why Americans watching this
hearing at home should care about the principles of federalism?
Judge Kavanaugh. Federalism matters for several reasons,
Senator. Again, it helps further individual liberty in the
sense of additional protection, so let me give you an example.
If the U.S. Constitution only protects--the Fourth Amendment
only protects you against unreasonable searches and seizures up
to a certain line, it is possible that your State Constitution
will protect you even further under that, or your State
legislature might protect you further, so further protections
of individual liberty. federalism also operates in a different
way, a laboratory of democracy in the sense of experimentation
around the country. It is not always the same views in Texas
that there might be in California, for example, on particular
issues, and so you have different laws----
Senator Cruz. Thankfully.
Judge Kavanaugh. Yes. And different laws in those States.
And also I think that federalism serves the more general idea
of the Government that is closest to you for most of your day-
to-day activities. My wife is, of course, in local government
now as the town manager, but federalism--for the things that
affect you on a daily basis, the paving of the roads, the leaf
collection, the trash collection, the local schools, which is
probably the most direct impact that many people have with the
government, the local court system--my mom, of course, was a
State trial judge. The whole system of State government is most
people's interaction with government, and federalism in that
sense makes--ensures accountability because you know better
usually your local and State elected officials than you do--and
you can, therefore, make your views known on whatever
governmental issue is of concern to you. For example, the
schools is a classic one.
Senator Cruz. So what is the importance and the relevance
of the Tenth Amendment?
Judge Kavanaugh. The Tenth Amendment protects federalism in
the sense of ensuring that the States have independent
sovereign--they make clear, which is also clear from the
structure, but reinforces the idea that the States are
sovereign entities that have independent authority under the
Constitution, and that they have the status as separate
sovereigns under the Constitution. And so you were Solicitor
General of Texas, of course, and I know you represented the
State of Texas in many cases where the sovereignty of the State
of Texas to pass its laws and to enforce its laws was critical.
And the sovereignty of the individual States is important for
the people, again, both for the accountability, the local
government, and also for the protection of individual liberty.
And I think the Tenth Amendment underscores that. It also
makes--it helps underscore something else, which is that States
cannot be commandeered by the Federal Government. Commandeered
is commandeering doctrine of the Supreme Court which recognizes
that--and this is from the structure as a whole and
underscored, but the Federal Government cannot order States to
do certain things that the States themselves have not chosen to
do, and so that is an important part of the federalism
principles recognized by the Supreme Court and that comes out
of the Constitution as well.
Senator Cruz. What do you make of the Ninth Amendment?
Robert Bork famously described it as an ``ink blot.'' Do you
share that assessment?
Judge Kavanaugh. So, I think the Ninth Amendment, and the
Privileges and Immunities Clause, and the Supreme Court's
doctrine of substantive due process, are three roads that
someone might take that all really lead to the same destination
under the precedent of the Supreme Court now, which is, that
the Supreme Court precedent protects certain unenumerated
rights so long as the rights are, as the Supreme Court said in
the Glucksberg case, rooted in history and tradition. And
Justice Kagan explained this well in her confirmation hearing,
that the Glucksberg test is quite important for allowing that
protection of unenumerated rights that are rooted in history
and tradition, which the precedent definitely establishes, but
at the same time making clear that when doing that, judges are
not just enacting their own policy preferences into the
Constitution.
An example of that is the old Pierce case where Oregon
passed a law that said everyone in the State of--this is in the
1920s--everyone in the State of Oregon had to attend--every
student had to attend a public school. And a challenge was
brought to that by parents who wanted to send their children to
a parochial school, a religious school. And the Supreme Court
ultimately upheld the rights of the parents to send their
children to a religious parochial school and struck down that
Oregon law, and that is one of the foundations of the
unenumerated rights doctrine that is folded into the Glucksberg
test and rooted in history and tradition.
So how you get there, as you know well, Senator, there are
stacks of law reviews written to the ceiling on all of that,
whether it is privileges and immunities, substantive due
process, or Ninth Amendment. But I think all roads lead to the
Glucksberg test, as the test that the Supreme Court has settled
on as the proper test.
Senator Cruz. Let us talk a little bit about the First
Amendment. Free speech, why is that an important protection for
the American people?
Judge Kavanaugh. It is one of the bedrocks of American
liberty, the ability to say what you think, to speak
politically, first of all, about policy issues, and to speak
about, for example, who you want to support for elected office
is a critical part of the free speech principle. But it is
broader than that. It is the idea that there is no one truth
necessarily, that one person can dictate from on high in terms
of policy issues or social issues or economic issues, and that
the truth or at least the best answer emerges after debate and
over time, and that freedom of speech is important to help
advance that cause of the debate. And it is important just as
an individual matter, I think, to have that protection written
into the Constitution because you may have an unpopular view at
a particular point in time, and if that view were suppressed,
that view would never take hold even though that view would be
the better view. And so it is particularly important in Supreme
Court precedent, I think, to protect unpopular views or views
that seem out of fashion or out of fashion at a particular
moment in time because of both the inherent dignity that that
provides to individual people, but also for the broader purpose
of that advances societal progress or economic progress or
social progress. Most good ideas were unpopular at one point or
another and take time to take hold, and I think the Framers
understood that. Look at where they came from and how they had
to fight against suppression of speech and suppression also of
religious liberty, of course, in how they came about.
So free speech is critically important. I think, again,
Justice Kennedy and Justice Scalia in Texas v. Johnson, what
could be more unpopular than burning the American flag? And yet
they upheld the right to do that, not because they liked it,
and that is the whole point of Justice Kennedy's concurrence,
but because they thought the First Amendment had to protect the
most unpopular of ideas in order to accord with the precedent
and principle of free speech.
Senator Cruz. So you mentioned religious liberty. Religious
liberty is one of our fundamental liberties, cherished by
Americans across the Nation, the right to live according to our
faith, according to our conscience. Can you share your views on
the importance of religious liberty and how the Constitution
protects it?
Judge Kavanaugh. Yes, Senator. To begin with, it is
important in the original Constitution, even before the Bill of
Rights, that the Framers made clear in Article VI no religious
test shall ever be required as a qualification to any office or
public trust under the United States. So that was very
important in the original Constitution, that the Framers
thought it very important that there not be a test to become a
legislator, to become an executive branch official, to become a
judge under religion, recognizing the religious freedom at
least to serve in public office.
And then, of course, in the First Amendment to the
Constitution, ratified in 1791, the principle of religious
liberty is written right into the First Amendment to the
Constitution. And the Framers understood the importance of
protecting conscience. It is akin to the free speech protection
in many ways. And no matter what God you worship or if you
worship no God at all, you are protected as equally American,
as I wrote in my Newdow opinion, and if you have religious
beliefs, religious people, religious speech, you have just as
much right to be in the public square and to participate in the
public programs as others do. You cannot be denied just because
you have a religious status, and the Supreme Court has
articulated that principle in a variety of different ways in
particular cases.
If you look at, for example----
[Disturbance in the hearing room.]
Judge Kavanaugh. In other countries around the world, you
know, in China, for example, you----
[Disturbance in the hearing room.]
Judge Kavanaugh. So if you look at other countries around
the world, you are not as--you are not free to take your
religion into the public square. You know, crosses are being
knocked off churches, for example, or you can only practice in
your own home, you cannot bring your religious belief into the
public square.
[Disturbance in the hearing room.]
Judge Kavanaugh. And being able to participate in the
public square is a part of the American tradition, I think, as
a religious person, religious speech, religious ideas,
religious thoughts. That is important.
So, too, in the Establishment Clause, some of those----
[Disturbance in the hearing room.]
Judge Kavanaugh. Some of those case are, as you know,
particularly complicated in the Supreme Court precedent, but
the Supreme Court precedent, for example, in the Town of Greece
case and others has recognized that some religious traditions
in governmental practices are rooted sufficiently in history
and tradition to be upheld, and so in that case, the Town of
Greece case, the Supreme Court upheld the practice of a prayer
before a local legislative meeting, as Marsh v. Chambers, of
course, also--a local town meeting, I should say, Marsh v.
Chambers, it upheld that in a legislative meeting as well.
So the religious tradition reflected in the First Amendment
is a foundational part of American liberty, and it is important
for us as judges to recognize that and not--and recognize, too,
that as with speech, unpopular religions are protected. Our
job--we can, under the Religious Freedom Restoration Act,
question the sincerity of a religious belief, meaning is
someone lying or not about it, but we cannot question the
reasonableness of it, and so the Supreme Court has cases with
all sorts of religious beliefs protected, Justice Brennan
really the architect of that.
So religious liberty is critical to the First Amendment and
the American Constitution.
Senator Cruz. How would you describe the interaction
between the Free Exercise Clause and the Establishment Clause?
And are they at cross purposes and in tension? Or are they
complementary of each other?
Judge Kavanaugh. I think in general it is good to think of
them as both supporting the concept of freedom of religion
and--in the Newdow case I wrote, tried to explain some of those
principles, but I think it is important to think that, to begin
with, you are equally American no matter what religion you are,
if you are no religion at all; that it is also important, the
Supreme Court has said, that religious people be allowed to
speak and to participate in the public square without having to
sacrifice their religion in speaking in the public square, for
example, or practicing their religion in the public square.
At the same time, I think both clauses protect the idea or
protect against coercing people into practicing a religion when
they might be of a different religion or might be of no
religion at all. So the coercion idea I think comes really out
of both clauses as well.
The cases that are Establishment Clause cases that do not
involve coercion but are some of the--the religious symbols
cases, as you well know, Senator, that is a complicated body of
law, but probably each area of that has to be analyzed in its
own silo. But as a general matter, I think it is good to think
of the two clauses working together for the concept of freedom
of religion in the United States, which I think is foundational
to the Constitution.
Senator Cruz. When you were in private practice, you
represented the Adat Shalom synagogue pro bono. You did that
for free. Can you describe for this Committee that
representation and why you undertook it?
Judge Kavanaugh. I undertook that representation to help a
group of people who wanted to build a synagogue, but were being
denied the ability to do that based on a zoning ordinance that
seemed to be--the application, at least, of a zoning ordinance
in a way that seemed to be discriminating against them because
of their religion, and that may have allowed other buildings to
be built there, but they were being blocked or at least
challenged from building a synagogue there. So it seemed to me
potentially a case of religious discrimination that was being
used to try to prevent them from building. So I wanted to--I
agreed to represent them because I wanted to do pro bono work
and I always like to help the community. In that case in
particular, I thought these people who want to build their
synagogue had the right to do so, as I saw it under the law.
And I thought I could help them do so, and we did prevail in
the district court in Maryland, and that synagogue now stands,
and they were very grateful.
And so that was the kind of litigation--that was the couple
years I was actually at a law firm but did some pro bono work,
and that was very rewarding pro bono work to have a real effect
on real people in their practice of their religion in the State
of Maryland. So that is something that means a lot to me. They
gave me something to hang on the wall: ``Justice, justice shalt
thou pursue,'' which has hung on my wall in my chambers the
whole 12 years I have been there as just a reminder of a
representation I had in the past and the importance of equal
treatment in religious liberty and a successful pro bono
representation that meant a lot to me.
Senator Cruz. Well, and I will note, some of the Democratic
Senators on this Committee----
[Disturbance in the hearing room.]
Senator Cruz. Some of the Democratic Senators on this
Committee have suggested that you would somehow side with rich
and powerful entities at the expense of the little guy, but at
least in that instance, representing the synagogue against the
power of government that was trying to prevent it being built
is very much an instance that you chose to give your time and
your energy and your labor for free to a litigant that I think
most would view as the little guy in that battle.
Judge Kavanaugh. That is correct, Senator, and I have tried
as a judge always to rule for the party who has the best
argument on the merits, and that has included workers in some
cases, businesses in others, coal miners in some cases,
environmentalists in others, unions in some cases, the employer
in others, criminal defendants in some cases, the prosecution
in others. And I have a long line of cases in each of those
categories, and little guy/big guy is not the relevant
determination. If you are the little guy, so to speak, and you
have the right answer under the law, then you will win in front
of me.
Senator Cruz. Earlier in the questions from Senator Graham,
he asked you a question, ``Are you a Republican? '' And he
asked it in the present tense. And your answer, you
acknowledged that you had been a registered Republican. Indeed,
you had served in a Republican administration previously. But,
of course, you have been a Federal judge for 12 years. Do you
consider yourself a Republican judge?
Judge Kavanaugh. I am not sure what the current
registration is, but shortly after I became a judge, I assume
the registration--I have not changed it, but I do not know if
it is still listed. But shortly after I became a judge and had
voted I think in one election, I decided--I had read about the
second Justice Harlan having decided that he did not want to
continue voting while being a Federal judge, and I thought
about that practice, and I would be the first to say I am not
the second Justice Harlan, not trying to compare myself in any
way to him, but I thought that was a good model for a Federal
judge, just to underscore the independence, because we are not
supposed to participate in political activities, go to rallies,
give money and that kind of thing. And it seemed to me that
voting is a very personal expression of your policy beliefs in
many ways and your personal beliefs. And I am not trying to----
Senator Cruz. Let me ask one final question. My time is
expiring, and I want to end on a lighter note.
Judge Kavanaugh. Yes.
Senator Cruz. You and I have both had the joys of coaching
our daughters in basketball. Could you tell this Committee what
have you learned coaching your daughters playing basketball?
Judge Kavanaugh. Well, it has been a tremendous experience
to be able to coach them for the last 7 years, and all the
girls on the team, and I have learned about something I saw in
my own life about the importance of coaches to the development
of America's youth, teachers too, but coaches can have such an
impact, I think, on building confidence, and when you see--I
have coached girls. When you see a girl develop confidence over
time or you see their competitive spirit, team work, the
toughness that is developed over time, the drive, you know, win
with class, lose with dignity, winning and--the ability to lose
but still put forth your best effort, and so I have learned
just how important--I think I understood that from my own
experience, as I said, but learned how important it is for
people, for coaches, and the effect that you can have on
people's lives. And I have heard from a lot of the parents over
the last 8 weeks while I have been in this process about, you
know, the effect I had on some of the girls' lives, which was
very nice to hear in terms of my coaching.
So like I said yesterday, coaches have such an impact on
people, and I have learned that. That is why Senator Kennedy
said in our individual meeting, ``I hope you keep coaching,''
and I am going to--either way this comes out, I am going to try
to keep coaching.
Thank you, Senator.
Chairman Grassley. Senator Coons.
Senator Coons. Thank you, Chairman Grassley. Thank you,
Judge Kavanaugh.
As we discussed in my office, and in a letter I have sent
to you to follow up, I hope to question you today about your
views on rule of law, separation of powers, Presidential power.
And Chairman, I would like to start by entering into the
record a series of articles that I think lay some of the
foundation for my concerns. First----
Chairman Grassley. Without objection, so ordered. Well, go
ahead, if you want.
Senator Coons. Thank you.
First, ``Who Is Brett Kavanaugh? '' by Chicago Professor
Eric Posner and Emily Bazelon.
Second, ``The Kavanaugh Nomination Must Be Paused, and He
Must Recuse Himself'' by former Third Circuit Judge Timothy
Lewis, former White House Ethics Counsel Norm Eisen, and
Harvard Law Professor Tribe.
Third, ``Brett Kavanaugh's Radical View of Executive
Power'' by Professor Brettschneider.
``Brett Kavanaugh Is Devoted to the Presidency'' by Law
Professor Garrett Epps.
And ``Brett Kavanaugh's Legal Opinions Show He Would Give
Donald Trump Unprecedented New Powers'' by Fordham Professor
Shugerman.
Chairman Grassley. As I previously said, without order----
[The information appears as submissions for the record.]
Judge Kavanaugh. Would you repeat who the third one was?
Sorry, I want to make sure I know the names.
Senator Coons. I think it was, ``Brett Kavanaugh's Radical
View of Executive Power'' by Brown University Professor Corey
Brettschneider, if I am not mistaken.
Judge Kavanaugh. Okay. That is not a law professor, though,
right?
Senator Coons. Correct.
Judge Kavanaugh. Okay.
Senator Coons. It is a range of opinions from a range of
folks from a range of backgrounds.
Judge, the rule of law requires that those who are governed
and those who govern both be bound by the law. And a key way to
ensure, as you said in your opening, that no one is or should
be above the law is to ensure that the President is not above
the law by preventing him from firing someone appointed to
investigate him.
Sitting on a panel at Georgetown in 1998, you took a
different view. You said at that time, and I quote, ``The
prosecutor should be removable at will by the President.''
Given what is in your record, a long record of writing and
speaking on this topic, I think there is legitimate cause for
concern about your views on Presidential power and whether it
is possible President Trump chose you so you would protect him.
Please answer directly. Do you still believe a President
can fire at will a prosecutor who is criminally investigating
him?
Judge Kavanaugh. That is a question of precedent, and it is
a question of that could come before me either as a sitting
judge on the D.C. Circuit or, if I am confirmed, as a Supreme
Court Justice. So I think that question is governed by
precedent that you would have to consider.
United States v. Nixon, of course, the special prosecutor
regulation in that case was at issue in the United States v.
Richard Nixon in the subpoena----
Senator Coons. Judge, if I could, I am just asking whether
you stand by your record, something that you chose to write in
1998. You expressed a view at the time that a President can
fire at will a prosecutor criminally investigating him. Is that
still your view?
Judge Kavanaugh. Well, that would depend----
Senator Coons. I am not asking for a recitation of
precedent. We will get into some precedent later.
Judge Kavanaugh. Okay.
Senator Coons. I am just trying to make sure I understand
if you stand by that publicly expressed view back in 1998.
Judge Kavanaugh. I think all I can say, Senator, is that
was my view in 1998.
Senator Coons. Okay. Well, then let us move to a more
recent statement that I think is equally important. In the wake
of the Watergate Presidential scandal, a scandal precipitated
by a President who had committed some crimes and then was
investigated, Congress passed the independent counsel statute,
a statute which restricted in part when the President can fire
an independent counsel.
And during a recent speech, a 2016 speech, you described
this law as, and I quote, ``a goo-goo post-Watergate reform,''
and ``a constitutional travesty.'' Do you stand by your
criticism of the independent counsel statute as a
constitutional travesty?
Judge Kavanaugh. Well, that was understated compared to
what Members of this Committee and others said in 1999, when
the decision was made----
Senator Coons. But, Judge, I am interested in your views--
--
Judge Kavanaugh. Right.
Senator Coons [continuing]. Not the views of Members of
this Committee. And when you chose in a public speech as a
sitting judge to say that that statute was a constitutional
travesty, you had something in mind. What are your views on
this statute, and why do you view it as a constitutional
travesty?
Judge Kavanaugh. So let me make a few things clear. This is
the old independent counsel statute.
Senator Coons. Yes.
Judge Kavanaugh. That is distinct from the special counsel
system that I have specifically said is consistent with our
traditions. I said that in the Georgetown article, as you know.
I said that, actually, in the PHH case most recently.
The statute you are talking about, the independent counsel
statute was a distinct regime that Congress itself decided not
to reauthorize in 1999. I think Senator Durbin said it was
unrestrained, unaccountable, unconstitutional statute. That
statute----
Senator Coons. But I am interested, if I might, Judge, in
your views. You chose to describe the independent counsel as a
constitutional travesty. What did you mean?
Judge Kavanaugh. Well, I meant I think what Justice Kagan
said, when she said at Stanford a few years ago, that Justice
Scalia's dissent in Morrison v. Olson--and this is a quote--
``was one of the greatest dissents ever written, has gotten
better every year.'' By identifying Justice Scalia's dissent as
one of the greatest dissents ever written, Justice Kagan seemed
to be saying, at least I think this is the only reading of it,
that the Morrison v. Olson decision was--was wrong.
Senator Coons. I will actually strongly disagree. You
offered that quote, that cite of Justice Kagan when we met. I
was struck--perhaps I should call Justice Kagan and tell her
she is one of your judicial heroes. I think that citation is
actually literally true, but misleading in context.
Justice Kagan wrote in a famous Harvard Law Review article
in 2001 strongly rejecting the unitary executive theory, which
is at the root of the Scalia dissent in Morrison v. Olson. I
believe Justice Kagan was complimenting the forcefulness and
the clarity of Scalia's writing in the dissent, not agreeing
with the legal theory.
I am trying to get to the point of----
Judge Kavanaugh. I think I disagree with that, Senator.
Senator Coons. Well, I look forward to exchanging some
papers on this, and perhaps in our next round tomorrow, we can
have more fun on it. But it is an important point.
Judge Kavanaugh. It is. But I think in that article, and I
have read that article. It is a great article, ``Presidential
Administration'' by Justice Kagan, then-Professor Kagan. I
think she was referring to the concept of independent agencies
generally, so the Humphrey's Executor line of cases.
[Disturbance in the hearing room.]
So I think she is referring there, at least I read her as
referring there, to independent agencies are traditional and
permissible. The independent counsel statute was something
quite different from the traditional independent agencies that
existed with the Federal Trade Commission, the Securities and
Exchange Commission. So I did not read her old article to, in
any way----
Senator Coons. Let us put it this way. Justice Kagan may
have complimented Scalia's dissent in its writing or its
holding. You have criticized the independent counsel statute as
a constitutional travesty, and I am simply trying to get to the
bottom of why you held that view and why you chose to say that
in a speech just 2 years ago.
Judge Kavanaugh. Well, it was Morrison v. Olson was a one-
off case about a one-off statute that has not existed for 20
years. The statute is gone. The case, as Justice Kagan--I think
I took my lead from her comment. I know I read that. I have
cited it many times in speeches I have given. But that statute,
it is just real important to be clear here, and I know you know
this, Senator, but so everyone understands. That statute has
not existed since 1999. Special counsel systems----
Senator Coons. But Morrison v. Olson is still good law, is
it not? But the holding by the Supreme Court in Morrison v.
Olson, even though the independent counsel statute has passed
into history, Morrison v. Olson, as a decision of the Supreme
Court, is still good law. In fact, your own Circuit said so
forcefully this year.
Judge Kavanaugh. I think Humphrey's Executor is good law.
Senator Coons. I think that is a ``yes'' or ``no''
question. The D.C. Circuit held this year in PHH, where you
wrote a dissent, that Morrison v. Olson is still good law.
Correct?
Judge Kavanaugh. I think they were applying Humphrey's
Executor. They might have cited Morrison. But the principle
being----
Senator Coons. They literally said, and I quote, ``Morrison
remains valid and binding precedent,'' and----
Judge Kavanaugh. In how it applied Humphrey's.
Senator Coons [continuing]. Criticized your minority as,
``flying in the face of Morrison''.
Judge Kavanaugh. And again, we are talking about
independent agencies. So the traditional independent agencies
on the one hand, and the old independent counsel regime that is
long gone, on the other. And the independent counsel regime,
this Committee and the Congress as a whole decided was a
serious mistake. Just Senator Durbin's words--unrestrained,
unaccountable, unconstitutional. And I think the case----
Senator Coons. So what I am concerned about, Judge--what I
am concerned about, Judge, is not so much whether there are
Members of this Committee or other Justices who view the
independent counsel statute as a serious mistake, but whether
you view Morrison v. Olson and the majority holding there as a
serious mistake. So let us move to that point, if I could.
In Morrison v. Olson, as you well know, the Court upheld a
restriction on the President's power to fire the independent
counsel, in fact, by a vote of 7-to-1. It is an opinion written
by your first judicial hero, Chief Justice Rehnquist. It was
only Justice Scalia who dissented in arguably a well-crafted
dissent.
But for those seven Justices, they wrote an important
decision, which I believe you have challenged and criticized
because it restrained the President's power to fire the
independent counsel. Just 2 years ago, you were asked at a
public event to name a case that deserved to be overturned--any
case. And after a pregnant pause, you said, ``Well, I can think
of one.'' There was some chuckling. And then you said, ``Well,
sure, Morrison v. Olson.''
And I am struck by that, having watched that speech. Not
Korematsu, not Buck v. Bell, cases that, you know, are taught
to all first-year law students as terrible examples of shameful
decisions. No, you chose Morrison v. Olson to say, ``it has
already been effectively overturned''--which I disagree with--
and, ``I would put the final nail in the coffin.''
So, here is a recent public statement by a sitting D.C.
Circuit judge who is now before me as a nominee to serve on the
Supreme Court. So, I have got a question: Would you vote to
overturn Morrison?
Judge Kavanaugh. Senator, first of all, I--Korematsu has
been now overturned, and Buck v. Bell is a disgrace. So I am--
--
Senator Coons. Right. So it is striking you did not choose
either of them. You reach out and say, oh, this old, 30-year-
old decision about a statute long gone, that is the one I am
going to hold up to get rid of.
Judge Kavanaugh. And I really did have Justice Kagan's
comment foremost in mind. I thought she had already talked
about Morrison v. Olson and----
Senator Coons. Nothing to do with a view of Presidential
power?
Judge Kavanaugh. Well, I have written about the special
counsel system, and I have said in the 1999 Georgetown article
that the special counsel system is the traditional approach
that is used. When there is a conflict of interest in the
executive branch, there is a need for an outside counsel. And I
have said that is traditional, and it was when I said that
again in the PHH case that you just cited.
Senator Coons. And is that special counsel fireable at will
or only for cause in your conception of what is the most
appropriate structure?
Judge Kavanaugh. So that is the hypothetical that you are
asking me, and I think what that depends on is, is there some
kind of restriction on for-cause protection either regulatorily
or statutorily that is permissible that is different from the
old independent counsel, for example? And that is the kind of
open question, gray area question that you would want to hear
the briefs, get the oral arguments, keep an open mind on. What
is the specific statute you have at issue?
Remember, the old independent counsel had a lot of moving
parts to it that were--all of which were novel and together
produced Justice Scalia's dissent. I do not think any one
aspect----
Senator Coons. So given your enthusiasm for Justice
Scalia's dissent, given your choice to say, forgive me, I would
put the final nail in, let me go back to that question. Would
you vote to overturn Morrison?
Judge Kavanaugh. Senator, I am not going to say more than
what I said before.
Senator Coons. Well, I think what you said before is clear.
I think your enthusiasm for overturning Morrison is
unmistakable.
[Disturbance in the hearing room.]
Judge Kavanaugh. I want to repeat two things, Senator,
because they are important. One is, Humphrey's Executor is the
precedent that stands--and I have called it an entrenched
precedent in an opinion--on independent agencies generally. And
two is, the special counsel system, both in the PHH decision
recently and in the old Georgetown Law Journal article, I have
specifically said that that is the traditional way that
criminal investigations proceed when there is a conflict of
interest and the usual Justice Department process is not
appropriate.
Senator Coons. Humphrey's Executor has been settled law now
for 83 years, right? And early on, you said that you would be
willing to offer views on long-settled cases. Can you just tell
me if Humphrey's Executor was correctly decided?
It is long-settled precedent, yes. You have said that about
a number of cases. But a key difference here is whether you
will say that something was rightly decided. I am struck about
this--frankly, a little concerned about it--because in your own
opinion, in your dissent in PHH, you went into a long criticism
of Humphrey's Executor that at least that is how I read it.
You laid out a very strong articulation of this unitary
executive theory, this theory that the President is imbued with
all the power of the executive branch, which is the core of
Scalia's dissent in Morrison, which is a radical theory that
has been rejected by the Supreme Court, I would argue.
And you go on to then say that Humphrey's Executor, yes, it
is long-settled. But you know, if we were to overturn it, it
would not mean the elimination of independent agencies. Why did
you need to go there? Why have that conversation if this long-
settled case is actually well reasoned?
Judge Kavanaugh. What I said in the PHH case is that
Humphrey's Executor is the precedent that governs independent
agencies. I have applied it dozens of times, Humphrey's
Executor, and referred to it that way.
What concerns me constitutionally as a judge in the PHH
case was that the CFPB did not follow the traditional model of
independent agencies and, therefore, departed from this
traditional exception, one might say, to the idea that a single
President controls the executive branch. And I explained all
that, that the--having one head of an independent agency both
diminished Presidential authority more than Humphrey's Executor
and posed a serious threat to individual liberty and was a
departure from historical practice, which under the Supreme
Court's precedent made--makes a big difference, as you know, of
course.
And so I referred--so that is why I concluded in the CFPB
case that the statute was--the bureau was unconstitutionally
structured. But the remedy was not to get rid of the whole
agency. The remedy was simply to make the person removable at
will.
Senator Coons. So Humphrey's Executor was essentially about
whether or not the head of the FTC could be removable at will
or have a good cause removal protection?
Judge Kavanaugh. Right. President Roosevelt wanted to fire
Humphrey, who was a Republican holdover.
Senator Coons. Will you simply just state that it is well-
reasoned, well-decided, long-settled law?
Judge Kavanaugh. I will say it is an important precedent of
the Supreme Court that I have applied many times. It has been
reaffirmed----
Senator Coons. It is troubling to me that you cannot say
that Humphrey's Executor was well-decided.
Judge Kavanaugh. But again, I will follow what the eight
nominees----
Senator Coons. Was Marbury v. Madison well-decided?
Judge Kavanaugh. Of course. Of course. The--of course it
is. The concept of judicial review was not even invented in
Marbury v. Madison. It is right here in the Constitution, as I
read it, and also referred to in Federalist 78. We mistakenly
say Marbury created the concept of judicial review. It actually
exists right there. So it is a correct application.
But the reason I am hesitating----
Senator Coons. So let me bring this back to the current
context and why all of this is of concern to me and relevant--
--
Judge Kavanaugh. But I did not finish my answer.
Senator Coons. We have a series of public statements by you
that are recent about your enthusiasm for overturning Morrison.
And you are not going to comment on that here. You will not
answer that question here. You have got a recent decision as a
D.C. Circuit judge where you forcefully articulate this unitary
executive theory that would give the President significantly
more power. And if Humphrey's Executor is at any risk, we might
then see a whole series of agencies moved or a whole series of
long-established protections from at-will removal at some risk.
Let me just make sure I get this right. In your view, can
Congress restrict the removal of any official within the
executive branch?
Judge Kavanaugh. Under the Supreme Court precedent, which I
have applied many times, Humphrey's--and referred to it as an
entrenched precedent--Congress historically has restricted the
removal of independent agency heads. And that is--that is law
that has been in place for a long time.
Senator Coons. For decades.
Judge Kavanaugh. On Morrison, you may disagree with what I
am about to say. But the reason I think Justice Kagan probably
felt free to talk about Morrison, and I did as well, is, it
seemed a one-off case about a statute that does not exist
anymore and that Humphrey's is the precedent on independent
agencies.
Now you may disagree with me on that, but I think that is
the premise on which she spoke. I do not want to put words in
her mouth, but that is certainly the premise on which I spoke.
But I was not intending to do either of two things. I was not
intending to say anything about Humphrey's, and I was not
intending to say anything about traditional special counsels,
which I have explicitly distinguished multiple times over the
years.
Senator Coons. So I am just--I am concerned that I am
having difficulty getting what I think is a clear and decisive
answer from you on a number of things. Would you overturn
Morrison? What is your view of executive theory? Is it
appropriate for a President to fire a special counsel
investigating him?
I am just going to come back to a decision that you
rendered this year, this PHH decision, and I urge folks who are
having any interest in this or trouble following it to just
read your decision in this case. Because you lay out--you
embrace this theory of the Executive, that the Executive has
all the power of the executive branch, which I think is
directly relevant to the question whether a special prosecutor
should be fireable at will by the President or could be
protected from being fired by the whims of the President.
This is a theory that was rejected not just by the Supreme
Court in Morrison v. Olson, not just by the D.C. Circuit, but
by a number of Members of this Committee in a recent vote, a
bipartisan vote advancing a bill that is predicated on the idea
that Congress can impose some restrictions on the Executive
power to fire at will executive branch senior officers.
Judge Kavanaugh. But just with respect, Senator, I think
you are significantly overreading what I wrote in that case. I
did not in any way say that the traditional independent
agencies are in any way constitutionally problematic. In fact,
I took that as the baseline on which I said that this new
agency departed from that traditional model and was
problematic.
So I did not--I did not cast doubt on Humphrey's in that
case as I--at least as I read it. I guess you do not agree with
the opinion, but I explained in great detail why I thought this
deviation from Humphrey's mattered as a matter of historical
practice.
Senator Coons. Let us get then, if we could, Judge, in the
few minutes I have got left, to the question of investigations
because this is also something you have written about, you have
spoken about. And it is related, I think, to this issue.
Now back in Georgetown on a panel in 1998, you said, and I
quote, ``It makes no sense at all to have an independent
counsel investigate the conduct of the President. If the
President were the sole subject of a criminal investigation, I
would say no one should be investigating that.''
Is that still your view that if there is credible evidence
that a President committed crimes, no one should investigate
it?
Judge Kavanaugh. That is not what I said, Senator. So two
things on that. One, the independent counsel you are referring
to there, it is just important because people forget this, is
distinct from the special counsel system. So it is very
important. I specifically in that Georgetown Law Journal
approved of the traditional special counsel system.
That is----
Senator Coons. And the traditional special counsel system
has a special counsel that can be fired at will by the
President. Correct?
Judge Kavanaugh. Well, in the Watergate situation, there
was a regulation that protected the special counsel from--from
that.
Senator Coons. And what happened to the special counsel in
Watergate?
Judge Kavanaugh. Well, there was a new regulation then put
in place, as you know, and then in the United States v. Richard
Nixon, that new regulation was parsed pretty carefully. And
then, more generally----
Senator Coons. This is exactly why your quote that the
independent counsel statute was ``a goo-goo post-Watergate
reform'' gave me some agita.
Judge Kavanaugh. But that was not the--but that was a
statute put in well after Watergate, of course, 1978. In
Watergate itself, what the system that was in place was the
traditional special counsel system with a new regulation put in
after the episode you are referring to. And then when the
independent counsel system came up in 1999 for reauthorization,
there was everyone here, everyone----
Senator Coons. Well----
Judge Kavanaugh. Agreed it was--I mean, I think I am not--
--
Senator Coons [continuing]. You are not alone. You are not
alone.
Judge Kavanaugh. I am not exaggerating to say that the
quote you put up before that one was understating what everyone
here said about the independent counsel system.
Senator Coons. Well, in a 1999 article in that exact
period, I think this is the American Spectator article, you
called it, ``constitutionally dubious'' for a criminal
prosecutor to have the responsibility to investigate the
President.
Help me understand that. Is that still your view, Judge? Is
it still your view that it is constitutionally dubious for a
criminal prosecutor to investigate the President?
Judge Kavanaugh. I have never taken a position on the
constitutionality. All I have done is point out that, as I did
in the Minnesota Law Review article, that Congress might want
to consider the balance of--and that is when President Obama
was in office----
Senator Coons. So this is just a policy argument, not a
constitutional argument?
Judge Kavanaugh. Correct. If I have a constitutional case
come before me as a judge on the D.C. Circuit or, if confirmed,
on that Court, I will have an open mind. I will listen to the
arguments. I will dig into the history.
I have seen all sides of this. I will--I will have a
completely open mind on the constitutional issue. And again,
briefs and arguments, I think I have also shown a capacity to,
if I am presented with a better argument than something I have
had before, to adopt the better argument.
I have certainly done that. A good example of that in the
national security context in the first Bahlul case, I pointed
out how I had reconsidered something I had written before in a
national security context. I am not a--but the larger point is
that I have not taken a position on constitutionality before.
Senator Coons. Well, and I will just come back to a point
we have now talked about several times. In several different
contexts, in several different ways, you have chosen to make a
constitutional point, either expressing enthusiasm for
overturning a 30-year-old long-settled precedent in Morrison v.
Olson, or arguing for the unitary executive theory that Scalia
advanced in his dissent there.
Or I will give you another quote. In a different 2016
speech, you said there Justice Scalia never wrote a better
opinion than his dissent in Morrison v. Olson, and you may have
been commenting on the quality of his writing. But you go on to
say you believe his views will 1 day be the law of the land.
I assume here you are talking about the constitutional
analysis in Scalia's dissent, and you are expressing a hope, an
expectation that it will some day be the law of the land. You
sit before me as the nominee to be in a seat where that will be
eminently within your reach.
Judge Kavanaugh. But again, Senator, I just want to avoid
melding a lot of different things into one because they are
very important to keep distinct here, very important. The first
is the independent counsel statute, and I view Morrison as only
about the independent counsel statute. And I realize you may
have a different view on that.
But if it is only about the independent counsel statute, as
I see it, and the independent counsel statute does not exist
anymore, that is why Justice Kagan probably felt free to
comment about Morrison as well.
Senator Coons. Well----
Judge Kavanaugh. And then on special counsels, I have said
what I have repeated many times here. On investigation and
indictment of a sitting President, number one, I have never
taken a position on it, and number two, it is important to
underscore the Justice Department for 45 years--now this is the
Justice Department, not me. The Justice Department for 45 years
has taken the position and written opinions that a sitting
President may not be indicted while in office, but it has to be
deferred. Not immunity, but a deferral.
And Randy Moss, who was head of President Clinton's Office
of Legal Counsel, wrote a very long opinion on that. He is now
a President Obama-appointed district judge in DC and an
excellent district judge. I am not saying I agree with that or
disagree with that. I am saying that is the consistent Justice
Department view for 45 years.
So before a case like this would come before the courts,
whether I am on the D.C. Circuit or otherwise, the Justice
Department presumably would have to change its position. That
is one. Two, a prosecutor at some point in the future would
have to decide to seek an indictment of a sitting President at
some point, and three, it would have to be challenged in court.
Then all the briefs and arguments, and then it would come up on
appeal to me in the D.C. Circuit.
So there is a lot of things that would have to happen
before this hypothetical that you are presenting even comes to
pass. And if it does come to pass, you can be assured that I
have not taken a position on the constitutional issue that you
are raising on that specific question, at least as I understand
the question. And that is totally distinct from the Morrison
issue as I understand it.
Senator Coons. Well, and I will tell you again the reason
this has been gravely concerning to me, why I raised it in our
meeting and sent you a letter about it and why I have dedicated
so much time to this question is I really do not view the issue
in the independent counsel statute and the Morrison v. Olson
decision as dealing with some now long-past statute and some
really sort of obscure and now not particularly relevant issue.
I think the reason you reached out and volunteered that you
would love to overturn Morrison v. Olson is not because Scalia
wrote a powerful and moving dissent. It is because of a view of
the executive branch having all the power of the executive
branch in the President's hands that you have articulated
across speeches, interviews, writings, and an opinion, an
opinion this year.
I think that is really your view of the executive branch.
And it rings as real concern for me.
Judge Kavanaugh. But I have not said--I have never said
that. I have never said that, number one. So there are two
issues here, and I want to be very, very clear on them so
people understand that, too.
One is----
Senator Coons. This is how I read your dissent in PHH this
year, is arguing--advancing a unitary executive theory.
Judge Kavanaugh. And I refer to a single President, but
same concept. But----
Senator Coons. Single President means the President is the
chief law enforcement officer of the United States and should
have all the power of the executive branch, including the
ability to fire at will, which is really what is at issue in
all of these articles and cases, the ability to fire at will a
special prosecutor. Correct?
Judge Kavanaugh. So the--I have taken as a given in all
these cases----
Senator Coons. That is a ``yes'' or ``no,'' is that what
you mean?
Judge Kavanaugh. I just want to be real clear, and I am
going to be repeating myself for about the tenth time. But I
have repeatedly said that Humphrey's Executor is the precedent
that allows independent agencies and that I have applied time
after time. That is point one.
Point two is, I have specifically said what I have said
about special counsel systems being the traditional mechanism.
Point three is, I have never taken a position on the
constitutionality of indicting or investigating a sitting
President. And point four is, that the question of who controls
the executive----
Senator Coons. I have got just a minute or two left, if I
might? On that point that you have never taken a position on
the constitutionality of investigating a President, it was this
American Spectator article where you said, and I am quoting,
``If there is an allegation of Presidential wrongdoing, a
congressional inquiry should take precedence over the criminal
investigation, including an investigation of any Presidential
associates.''
This American Spectator article was striking to me, this
one in which you said it was constitutionally dubious for a
criminal prosecutor to investigate a President. Because you
suggested not just that the President should not be criminally
investigated as during his term, but that even his associates
should not be held accountable through the criminal justice
system.
You mentioned you might make an exception for violent
crime, and I----
Judge Kavanaugh. Now that is----
Senator Coons [continuing]. Have a last question for you,
if I might. Whether--what if a Presidential aide commits an
assault, an act of domestic violence?
Judge Kavanaugh. I never said anything like that, Senator,
in terms of----
Chairman Grassley. I will--I will let you--I will let you
answer that, and then we will go on to the next Senator.
Senator Coons. And I would like to conclude, if I might?
Judge Kavanaugh. Yes, I have not said anything approaching
what your broad description was. There has always been a
question based on the Justice Department's own position for the
last 45 years. The Justice Department's own position assumes
that the proper thing to do is to wait for indictment, is that
that occurs after a President leaves office, whether that is
because the term ends or because of the impeachment process.
And that is how the Justice Department--again, for 45
years, that has been the law. But it is not my--that is not my
law. That is the Justice Department's law, again, with Randy
Moss writing the most important thinking on that.
Senator Coons. I recognize I am out of time. I would like
to conclude, if I might, Mr. Chairman, briefly?
I look forward to continuing this line of discussion with
you in our next round, Judge. I do think that there is good
reason for Members of this Committee, myself, principally, to
be concerned about a whole range of things that you have said,
that you have written, and that you have decided as a judge
about whether or not a President can be held accountable.
I think the ability of a special counsel to conduct an
independent investigation of the President is foundational to
the rule of law.
Judge Kavanaugh. I have said the same thing. I have said
that.
Senator Coons. And I look forward to the next round where
we can investigate that more thoroughly.
Judge Kavanaugh. I have said the exact same thing.
Senator Coons. But frankly, Judge, your views about
Executive power, as I think you have detailed, your statements
about what you would like to overturn and what limits you think
there should be, really leave me concerned. And it is because
of our current context. It is because of the environment we are
operating in.
And I look forward to another round and to more questions.
Judge Kavanaugh. I look forward, too. But just to reiterate
what you said about special counsels, is exactly what my
article said in 1999 and exactly what PHH said.
Senator Coons. Thank you, Mr. Chairman.
Chairman Grassley. Before I call on Senator Sasse, a couple
things. One, in regard to independent counsel statute at issue
in Morrison, that statute was never renewed and does not have
any effect today. And we in Congress chose not to renew it
because it was nearly universally condemned.
I often quote Senator Durbin about independent counsels'
``unchecked, unbridled, unrestrained, and unaccountable
authority.'' According to him, unchecked power is tyranny. We
had Eric Holder, President Obama's Attorney General, said the
law was too flawed to be renewed.
Also I want to insert in the record 30 op-eds from all
across the country that support the confirmation of Judge Brett
Kavanaugh. The editorial boards of the Los Angeles Times, the
Chicago Tribune, the Wall Street Journal, among those 30
supporting confirmation.
Without objection, I will enter in the record all 30 of
these op-eds.
[The information appears as submissions for the record.]
Senator Coons. Mr. Chairman? Mr. Chairman?
Chairman Grassley. Senator Sasse.
Senator Coons. While we are on that exact point, there are
four committee confidential documents that I would--I wanted to
be able to question our witness about today, the nominee, the
Judge. I would like to submit those for the record. They reveal
his thinking on a unitary executive theory.
Chairman Grassley. Give that, and I can advocate that you
get them. And we will put into it, just like we said to Senator
Leahy, give us the citations, and we will try to get them. So
far, we have been very fortunate.
Senator Sasse.
Senator Sasse. Thank you, Mr. Chairman.
Judge, by my count, you are about half done.
Congratulations.
[Laughter.]
Senator Sasse. You are going to be here past midnight, I
think.
I also want to talk about limited government in general and
about limits on Executive power in particular. I think today
has been--Senator Cruz did a nice job complimenting the Capitol
Police. I think today has been a tough environment to manage,
and I think we all are glad that people get a right to express
their First Amendment views and have the right to protest.
I do not want to draw too much more attention to it,
though, because I think it disrupts the events. But four things
that have been said that I think are relevant to this question,
protesters that have been carried out or led out in the last
couple of hours.
Just a few minutes ago, a woman shouting, ``Please vote
`no' on Kavanaugh. Presidents should not have the power to do
whatever they want.'' ``Vote `no' on Kavanaugh'' is one of the
loudest shouts of today. ``He will be a Trump puppet.''
A separate one, ``He will support Presidential
criminality,'' and ``Executive immunity has no place in a
democracy.''
I think that I want to empathize with concerns that people
have about those kinds of statements. And frankly, if I thought
that you would be a puppet for this or any President, if you
would support Presidential criminality, if you believe that
Executive immunity is something that is fitting for our system,
or if you believe that Presidents should have the power to do
whatever they wanted, I could not vote for you either.
So I am headed toward voting for you because I do not
believe any of those things are true. But I think the American
people need to understand why not. So already today you cited
the Federalist Papers and said the President is not a monarchy.
I think it would be useful--the Presidency is not a monarchy.
I think it would be useful to just have you back us up and
let us go again. I think Senator Coons asked lots of fair
questions, but as a non-lawyer, many times we got lost in
weeds. Not critical of his questioning, but I would like to
have it at a high school sophomore level for a little while.
If you were going to explain to the American people what
the limits on Executive power are, what are they? Where do you
start?
Judge Kavanaugh. I would start with the fact that the
President is elected by the people through the electoral
process specified in the Constitution. So not a hereditary
monarchy was something that was specified in Federalist 69.
Second, the President serves a term in office, not an unlimited
term in office. Again, specified in Federalist 69.
The President is subject to the law. No one is above the
law in the United States, including the President of the United
States. And that is something that is made clear in Federalist
69. The President does not--a President does not have absolute
power to make the laws because Congress has the power to make
the laws. The President does not have the power to adjudicate
disputes because an independent judiciary has the power to
adjudicate disputes and cases and controversies, along with a
jury.
As Justice Jackson's framework in Youngstown famously made
clear, it is important to understand that, though, even in the
national security context where the Constitution gives the
Commander-in-Chief power to the President, the President
remains subject to the law, both the Constitution and the laws
passed by Congress.
So, for example, as I have said in writings and my review
of Judge David Barron's book on war, for example, and some of
my cases, Congress has substantial power--and this is often
forgotten--a substantial power in the war powers arena. Of
course, to declare war, authorize war, but also to regulate the
war effort. And Congress has done so historically and
currently, including post September 11th on issues such as
interrogation, detention, military commissions, surveillance.
Congress has been actively involved in those areas historically
and through post September 11th.
And I have made clear in my writings that the President has
very limited power in Youngstown Category 3 to disregard such a
law and/or practice. The historical example that is accepted by
the Supreme Court is command of troops in battle, for example,
that Congress could not get in the middle of that. But outside
examples like that and narrow examples like that, Congress
regulates the--can regulate the war effort.
Now Congress often chooses to give the executive branch
broad discretion on national security policy, but sometimes not
because the Congress does not like what the Executive has done.
Usually we are very reactive, and that is understandable.
Something happens that seems bad. Congress will come in and say
we do not want that to happen again in wartime or otherwise in
the national security context.
And Justice Jackson set forth that framework, which has
stood the test of time and been applied by the Supreme Court.
And that is a very critical part because where else would we
expect the Executive to really exercise unilateral power but in
the national security context, but also at the same time, what
else is a greater time of threat to liberties than the national
security context? Youngstown Steel again being the classic
example, where the President said, well, we are trying to win
the war, so I can seize steel mills.
And that did not work by a 6-to-3 vote of the Supreme
Court, given the statutes Congress has passed. So, too, no
President is above the law in the sense that a President
remains subject to, the Supreme Court said in the Clinton v.
Jones case, civil process. So that is a precedent of the
Supreme Court on civil suits while in office.
So, too, the criminal process, Hamilton specifies this in
Federalist 69, a President is not above the law with respect to
the criminal process. The only question that the Justice
Department, as I was saying to Senator Coons, has opined on for
45 years is the timing of the indictability question. And the
Justice Department, through Democratic and Republican
administrations for 45 years, has said that should occur when
the President leaves office, either because the term has
expired or because of the impeachment process.
Senator Sasse. Can I interrupt to unpack there? And then I
will come back.
Judge Kavanaugh. Yes.
Senator Sasse. I want to have you finish because I think
you are building a list that has duration in time of the office
of the Presidency, authorities that the legislature may or may
not have given to the executive branch, powers of the purse to
fund things that may have authorities but may not have current
dollars available to them.
I think a lot of your debate with Senator Coons--again, I
think it is an important debate--is about personnel matters.
But for just a second, let us play out this question of
criminality versus civil charges against a President. And I
admit that I am sort of, as a non-lawyer, I follow in the
Midwestern tradition of the Chairman, of being a non-lawyer on
the Committee. I know a whole bunch of big legal brains told me
if I ask any hypothetical, you will run circles around me
telling me why you cannot answer.
But I kind of want to try the start of a hypothetical.
Imagine 10 years in the future: There is a President from the
Purple Party. So it is none of the current participants in
public life, and it is none of these parties even. And this
President ran for office with an instinct to demonstrate self-
reliance, and he/she decides that they will not be a part of
any motorcades. They are going to drive themselves. And they
are drunk one night, and there is a motor vehicle homicide
committed by the President.
That is both a criminal and a civil matter. Is the
President immune from either being sued or being charged with a
crime because they are President?
Judge Kavanaugh. No. No one has ever said, I do not think,
that the President is immune from civil or criminal process. So
immunity is the wrong term to even think about in this process.
The only question that has ever been debated is whether the
actual process should occur while still in office. That is the
Jones v. Clinton case where strong arguments were presented by
both sides, and the Supreme Court ultimately decided that the
civil process could go forward against President Clinton.
President Clinton was arguing that the civil process should
be deferred until after he left office. The Supreme Court
rejected that. So, too, the only question with the criminal
process is not immunity. That is the wrong term. It is timing,
and the--as I have said, the Justice Department for 45 years
has taken the position that the timing of the criminal process,
a criminal process should be after the President leaves office.
Now that does not prevent investigations, gathering of
evidence, questioning of witnesses, I would not think
necessarily. I do not want to opine too much. But that is
certainly how it has proceeded under the special counsel system
that we have had traditionally that has coexisted with the
Justice Department position on the ultimate timing question.
So those are just timing questions from Jones v. Clinton
and from the Justice Department position. But immunity is not--
not the correct word, and I do not think anyone thinks of
immunity. And why not? No one is above the law. And that is
just such a foundational principle of the Constitution and
equal justice under law, and that is what Hamilton was
concerned about in Federalist 69, and that is what the Framers
were concerned about.
Even with having--if you read the Constitutional Convention
debates, even with having a single President, they were
concerned, well, that may seem like a monarchy. And that is why
Hamilton felt the need to convince the people, ``no, this is
not a monarchy.''
And how did Hamilton go about convincing the people of
that? He wrote all the ways it was distinct in Federalist 69,
some of which I have outlined to you. Appropriations is another
important one to--I mean, as Senator Byrd reminded me when I
met with him in my 2006 process, Senator Byrd pulled out his
pocket Constitution. And Senator Byrd, as everyone who
remembers Senator Byrd knows, was very focused on the
Appropriations Clause of the Constitution, the fact that the--
--
Senator Sasse. As any drive through West Virginia will show
you.
[Laughter.]
Judge Kavanaugh. Yes, exactly.
Senator Sasse. I want you to finish that list, and then I
want to ask some personnel-specific questions. But, so, I think
you have duration of the President's term in office. Specific
authorities that the President may or may not have been given.
Appropriations. Personnel questions.
Are there any other--I guess vertical and horizontal
federalism. So there is not just executive-legislative
distinction here. In my hypothetical, the drunk driving
accident could have happened in Virginia or Maryland, instead
of DC, and so then we would have to have debates about which
level of government would be involved.
Are there any other categories of limitation on Executive
power?
Judge Kavanaugh. Well, I think a huge one, really the
hugest question, as I have said many times in my writings in
the entirety of constitutional law, is the President's ability
unilaterally to take the country into war. That really dwarfs
all other questions in many ways, and Hamilton made clear in
Federalist 69 the answer to that question was no.
Now it is sometimes thought and opined by commentators or
even scholars that, oh, actually, that has changed over time
and actually Presidents have--that really has not changed in
practice, at least, over time. Obviously, there is no
definitive Supreme Court case.
But you look at all the significant wars, and I wrote this
in the book review of the Barron book, which I, you know,
recommend to you. I think you would enjoy that. All----
Senator Sasse. Thanks for calling me a nerd on national TV.
[Laughter.]
Judge Kavanaugh. Yes, I know you would enjoy it, really. Is
the--all the significant wars in U.S. history have been
congressionally authorized, with one major exception, the
Korean War. And the Korean War is an anomaly in many respects,
and I think some of the fact that it was undeclared and
unauthorized really did lead to the Youngstown decision.
But you know, Vietnam, the Persian Gulf War, the AUMF
against al-Qaeda, the 2003 Iraq War, and then going back, World
War II, World War I, the War of 1812, they are all
congressionally authorized. You can go back throughout, and I
specify that.
And so the war power, the power to the take the Nation into
war, at least a significant one, and there are some questions
about short-term air strikes and things like that. But a
significant war, that is the biggest of all, and that is
something that Hamilton talked about in 69 and that our
historical practice, I think, has actually lived up to.
I do not mean to footnote Korea. That is an enormous
exception. But since then, they have all been congressionally
authorized. People debate the Gulf of Tonkin resolution, but
the words of it are quite broad.
Senator Sasse. This is not the place for this full detour,
but I just want to underscore one thing you said about Hamilton
and just in the Federalist Papers more broadly, how many times
we see our Founders writing about the norms of our civics. And
one of the things that goes wrong in these kind of proceedings
is we so regularly conflate policy and politics with civics,
and I think that our jurisprudence should fit inside our
civics, not inside our politics because it is the overarching
thing.
Ken Burns often says ``E pluribus unum'' is a core motto
for America, and we have a whole bunch of pluribus and very
little unum right now. We should have a lot more unum, a lot
more unity about what we think the role of the judge is. And I
think Senator Cruz did a really nice job of unpacking how often
you and Judge Garland have been on the same side of issues, 93
and 96 percent of the time.
Your comments yesterday about being on the Team of Nine,
about there being no center aisle that needs to be crossed over
at the Court, about there being no caucus rooms in the Supreme
Court, that is another way of saying if we are doing civics
right in America, we should be seeing fewer and fewer political
disputes trying to be settled at the Court.
And it means that we need to attend more to the norms. When
things are going wrong in America, and we should all admit that
things are a mess in this country. We have had--in the
governance of our country. There is a lot that is great in
America right now.
But in the idea that in our public square we agree on very
much, I think we know that that is not true. And if you look at
survey data of what high school students turn up if they try to
take the immigration and naturalization test and huge shares of
high school juniors do not know that we have three branches of
Government, shame on us. Not shame on them that they do not
understand that because we are not doing that basic civics.
Well, Washington thought it was essential that when he was
explaining what his job is as President and that it not be
confused with the monarchy, he wanted to be called Mr.
Washington, not honorifics. He rebuked people for bowing before
him because we might confuse our kids and grandkids that the
Presidency is a monarchy.
So one of the fundamental problems about not understanding
the limits on Executive power is that we are not doing a very
good job of talking together in common about all the ways that
all three branches of Government should be limited.
But let us go back to Senator Coons' point about personnel.
I sit on the Armed Services Committee as well, and one of the
things that we do there, I do not know, every second week
maybe, is that we have confirmation votes of dozens, scores,
sometimes hundreds of promotions and flag officers. And why do
we do that?
It is because there are all sorts of constraints on
Executive power at the level of personnel. And when somebody is
getting promoted in the Navy or when somebody is getting
promoted at the Air Force, the Congress actually has oversight
of that. And because that process works so well, because there
is so much collegiality between the legislature and the
executive branch, it tends to not turn up on TV. It is often a
pretty pro forma moment at the start of our hearings, even
though any Senator, Republican or Democrat, that wants to delay
the promotion of those officers, we can do that because almost
all that stuff is moving by consent.
So there are things where there is unity in hiring or in
promotion. It is just a lot of that is noncontroversial. So it
does not end up salacious. It does not end up on TV.
Jump in, please. I know you are trying to say something.
Judge Kavanaugh. I think that is an important addition is
that the President, and this goes to Senator Coons as well,
does not have the unilateral power to--under the Constitution
to appoint even members of the Cabinet, which if you are
thinking of a monarchy, of course, you would be able to
dispense offices and dispense--you cannot create offices, first
of all. You cannot unilaterally fill even Secretary of Defense
or Secretary of State because the Framers were so concerned
about overbroad Executive power that they required Senate
confirmation for even those positions who, if confirmed, then
become executive officers.
That is another really hugely important check on the
executive branch, which is a reality. And of course, the
confirmation process for executive officers, as you say,
becomes a part and parcel of the oversight in many ways. And I
think that is very important. And I think we have spent--I
spent a little too little time. I mentioned it on
appropriations. But that is the lifeblood of the Government, of
course, is the money that causes the Government to--allows the
Government to be able to operate in terms of without money, you
cannot do things.
And the President does not--a President does not have the
unilateral power to appropriate money. And so Congress
ultimately, through that appropriations power, and you all know
this better than anyone, can restrict activities of the
executive branch in multiple ways, and I think that is an
important thing that Hamilton also talked about.
So Congress has substantial power, but that is not to say--
the President has large powers, of course, under the
Constitution. But we sometimes forget, and I think your civics
lesson is a reminder that all these checks and balances work
together, including on judges, in a way that has served the
test of time but could always be improved in some respects, I
suppose.
Senator Sasse. And one of the reasons that the executive
branch seems so powerful right now is, again, because of how
weak the legislature is. I mean, it is a fundamental part of
why we have the term ``President.'' In the 1780s, this was not
a very common term in the English language. ``President'' was a
nounified form of the name ``presiding officer,'' and we made
it up, our Founders made it up so that we would not have a term
that sounded a lot like a king.
And so we wanted to be sure that the term ``presiding
officer'' sounded pretty boring and administrative because the
legislative, the policymaking powers were supposed to sit in
this body, and the Article II branch is supposed to preside
over and execute the laws that have been passed.
It is not supposed to be the locus of all policymaking in
America. But one of the reasons we have some of these problems
with so many of these executive agencies is because Congress
regularly does not finish its work, punts those powers to
Article II, and then it is not clear who exactly can execute
all those authorities. And so we end up with this debate about
the unitary executive, and you had a different term for it.
But unpack for us a little bit why you have a different
view about both the prudence and the constitutionality of one
person-headed independent executive agencies or pseudo-
independent agencies versus commission structure-headed
independent agencies.
Judge Kavanaugh. The traditional independent agencies that
were upheld by the Supreme Court in Humphrey's Executor in 1935
are multi-member independent agencies. And so usually sometimes
three, five, occasionally more, but they are multi-member
independent agencies. And that has been all the way through.
And then--for the significant independent agencies.
The CFPB, and I have no--it is not my role to question the
policy or to question the creation of the new agency. In fact,
I think it was designed to--for efficiency and centralization
of certain overlapping authorities. It is not my role to
question that policy. Someone challenged the fact that it was
headed for the first time on something like this by a single
person.
And a couple things then I wrote about in my dissent in
that case. I will just repeat what I wrote in the dissent. I
said, first of all, that is a departure from historical
practice of independent agencies, and that matters, according
to the Supreme Court.
They had a previous case involving the PCAOB, where they
had a different innovation there the Supreme Court had struck
down in part because of the novelty of it. So departure from
historical practice matters because precedent always matters,
including Executive precedent.
Then a diminution of Presidential authority beyond the
traditional independent agencies in this sense. With a
traditional independent agency, when a new President comes in
office, almost immediately the President has been given the
authority to designate a new chair of the independent agency.
So when a new--when President Obama came in, was able to
designate new chairs of the various independent agencies, and
the chairs, of course, set the policy direction and control the
agency. That has historically been the way. That does not
happen with the CFPB.
And finally, having a single person, just going back to
liberty, who is in charge, who is not removable at will by
anyone, not accountable to Congress, in charge of a huge
agency, is something that is different and has an effect on
individual liberty.
So a single person can make these enormous decisions--
rulemakings, adjudications, and enforcement decisions, all of
them. And from my perspective--I am just repeating what I wrote
here, I am not intending to go beyond what I wrote in that
opinion--that was an issue of concern.
And I did put in a hypothetical because it seems abstract
that I think we will realize this issue with that agency or any
other when a President comes into office and has to live for 3,
4 years with a CFPB director appointed by the prior President.
And then I think everyone is going to realize--of a different
party in particular.
Senator Sasse. Right.
Judge Kavanaugh. And then I think everyone is going to
realize, wow, that is an odd structure. Now maybe not, but that
is what I wrote in my opinion that that will seem very weird
because that is not what happens with all the traditional
independent agencies, and so when President--whenever any
President leaves and is appointed in the last 2 years, the CFPB
director--the new President might campaign on consumer
protection.
Let us imagine, okay, Presidential campaign, candidate
campaigns on consumer protection and consumer issues and then
comes into office and cannot actually appoint a new CFPB
director for the whole term of his or her office. That is going
to seem, I think, quite odd structurally. At least that is what
I said in my opinion, again not intending to go beyond what I
said in my opinion.
Senator Sasse. So is it fair to say that if you have a
single person-headed agency and the President does not have the
authority to hire or fire this person, that that person having
policymaking functions, executive functions, and judicial
functions, functionally becomes a fourth branch of Government
because who are they accountable to? Is that a fair summary of
the concern?
Judge Kavanaugh. Absolutely, that is a fair summary. A
branch unto itself.
Senator Sasse. I want to ask unanimous consent to enter
into the record, Mr. Chairman, I have got a letter from several
dozen legal scholars. They are professors that teach at
Harvard, Stanford, Yale, Duke, Northwestern, and other schools,
a diverse group of folks, very varied politics and legal
scholarship.
But a few of their quotes I want to include here are, that
they ``all agree that Judge Brett M. Kavanaugh displays
outstanding scholarly and academic virtues and that he would
bring to the Court an exceptional record of distinction in his
judicial service.'' As well, ``Judge Kavanaugh's long record of
teaching and mentoring students of diverse backgrounds is to be
applauded,'' and ``Judge Kavanaugh would continue to help build
productive bridges between the bench, legal practitioners, and
the academy.''
Mr. Chairman, can I ask unanimous consent? Chairman, can I
ask unanimous consent to include it?
Chairman Grassley. Without objection, so ordered.
[The information appears as a submission for the record.]
Senator Sasse. Thank you.
I have a series of questions I would like to ask you about
both precedent and the First Amendment, but I am going to be
out of time too soon. So I am going to do some smaller ball
stuff first and save for the next round.
I would like to go back to the Kagan quote on Scalia and
the ``We are all textualists now'' point. What is a fair way to
characterize the position that folks would have held before
Justice Kagan said we have all become textualists now?
When people were--when there were nontextualists, who were
they, and how does it make any sense? What is the fairest
construction you can put on it?
Judge Kavanaugh. I think one way to describe it is that
judges would try to figure out what the general policy was
reflected in the statute and then feel free to shape the
particular textual provision in a way that the text itself
would bear to serve that broad policy end.
And so I think that is probably one way to think about it.
Another way is that judges would sometimes use a snippet of a
Committee report or a floor statement and say that is really
what Congress was getting at in terms of the statute. And
therefore, we are going to follow that Committee report or
floor statement rather than following the text of the statute.
So that is another way I think in which judges would depart
from the text of the statute. And that mode of statutory
interpretation I do think Justice Scalia had a very profound
effect on the Supreme Court itself and the lower courts in
particular. And one of the things Justice Kagan said in that
speech was he probably did not get 100 percent of what he
wanted in terms of moving the statutory interpretation, but he
got pretty darned close in terms of moving the ball in his
direction and that everyone really does pay attention to the
text.
And if you sat in my court for a week and listened to
argument after argument, which I do not recommend, Senator. But
if you did that, you would hear judge after judge saying, well,
what about the text of the statute? What about Clause 2 of the
statute?
Every judge is focused on the text of the statute, again
because that is what you passed and that is what matters under
the Constitution, and because we know the compromises that are
inherent in any legislative product and we have to respect that
compromise.
Senator Sasse. So I think one of the things that concerns
me about the way we have talked about your nomination and a lot
of media reports about it is that it has been said that you
have been nominated to the so-called ``swing seat'' on the
Court.
I think two ways that we can go wrong. One of them are
thinking about judges as Republican versus Democrat, and you
are supposedly because you have been--you have worked in a
Republican White House. You have worked in the George W. Bush
White House and because you are being nominated by a Republican
President today, there are a whole bunch of people who say,
heck, yes. We won the election. We get our guy on the Court.
Wear your jersey. You are supposed to be a Republican when you
are on the Bench.
And then there are other people--I think that is a terrible
view. There are other people who say, well, hopefully, he can
grow in office. And because he is going to be nominated and
confirmed to the swing seat, the Kennedy vote, the Powell vote
on the Court, he will be big enough to rise above the all the
muck of politics. And when there are really big issues facing
the country that get to the Court, at least in a 4-to-4 Court,
this could be the guy who rises to the level of giving us
Solomonic wisdom and functioning not just as a judge, but maybe
as a quasi-kingly figure.
What do you say to people who have a conception of a swing
seat on the Court? What does that mean?
Judge Kavanaugh. I am not entirely sure what it means to
individual people who use that term.
Senator Sasse. Are you being considered for the swing seat?
Judge Kavanaugh. I am being nominated to replace Justice
Kennedy, who was his own man, as am I my own judge. And I have
talked about his jurisprudence and his devotion to liberty,
which he found as the unifying theme of all the constitutional
provisions and, as I said, established a legacy of liberty for
ourselves and our posterity, as the Framers established this
Constitution to secure the blessings of liberty for ourselves
and our posterity.
But I have read that he publicly in public statements did
not like that term, and I am not sure I always know what people
mean by that term. As I said repeatedly, but I really believe
it, I think that the Court, at least if I am on it--well, I
think of the Court, period, as a Team of Nine. And if I am on
it, I am fortunate enough to be confirmed, I think of myself as
trying to be a team player.
I do think of things through a sports line sometimes, as I
know you do, too, Senator. And I think that is important. I am
not naive. I am not naive. There would be cases where people
divide. But I do think that mindset and that attitude matters
in any collegial body, and the Court is a collegial body.
And so different--different cases----
Senator Sasse. I am only interrupting you because I watched
the Chairman pull his little gavel.
Judge Kavanaugh. Yes, yes.
Senator Sasse. And if I do not get my question in before
the bell, I am done. So I can get one more off, if I fire fast.
Chairman Grassley. Make sure it is a short question.
Senator Sasse. Yes, sir. When I was writing my
dissertation, I struggled to find my voice at one point, and I
had an adviser who was great. He said, put an 8-by-10 picture
up, next to your keyboard, and make it be somebody that you are
writing to every day and make it be somebody who is smarter
than you but knows nothing about your topic.
This was great advice. I took a picture of my aunt, from
one of the farms I used to work on when I was a kid, and she is
far smarter than I am. She did not know anything about the
topic I was writing about, and it was an incredibly helpful
device for me to every day figure out who I was writing to that
day.
When you write your opinions, who are you writing for?
Judge Kavanaugh. Multiple audiences, Senator. I am thinking
first and foremost about the litigants before us, and I want
the losing party in particular to respect the opinion. They are
not going to agree with it by definition, but I want them to
respect the opinion. The clarity of the opinion, the
thoroughness of the opinion, the fact that I understood the
real world consequences, that I have grappled with the law,
that I grappled with the best argument.
So I want the losing party to come away saying he got it.
As a litigant, I knew how important that was when I lost, at
least I felt like I got a fair shake. Why does that matter?
Both due process and the individual case, but it builds overall
confidence I think in the judiciary to know you are getting a
fair shake even when you lose.
I am also writing for the parties affected by the decision.
So we decide cases and controversies, but we write opinions
that have precedential effect, as we have discussed often. So
the opinions need to be clear. They need to be organized.
They can, if there is a screwed up footnote or something,
that is going to--I have seen it in my executive branch and
private practice experience. That is going to cause all sorts
of complications. So to get it just exactly right is so
important, which takes draft after draft after draft.
But I am thinking about the affected parties, whether it is
agencies or regulated parties or the criminal defense bar or
the prosecution, the U.S. Attorney's Office. I am always
thinking about that.
I am thinking about someone like you said, I think similar
to your model, someone who just picks up the decision and is a
lawyer, and I want them to be able to read it and understand it
and get it and to be able to follow it. So I always try to have
an introductory paragraph or few pages, as you have seen in a
few of them. Like the PHH case has a long introduction where
they could just read the introduction, say ``I got it.'' And
then they could read the whole thing if they want. I think that
is very important as well.
I am writing, I think about students. So students, where do
they learn law? They learn law oftentimes by reading opinions.
I have taught for 12 years, and I certainly understand the
value of teaching. But teaching through your opinions, that is
not the first thing I am thinking about. But I am, that is,
okay, could a student learn from this about the criminal--the
Fourth Amendment or learn about the First Amendment if they
read my opinion?
If I give the--to Senator Coons' conversation, if I give
the historical backdrop of the independent agencies, maybe a
student will pick that up and think that is good.
And then I am thinking, I think also about professors as
well. Not in a sense of trying to convince necessarily if it is
not something convincible, but the sense of professors are
thinking for years about things I might by definition have a
week or two or four to spend. And they are writing treatises
and Law Review articles, and I want them to at least be able to
understand and help look at my opinions to build the body of
law.
Senator Sasse. Thank you. Oh, and thank you, Chairman.
Chairman Grassley. How come you did not ask that question
first?
Senator Sasse. You told me to ask last.
Chairman Grassley. We are going to take a 10-minute break,
but if you can be back in 5 minutes, it would benefit Senator
Blumenthal.
Judge Kavanaugh. Yes, okay. I will do it.
[Whereupon, at 5:24 p.m., the Committee was recessed.]
[Whereupon, at 5:35 p.m., the Committee reconvened.]
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Good afternoon,
Judge.
I want to begin by talking about the elephant in the room,
non-theoretical. The President of the United States who has
nominated you is an unindicted co-conspirator implicated in
some of the most serious wrongdoing that involves the
legitimacy of his Presidency. There is a distinct possibility,
even a likelihood, that issues concerning his personal criminal
or civil liability may come before this Supreme Court as early
as the next term. The issues may involve his refusal to comply
with a grand jury subpoena or to testify in a criminal trial
involving one of the officials in his administration or his
friends or even his own actual indictment.
We are in uncharted territory here. It is unprecedented for
a Supreme Court nominee to be named by a President who is an
unindicted co-conspirator. In the U.S. v. Nixon case, two of
the Justices had been appointed by Richard Nixon, but not while
he was an unindicted co-conspirator. I would like your
commitment that you will recuse yourself if there is an issue
involving his criminal or civil liability coming before the
United States Supreme Court. In other words, will you take
yourself out of ruling on any of the issues involving his
personal criminal or civil liability?
Judge Kavanaugh. Senator, one of the core principles I have
articulated here is the independence of the judiciary, which I
know you care about deeply, too, and I think undergirds some of
your comments yesterday. And the independence of the judiciary
is critical to the confidence of the American people in the
judiciary and to the rule of law in the United States. But one
key facet of the independence of the judiciary, as I have
studied the history of nominees, is not to make commitments on
particular cases----
Senator Blumenthal. I am not asking for a particular
commitment, and I am going to take your answer as a ``no.'' It
is really a ``yes'' or ``no'' question. You will not commit to
recuse yourself. You will not commit to take yourself out of
that decision despite the unique circumstances of your
nomination.
Judge Kavanaugh. Senator, I think to be consistent with the
principle of independence of the judiciary, I should not and
may not make a commitment about how I would handle a particular
case, and the decision to participate in a case is itself a
decision in a particular case. And, therefore, following the
precedent set by all the nominees before me, I need to be
careful. And, again, you may disagree with this, but this is
part of what I see as the independence of the judiciary.
Senator Blumenthal. Well, I do disagree, and I am troubled
and disturbed by your refusal to say that you will take
yourself out of that kind of case.
I want to move on to some examples of real-world impacts on
real people and taking that as a factor, as you have
articulated it, in the decisions that you have made. I want to
talk about Jane Doe in Garza v. Hargan. As you know, she was a
17-year-old unaccompanied minor who came across this border
having escaped serious threatening, horrific physical violence
in her family in her homeland. She braved horrific threats of
rape and sexual exploitation as she crossed the border. She was
8 weeks pregnant. Under Texas law she received an order that
entitled her to an abortion, and she also went through
mandatory counseling as required by Texas law. She was eligible
for an abortion under that law. The Trump administration
blocked her. The Office of Refugee Resettlement forced her to
go to a crisis pregnancy center where she was subjected to
medically unnecessary procedures. She was punished by her
continued requests to terminate her pregnancy by being isolated
from the rest of the residents. She was also forced to notify
her parents, which Texas law did not require. And the
pregnancy, which was 8 weeks, was 4 weeks further when you
participate on a panel that upheld the Trump administration in
blocking her efforts to terminate her pregnancy.
The decision of that panel was overruled by a full court of
the D.C. Circuit Court of Appeals. It reversed that panel, and
the decision and opinion in that case commented, ``The flat
barrier that the Government has interposed to her knowing and
informed decision to end the pregnancy defies controlling
Supreme Court precedent.'' And it said further, ``The
Government's insistence that it must not even stand back and
permit abortion to go forward for someone in some form of
custody is freakishly erratic.''
In addition to being erratic, it also threatened her health
because she was unable to terminate her pregnancy for weeks
that further increased the risk of the procedure--one study
said 38 percent every week. Her health was threatened. She was
going through emotional turmoil. And yet in your dissent, you
would have further blocked and delayed that termination of the
pregnancy.
All of what I have said is correct as to the facts here,
correct?
Judge Kavanaugh. No, Senator. I respectfully disagree in
various parts. My ruling, my position in the case would not
have blocked----
Senator Blumenthal. It would have delayed it, and it would
have put her perilously close to the 20-week limit under Texas
law. Correct?
Judge Kavanaugh. No. We were still several weeks away. I
said several things that are important, I think. First----
Senator Blumenthal. Well, I want to go on because I can
read your dissent, but I want to go to----
Judge Kavanaugh. Well, but you read several things--
respectfully, first of all, I think the opinion was by one
judge that you were reading from. That was not the opinion for
the majority.
Second, I was trying to follow precedent of the Supreme
Court on parental consent which allows some delays in the
abortion procedure so as to fulfill the parental consent
requirements. I was reasoning by analogy from those. People can
disagree, I understand, on whether we were following precedent,
you know, how to read that precedent. But I was trying to do so
as faithfully as I could and explained that. I also did not
join the separate opinion, the separate dissent that said she
had no right to attain an abortion at all. I did not say that.
And I also made clear that the Government could not use this
immigration sponsor provision as a ruse to try to delay her
abortion past, to your point, the time when it was safe.
Senator Blumenthal. Let us talk about your dissent in just
a moment, but, first, I want to talk about a list. It is the
list that Donald Trump circulated in May 2016 of his potential
Supreme Court nominees. May 2016. Was your name on that list?
Judge Kavanaugh. It was not.
Senator Blumenthal. And then he circulated another list in
November 2017, another list of Supreme Court nominees. November
2017. Was your name on that list?
Judge Kavanaugh. 2017, yes. There was another list in the
interim between those two, but----
Senator Blumenthal. And his litmus test for that list was
that a Justice that he would nominate would have to
automatically overturn Roe v. Wade, correct?
Judge Kavanaugh. I am not going to comment on what he had
said. Whatever he had said publicly----
Senator Blumenthal. Well, he said it. That is not in
dispute. And in between, in----
Judge Kavanaugh. I am not sure the exact words you just
used are consistent with what he said, but whatever he said
publicly will stand in the record.
Senator Blumenthal. Exactly.
October 2017, your decision and dissent in Garza occurred.
Correct?
Judge Kavanaugh. It did, but that case came to us in an
emergency posture. I did not seek that case. That was not a
speech. I was driving home on a Wednesday night, as I recall,
and the clerk's office called and said, ``We have an emergency
abortion case,'' which is very unusual in our court. First time
I had had one.
Senator Blumenthal. Okay. What occurred then between May
2016 and November 2017 besides your Garza dissent that put you
on that list?
Judge Kavanaugh. Well, Mr. McGahn was White House Counsel,
and the President has taken office by then, if I am--sorry, I
am looking at the dates. I think I got it--May.
Senator Blumenthal. We can hold it up higher.
Judge Kavanaugh. No; that is okay. I got it now. The
interim list----
Senator Blumenthal. So let me ask you----
Judge Kavanaugh. But so President Trump had taken office.
Mr. McGahn was White House Counsel. Those are just facts. And
then what else happened, I----
Senator Blumenthal. It is a mystery.
Judge Kavanaugh. No, it is not a mystery. I am just
debating whether I want to say, but a lot of judges and lawyers
who I know----
Senator Blumenthal. Let us talk about your dissent for a
moment.
Judge Kavanaugh. Can I answer the question? Can I answer
the question?
Senator Blumenthal. I want to talk about your dissent.
Judge Kavanaugh. But I had an answer to your question. You
said, ``What else happened? '' And I have an answer.
Senator Blumenthal. Go ahead.
Judge Kavanaugh. A lot of judges and lawyers I know made
clear to, I think, various people that they thought I should at
least be considered based on my record for the last 12 years.
And colleagues of mine thought I should be considered, and I
think that--I appreciate that.
Senator Blumenthal. And maybe more than a few of them cited
your dissent in Garza.
Judge Kavanaugh. I think it had happened long before that,
actually. They----
Senator Blumenthal. Well, let us talk about the dissent,
though. In that dissent, three times you used the term
``abortion on demand.'' ``Abortion on demand,'' as you know, is
a code word in the anti-choice community. In fact, it is used
by Justices Scalia and Thomas in their dissents from Supreme
Court opinions that affirm Roe v. Wade. They have used it
numerous times in those dissents, and it is a word used in the
anti-choice community. And, in addition, in that dissent, you
refer to Roe v. Wade as ``existing Supreme Court precedent.''
You do not refer to it as Roe v. Wade protecting Jane Doe's
right to privacy or her right to an abortion. You refer to it
as ``existing Supreme Court precedent''--not ``Supreme Court
precedent''--``existing Supreme Court precedent.''
Now, I do not recall seeing a judge refer to ``existing
Supreme Court precedent'' in other decisions, certainly not
commonly, unless they are opening the possibility of
overturning that precedent. It is a little bit like somebody
introducing his wife to you as, ``my current wife.'' You might
not expect that wife to be around for all that long. ``My
current wife''--``existing Supreme Court precedent.''
And throughout your opinion, you are careful to never say
that the Constitution protects the right to choose. You concede
that the parties have ``assumed for purposes of this case''
that the plaintiff has a right to end her pregnancy, but not
that she actually has that right. You write, ``As a lower
court, our job is to follow the law as it is, not as we might
wish it to be.''
Judge Kavanaugh. There I have to interrupt, Senator,
because I was referring to the parental consent cases as well,
which I talked about at some length there. And my disagreement
with the other judge was that I thought I was, as best I could,
faithfully following the precedent on the parental consent
statutes, which allowed reasonable regulation. As Casey said,
``minors benefit from consultation about abortion.'' That is an
exact quote from Casey, and the Supreme Court had upheld those
statutes even though they allowed--I mean they occasioned some
delay in the abortion procedure. Justices Marshall, Brennan,
and Blackmun dissented in those.
And so an ``existing Supreme Court precedent,'' I put it
all together, Roe v. Wade plus the parental consent statutes,
and I said different people disagree about this from different
directions, but we have to follow it as faithfully as possible,
and the parental consent were the--was the model--not the
model, the precedent.
And can I say, on ``abortion on demand,'' I do not--I am
not familiar with the code word. What I am familiar with is
Chief Justice Burger in his concurrence in Roe v. Wade itself,
so he joined the majority in Roe v. Wade, and he wrote a
concurrence that specifically said that the Court today does
not uphold abortion on demand. That is his phrase. And he
joined the majority in Roe v. Wade. And what that meant in
practice over the years, over the last 45 years, is that
reasonable regulations are permissible so long as they do not
constitute an undue burden. And that has been the parental
consent, the informed consent, the 24-hour waiting period,
parental notice laws, and that is what I understood Chief
Justice Burger to be contemplating and what I was recognizing
when I used that term. I am not familiar----
Senator Blumenthal. Well, it also was a signal. Let us be
very blunt here. It was a signal to the Federalist Society and
the Heritage Foundation and to the preparers of those lists--
the President outsourced that task to those groups--that you
were prepared, and you are, to overturn Roe v. Wade. ``Abortion
on demand'' has a very specific meaning in the dissents after
Roe, and the concurrences. ``Existing Supreme Court
precedent,'' and reference to that precedent not as you wished
it to be, but as the law, Supreme Court precedent existing now,
required.
Is it a fact, Judge, also that while you were in the Bush
White House, you took the position that not all legal scholars
actually believe that Roe v. Wade is the settled law of the
land and that the Supreme Court could always overturn it as
precedent and, in fact, there were a number of Justices who
would do so?
Judge Kavanaugh. I think that is what legal scholars have--
some legal scholars have undoubtedly said things like that over
time, but that is different from what I as a judge--my position
as a judge is that there are 45 years of precedent and there is
Planned Parenthood v. Casey, which reaffirmed Roe, so that is
precedent on precedent, as I have explained, and that is
important. And that is an important precedent of the Supreme
Court. It is not the only----
Senator Blumenthal. I think----
Judge Kavanaugh. It is not the only precedent, though, and
Casey, it is very important to understand, I think, and it goes
to your point about existing. Planned Parenthood v. Casey
reaffirmed Roe, but at the same time upheld Pennsylvania's
waiting period, its informed consent provision, and the
parental consent provision of the Pennsylvania law, and
Justices Blackmun and Stevens dissented from that part of the
decision in Planned Parenthood v. Casey. That was Justices
Kennedy, O'Connor, and Souter who upheld that. So, in many
ways, Casey reached--in applying the undue burden standard,
reached a position that allowed some reasonable regulation, as
the Court put it, so long as it does not constitute an undue
burden. And so existing Supreme Court precedent is the body of
precedent on the regulations, too. It is Roe, but then what
regulations, and that is the body of existing Supreme Court
precedent.
Senator Blumenthal. And that is exactly the point here. You
were telling the Trump administration that if they wanted
someone who would overturn Roe v. Wade, you would make the
list. These were your bumper stickers in that campaign:
``Abortion on demand,'' ``Existing precedent,'' ``Law not as it
necessarily was as you wished it now.''
Judge Kavanaugh. Well, I would just say two other things,
Senator. One, I did not join the separate opinion of another
dissenter who said that there was no constitutional right at
all for the minor in that case. I did not join that opinion.
And, second, I--I will say three things. Second, I said in a
footnote, joined by Judge Henderson and Judge Griffith, that--
my whole dissent was joined by both of them--that the
Government could not use this transfer to the sponsor procedure
as a ruse to delay the abortion past unsafe time.
Senator Blumenthal. You did not join that dissent, but let
me ask you----
Judge Kavanaugh. And I said, third, that if the 9 days or 7
days expired, that the minor at that point, unless the
Government had some other argument that had not unfolded yet
that was persuasive, and since they had not unfolded it yet--I
am not sure what that would have been--that the minor would
have to be allowed to obtain the abortion at that time. So the
whole point was simply--and it was not my policy, but my
question was to review the policy set forth by the Government,
and the question was: Was that policy consistent with
precedent? And it was a delay, undoubtedly, but a delay
consistent, as I saw it, with the Supreme Court precedent on
parental consent provisions.
Senator Blumenthal. Well, let me just ask you then: Can you
commit, sitting here today, that you would never overturn Roe
v. Wade?
Judge Kavanaugh. So. Senator, each of the eight Justices
currently on the Supreme Court, when they were in this seat,
declined to answer that question.
Senator Blumenthal. I understand--I understand your answer.
You have given it on other issues before. But you can
understand also given what we have seen in Garza and the
pattern here of sending a signal about your willingness to
overturn Roe v. Wade, that your response leaves in serious
question your commitment to this precedent. And, in fact, given
the real-world consequences here, a young woman's health was
put in serious jeopardy. She came close to being unable at 20
weeks to even have the opportunity to terminate her pregnancy.
She was deprived of options because of that wait, and you would
have delayed it further, and perhaps completely. And I think
that you needed to send a message to the Trump administration
that you should be on that list.
Let me move on to other health care issues. You have taken
the position in Seven-Sky--and I am going to put up a poster--
that the President's authority--``Under the Constitution, the
President may decline to enforce a statute that regulates
private individuals when he [the President] deems''--when he
deems--``the statute unconstitutional, even if a court has held
or would hold the statute constitutional.''
Under the Affordable Care Act, as you know, there are
protections for millions of Americans who suffer from pre-
existing conditions. That protection has real-world
consequences. Pre-existing conditions include Alzheimer's,
arthritis, congestive heart failure, Crohn's disease,
hepatitis, lupus, mental disorders. That is just a very partial
list, including being pregnant. You have answered my colleague,
Senator Coons, that you would not say whether or not the
President would have the power to strike down that statute
unilaterally or decide that he would not enforce it because
there is a case pending.
Do you believe that the President can refuse to enforce
that statute even if the United States Supreme Court upholds
it?
Judge Kavanaugh. Senator, a couple things. First of all,
just to close out the prior discussion, you said delayed
completely. That is not what I said. In fact, I said it could
not be delayed past the point of a safe time. I just wanted to
close the loop on that and make clear the record on that.
On this, I was referring to the concept of prosecutorial
discretion, and this is in a broader--which is established by
the United States v. Richard Nixon case, which says the
executive branch has the ``exclusive authority and absolute
discretion whether to prosecute a case.'' That is an exact
quote from U.S. v. Nixon, if I am remembering correctly, and
then in Heckler v. Chaney, the Supreme Court says that that
principle applies to civil enforcement as well. So that is the
precedent of the Supreme Court that I was referring to and
explained later in Aiken.
But why did I have that in there at all? I was--in the
Affordable Care Act case, I wrote a decision saying that the
Court should not consider it, at that time, because it was not
ripe under the Anti-Injunction Act, and that we should wait to
consider it when----
Senator Blumenthal. But here is my question to you--the
enforcement of the Affordable Care Act is a matter of
prosecutorial discretion, and my question is, even if the
United States Supreme Court in that Texas case should hold it
to be constitutional, could President Trump decline to enforce
it and put at risk the health of literally tens of millions of
Americans, including 500,000 people in Connecticut who suffer
from those diseases, including those homeless people who come
to the shelter where you distribute meals?
Judge Kavanaugh. So a couple things on that, Senator. The
concept of prosecutorial discretion, as you know, of course, as
a former U.S. Attorney, is well rooted in American law. So if a
U.S. Attorney decides we are going to go after bank fraud and
not after low-level marijuana, that is classic prosecutorial
discretion.
Senator Blumenthal. But we are not talking about that
discretion. We are talking about the President saying that law,
the Affordable Care Act, or, for that matter, civil rights
statutes, which this President unfortunately could decide he is
not going to enforce, or consumer protection statutes or even
anticorruption statutes, we are talking about statutes that, as
you said here, regulate individuals and they protect them,
simply because he deems them unconstitutional, refused to
enforce them, not in selected cases, across the board.
Judge Kavanaugh. A couple things, Senator. First of all,
for a few of your examples, of course, there are private causes
of action as well, so----
Senator Blumenthal. There are private causes of action, but
the Government is the chief enforcer.
Judge Kavanaugh. I agree with that. I am not disputing
that. On prosecutorial discretion, what I said in the
subsequent Aiken County case, I elaborated on that, but then in
a subsequent Marquette speech that is published in the
Marquette Lawyer that you have, I indicated that the limits of
prosecutorial discretion are uncertain and it would be
important for academics and others to study that history and
figure out what the limits are.
So, for example, in the deferred--in the immigration
context----
Senator Blumenthal. Well, my point is there are no limits
here.
Judge Kavanaugh. But the Supreme Court, if you look at the
quote in United States v. Richard Nixon, which I know you have
read, it says the executive branch has the ``exclusive
authority and absolute discretion whether to prosecute a
case.'' Now, Heckler v. Chaney refers back to that, cites that,
and that is in the civil context. There are some limits
presumably on prosecutorial discretion, but this came up in the
immigration context in President Obama's administration. That
is still something I will not comment on directly, but there
are always questions about prosecutorial discretion of----
Senator Blumenthal. Well, let me just point out--and I
apologize for interrupting you, but my time is limited.
Judge Kavanaugh. I understand.
Senator Blumenthal. In Seven-Sky v. Holder, in your dissent
you said, ``Under the Constitution''--this is in your dissent
in that case. You cited Justice Scalia in Freytag v.
Commissioner as your authority.
Judge Kavanaugh. Yes.
Senator Blumenthal. ``The President may decline to enforce
a statute that regulates private individuals when the President
deems the statute unconstitutional, even if a court has held or
would hold the statute constitutional.'' I am going to leave
this topic. I hope we will have an opportunity to return to it
tomorrow.
Judge Kavanaugh. Sure.
Senator Blumenthal. And I want to talk about the Second
Amendment and your position on gun violence prevention. As you
know, my State has a tragic history----
Judge Kavanaugh. Yes.
Senator Blumenthal [continuing]. And experience, recently
with this issue. But literally every community in the whole
country has some experience with gun violence prevention
because 90 people every day die from it. And I am deeply
troubled by your position on this issue that history and
tradition govern here, that any weapon in common use is
protected. The reason that some weapons are not in common use
is that they are banned, like machine guns. If our standard is
going to be whether assault weapons are in common use, we are
going to have more and more of them, and they are in common
use, they are commonly used to kill people. That is what they
were designed to do.
So I want your explanation as to how possibly you can
justify requiring that gun violence protection statutes have to
be longstanding or traditional and that they cannot in any way
protect people from weapons, assault weapons, that are, as you
put it, ``in common use,'' because they are in common use only
because they are not in any way regulated for public safety.
Chairman Grassley. Judge, you answer as thoroughly as you
need to answer that question. And then when you are done
answering that question, I am going to call on Senator Flake.
Judge Kavanaugh. A few things, Senator. First, at the end
of my Heller opinion, I pointed out that I grew up in this
area, and this area has been plagued by--in the 1970s and 1980s
plagued by gang and gun/drug violence, and was known for a
while as the ``murder capital of the world.'' So I understand
and appreciate your initial comment on that.
Second, where did I get the test? I got it right out of the
Supreme Court's opinion in Heller, which uses those exact
phrases and then elaborates on those in the subsequent McDonald
case. And I know people passionately disagree with the Supreme
Court's decision in Heller and with the Supreme Court's
decision in McDonald. But as a lower-court judge, I am
following all the precedent. It is not a cafeteria where I can
pick which precedents I want to apply. I have to apply all the
precedents. I did that. I explained it in painstaking detail
why I thought the test I was applying was appropriate in that
case and went through the test.
I made clear that the Supreme Court Part 3 of Justice
Scalia's majority opinion in Heller allowed--still allowed a
lot of gun regulation. Machine guns can be banned. Laws,
traditional laws, felon in possession, concealed carry were
identified there, laws prohibiting guns--possession by people
with mental illness, government buildings, schools, those were
all pre-identified. And then it is important to point out,
also, the footnote in Heller says, ``This list is not meant to
be exhaustive,'' and so I think that is guidance to the lower
court when applying that test.
As Chief Justice Roberts said at the oral argument in
Heller, ``You reason by analogy from those historical
exceptions in regulations,'' and that is something that I think
is appropriate, and I said it in my opinion. But, ultimately, I
had to apply the test to the Supreme Court, and I understand
people may disagree, (a) with the Supreme Court opinion or (b)
with how I applied it, but I tried to do it as faithfully as I
could.
Chairman Grassley. Senator Flake.
Senator Flake. Thank you, Mr. Chairman.
Thank you, Judge. Thank you for your----
Chairman Grassley. Hey, wait a minute, would you, please?
Start his time over.
Judge, you have been attacked for this short footnote that
you wrote in the Affordable Care Act case about when a
President may decline to enforce the laws passed by Congress.
But in a different opinion, you actually ordered the executive
branch to comply with the law. You wrote, ``It is no
overstatement to say that our constitutional system of
separation of powers would be significantly altered if we were
to allow executive and independent agencies to disregard
Federal law.''
Obviously, you do not think the President has a blank check
to ignore the law.
Senator Flake.
Senator Flake. Thanks. Always happy to defer to the Chair.
I appreciate your endurance here today, Judge, and let me
just ask, you mentioned your mother as one of your judicial
heroes. Who else would you put on that list? What people do you
admire and why?
Judge Kavanaugh. My mom, as you mentioned, of course, trial
judge, real-world consequences, real people in the real world,
and saw her operate her courtroom with firmness and civility
and was well respected as a prosecutor first, then as a judge,
and her civility and work ethic are something--and remembering
that cases have real-world consequences.
Justice Kennedy, I have mentioned, a model of independence,
fiercely defended judicial independence throughout his career,
a model of civility and collegiality. You can look at 30 years
of his opinions, and what is the harshest thing ever written?
It is not--you cannot find it. Just a model of civility in his
judicial opinions. Oral argument, always so courteous to
Counsel, in his public speeches, someone who always celebrated
the Constitution and its protection of individual liberty, and
showed by his example, I think, how to conduct oneself as a
judge off the Bench.
When I became a judge, I was sworn in May 30, 2006, in his
chambers, and he said, ``You are going to go back and you are
going to''--``Soon you are going to feel lonely. You have been
doing this job at the White House. It is all energetic. And you
are going to feel quiet.'' And he said, ``Get out and teach,''
and he has taught since 1975, I believe, when he became a Ninth
Circuit judge. And I followed that example, and teaching has
been an important part of my life. So he taught--he instructed
that. You know, the legacy of liberty he left for the United
States is written all through the U.S. reports.
Justice Scalia, someone I knew, and also a fierce adherent
to the Constitution and someone who changed statutory
interpretation, as we have discussed, in terms of his focus on
the text. But it was rooted in his appreciation for the
Constitution and the rule of law. And as he often said, but it
is true, if you look through his jurisprudence, the decisions
where he ruled in ways that people did not expect, protection
of the Fourth Amendment, for example, the thermal imaging case,
Kyllo; the Jones case on GPS tracking; First Amendment, Texas
v. Johnson. He had in Hamdi, the dissent. So he was a fierce,
also, protector of individual liberty, even in the national
security context.
I look back to Chief Justice Rehnquist and Justice Jackson
for whom Chief Justice Rehnquist clerked as two people who had
experience in the executive branch and then came to the Supreme
Court and I think became models of independence. Justice
Jackson, of course, with his beautiful prose also in cases like
Morissette, Korematsu, and Youngstown, Barnett as well.
Rehnquist, I think such a firm but also affable manner. I
wrote about Rehnquist--I gave a speech about him and wrote--I
referred to the fact that ``Brethren'' was this book that came
out in the late 1970s very critical of--well, the sources were
very critical of the Supreme Court, not saying the authors
were, of some of the Justices individually, but Rehnquist is
referred to by all these terms throughout that emphasized his
collegiality, and I think that is why he was such a hero.
And then I will end it with, you know, anytime you look at
the Constitution and you think about people who have had an
effect on it and what it means today, you have to identify and
you should identify Thurgood Marshall because of what he did as
a Justice, but perhaps even more, he had a huge record as a
Justice that is very important. And he was a real-world
consequences person. I pulled up an old oral argument one time
in a First Amendment case that he argued in the early 1970s,
and it was about ads on a bus, on the interior of a bus, and I
guess it was political ads on the interior of a bus, and the
question was whether they were permissible, and the First
Amendment right to run these ads on the interior of the bus.
And the wording was that they would be identified, it would
look like the city was putting its imprimatur on a political
candidate. And Thurgood Marshall started the oral argument,
``Why? Why? '' You know, ``Why are you banning them? '' And
then they said, ``Well, people might think that the city is
endorsing the political candidate.'' And he said, ``Do you
really think people are that stupid? '' And it just showed
his--he got the real-world consequences in a way that no one
else--but, of course, his legacy is towering in terms of what
he did as a litigator and helped--not singlehandedly, but he
certainly--he had colleagues, but he helped bring the end of
Plessy v. Ferguson and achieve the greatest moment in Supreme
Court history in Brown v. Board. So I always think about
Thurgood Marshall's legacy as well.
So that is a much more long-winded answer than you
expected, Senator, but I appreciate you giving me the time.
Senator Flake. That is important insight. I appreciate it.
I had the opportunity to sit next to Anthony Kennedy last
Saturday for John McCain's funeral, and I think all of us have
the same opinion of his collegiality, friendliness, and that
certainly is important. We will talk about that a little later.
I noted yesterday some concerns, back to the real world
here, about an administration that does not seem to understand
or appreciate the separation of powers or the rule of law. I
worry that the President, the head of our executive branch, may
be using Executive power to advance personal political
interests. Now more than ever I think that we have to ensure
that our institutions are independence and are firm against
encroaching partisan politicking. There is nowhere more
important obviously than the judiciary. Alexander Hamilton
famously wrote in Federalist No. 78 that you have cited many
times that the judiciary is the least dangerous branch of
Government based on the understanding that the judicial branch
lacks what he said was the power of the executive branch and
the political passions of the legislature.
I believe that if you are confirmed to the Supreme Court--I
do not believe that you would erode judicial independence or
otherwise disrupt the separation of powers between the three
branches. You have been discussing your reverence for the
separation of powers with us today, particularly the importance
of keeping the judiciary the least dangerous branch by making
sure that it stays apolitical. And I will discuss that more in
a moment, but specifically, I am a little concerned about the
executive branch and the powers therein, and I reiterate some
of the concerns that Senator Sasse just identified. And in
response to Senator Sasse, you walked us through some of the
founding documents, the Constitution Federalist Papers, that
endow the President with positive powers. You have also
discussed today cases; you mentioned Youngstown, U.S. v. Nixon,
those that you admire because they involve the judiciary
standing up to the President and putting limits on Executive
power. These precedents certainly restrain Presidential power.
But I am curious. What limits are there, if any, that would
prevent a President from centralizing the Executive power and
using it for his own political or personal purposes? What
protections are there, statutory, constitutional, judicial,
that are built into the system? Can you talk a little about
that? You have talked about the positive things that give a
President or endow the Executive with power. What constraints
are there?
Judge Kavanaugh. First, Senator, there are the constraints
built into the Constitution which--the appropriations power,
the Senate confirmation power, which is often used, as you
know, of course, as a way to restrain Executive action or at
least to prevent the--not only to prevent the appointment of
people for principal executive officers who might be--the
Senate might not approve, but also sometimes as ways of
restraint.
There are also built into the constitutional--there is the
ultimate remedies in the Constitution for--there are remedies
for how judges can be removed, how Members of Congress can be
removed through the expulsion power, and how Presidents can be
removed. Those are built in. Those are the ultimate checks that
are built into the constitutional system for all of us. There
is no one who is guaranteed a permanent time because of the
ultimate checks that are in the constitutional system as well.
There are statutes then beyond the Constitution, and I did
not mean that to be an exhaustive list, but there are
innumerable statutes that, of course, regulate Presidential and
executive branch conduct in all sorts of ways, whether it be
statutes that regulate war powers, surveillance, detention,
interrogation, the War Powers Act, statutes that regulate in
the domestic arena, statutes that regulate the operations of
Government, Freedom of Information Act, Federal Advisory
Committee Act, Inspector Generals Act, that all are efforts by
Congress, as has historically been understood, to make sure the
executive branch does not operate in a way that Congress
disapproves of. And there are norms. Norms are important. I
think norms, historical practices--Madison talks about that in
Federalist No. 37. I think historical practice is relevant to
judicial decisionmaking, as we have seen in a lot of judicial
decisions. But when I worked in the executive branch, one of
the questions I always asked and I ask as a judge is: How has
this been done before? And I think that is always--two things I
always tell students, two things to always ask yourself, what
does the text of the relevant law say, regulation, code,
statutes, Constitution? And how has it been done before? Which
is really a question of precedent or norm within the executive
branch or norms within Congress. Those are important as well.
So I think there is constitutional and statutory structures
as well as custom or norm that all constrain Congress and
constrain the executive branch and constrain the judiciary as
well.
Senator Flake. You discussed with Senator Sasse the danger
of independence agencies that amass too much power in any
individual. Would that not be true with the Executive as well?
Judge Kavanaugh. That was the debate at the Constitutional
Convention, Senator, whether to have a plural Executive--in
other words, multi-member Executive--or to have a single
President. And, ultimately, the Framers at the Convention
decided to go with--and Wilson and Gouverneur Morris, James
Wilson and Gouverneur Morris were really the architects of the
Presidency at the Constitutional Convention. And they
ultimately convinced the others to go with a single President.
But at the same time, the fear that you just discussed--or the
concern, is a better word to put, you just discussed was
certainly raised by people at the time, and that is why
Hamilton wrote Federalist No. 69--well, that is why they put
all the checks into the Constitution and why Hamilton wrote
Federalist No. 69 to point out for the people who were voting
on ratification all those differences between the king and a
monarchy. And so that fear has existed throughout American
history. I think of an Executive that is unchecked, and it is
why, for example, the Supreme Court has been willing--Marbury
is another case. President Jefferson, of course, is trying--is
the one who loses in Marbury v. Madison. President Truman loses
in Youngstown. President Nixon loses in United States v.
Richard Nixon. Hamdi, national security is not a blank check
for the President. That was President Bush.
Senator Flake. Let me bring it up to today. You have
mentioned a couple of times that you live in the real world.
Judge Kavanaugh. I try, yes. That is important for a judge.
Senator Flake. And let me bring it to the real world. This
week, there was a Tweet by the President that said--and I
mentioned this yesterday--``Two long-running, Obama era,
investigations of two very popular Republican Congressmen were
brought to a well publicized charge, just ahead of the Mid-
Terms, by the Jeff Sessions Justice Department. Two easy wins
now in doubt because there is not enough time. Good job,
Jeff.''
Should a President be able to use his authority to pressure
executive or independence agencies to carry out directives for
purely political purposes?
Judge Kavanaugh. Senator, I understand the question, but I
think one of the principles of judicial independence that
judges, sitting judges--and I am a sitting judge--and nominees
sitting here need to be careful about is commenting on current
events or political controversies. I do not think we want
judges commenting on the latest political controversy because
that would ultimately lead the people to doubt whether we are
independent or whether we are politicians in robes. And so
maintaining that strict independence of the judiciary requires
me, I think, to avoid commenting on any current events.
Senator Flake. All right. Forget I just said that.
Judge Kavanaugh. I said I understand, but I----
Senator Flake. Just answer this question: Should a
President use his or her authority to pressure executive or
independent agency officials into carrying out directives for
purely political purposes?
Judge Kavanaugh. Senator, I think that hypothetical that
you are asking is directly analogous to the current events,
and, therefore, I hesitate to get in. It is also me commenting
on something that is not a case or an issue or something I have
written about. I just--I have thought about this principle as
well and looking at all of the nominee precedent of the Supreme
Court nominees in the past, and I think about Chief Justice
Roberts and I think an underappreciated aspect of his Chief
Justiceship is how he has fervently stood up for the
independence of the judiciary and tried to keep the judiciary
out of politics through what he does off the Bench as well as
on the Bench. And I think that is--he sets the tone for the
entire American judiciary, and I think that tone of not getting
us involved in politics means I need to stay not just away from
the line but three zip codes away from the line of current
events or politics. And so I respectfully--I understand, but I
respectfully decline.
Senator Flake. Well, let me rephrase it a different way. If
you have an Executive who is abusing his or her authority by
instructing independent agencies of Government to use--or to
pursue political ends, are there any remedies other than the
one that you mentioned, a political remedy involving Congress,
or is there something short of that? And I understand your
aversion, as many in this body had--I was not here yet--to the
independent counsel statute that we did away with. You
expressed--you are a little more sanguine about a special
counsel. But what other remedies are there and what other
constraints are there on a President?
Judge Kavanaugh. Well, the constraints on the Executive
generally are important ones. The appropriations power is a
huge check. That is an enormous check if employed as fully as
it might be. The confirmation power of executive branch
officials, the ultimate check, of course, that you referred to
is always part of the system. And then just to be clear on the
special counsel system that I spoke approvingly of in the 1999
law journal article and I have referred to in my PHH opinion
just last year, the traditional system, that exists. And then I
have said what I said about the old independent counsel
statute, but that was a statute that had a lot of parts to it,
and if a case came before me that had a different statute that
you had enacted or that statute, I would have an open mind
about considering the arguments in favor of that, and against
it, of course. And so those are--you know, that possibility is
present to the Congress, of course, in general.
Senator Flake. But if the President could fire an
independent counsel or a special counsel, is that any restraint
at all?
Judge Kavanaugh. Senator, that hypothetical was tested, I
suppose, in September 1973, if I have my month right, and--I
might not have my month right, but it might have been a
different month, but in 1973. And the system held.
Senator Flake. Thank you. We will move on and maybe get
back to this tomorrow.
A conversation you and I had about separation of powers
leads to a host of other related legal issues, including
Chevron deference and agency overregulation. In your written
opinions, you have suggested that you have concerns with
Chevron deference. I share those concerns, as we spoke about.
You have explained that Chevron deference can allow executive
agencies to stretch the meaning of the law beyond what Congress
intended. I think we have certainly seen that. You have also
encouraged Congress--it can also encourage Congress to abdicate
its legislative power by punting its lawmaking responsibilities
to the other two branches. We spoke at length about that in a
conversation with Senator Sasse and others about our inability
here in Congress to actually legislate on important issues. You
were discussing with another Senator our failure here to
authorize war. I have had that frustration for years now,
myself and Senator Tim Kaine, and others trying,
unsuccessfully, express Congress' opinion and to provide some
kind of template at least, if nothing else, for the executive
branch to follow in terms of these long unauthorized wars.
But that aside, your opinion suggests that a Chevron
analysis has a two-part test: one, determining if there is
statutory ambiguity and, if so, determining whether an agency's
interpretation of the statute is reasonable. So the real
question, when it comes to Chevron, is not just whether to
defer to an agency but, rather, how a judge approaches
statutory ambiguities.
How do you know when a statute is ambiguous?
Judge Kavanaugh. Well, that is a huge problem, Senator, and
I think that is at the heart of the concern I have about how
certain canons of statutory interpretation have been applied,
including Chevron, legislative history, constitutional
avoidance, as well. They depend on a threshold finding of
ambiguity. And after several years as a judge, I thought about
why is it that I disagree with a colleague after a particular
case? What is at the root of that disagreement? Because we are
both independent judges, and why are we disagreeing?
It occurred to me in some cases that the disagreement is
not about what the best meaning of the statute is or what the
precedent says. The disagreement is about whether something is
ambiguous. And then I would think about going to the judge as
umpire vision that I believe in. How can we get neutral
principles for determining ambiguity? And this is--and it turns
out it is really hard to get neutral principles for how much
ambiguity is enough. And there are two problems at the heart of
that.
First of all, just to try to reason through this: is 60
percent ambiguity enough, or 80 percent ambiguity, or 95
percent ambiguity? Where is your ambiguity trigger, so to
speak? And then, second of all, when applying whatever trigger
you come up with, how the heck do you figure out whether a
particular word or phrase or statutory provision crosses that
ambiguity threshold? And this is something that Justice Kagan
and Justice Scalia both have talked about. In the past, Justice
Kagan actually said at that same speech where she said we are
all textualists now, she also said, you know, some people just
find ambiguity more quickly than others do, which I think is a
true statement, an observation of human nature, but also leaves
the judge as umpire vision in real trouble in those cases
because if there is no neutral principles to determine
ambiguity, then we are going--and this is not a minor deal.
So if you are in a case about deference to an agency, the
fate of huge regulations can--so to give you the example, three
judges could be sitting around after oral argument and all
three could agree actually the agency's reading of the statute
is not the best reading of the statute given the words, but two
judges will say, ``I think it is ambiguous,'' and the third one
says, ``I do not think it is ambiguous.'' So the two will defer
to the agency, no, it is not the best reading of the statute,
that can be a $1 billion decision right there, fate of huge
regulations rise or fall just on that. And one judge will say,
``Well, I think it is not ambiguous.'' ``Well, I think it is.''
And there is not a great--in my experience sitting in those
conference rooms, a great neutral principle, and to my mind
that is a concern if you have, as I do, the idea that judges
should be umpires and we should have neutral rules of the road.
So that is something I focused on. I explained that at some
length in that Harvard article. I know you and I talked about
that as well.
Senator Flake. Let us talk about stare decisis, precedent.
You talked a little about I think what Senator Lee--about 5-to-
4 decisions, they have the same weight, same precedent as those
decided unanimously. Kelo, in 2005, was a 5-to-4 decision,
obviously concerning the Government's ability to seize property
for economic purposes. Those of us in the West are very
concerned about issues like this. Arizona, for example, is 85
percent publicly owned when you take State, Federal, and Tribal
property. Only about 15 percent of the State is in private
hands. So decisions that the Federal Government makes, whether
it is the legislative branch, executive agencies, or the
judiciary, has an outsized impact on a State like Arizona.
Judge Gorsuch, coming from the West, was familiar with many of
these issues. You serving on the D.C. Circuit have addressed
these issues more than perhaps others.
Do you want to talk a little about that, about some of the
Western issues or these issues, and Kelo in particular? That is
a big concern out West.
Judge Kavanaugh. So I think Kelo was something that was
controversial in the East, too, and the Midwest, and the West--
in terms of that decision.
Senator Flake. Duly noted.
Judge Kavanaugh. Yes. But I know it is of special concern
in the West as well, but it is a precedent of the Supreme
Court. But to your point, I have had cases involving
regulations. A couple of examples. One where a critical habitat
designation based on a fairy shrimp that was found on a
property, Otay Mesa case, and I wrote in that case that the
statutory term was occupied, and the fact that you could not
see it to the naked eye, that the fairy shrimp had been present
in a tire rut 3 years earlier was not enough to designate a
huge swath----
Senator Flake. I think you said it was the size of an ant
or something.
Judge Kavanaugh. I did, yes, Senator. So I had that case,
and I think there I was just applying the statute as I saw it,
but I was trying to do it in a way that understood the concern
of landowners.
I had another case, Carpenters case, it is called. It was
another designation of land in the West, and the issue involved
standing of someone who was deprived of their business because
of the designation. And I found standing because I think it is
important to understand that when something like that happens,
there are lots of affected parties. I have talked about this in
other cases, like my Mingo Logan case. When the Government
regulation--the policy is not my concern, but in assessing
standing, for example, or retroactivity, which was another case
I had, you need to think about the affected parties, so
businesses, workers, the coal miners in the Mingo Logan case or
the people in the lumber, the timber industry in the Carpenters
case. But I am also sympathetic to the fact that Westerners do
not think people in the East always understand what is going on
with those designations. I put right in----
Senator Flake. Not even remotely.
Judge Kavanaugh. Yes, not even remotely. I grant you that.
I tried to put out in my opinion something. I said, ``For
Easterners reading this opinion''--this is the second paragraph
of the opinion. ``For Easterners reading this opinion, the size
of this designation is twice the size of the State of New
Jersey.'' And I said, ``So if you are an Easterner, imagine
driving up the New Jersey Turnpike and then all the way back
down it, and you will have some sense of what it would take to
drive across this designation of land,'' which was just my way
of saying----
Senator Flake. Right.
Judge Kavanaugh. Trying to appreciate the effect of some of
these things in the West.
Senator Flake. Getting back to precedent, you know, when
you are not on the Supreme Court, if you are in one of the
lower courts, then you always look to the Supreme Court, and
those precedents are of equal weight, I guess, any decision
that is made. But when you are on the Supreme Court, precedent
is only precedent until it is not precedent anymore, until
there is a decision made.
My question, I guess, is: A decision like Kelo, decided in
2005, a 5-to-4 decision, does it have the same weight as a
Texas v. Johnson decided in 1989 on the flag-burning issue? How
do you--what weight do you give it, once you are on the high
court?
Judge Kavanaugh. Well, I think you start with principles
that the Supreme Court itself has articulated about precedent,
and those principles that look at, of course, whether the
decision is wrong, grievously wrong, whether the decision is
inconsistent, deeply inconsistent with other legal principles
that have developed around it.
You look at the real-world consequences, to your point, the
workability and real-world consequences. You look also at the
reliance interests. Those are very important, the Supreme Court
has said, in looking at precedent.
But one of the things I will say about Kelo--this is kind
of an offshoot of your question--is that a lot of States in the
wake of Kelo have enacted--or their State Supreme Courts have
interpreted their own Constitutions in a way that prevents
takings of private property for what appears to be not the
traditional public uses but going to economic development for
private parties. And so, again, I think I have cited this
before, but Judge Sutton on the Sixth Circuit, his book, ``51
Imperfect Solutions,'' is a great book about how State
Constitutions and State constitutional law and State statutes
can enhance protection of individual liberty even beyond what
the Supreme Court has interpreted the Federal Constitution to
be.
That is not a direct answer to your question, but it is
another way that the people who are affected can--who are upset
about that kind of land use designation can find protection.
Senator Flake. Thank you, Mr. Chairman.
Senator Kennedy [presiding]. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. Mr. Chairman, I
have some letters of opposition to Judge Kavanagh's nomination.
These are letters from Lambda Legal and 63 national, State, and
local LGBT groups, from Earth Justice, from Muslim advocates,
from 63 women lawyers and supporters of Whole Woman's Health,
from Secular Coalition for America, and from Asian-Pacific
American advocates. I ask unanimous consent to enter these
letters into the record.
Senator Kennedy. Without objection.
[The information appears as submissions for the record.]
Senator Hirono. Thank you. Judge Kavanaugh, Chief Justice
John Roberts has recognized that ``the judicial branch is not
immune'' from the widespread problem of sexual harassment and
assault, and has taken steps to address this issue. As part of
my responsibility as a Member of this Committee to ensure the
fitness of nominees for a lifetime appointment to the Federal
bench, I ask each nominee two questions. The first question for
you. Since you became a legal adult, have you ever made
unwanted requests for sexual favors or committed any verbal or
physical harassment or assault of a sexual nature?
Judge Kavanaugh. No.
Senator Hirono. Have you ever faced discipline or entered
into a settlement related to this kind of conduct?
Judge Kavanaugh. No.
Senator Hirono. I started asking these questions about
sexual harassment because it is so hard to hold lifetime
appointees to the Federal bench accountable, and because I did
not want the #MeToo movement to be swept under the rug. While
Senator Hatch asked you some questions about this, I have some
additional questions for you.
Last December, 15 brave women came forward and shared their
stories of sexual harassment and assault by former Judge Alex
Kozinski. Some of them are detailed on the chart behind me:
very explicit allegations of sexual harassment and assault. We
know from the reporting that Judge Kozinski's behavior was
egregious and pervasive. It went on for more than 30 years. It
affected law clerks, professors, law students, lawyers, and in,
at least, one case, even another Federal judge. And those are
just the women who came forward. Judge Kozinki's behavior
became so notorious that professors began to warn female
students not to apply for clerkships with him. Judge Kozinski's
behavior, in this regard, was an open secret.
A short time after Judge Kozinski's accusers went public,
the Judge abruptly resigned, which effectively shut down the
Federal investigation into his misconduct. I do not think this
was a coincidence. In 2008, in connection with another
investigation into Judge Kozinski, the L.A. Times wrote a story
about something called, ``the Easy Rider Gag List,'' an email
group that the Judge used to send, what the Times reported was,
quote, ``a steady diet of tasteless humor''' end quote. The
report describes a list is made up of friends and associates,
including his law clerks, colleagues on the Federal bench,
prominent attorneys, and journalists.
Senator Hatch asked you if you were on this ``Easy Rider
Gag List'' where Judge Kozinski would send inappropriate
materials. Your response was that you do not remember anything
like that. Are you telling us that you may have received a
steady diet of what people on the list have described as,
quote, ``a lot of vulgar jokes, very dirty jokes,'' but you do
not remember it?
Judge Kavanaugh. No, I do not remember anything like that,
and I am not----
Senator Hirono. So, the answer is ``no.'' Have you ever----
Judge Kavanaugh. Well, if I could elaborate.
Senator Hirono. I think that is a complete answer. Let me
go on. Have you otherwise ever received sexually suggestive or
explicit emails from Judge Kozinski, even if you do not
remember whether you were on this ``Gag List'' or not?
Judge Kavanaugh. So, Senator, you start with, ``no woman
should be subjected to sexual harassment in the workplace,''
and----
Senator Hirono. Judge Kavanaugh, you already went through
all of that, and I will get to your perspective about making
sure that women in the judiciary do not get sexually harassed.
I just want to ask you, during and after your clerkship with
Judge Kozinski, did you ever witness or hear of allegations of
any inappropriate behavior or conduct that could be described
as sexual harassment by Judge Kozinski?
Judge Kavanaugh. No, Senator. And, you know, there were 10
judges--I worked in Washington, DC. There were 10 judges in the
courthouse with him in Pasadena, prominent--prominent Federal
judges in the courthouse with him----
Senator Hirono. So----
Judge Kavanaugh. Who worked side by side with him day after
day while he was Chief Judge in the Ninth Circuit.
Senator Hirono. To be clear, while this kind of behavior on
the part of Judge Kozinski was going on for 30 years, it was an
open secret, you saw nothing, you heard nothing, and you
obviously said nothing. Judge Kavanaugh, do you believe the
women who recently came forward to accuse Judge Kozinski of
this kind of behavior?
Judge Kavanaugh. I have no reason not to believe them,
Senator.
Senator Hirono. So, you know, let me just put this into a
context, because you have testified that you basically saw no
evidence of this kind of behavior at all, you never heard of
it, but you worked closely with him on a number of projects. It
was not just during the time you were clerking for him. You
kept in touch with him while you were in the White House. He
introduced you to the Senate at your 2006 nomination hearing,
and he called you his good friend. Yesterday, you called each
of the people who introduced you a friend, and I presume you
felt that way about Judge Kozinski when he introduced you in
2006. You joined him for panels at the Federalist Society where
you patted him on the shoulder and said, ``I learned from the
master about hiring clerks,'' and I believe I have a photo of
that--there is Judge Kozinski.
You told us that you have hired many women clerks, how you
are a mentor to women, how important you think it is for women
to have a safe working environment where they feel that they
can report sexual harassment. I conclude that you consider
yourself an advocate for women. If a judge was aware that
another judge was engaging in sexual harassment or sexual
assault, would the judge have a duty to report it?
Judge Kavanaugh. If I heard those allegations, Senator, I
would have done three things immediately. I would have called
Judge Tom Griffith, who is on our court, who is on the Codes of
Conduct Committee for the Federal judiciary appointed by Chief
Justice Roberts. I would have called Chief Judge Garland, who
is chair of the Executive Committee. I would have called Jim
Duff, who is head of the Administrative Office of the U.S.
Courts. If, for any reason, I was not satisfied with that, I
would have called Chief Justice Roberts directly.
Senator Hirono. So, you believe that all judges who,
including yourself, if you ever heard of any allegations about
these kinds of behaviors, you would report it. You would go
through whatever processes were set up by the courts.
Judge Kavanaugh. I would do that and----
Senator Hirono [continuing]. To prevent this kind of
behavior and to hold people accountable. And yet, you know,
someone that you have been close to that you clerked, and I did
go through the various encounters, more than encounters that
you had with Judge Kozinski, and yet you heard nothing, saw
nothing, and obviously you did not see anything. So, let me
just mention that this is why the #MeToo movement is so
important because often in these kinds of situations where
there are power issues involved, and certainly there are
between judges and clerks, that often, you know, it is an
environment where people see nothing, hear nothing, say
nothing. And that is what we have to change.
Judge Kavanaugh. I agree with you, Senator.
Senator Hirono. That is great.
Judge Kavanaugh. I agree completely. There need to be
better reporting mechanisms. Women who are the victims of
sexual harassment need to know who they can call, when they can
call. They need know first that the way----
Senator Hirono. Judge Kavanaugh, perhaps if all those
situations or those processes had been in place over the 30
years that Judge Kozinski was engaging in this kind of
behavior, maybe he would have stopped, but he did not.
I have one more question, Judge Kavanaugh. Were you aware
of the serious allegations of domestic violence against Rob
Porter before you recommended him for staff secretary to Donald
Trump?
Judge Kavanaugh. There is a premise in there that I am not
sure is accurate----
Senator Hirono. The premise being that he engaged in
domestic abuse.
Judge Kavanaugh. No, no, no, the recommendation premise,
but I will--but put that aside. No, I was not aware of those
allegations until they became public, when there was the news
reports about them.
Senator Hirono. Let me turn to another set of questions
that I have for you. In 1999, you joined Robert Bork in writing
an amicus brief in support of Harold ``Freddy'' Rice, who
challenged the voting structure for Hawaii's Office of Hawaiian
Affairs, a State office charged with working for the betterment
of Native Hawaiians. You argued that Hawaii could not limit
those who voted for the Office's Trustees, so only made of
Hawaiians. You not only made this argument in a legal brief,
but you also published an opinion piece in the Wall Street
Journal under your own name entitled, ``Are Hawaiians Indians?
'' In the piece you wrote, ``The Native Hawaiian community was
not indigenous because,'' as you said, ``after all they came
from Polynesia.'' It might interest you to know that Hawaii is
part of Polynesia, so it is not that they came from Polynesia.
They were part of Polynesia. Hawaii is part of Polynesia.
Native Hawaiians did not come from Polynesia. Let me repeat
that. They were a part of Polynesia.
You also implied that Native Hawaiians could not qualify as
an Indian Tribe, and, therefore, were not entitled to
constitutional protections given to indigenous Americans
because, and I quote you, ``They do not have their own
government. They do not have their own elected leaders. They do
not live on reservations or in territorial enclaves. They do
not even live together in Hawaii.'' Let me tell you why each of
these assertions are wrong, but it is the basis on which you
determined that the OHA elections were unconstitutional.
Judge Kavanaugh. Well, the Supreme Court--the Supreme Court
agreed, though. The Supreme Court agreed, 7-to-2.
Senator Hirono. No, they did not agree based on necessarily
your arguments. Let me go on. To say that there is no system of
law is an insult to the society that evolved in the Hawaiian
Islands over centuries, even before the creation of the United
States. To say they do not have their own elected leaders in a
historical sense just betrays, in my view, your ignorance of
Native Hawaiians. They were a self-sustaining, self-governing
society for a thousand years prior to the so-called discovery
by Captain Cook. You said, ``They do not live on reservations
or in territorial enclaves. They do not even live together in
Hawaii.''
You know, it is hard to know what to say to this assertion.
It sounds like you are saying that Native groups in the United
States derive their rights from having been herded into
reservations and cheated out of their land, or that they
surrender their rights when they move outside of these
artificial boundaries. It is not only factually wrong, but also
very offensive. Judge Kavanaugh, it is hard to believe that you
spent any time researching the history of Native Hawaiians.
Now, I am going to refer to an email that you sent out.
Judge Kavanaugh. May I respond to that?
Senator Hirono. I am going to get to my question.
Judge Kavanaugh. Okay.
Senator Hirono. You sent out an email on June 4th, 2002,
and I am going to read in part. ``Any programs targeting Native
Hawaiians as a group is subject to strict scrutiny and of
questionable validity under the Constitution.'' Now, you sent
out this email after the Rice decision had already been made by
the Supreme Court. When you wrote this email saying that all
Native Hawaiian programs should be--undergo strict scrutiny
because they are a constitutional--questionable validity under
the Constitution, were you looking to Rice v. Cayetano as a
basis for this view which you expressed in your email?
Judge Kavanaugh. So, Senator, first of all, I appreciate
your perspective. The amicus brief I wrote was--the Supreme
Court agreed with by a 7-to-2 decision written by Justice
Kennedy in that case, Rice v. Cayetano. And that decision--in
the case, just so I am clear, it was a State office that denied
African Americans the ability to vote in that--for that State
office. Latinos and other people were denied the ability to
vote for a State office, and the question was whether that was
permissible under the Constitution. And the Supreme Court, by
7-to-2----
Senator Hirono. No, I attended the Supreme Court hearing.
Judge Kavanaugh. I did, too.
Senator Hirono. And I believe that one of the reasons they
kept asking about--trying to figure out whether Native
Hawaiians constitute Tribes is probably because of the amicus
that you put in there that raised this issue, so let me go on.
You know, you did not answer my question as to whether or not
when you said that ``any program targeting Native Hawaiians as
a group is subject to strict scrutiny and of questionable
validity under the Constitution.'' My question to you was, were
you thinking about the Rice decision, which you continue to
say, yes, the Supreme Court agreed with you. Were you thinking
about the Rice decision when you made this view known?
Judge Kavanaugh. That is an email 16 years ago. I do not
recall what I was thinking about when I wrote----
Senator Hirono. It was right after the Rice decision. This
is a 2002 email. The Rice decision was 2000. Well, let me ask
you this, then. Do you think Rice v. Cayetano raises
constitutional questions when Congress--not the State, because
Rice was a State action case. It had to do with the Fifteenth
Amendment--not the Fourteenth Amendment--the Fifteenth
Amendment having to do with voting rights. So, my question to
you is, do you think Rice v. Cayetano raises constitutional
questions when Congress passes laws to benefit Native
Hawaiians?
Judge Kavanaugh. I think Congress' power with respect to an
issue like that is substantial. I do not want to pre-commit to
any particular program, but I understand that Congress has
substantial power with respect to declaring--recognizing
Tribes.
Senator Hirono. But you believe that any of these kinds of
programs and laws passed by Congress should undergo strict
scrutiny and raises constitutional questions?
Judge Kavanaugh. Well, as I--as I sit here today as a
judge, I would listen to arguments under--16 years ago, and I
am working in the administration, in the executive branch, and
putting forth the position there. But if I were a judge, I
would listen to the arguments. To your question, Congress has
substantial power with respect to programs like this. I
appreciate what you have said about Native Hawaiians. The
specific case was about an election to a State office.
Senator Hirono. Yes, that is why it is a State action case.
I am well aware of the basis on which the Supreme Court made
that decision. So, Judge Kavanaugh, Rice is often cited for the
proposition that laws that benefit Native Hawaiians are
unconstitutional because they are race-based. Do you think Rice
can be cited for that view, knowing, as you have acknowledged,
that it is a State action, Fifteenth Amendment voting rights
case? Rice--I know this--Rice is often cited for the
proposition that all Native Hawaiian programs enacted by
Congress are--can be challenged as unconstitutional as race-
based. I am asking you if that is an appropriate citation of
the Rice decision.
Judge Kavanaugh. Senator, I think Congress has substantial
power, of course, in this area that you are discussing, and I
would want to hear more about how Rice applies. I would want to
hear the arguments on both sides. I would keep an open mind and
appreciate your perspective on this question.
Senator Hirono. You know, when the Supreme Court keeps an
open mind and listens to the litigants and the advocates, one
would hope that the advocates will actually proffer facts to
the Court, and that is not what you did when you filed your
amicus to the Court. And I think you have a problem here. Your
view is that Native Hawaiians do not deserve protections as
indigenous people under the Constitution, and your argument
raises a serious question about how you would rule on the
constitutionality of programs benefiting Alaska Natives. And I
think that my colleagues from Alaska should be deeply troubled
by your views. And I know that in your amicus brief and in your
Wall Street article you did not mention one word about Alaska
Natives. And it could be because there is no Commerce Clause
reference to Alaska Natives, as there is for American Indian
Tribes.
I want to go on to another set of questions because I am
running out of time. I want to follow up on your discussion
with Senator Feinstein about Roe and Casey, and your
conversation with Senator Durbin about Garza, and also raised
by my colleague, Senator Blumenthal. You talked about the
importance of precedence. You said you understand the strong
feelings about abortion. You said you recognized the real-world
effect of cases, and you do not live in a bubble. But I think
when you talk about respect for precedent it is misleading
because there are ways to say you are relying on precedent,
i.e., Roe v. Wade and its progeny, but still severely limit a
woman's right to make her own reproductive choices. And that is
exactly what you did in Garza, because we all recognize that
even if Roe v. Wade is not overturned, there are going to be
many cases that will continue to come before all of the courts,
including the Supreme Court, that will probably be laws enacted
by States that will limit a woman's right to choose, so
including things like parental consent, spousal consent, or
notification, limits on where abortions can be performed, i.e.,
Whole Woman's.
So, both Senators Durbin and Blumenthal explained the facts
in Garza, so I will not go over that. But when the case reached
you, you took any opportunity you could to prevent that girl
from getting an abortion. You said you were relying on
precedent, but you were not. You turned this case into a
parental consent case, which it was not. Then you looked at the
facts and ruled against, in my view, all common sense that
keeping a young woman behind lock and key against her will by
ORR--Office of Refugee Relocation--insisting that ORR be
allowed to delay beyond the time an abortion would be--would no
longer be feasible by finding her sponsors that she did not
need. And, that you deemed these factual circumstances not an
undue burden on her constitutional right for an abortion.
Let me read you a portion of your dissent in this case. You
say, ``The majority points out in States, such as Texas, the
minor will have received a judicial bypass. That is true, but
it is irrelevant to the current situation.'' Why? The current
situation was all about parental consent and the need to get--
to get a judicial bypass, which this young woman did. So, if
there is anything that is irrelevant, it is your argument that
this was a parental consent case. Then you went on to analyze
this case on the basis of whether or not keeping her under lock
and key--you sustained that there would be sponsors found for
her which could have ended up being an unfeasible timeframe for
her to get an abortion, and you deemed those not to be undue
burdens.
The young woman had already received a State judicial
bypass, as referenced before. The fact that she did not have,
you thought, that parental consent, that was not even an
issue--it was irrelevant. So, this is very disturbing. Is it
any wonder there are so many people who, even if you are not
sitting there, in spite of the fact that President Trump said
his nominees to the Supreme Court will overturn Roe v. Wade.
Even if Roe is not overturned, there will be, as I mentioned,
all of these cases that will put barriers--that would put
barriers before a woman's right to choose.
So, I find it really a rather unbelievable--and by the way,
you also mentioned--you know, you said several times in Garza
you did not join the dissent, which basically says an alien
minor does not have a constitutional right to an abortion. So,
does the fact that you did not join this dissent mean that
undocumented persons do have a constitutional right to an
abortion?
Judge Kavanaugh. Well, I decided that case based on the
precedent of the Supreme Court and the arguments that were
present in the case. I made clear that I was following as
carefully as I could the precedent. You mentioned parental
consent and spousal consent. The Supreme Court has upheld
parental consent laws, but has rejected spousal consent.
Senator Hirono. Usually it requires a judicial waiver,
which was the case in the Texas case. So you cannot just
require parental consent, as in this case, where her parents
were beating her up. How can you expect parental consent in a
situation like that?
Judge Kavanaugh. That would be a situation for the bypass.
Senator Hirono. Yes.
Judge Kavanaugh. This was an analogy for a woman who is a
minor, that is critical, who was in an immigration facility by
herself in the United States and had----
Senator Hirono. She had already gotten a judicial bypass.
There was no issue of parental consent, and in this case you
would have substituted a foster family for parental consent.
That is not even an issue, but I do have a question. Since you
mentioned several times that you did not join the dissent, and
the crux of the dissent was that there was no constitutional
right for an alien minor to have an abortion, I want to ask
you, did you join or did you not join that dissent because you
disagreed with that, that, in fact, alien minors do have a
right to an abortion in our country?
Judge Kavanaugh. Well, as a general proposition--first of
all, the Government did not argue in that case that aliens lack
a constitutional right generally to obtain an abortion.
Senator Hirono. Yes, even they did not argue because
probably they figured that is a decided issue, but maybe you do
not think so. Do you think that that is an open question as to
whether or not alien minors, or, in fact, aliens in our country
have a right to--a constitutional right to an abortion? Do you
think that is an open case?
Judge Kavanaugh. The Supreme Court has recognized that
persons in the United States have constitutional rights.
Senator Hirono. Okay. So, I hope that is why you did not
join the dissent. Moving on to another set of questions
relating to your dissents. I think you can learn a lot about a
judge by looking at his or her dissents, and that is why judges
go out of their way to voice their disagreement with the
majority and show what their views are. And you have the
dissent rate among active D.C. Circuit judges, 5.1 dissents per
year.
I am going to talk about several studies that analyze your
decision. The first study by Professor Elliott Ash and
Professor Daniel Chen shows that compared to other circuit
court judges elevated to the Supreme Court since the 1980s, you
not only have the highest rate of dissents, you also have the
highest rate of partisan dissents. So, I think I have a chart
on that. Well, maybe not. Suffice to say there is such a study,
and I ask unanimous consent to have the study by Professors Ash
and Chen be entered into the record.
[The information appears as a submission for the record.]
Senator Hirono. The second study by people--thank you, I am
on a roll here, Mr. Chairman.
[Laughter.]
Senator Hirono. The second study by People for the American
Way shows that you consistently sided against workers or
immigrants and only once favored consumers in your dissents.
Mr. Chairman, I ask unanimous consent to have the People for
the American Way study entered into the record.
Senator Kennedy. Without objection.
[The information appears as a submission for the record.]
Senator Hirono. A third study by Public Citizen shows that
in cases where there was disagreement among the judges, you
consistently sided against helping people who wanted to protect
our clean air and water. Mr. Chairman, I ask unanimous consent
to have the Public Citizen study entered into the record as
well.
Senator Kennedy. Without objection.
[The information appears as a submission for the record.]
Senator Hirono. A fourth study, a detailed study by
Professors Cope and Fischman, found that you are, and I quote
their study, ``no judicial moderate,'' and that, ``It is hard
to find a Federal judge more conservative than Brett
Kavanaugh.'' Mr. Chairman, I ask unanimous consent to have the
study of Professors Cope and Fischman entered into the record
as well.
Senator Kennedy. Without objection.
[The information appears as a submission for the record.]
Senator Hirono. Judge Kavanaugh, why do you rarely dissent
on behalf of consumers, workers, or the powerless? And please,
do not talk to me about all the times that you were with the
majority or where you joined other majorities?
Judge Kavanaugh. Well, Senator, I have ruled for workers
many times. I have ruled for environmental interests many times
in big cases that involve clean air regulation, particulate
matter regulation, affirmative defense for accidental
emissions, the California Clean Air law over a dissent by a
fellow judge.
Senator Hirono. So, Judge Kavanaugh, I cited--how many
studies did I enter into the record? At least four studies that
indicate that there is a pattern to your dissents, and your
pattern is that you do not favor basically regular people.
Judge Kavanaugh. Well, I wrote a--one of my most important
dissents, Senator, was in United States v. Burwell. That was a
criminal case, an en banc case for a convicted drug
distributor. The question was whether he had been sentenced to
a 30-year mandatory minimum permissibly, and I joined by Judge
Tatel, who is an appointee of President Clinton, ruled that the
jury instructions were flawed. I was in dissent for him because
mens rea requirement had been omitted from the jury
instructions, and I wrote a very opinion lengthy about that.
That is someone--that is one of my most important dissents, and
that was on behalf of a criminal defendant.
Senator Hirono. Judge Kavanaugh, the thing about patterns
that are exceptions to the pattern. So, all of these studies
that I cite to, we are not talking about the exceptions to the
pattern. We are talking about the existence of a pattern. You
know, it kind of--it bothers me--you know, I would expect a
judge to follow the law. I fact, I think you started off saying
that you are a--how did you describe yourself in terms of
following the law? You said several times----
Judge Kavanaugh. Independent and pro-law.
Senator Hirono. Pro-law.
Judge Kavanaugh. Another important decision is a case, I
think I wrote the leading opinion or one of the leading
opinions, on battered women's syndrome, called United States v.
Nwoye over a dissent of another judge where I reversed a
conviction of a woman on the ground that she had not been
able----
Senator Hirono. Judge Kavanaugh, I hate to continue to
interrupt you, but, you know, 30 minutes goes by awfully fast,
and there are always exceptions to the pattern. So, yes, you
call yourself--you describe yourself as a pro-law judge. And,
you say, you consider yourself to be someone who follows
precedent and the law, but over and over again your colleagues
and the majority criticize you for not following the law or
Supreme Court precedent. Where Congress is clear, you miss the
plain language. Where the Supreme Court clearly states rules,
you ignore them.
Let me cite you to some examples where your colleagues
actually took the time to criticize your dissents. So, in a
2008 case, Agri Processor v. NLRB, the majority said the
dissent--your dissent--``creates his own rule instead of
following Supreme Court rules.'' They said that your dissent
``abandons the text of the applicable laws all together.'' Or,
in 2011, the majority in a case called, Heller II, held that
Washington, DC, could ban semi-automatic weapons, and the
majority wrote an entire appendix--an entire appendix--to
explain why your dissent was wrong and how you misread the
Supreme Court.
Mr. Chairman, I ask unanimous consent to have the 10-page
appendix in Heller II entered into the record.
Senator Kennedy. Without objection.
[The information appears as a submission for the record.]
Senator Hirono. In 2017, in U.S. v. Anthem, the majority
sharply criticized your dissent. They said, ``Rather than
engage with the record, much less adhere to our standard, the
dissent offers a series of bald conclusions and
mischaracterizes the Court's opinion.'' They said that you, the
dissenting colleague, ``applies the law as he wishes it were,
not as it currently is.'' This does not sound like such a pro-
law judge to me. Now, why do your colleagues go out of their
way so often----
Senator Kennedy. Senator, if you could begin to wrap up,
please, ma'am.
Senator Hirono. Why do your colleagues go out of their way
so often to point out that you are not following the law or
relevant Supreme Court cases?
Judge Kavanaugh. Senator, my--I stand by my record. I have
been in the majority the vast majority of the time, 95--90 to
95 percent of the time. I have written opinions joined by
colleagues of all stripes. I think there have been studies that
have shown the affiliation of the judges who join me in
majority opinions when there has been a dissent. I stand by my
record. I am proud of my record. I have explained thoroughly my
decisions in each case. I appreciate your perspective, and I
understand the cases you have raised, but my opinions speaks
for themselves, and I am very proud of them.
Senator Kennedy. Senator Crapo.
Senator Hirono. And I think all these studies speak for
themselves also. Thank you, Mr. Chairman.
Senator Kennedy. Thank you, Senator.
Senator Crapo.
Senator Crapo. Thank you very much, Mr. Chairman. And,
Judge Kavanaugh, you can relax for just a short moment because
I am going to take a few minutes at the beginning and introduce
some documents for the record.
First, Mr. Chairman, I would like to introduce--or, ask
unanimous consent to enter an op-ed from the San Bernardino Sun
editorial board stating that Brett Kavanaugh's nomination might
be the calm before the storm. The editorial board says that
``Judge Kavanaugh is impeccably credentialed, conventionally
conservative, and less likely than other short-listed judges to
overturn landmark culture war case law. In addition to his
qualifications and nationwide respect, Judge Kavanaugh brings a
reassuring image of normality and judicial cohesion.'' I ask
unanimous consent to introduce this document into the record.
Senator Kennedy. Without objection.
[The information appears as a submission for the record.]
Senator Crapo. Second, Mr. Chairman, the San Diego Union
Tribune, ``Why Supreme Court Nominee, Brett Kavanaugh, May Be
More Independent Than You Expect.'' This op-ed goes forward to
say that--the editorial board is strongly inclined to support
Judge Kavanaugh's confirmation, has endorsed nominees from both
Republican and Democrats in the past. The board advocates for
the deference to the President in picking Justices ``so long as
the nominee has the requisite credentials,'' and it applauds
``Judge Kavanaugh as straight out of Supreme Court central
casting.'' I ask unanimous consent to put this document in the
record.
Senator Kennedy. Without objection.
[The information appears as a submission for the record.]
Senator Crapo. Third, a document from the Harvard Black Law
Students Association. This is a letter that exhibits Judge
Kavanaugh's commitment to fostering diversity in the legal
profession. ``Last year, Judge Kavanaugh reached out to the
Harvard Law School chapter of the Black Law Students
Association to express his interest in organizing a clerkship
event for their members. Also on the panel with him was Judge
Paul Watford, African-American Judge on the Ninth Circuit Court
of Appeals.''
The Black Law Student Association described that event.
``Judge Kavanaugh explained that one of his priorities is to
encourage more students of color to apply for judicial
clerkships. Several recent reports have indicated that minority
law students are significantly underrepresented in Federal
clerkships. During the event, Judge Kavanaugh provided his
insight and advice on how students should navigate the entire
process.'' They continued, ``The judge not only graciously
offered his time for that panel, but also has continued to
mentor numerous Harvard students whom he has taught or worked
in a number of capacities.'' Again, I submit this document for
the record.
Senator Kennedy. Without objection.
[The information appears as a submission for the record.]
Senator Crapo. Fourth, a Georgetown Prep letter. Judge
Kavanaugh's former Georgetown Prep classmates. These men grew
up with Judge Kavanaugh. They have known him for 35 years. They
know him as man of high character and intellect before he
became a judge, and in high school he was the team captain and
a multi-sport athlete. Years later, despite his great
achievements, he remains the same grounded and approachable
person they knew from class sports and student body activities.
Their letter goes on with shining accolades. I would like to
put this letter into the record, Mr. Chairman.
Senator Kennedy. Without objection.
[The information appears as a submission for the record.]
Senator Crapo. And then finally for documents for the
record, Governor Matthew Mead of Wyoming has sent a letter
which states that ``Judge Kavanaugh embodies the qualities we
need in an independent, thoughtful judiciary. He will be an
effective and fair member of the United States Supreme Court.''
I ask to submit this letter to the record.
Senator Kennedy. Without objection.
[The information appears as a submission for the record.]
Senator Crapo. Well, thank you very much, Mr. Chairman,
and, Judge Kavanaugh, I would like to now turn to some
questions. Before I get into the questions I had intended to
ask, though, I wanted to get into the discussion--go back and
try to bring some clarity to the discussion that was held
earlier in some of the questioning with regard to the
independent counsel versus the special counsel circumstances
and laws and statutes that we have had in the United States.
My colleagues have asked you a lot about the old
independent counsel statute. I think it is important that we
walk through some of the differences between that statute,
which is now no longer law, and the new special counsel
regulation. And I am going to mention three important
differences, and then I am going to just ask you, Judge
Kavanaugh, if you would like to give any clarity to this
situation and the issues that were raised with you earlier.
First, the process for appointing a special counsel, which
is the current situation. The decision to appoint a special
counsel and the choice of whom to appoint is solely within the
discretion of the Attorney General. The old independent counsel
had to be appointed and selected by a panel of three D.C.
Circuit judges. Second, the scope of the investigation. The
scope of the current special counsel inquiry is determined
solely by the Attorney General. The scope of the independent
counsel's jurisdiction, when it was the law, was essentially
boundless, no limits. Third, is the process for removing a
special counsel. The Attorney General can remove the special
counsel for good cause. The independent counsel could only have
been removed by a three-judge panel. I think those are
important differences related to the conversations you had
earlier.
And, Judge Kavanaugh, I would just, with that
clarification, like to ask you if you would like to give any
more comment or clarification to the discussions that were
raised with you earlier.
Judge Kavanaugh. Thank you, Senator. I appreciate the
distinctions, which I think are accurate, and it is important
to understand, as you underscored, the old independent counsel
statute had many parts to it that combined to make it such a
departure from the traditional special counsel system, all of
which were part of the analysis that, I think, Justice Scalia
engaged in in his dissent, and that the Congress looked at when
it decided that that statute had been a mistake, and you
overwhelmingly decided not to reauthorize it in 1999.
Senator Crapo. Well, thank you. I just--I felt like you did
not get an opportunity to make that clarification and that the
record needed to be clear for the American people.
Judge Kavanaugh. Thank you, Senator.
Senator Crapo. Before we move on from that topic, I just
want to state that Eric Holder has noted that the fundamental--
noted the fundamental structural flaws with the old statute.
Senator Durbin, as has been said, called that law ``unchecked,
unbridled, unrestrained, and unaccountable.'' And, as we have
heard, Justice Kagan has praised Justice Scalia's dissent
calling that law into question. So, I just did want the record
to be clarified somewhat in that context.
Judge Kavanaugh. Thank you, Senator.
Senator Crapo. Now, what I want to do during the rest of my
questioning, in a number of different ways, is to get into your
judicial record. I will start with this, however, by going back
to what this set of hearings began with yesterday, which was an
attack on the documentation that has been produced by you and
others for your record. I will state again there is no nominee
for the Supreme Court who has ever been asked a more robust
questionnaire by this Committee than you, and you provided, I
believe, around 17,000 pages of documents in response to that
questionnaire, which was more than any other nominee has been
asked.
Second, you provided over 440,000 other documents that--or
pages, I believe it is, of documents that in and of itself is
more than the entire number of documents or pages of documents
that were provided by the last previous five nominees to the
Supreme Court. You have also got a record--a judicial record,
which is acknowledged by Senators constantly as the most
important part of the documentation for a nominee to the
Supreme Court of over 10,000 pages of your decisions. And
unfortunately, we have not seen a lot of focus on that yet in
the questioning that you have received in this hearing, so I
want to try to get into that.
Before I do, however, I want to note, everyone has heard
this many times, but I am not sure that the--that the normal
American really understands. You are a judge of the D.C.
Circuit. It has been said in this room a number of times that
that is often called the second most powerful court in the
Nation. It is a circuit court. there are a number of circuit
courts. What is different about the D.C. Circuit Court from,
say, the Ninth Circuit Court in which I sit in Idaho for the
Ninth Circuit? What is different between all of the other
circuit courts and the D.C. Circuit Court?
Judge Kavanaugh. Thank you, Senator. All the courts of
appeals are important and have important dockets and important
caseloads, and the judges on all those courts do important
work. The D.C. Circuit does get more regulatory cases because
we are--the D.C. Circuit is in the Nation's capital, the seat
of Government, and, therefore, more of the administrative law
regulatory cases come. So, EPA cases, for example, or NLRB
cases--EPA, Environmental Protection Agency, NLRB, National
Labor Relations Board, Securities and Exchange Commission. We
will get more of those cases involving agencies of the
Government here in DC as a percentage of our docket than you
would get in other courts, and that includes some of the
separation of powers controversies that traditionally arise
of--relating to national security cases. We have all the
Guantanamo-related cases in our court.
So, there are cases related to Government operations,
Government--separation of powers, administrative law, the
agencies that are a bigger percentage of our docket. But I do
want to underscore all the courts of appeals of this country do
important work, and all the judges have important dockets, and
they are different, distinctive characteristics or characters
of each of those courts in terms of--for example, the Ninth
Circuit has a good deal of immigration law. The Fifth Circuit
has a good deal of that. The Eleventh Circuit, of course, has a
very--all the Circuits have important dockets. So, I just
wanted to not--I want to underscore that D.C. has a lot more
separation of powers, but I do not want to--I have a lot of
friends on the other courts of appeals, Senator.
[Laughter.]
Judge Kavanaugh. I do not want to--I do not want to
diminish the work that they do because it is very important
work, and what they do as well.
Senator Crapo. Well, I appreciate your answer, and believe
me, those of us who live in the Ninth Circuit understand the
power of the Ninth Circuit Court of Appeals. And sometimes we
chafe under its rulings, but we are very aware of the
incredible power. The point being, though, that the D.C.
Circuit is distinctly different, as you indicated, in that it
gets a much higher level of caseload dealing with the operation
of executive agencies and with operations of Government, the
kinds of things that we have been talking about extensively
here, these types of issues. And I just think it is important
for that to be brought out.
Judge Kavanaugh. Thank you.
Senator Crapo. With regard to the--to the D.C. Circuit on
which you sit, you have spent how many years as a judge on that
Circuit?
Judge Kavanaugh. Twelve years and 3 months.
Senator Crapo. And how many decisions? Do you know the
number of decisions you have participated in?
Judge Kavanaugh. I think I have handled well over 2,000
cases, including all the cases counted up together.
Senator Crapo. And how many of those were you the author of
the opinion?
Judge Kavanaugh. I have written majority opinions,
published majority opinions in, I believe, 307 cases is the
current number.
Senator Crapo. And there has been some discussion even with
the last questioning that you received about what the norm is,
what the pattern with your decisionmaking. I will note before I
ask you this question that the current active judges on the
D.C. Circuit are made up of seven nominees from Democrat
Presidents and four nominees from Republican Presidents.
So, the current makeup of the active judges on the D.C.
Circuit is more Democrat than Republican in terms of who
nominated them. But in--I guess I am going to lead you a little
bit with this question, but in this several thousand cases that
you have been involved in deciding with this group of judges,
what percentage did you agree with? In other words, in what
percentage were you in the majority?
Judge Kavanaugh. It has to be in the nineties, I would
believe.
Senator Crapo. I heard yesterday from the Chairman it was
97.
Judge Kavanaugh. Yes, I believe that sounds correct.
Senator Crapo. So, if there is a pattern here, it is that
you are right there with the majority of your colleagues on the
court on most cases, and I do not mean just 51 percent. It is,
like, 90-plus percent, probably 97 percent if I remember from
yesterday correctly.
Judge Kavanaugh. Yes, that sounds about right, Senator,
appreciate it. We are judges. We do not wear a partisan label
as judges, and I worked--tried to work well under the law with
my--all my colleagues.
Senator Crapo. So, those who want to try to create the
impression that you are an outlier have to use that last 3
percent--in fact, I think it is 2.7 percent in which you are
actually in the dissent or not--maybe you are a member of a
partial majority. But they have to go to that very small number
of cases and then try to figure out a way in there to make it
look like you have disagreement with norms in the judiciary. I
just think it is important for us to note when people start
talking about let us look for patterns, the pattern is that you
are working with your colleagues on that court in a united way,
and that there seems to be a pretty high level--a pattern of--a
high level of consensus in the rulings in which you
participate.
In terms of the decisions that you have written, the 307
decisions that you have written, how many of those do you
recall--have you analyzed it--how many of those were majority--
decisions for a majority?
Judge Kavanaugh. The vast majority of those are majority
opinions.
Senator Crapo. So, it was a small number that would have
been dissenting opinions.
Judge Kavanaugh. Dissents and also some concurrences.
Senator Crapo. And some concurrences.
Judge Kavanaugh. Yes.
Senator Crapo. Again, I do not know that you would have
these statistics, but I assume some number of those cases were
appealed to the Supreme Court. Did the Supreme Court--when your
cases were brought to the Supreme Court, the ones that you
wrote, were they overturned regularly or were they sustained
mostly? Do you know the numbers on that?
Judge Kavanaugh. I believe there are 13 cases where the
Supreme Court has agreed with the analysis that I had--or the
decision I had made either in a dissent or in a majority
opinion for the D.C. Circuit.
Senator Crapo. And how about reversals where one case where
there was a reversal? Excuse me. So, 13-to-1. Again, if you are
looking at a pattern, it appears to me that you are, again, in
the mainstream of the American judiciary. With regard to the--
to the question of how the Supreme Court has treated your
cases, I seem to recall that they actually adopted your line of
reasoning in a number of cases. Is that correct?
Judge Kavanaugh. That is correct, Senator. I do not know if
you have a--I will let you----
Senator Crapo. I do not have the number on that.
Judge Kavanaugh. Yes. No, of the 13, that is correct where
they either cited or quoted or otherwise agreed with the
reasoning or decision I made in a concurrence or dissent. And I
am happy to talk about those, but----
Senator Crapo. Well, let me--let me get--ask you this
question, and you can use it there----
Judge Kavanaugh. Of course, I am happy to talk about them.
Senator Crapo. What I was going to ask you next is before I
go into some of the cases that I am aware of that you
participated in that I think are notable, are there any--of the
cases that you have participated in as a judge, particularly
those where you have written the opinion, but any cases you
would like to note. Like I said, we have not really gotten into
your judicial record much here. I would like you to have an
opportunity to talk about your judicial record. Are there some
that you would like to discuss with us before I go on to some
that I have on my papers?
Judge Kavanaugh. Well, I will let you ask a few, and if
there are any others I want to go to----
Senator Crapo. Well, I will probably run out of time before
I am done with mine, but----
Judge Kavanaugh. I will try to be succinct.
Senator Crapo. Well, the first one is, back to an issue
that you have been criticized for is, equal treatment of women.
One of the cases I am aware you participated in is the United
States v. Nwoye----
Judge Kavanaugh. Yes.
Senator Crapo [continuing]. Where you defended the rights
of vulnerable women and reversed the district court on grounds
that a female criminal defendant was prejudiced by her lawyer's
failure to introduce evidence of her suffering from battered
women's syndrome. Would you discuss that case a little bit?
Judge Kavanaugh. Yes. There had been a criminal conviction
of a woman for extortion, and she claimed duress defense. She
claimed that she was a battered woman, that she had been
repeatedly beaten by her boyfriend. The district court had
ruled against the woman on the claim that she--her Counsel was
ineffective by not presenting the battered woman's defense. It
came up to our court, and I wrote a lengthy opinion explaining
why it was ineffective assistance of Counsel not to present the
battered woman's defense over a dissent from another judge, I
should add.
And I explained the point there that the jurors needed to
hear the evidence from the expert about the battered woman's
defense because otherwise the jury might not believe the claim
she was making because they might think, well, why did she not
walk away, or why did she not do something else. And the expert
testimony would explain the--what happens when you are beaten
repeatedly, and would explain that the jurors would not--would
benefit from having that expert understanding, that sometimes
you cannot walk away. That is the whole point when you are in a
relationship where you are beaten repeatedly.
Senator Crapo. Well, I appreciate that.
Judge Kavanaugh. And, I therefore, reversed the conviction
in that case that Nwoye had received.
Senator Crapo. And the ACLU said your opinion in Nwoye
``demonstrated a sympathetic and nuanced understanding of
intimate partner violence and its effects.'' I am going to skip
over to another case, Adams v. Rice, because we are running low
on time. What about Artis v. Bernanke, in which you voted to
reverse the dismissal of a Title VII complaint by an African-
American female group of secretaries alleging race
discrimination by the Federal Reserve Board? Can you tell me
about that case?
Judge Kavanaugh. That is a--that is a discrimination case
where the, as we analyzed it, the evidence presented was
sufficient to raise a claim of race discrimination based on the
treatment that the African-American secretaries had received in
that case. And that was our ruling in that case.
Senator Crapo. Well, thank you, and I have got pages more
of cases on this issue, but only 10 minutes left in our time.
So, I am going to shift to another issue, again, looking at
cases that you have decided. Race and diversity. Let us talk
about Ayissi-Etoh v. Fannie Mae. In that case, an African-
American employee was fired from his job at Fannie Mae. He
brought an employment discrimination claim alleging his
supervisor had used a despicable racial slur and created a
hostile work environment. Not only did you join Judge Merrick
Garland and Judge Thomas Griffith in the court's per curium
opinion, but you also wrote a separate concurrence. And in your
concurrence, you wrote that the severity of this racial slur--
``Even a single use of the `N' word by a supervisor is
sufficient by itself to create a hostile work environment.''
And I could go on, but I would rather give you a chance to just
describe that case a little bit.
Judge Kavanaugh. Well, that case was a powerful case. The
plaintiff argued it pro se in front of our court, which is
unusual. The situation was that he had been called the ``N''
word by a supervisor. The question was whether the single
utterance of the ``N'' word was--constituted a racially hostile
work environment under the Supreme Court's precedent, which
says ``severe or pervasive.'' So, the question really was, is a
single utterance of that word severe under the--under the
precedent. I wrote a separate opinion to make clear that it
was, that that word--that no other word in the English language
so instantly or powerfully calls to mind this country's long
and brutal struggle against racism, which I have emphasized in
many cases as a--and the long march for racial equality in the
United States is not over.
When you look back to the--I cited some of the history of
the country, and the original sin of the Constitution was its
tolerance of slavery, Fugitive Slave Clause, the Importation
Clause, which allowed the slave trade from 1788 to 1888--I
mean, to 1808, which during that 20-year period, 200,000
additional slaves were imported into the United States. The
history that corrected in part on paper in the Thirteenth,
Fourteenth, and Fifteenth Amendments, but then, of course, a
century of backtracking from the promise of the Fourteenth
Amendment, Jim Crow and racial discrimination, leading up to
Brown v. Board of Education. Of course, again, in the Civil
Rights Act and the Voting Rights Act of 1965, among the most
important pieces of legislation ever enacted by Congress in
terms of changing America.
But still, there is still work to be done after centuries
of discrimination, racial--slavery, racial oppression, racial
discrimination. And this case, to my mind, was one case with
one person arguing one claim of one incident, but to me the
whole history of the country was presented on race relations,
and racial discrimination was represented in that one case. And
I tried to capture that as best I could in the opinion I wrote
in that case.
Senator Crapo. Thank you, Judge. Let us move on to Ortiz-
Diaz v. the Department of Housing and Urban Development. In
that case you joined an opinion holding that ``denying a
lateral job transfer with the same pay and benefits may be an
adverse employment action when the employee alleges he sought
to transfer away from a biased supervisor.'' And in that case,
you wrote a concurrence in which you said that ``The court
sitting en banc should establish a clear principle that all
discriminatory transfers and discriminatory denials of
requested transfers are actionable under Title VII.'' And you
went on to make it clear that ``denying an employee's requested
transfer because of the employee's race plainly constitutes
discrimination.'' And I will let you go further on that if you
would.
Judge Kavanaugh. Well, the question was if you are
transferred laterally and you get the same pay and benefits, is
that really a change. In oral argument in that case--if anyone
is interested, I encourage them to listen to the oral argument
in that case where I said something I explained later in the
opinion. Look, in the real world, a transfer, even if you get
the same pay and benefits, may hugely affect your later job
opportunities, your career track, and to think that
discriminatory transfers were somehow exempt from the civil
rights law merely because you have the same pay and benefits
was blinking reality. And so, that is what I said in the
opinion.
Our case law at that point basically said some transfers
can be actionable, others not, and what I wrote was I do not
see all discriminatory transfers are not unlawful under the
Civil Rights Act.
Senator Crapo. Well, I think it is important for America to
know that your attitude is that strong on this. And we already
went over the Artis v. Bernanke case when we were talking about
women's rights issues. But this, again, is a group of African-
American secretaries who were alleging discrimination, and you
ruled in their favor.
Again, I have a number of more cases on this, but I got a
different question, again, still on race and diversity. I
recall the Black Law Students Association letter from Harvard
that we talked--that I introduced the letter on previously. But
I also note here that your commitment to promoting civil rights
extends back to your personal law school days when you wrote
one of your first pieces of legal scholarship, your Law School
Note, which was titled ``Defense Presence and Participation of
Procedural Minimum for Batson v. Kentucky Hearings.'' Now, what
that means you can explain.
Judge Kavanaugh. Yes.
Senator Crapo. But essentially, it was an article about
this topic that you chose when you were in law school. And I
guess my question is, explain the topic, but why did you choose
this topic in law school?
Judge Kavanaugh. Well, because I was interested in trial
procedure at that time, but I was also a product of a city
where, as I described yesterday and described what my mom did
in terms of teaching at McKinley Tech where race relations and
race discrimination were an issue that was of concern to me.
And so, I wrote after the 1986 Batson opinion, which prohibited
race discrimination and preemptory challenge in jury selection.
I worried or wrote, well, what is to prevent backtracking from
that decision by prosecutors who will be able to assert
seemingly race neutral reasons, but still have the effect of
excluding African Americans from juries.
And so, I wrote a Law Review article, published, explaining
that we needed good procedures to detect even subtle
discrimination in the jury selection process to ensure that the
Batson v. Kentucky decision was not evaded, and so that, you
know, the legacy of all-White juries convicting African-
American defendants is, of course, a painful part of our
criminal justice legacy. And one of the things I wanted to make
sure when the Batson decision came out was that that was not
circumvented procedurally.
Senator Crapo. Well, thank you, Judge Kavanaugh. I just
want to commend on this. And as I said at the outset, it seems
to me that an awful lot of the time in this hearing has been
sent--been spent trying to create criticisms of you in areas
like women's rights or race relations and what have you, when
in reality your record is strong and deep in terms of
protecting women's rights and protecting those who are in
unfavored positions, and protecting against racial
discrimination. And I hope that we can get a strong focus on
your true record, because whether it is these issues, whether
it is the independent counsel versus special counsel issues, or
whether it is just the balance of your decisionmaking and
whether you are somehow out of the judicial norms in terms of
your approach to decisions that you have entered into as a
circuit judge. The record, your record, reveals the truth, and
the attacks that have been made on you today are absolutely
unfounded. And I just hope that we can get a much deeper look
at your true, honest record as we move forward.
Now, I have only got a minute and 12 seconds left. The most
important issue to me in your nomination is whether you will be
an activist Justice or whether you will follow the law as it is
written. I know what your answer is, but I would like to hear
you, in the last minute that I have, tell me again what kind of
a judge--what kind of a Justice will you be on the Supreme
Court if you are confirmed?
Judge Kavanaugh. Senator, I appreciate that and I
appreciate your comments. Be an independent judge who follows
the law, Constitution as written informed by history and
tradition and precedent, follow the statutes that you pass,
that Congress passes as written informed by the Canons of
Construction. I will remember Hamilton's admonition in
Federalist 78 that the judiciary exercises not will, but
judgment, and Hamilton's admonition in Federalist 83 that the
rules of legal interpretation are rules of common sense. And I
will give it my all, as I have tried to do for the last 12
years as a judge on the D.C. Circuit.
Senator Crapo. Thank you very much. I commend you for that
answer and your approach to it.
Judge Kavanaugh. Thank you, Senator.
Senator Kennedy. Thank you, Senator. Judge, we are
scheduled to take a 30-minute break. If you need all of it,
just say so. If you do, I am not suggesting you should not take
it.
Judge Kavanaugh. Twenty-five?
[Laughter.]
Senator Kennedy. Twenty-five. We will be back at--I have
got 20 of 8. We will be back at five after. If you need a few
additional minutes take them. When we come back, Senator Booker
will begin.
Judge Kavanaugh. Thank you, Senator.
[Whereupon, at 7:40 p.m., the Committee was recessed.]
[Whereupon, at 8:07 p.m., the Committee reconvened.]
Senator Kennedy. Judge, are you ready?
Judge Kavanaugh. I am ready.
Senator Kennedy. Good. Got a little rest?
Judge Kavanaugh. Not much.
Senator Kennedy. Not much, huh?
Senator Booker.
Senator Booker. Thank you. Thank you, Mr. Chairman.
Judge, in a 1999 interview with the Christian Science
Monitor about the Rice case, you discussed with Senator Hirono
a little bit, but you said, and I quote, ``This case is one
more step along the way in which I see as an inevitable
conclusion within the next 10 to 20 years when the Court says
we are all one race in the eyes of Government.''
It has been about 20 years now. We are about 6 months away.
Do you think that you were wrong at that point, that racial
discrimination in America would be over by 2019?
Judge Kavanaugh. I think that was, Senator, an aspirational
comment and one that, to your point, of course, I have said in
my decisions, as you and I have discussed, that the march for
racial equality is not finished, and we still have a lot of
work to do as a country and as a people on that. So----
Senator Booker. I appreciate that. I really do. But I want
to know what you were thinking in 1999 that would make you make
such a bold aspirational comment that, hey, in 10 years, the
Court could view this--us all as one race. What was going on in
the 1990s that led you to have that belief?
Judge Kavanaugh. Hope.
Senator Booker. Okay. Because you and I know--you and I are
both aware of where the trends were going in the 1990s. This
was a period where the drug war was in full blare, where the
prison population exploded. Since 1980, we have been up 800
percent in the Federal prison population.
The massive increases in racial disparities of
incarcerations. Blacks constitute roughly 13 percent of drug
users but were 46 percent of those that were being jailed for
drug offenses. Even our schools in the 1990s were becoming more
segregated.
And so your brief in the Rice case invoked Justice Scalia's
argument that we should be ``one race''. And this, let me go on
with the Scalia quote because he said that Government can never
have--never have a compelling interest in implementing race-
conscious programs that seek to address this Nation's wretched
history of racial discrimination. He said, ``never.''
He said that race-conscious programs, I am going to quote
him now, are ``racial entitlement.'' Now do you think that
someone who wants to remedy the fact that they could not get a
loan from the Fair Housing Administration because of the color
of their skin is racial entitlement, or are they seeking racial
justice? Do you think someone, a person who tried--tries to
remedy the fact that they were denied the chance to go to
college under the GI bill because of the color of their skin is
seeking racial entitlement, or are they seeking racial justice?
So to be specific with Scalia, do you agree with Justice
Scalia, who you reference in your brief, that it is never
permissible for the Government to use race to try to remediate
past discrimination to try to achieve justice?
Judge Kavanaugh. Senator, that was a brief for a client,
first of all. So I am not--I was not saying something in my own
voice particularly there. So I am writing a brief for a client.
Senator Booker. But if I can correct you, sir? You said
this is a brief for a client, but you seem to invoke Scalia's
one race theory quite often. You invoked Justice Scalia's one
race theory to a reporter. You again mentioned it in the Wall
Street Journal op-ed you wrote around the same time, and you
cited his opinion, yes, in this brief.
Are you saying that you do not share Justice Scalia's
beliefs about this idea that people who are seeking to address
past--past discrimination, past harms, that they are seeking
racial entitlement?
Judge Kavanaugh. I think, first of all, the Supreme Court
precedent allows race-conscious programs in certain
circumstance. So the precedent on the Supreme Court, as you
know, Senator, is different. I was writing a brief, trying to
cite all the principles from the different cases that would
support the brief.
But to your point, when you are trying to remedy past
discrimination, as a general proposition, you are seeking
racial equality and seeking to remedy both past discrimination
and the lingering effects.
Senator Booker. So you disagree with Scalia that it is--
that he says it is never permissible for the Government to use
race to try to remediate past discrimination to try to achieve
justice? You disagree with Scalia?
Judge Kavanaugh. The Supreme Court law----
Senator Booker. I know what the precedent is. I know what
the law is. I am asking what you believe. Do you agree with
Scalia that, again, that it is never permissible for Government
to use race to try to remediate past discrimination to try to
achieve justice, that that is racial entitlement?
Judge Kavanaugh. That position has never been adopted by
the Supreme Court.
Senator Booker. I am asking what you believe, sir, not the
Supreme Court.
Judge Kavanaugh. Okay. The term I used was that what you
are seeking is equality. Equal, and what----
Senator Booker. And right. So if you are seeking equality,
I appreciate it, grant that. Is it never permissible for
Government to use race to try to remediate past discrimination?
Judge Kavanaugh. There are a couple of things that the
Supreme Court has pointed out in its case law.
Senator Booker. And again, I know the Supreme Court case
law. Maybe I can approach this in a different way.
Judge Kavanaugh. Okay.
Senator Booker. The aftermath of Katrina. In a case brought
by plaintiffs in New Orleans who challenged the way Government
provided grants to homeowners as having a discriminatory impact
on African Americans, you joined the minority in denying them
relief.
If the findings had shown that the grant program
systematically disfavored African Americans, would a Government
effort that uses race to remedy that disparity be
unconstitutional? In other words, do you believe that all such
efforts that use--the Government using those efforts amount to
what Scalia called, ``a racial entitlement''? I am trying to
figure out if you agree with that point that Scalia is making.
Judge Kavanaugh. Senator, first of all, I approach
questions like you are asking with a recognition of two things.
One, the history of our country and, two, the real world today.
Senator Booker. Yes.
Judge Kavanaugh. And I try, as best I can, to understand
both the history of our country on that issue and the real
world today. So I am coming at it from that perspective.
You are asking a question, I think, about specific remedies
for discrimination, and there is a lot--I am a judge, as you
know, and so I have to follow precedent. And the precedent
allows remedies in certain circumstances----
Senator Booker. And again, sir, I have heard you use that
with a lot of colleagues, and I know what precedents are,
especially dealing with a lot of very important Supreme Court
issues. I am asking about your opinions because your opinions
matter, what you have stated matters.
Let me give you an example. In April in 2003, you wrote
regarding a program designed to benefit Native-American small
businesses by saying the desire to remedy societal
discrimination is not a compelling interest.
Judge Kavanaugh. That is what the Supreme Court has said
and----
Senator Booker. Hold on--the Supreme Court said that the
desire to remedy societal discrimination is not a compelling
interest?
Judge Kavanaugh. The Supreme Court has in--let us go to
Bakke, for example.
Senator Booker. I am going to get to Bakke.
[Laughter.]
Judge Kavanaugh. Okay.
Senator Booker. Just answer this question. Do you still
believe, this is what you said, that race can never be used to
remediate clearly proven discrimination? If it is clearly
proven discrimination, I am just using an absolute, do you
still believe that it can never be used?
Judge Kavanaugh. Well, the Supreme Court has said it can be
to remedy----
Senator Booker. I know what the Supreme Court, but what do
you believe, sir?
Judge Kavanaugh. Well, I----
Senator Booker. I know the history. You have recited it
numerous times.
Judge Kavanaugh. I would say, look, I have trouble
departing from the Supreme Court precedent and saying----
Senator Booker. But you do not. You opined about it in
emails. You have opined about it in Wall Street Journal
articles. I have heard you opine about these things in
``race.'' You just cannot say right now what you believe?
Judge Kavanaugh. Well, a couple of things, Senator, just to
back up. Lawyer for client in the email you are reading. As
well, lawyer for----
Senator Booker. Christian Science Monitor article, Wall
Street Journal, your comments to a reporter. Let me approach it
this way, because you are not answering the question, but let
me see if I can approach it in a different way now, getting to
some of the things you were talking about.
The Supreme Court has said for decades--this gets us to
Bakke. The Supreme Court said for decades that institutions of
higher education have a compelling interest in student body
diversity and that race can be used as a factor--not the only
factor, but a factor--in admissions if it is done so in a way
that is narrowly tailored to serve that interest.
You said the Court said this in Bakke, and I know these
cases. Said it in Grutter in 2003. Fisher, most recently in
2006. The simple question here is do you believe these cases
were rightly decided?
Judge Kavanaugh. Senator, they are important precedents of
the Supreme Court, and as Justice----
Senator Booker. I did not ask you if they were precedents.
I have heard you go through this before. Do you, sir--if you
cannot answer it, just say, ``Cory, I cannot answer this.'' Do
you believe that those cases--you say Marbury v. Madison was
rightly decided. You said that. You said Brown v. Board of
Education rightly decided.
And by the way, desegregation cases could come before the
Supreme Court. Do you believe that these cases, ``yes'' or
``no,'' do you personally believe they were rightly decided?
Judge Kavanaugh. Senator, I am following the precedent of
the--set by the eight Justices currently sitting on the Supreme
Court. To put it in the terms of Justice Kagan, who was asked a
lot of these same questions, it would be inappropriate to give
a thumbs up or thumbs down on----
Senator Booker. Yes, but, sir, there is a distinction
between you and Kagan, you and Ginsburg on these issues
because----
Judge Kavanaugh. Or Roberts, Alito, Gorsuch, Kagan,
Breyer----
Senator Booker. And I am going to tell you the distinction
between that excuse you are using with many of my colleagues
and the distinction here is, none of those nominees had voiced
personal opinions that Government should refuse to defend these
kinds of programs.
And let me give you an example. Let me give you an example.
You wrote in an email about Adarand v. Mineta, a case that
involved benefits to minority-owned businesses. You wrote that
the Government should file a brief saying that the program is
unconstitutional.
And let there be no confusion, sir. You went on to say, you
went on to write that, ``In fact, this is my personal
opinion.'' And so you said that then. My question is, do you
still think a diverse student body is a compelling interest?
You opined on it then. You wrote it then. What do you
believe now?
Judge Kavanaugh. A couple of things there, Senator. First
of all, the Adarand case is in the context of contracting. The
Bakke case is----
Senator Booker. So you think that those cases, using race
to remedy past discrimination, is unconstitutional? That is
what you wrote then.
Judge Kavanaugh. In light of the precedent of the Supreme
Court representing a client in that case, and I go through--I
think the email you are referring to, I go through--actually,
we should not--the SG should make a recommendation first that
this should not be a White House-dictated answer. And the
Solicitor General is ordinarily--I think if you are referring
to the email that I am thinking of.
But in any event, I think, as you know, and I just want to
reiterate, there is precedent in the higher education context,
in the contracting context, that are somewhat distinct. And
those precedents have been applied by judges. And in my record
on race discrimination cases, I am happy to talk about my
cases, the Ayissi-Etoh, the----
Senator Booker. But you are not happy to talk to me about
the opinions you have expressed in the past. Do you still hold
those opinions now?
Judge Kavanaugh. Well, that is what I wrote then as a
lawyer for a client.
Senator Booker. But you said that, again, ``That is, in
fact, my personal opinion.''
Judge Kavanaugh. That is before the case is decided. In
subsequent----
Senator Booker. So you expressed a personal opinion on this
issue then. Do you still hold that same opinion now that it is
unconstitutional?
Judge Kavanaugh. I think you are--you are taking, I
believe, respectfully, ``personal opinion,'' out of context
there. Personal opinion about what the Government position, so
personal recommendation. Because I said, the distinction there
is, I said the Solicitor General should first make a
recommendation, and then the White House should respond, or the
President.
As to ``personal opinion,'' it was not my personal opinion,
``Kavanaugh,'' it was what the Government's position--
recommendation would be, based on President Bush's stated
policy----
Senator Booker. Okay, sir. It seems that you were pretty
clear there what your personal opinion was.
Judge Kavanaugh. Well, I----
Senator Booker. Let me approach it again----
Judge Kavanaugh. I do not want to--I do not want to----
Senator Booker. Sir, we do not have to go back and forth. I
want to ask you a simple, direct question. Do you think having
a diverse student body is a compelling Government interest? Do
you believe that? Do you think having a diverse--it is not a
complicated question.
Do you believe having a diverse student body is a
compelling Government interest?
Judge Kavanaugh. The Supreme Court has said so, and my
efforts to promote diversity, I am very proud of.
Senator Booker. But I know what the law is now----
Judge Kavanaugh. No----
Senator Booker [continuing]. I am worried about what the
law is going to be, sir, when you get on the Court and have the
ability to change those precedents. But let me--I will go back
to your words. I just want to ask you about your words and
maybe give you a chance to explain something else because you
have not answered my question, and I understand that you are
going to stick to that.
You have also written that, ``an effort designed to benefit
minority-owned businesses, an effort to try to give them a fair
shake because they had been historically excluded,'' and these
are your words now, ``use a lot of legalisms and disguises to
mask what is, in reality, a naked racial set-aside.'' That is
what you said. That is how you referred to it.
Judge Kavanaugh. What are you reading from, Senator?
Senator Booker. Sir, I am reading from an email dated
August 8th. These are your words. But I do not need to know----
Judge Kavanaugh. Can I get a copy of it?
Senator Booker. You certainly can, but let us ask you what
you believe now. I will leave aside then. Okay? You said it--
you wrote it, but my question is, what are your views right
now?
Do you believe that Government efforts to promote racial
diversity are ``a naked racial set-aside''? Those are loaded
words. Do you believe that now, sir?
Judge Kavanaugh. The Government efforts to promote
diversity in the higher education context are constitutional,
and I have made clear my own personal efforts to promote----
Senator Booker. But you refer to it in the past, sir, you
refer to minority-owned businesses trying to get a fair shake
after historically being excluded, you call that--which is very
powerful.
Judge Kavanaugh. I cannot--I do not have the email,
Senator. So I am a little----
Senator Booker. Have you ever used the term, ``naked racial
set-asides''? You remember ever using that term?
Judge Kavanaugh. That would--if you are saying there is an
email, but I would like to see an email if I am getting
questioned about an email.
Senator Booker. Okay. I am going to ask my staff to provide
you the email while I move on.
Judge Kavanaugh. I have promoted diversity in law clerk
hiring and made a big difference in that.
Senator Booker. Sir, you told me about the diversity in
promoting law clerk hiring, and I am so grateful for it. You
told me a lot of things about the diversity that you personally
have practiced--practice in your own life. I really, really
appreciate that.
I am not asking you about the five Black clerks that you
have. That is good. I am seeking--you are seeking a position on
the highest court in the land that is going to affect millions
of people. You have expressed opinions about these subjects to
the media, to the press, in speeches, in past emails. But you
are not willing to say if you still hold those positions that
you held before.
And I want to just move on to specifically something that
you have expressed opinions in some of your cases as well, sir,
and that is the issue of racial profiling. You once discussed
the use of racial profiling after 9/11 with your colleagues in
the Bush White House.
Judge Kavanaugh. Can I see the email?
Senator Booker. What is that, sir?
Judge Kavanaugh. Can I see the email?
Senator Booker. Yes. I will get you the email, but there
was----
Judge Kavanaugh. But I cannot answer if I do not----
Senator Booker. I am going to ask you about your views now,
sir, and I will provide the email. But I am more interested in
your views right now before you may be confirmed as a Supreme
Court Justice.
There was a debate going back and forth, and one of your
colleagues said that there was a school of thought in the
administration that if the use of race renders security
measures effective, if using race renders security measures
effective, then perhaps we should be using it in the interest
of safety, now and in the long term. And that such actions,
your colleague said, may be legal under such cases as
Korematsu.
Judge Kavanaugh. It sounds like you are quoting someone
else, not me.
Senator Booker. I am quoting somebody else.
Judge Kavanaugh. Well, it sounds like----
Senator Booker. Sir, sir. I am not going to stick you with
that. I know you have already said Korematsu----
Judge Kavanaugh. But do not attribute----
Senator Booker. I am not attributing it to you. Sir, please
do not accuse me of that. I am not. I said that was your
colleague. I clearly said that was your colleague.
You did not respond. You did not respond in the email by
denouncing racial profiling or expressing outrage at the idea
of relying on a case as odious as Korematsu.
Senator Tillis. Mr. Chair, point of order.
Senator Booker. Can I ask for my time to be paused, Mr.
Chair, while you hear this point?
Senator Kennedy. Please do. Pause Senator Booker's----
Senator Tillis. Mr. Chair, just as a courtesy to the
witness, we just saw an example there where I even believed
that the words that were being repeated were words in an email
authored by Judge Kavanaugh. I think it would be helpful if we
could suspend for long enough to have the documents available
to the Judge so that it can be answered in proper context.
Is that an appropriate request?
Senator Kennedy. Do you have any objections?
Senator Booker. I do have an objection. If my colleague has
an issue with that agenda, I think he should bring it up after
my time. I would like to get back to my questioning.
Senator Kennedy. Okay. Let us proceed. Do not take time
away from Senator Booker.
Senator Booker. Thank you very much.
Sir, your response to that colleague's email was that you
generally favored race neutral security measures, but you
thought that there was, and I am quoting you now, ``interim
question of whether the Government should use racial profiling
before a supposedly race neutral system could be developed
sometime in the future.''
So it seems that you are okay with using race to single out
some Americans for extra security measures because they look
different, but you are not okay with using race to help promote
diversity and equal opportunity and correct for past racial,
documented racial inequality?
Judge Kavanaugh. Sounds like I rejected the racial
profiling idea. What is the date of the email, Senator?
Senator Booker. The date of the email is January 17, 2002.
And so, have you ever suggested or expressed an openness to,
even in a temporary circumstance, like this email seems to
indicate, in an interim question of using racial profiling?
Have you ever suggested that, sir?
Judge Kavanaugh. I would like to see the email.
Senator Booker. I will provide the email, sir, to you.
Judge Kavanaugh. But that sounds, from what you read, like
I rejected the concept, but I will look at the email.
Senator Booker. It seemed to me that you were open to the
concept, sir, clearly. This is critically important because
right now in our Nation, there are law enforcement practices,
and I think you are aware, that overwhelmingly target African
Americans and other people of color. Yet I have read opinions,
such as yours in the United States v. Washington, upheld a
search, and I quote, ``in the neighborhoods in Southeast
Washington, DC,'' that you called crime plagued. In Wesby v.
District of Columbia, where you would have protected police
from liability when they made warrantless arrests at a house
that was ``in east of the Anacostia River.'' You and I both
know that those are predominantly Black areas.
Judge Kavanaugh. Yes.
Senator Booker. Predominantly African-American communities.
Judge Kavanaugh. Yes.
Senator Booker. I understand there is case law that says
police can justify some actions by saying that they were in
areas that were high crime. But you know how some of these
opinions using this type of racially coded language can further
the disparate treatment of people of color with the police.
And so the way I see it, and I will give you a chance to
respond, is that you are willing to consider using racial
profiling to accept police practices, like heavy policing of
African-American neighborhoods, but you are hostile to the use
of race when it is used to promote diversity or remediate past
proven discrimination.
Judge Kavanaugh. Can I get 60 seconds?
Senator Booker. Sir, go ahead.
Judge Kavanaugh. Okay. On the Wesby case, there was a
house--there was a call to the police. It was not the police
patrolling the neighborhood. On the Wesby case, the Supreme
Court reversed the majority decision that had been written by
other people that I dissented from. They reversed it 9-to-0
this past term. So what I wrote in Wesby, I was cited, and the
Supreme Court agreed with the approach that I had suggested, 9-
to-0.
On the general concept, you and I have discussed this in
our meeting. I am very aware of the reality and perception of
targeted policing or police activity in minority neighborhoods
and--or I try, as best I can, to be aware and understand that.
And you and I talked about that. And the Wesby case, in my
view, had nothing to do with that issue.
Senator Booker. So, sir? Sir, I tried to give you some time
there, but this is what I am hearing right now, sir. And you
know, and I appreciate your rhetoric on these matters. But
again, you are going to be a judge on the Supreme Court, if you
are confirmed, and have a power to make massive differences in
our country. And these are real issues.
And so I asked you, was the Fisher case, I just asked if it
was rightly decided. You refused to answer. I asked you again
whether you believe diversity is a compelling interest. You did
not answer that, sir.
That is not good enough for a nominee to the highest court,
particularly one who has expressed, and I will provide you with
the emails as well as other quotes for the record as well,
opposition to affirmative action and efforts to address
systemic provable discrimination, such as--and yet you also
have an openness to racial profiling. And again, I will provide
that email.
The cases I raise are about addressing documented systemic
structural inequality in our country. This is about the fact
that children in this country still encounter a different
experience of America based upon the color of their skin and
not the content of their character.
They are more likely to drink dirty water and breathe dirty
air and less likely to have access to equal educational
opportunities. They are more likely to be stopped by the
police. They are more likely to be shot by the police and
become unfairly entrapped in our broken criminal justice
system.
I, like you, you said you are an optimist. I am a prisoner
of hope. But I think even I have a troubling understanding in
your eyes how America could be just months away or a few years
away from becoming one race in the eyes of the law, as Scalia
you have quoted numerous times.
We are a good country with great people. And we are great
people because people of all races in America have worked
together. Black folks, White folks, all folks have worked
together to make progress. But you said it yourself. We have so
much work still to do.
The Supreme Court, see, plays a vital role in that work,
just as it did generations past with cases like Brown. And so,
Judge, our communities--you have answered my question. I want
to move really quick in the remaining time I have to voting
rights, which is the crown jewel of the civil rights movement.
It is designed to prevent States from putting up barriers
for the rights of African Americans to vote. It is in the 21st
century voter ID laws, which we are seeing more and more, many
people consider them the modern-day equivalent of poll taxes.
These laws are being enacted despite the fact that in-person
voter fraud is incredibly rare. You are more likely to be
struck by lightning in America than to find a person committing
in-person voter fraud.
You wrote an opinion in the South Carolina voter ID law
that you said you were proud of that decision in my office, and
I heard you say it here. I am taking you at your word that you
are proud of this decision.
But you were aware at trial that the author of the South
Carolina voter ID law admitted that he received an email from a
supporter of the bill that said African Americans--he said--
that said if African Americans were offered $100 reward for
obtaining a photo ID to vote, it would be, and I quote, ``like
a swarm of bees going after watermelon.''
In response to that racist email, the author of the voter
ID wrote, and I quote him directly, ``Amen, Ed. Thank you for
your support.''
You were also aware that, based on the evidence in that
case, that minority voters in South Carolina were 20 percent
more likely than White registered voters to have a valid photo
ID. So how could you have concluded that the voter ID law would
not have a disparate impact on minority voters and poor voters
in general?
If a registered voter did not have a voter ID, is it not
true that their only option was to write out a sworn statement
that could expose them to criminal penalties? And is it not
true that even then, they could only vote on a provisional
ballot? Is that true?
Judge Kavanaugh. So the decision was unanimous, joined by
Judge Kollar-Kotelly, who is an appointee of President
Clinton's, and Judge Bates, a President Bush appointee. But it
was a unanimous decision where we blocked--we blocked
implementation of the South Carolina voter ID law for the
2012----
Senator Booker. But you are telling me things I know. Can
you just get to your feelings on this? Could you not see----
Judge Kavanaugh. Yes.
Senator Booker [continuing]. That this was going to provide
an impediment and disparate impact on African Americans? Could
you not see the problems that this would create?
Judge Kavanaugh. That is why we said that the reasonable
impediment provision could not just be the form that they had
prepared, but there had--we essentially said what would have to
occur.
Senator Booker. And you said you were proud of the
reasonable impediment provision. That is where we got--that is
the point we had to stop, when we talked in my office. Could I
just ask you, because this is how I see the reasonable
impediment provision.
South Carolina tried to enact this law that would not
disenfranchise minority voters. When the people who enacted
this law realized that they had to make changes to it, remember
this?
Judge Kavanaugh. Yes.
Senator Booker. They enacted, sort of created a second
class of voters, those without an ID. They had to go to a
separate line, fill out a form under the threat of criminal
prosecution. Wait for an attorney or a poll worker to witness
that. And then, after all that, they had to cast a provisional
ballot that may not have counted at all.
Now this is a lot of a process. And you said to me, and I
appreciate you saying this. You said what looks good on paper
may fall apart in practice. And you told me, hey, Cory, I was
keeping an eye on this to see what was going on.
Judge Kavanaugh. I think I said ``Senator,'' but yes,
otherwise----
Senator Booker. I am sorry, Judge. I am sorry. I feel
comfortable with you.
[Laughter.]
Senator Booker. Can I just show you what was up, in South
Carolina polling places?
[Showing sign.]
Senator Booker. You can see this sign. Here is a picture.
This is the sign that was in the polling places in South
Carolina after the passage of their voter ID law. I mean, look
at this sign, sir. This is what people without a photo ID would
have seen.
This is confusing and intimidating. It does not show the--
what you call the reasonable impediment option that they had.
It just shows this very thing. Do you see how this poster
board, you know, might not be really much--I do not even know
if you can see any reasonable provision aspect on this.
Does it not matter that the average voter seeing this
poster could be intimidated by this process?
Judge Kavanaugh. That is why I said in the last paragraph
of the opinion what looks good on paper may fall apart in
practice. And what we did in the decision was we said--to your
concern, I was concerned about the same thing you are asking
about here when I was questioning the lawyers at oral argument.
And we said the proposed reasonable impediment form was not
good enough and that there had to be a catch-all box where you
could put in any reason.
And then we have listed all the reasons----
Senator Booker. Well, sir, I appreciate you saying all
that, but this is the result. And let me--but let me go with
something different from a person--you and I are nearly the
same generation. I want to talk to you about somebody from a
different generation that we all think is the greatest
generation.
They did try to get a photo ID under the law that you were
part of establishing. That was hell. And this was a 92-year-old
South Carolinian named Larry Butler, a military veteran and a
pastor of the Lord. He voted in the 2010 election, but in his
attempt to get a photo ID, he had to chase down paperwork from
his high school records, then go to get his birth certificate,
then go to get court records.
He went to the DMV, to the Official Vital Records Office,
and the court. And after all that, actually, he still was
having trouble. He still could not get a valid photo ID.
According to a study by the Harvard Law School, the cost of
his filing efforts were 36 bucks. That is how much all this
process cost him. Now I am not accounting for his time. If he
was working, it would have been a lot more.
And so I just want to ask you, because many people call
this the modern-day poll tax, that we are going back. Do you
know what the infamous poll tax was in South Carolina in 1895?
Do you know how much it was?
Judge Kavanaugh. The exact amount?
Senator Booker. Yes.
Judge Kavanaugh. I do not.
Senator Booker. I did not think so. I will tell you, sir.
It was one dollar. That was the poll tax that you and I think
is despicable and disgusting. It was one dollar then, which is
roughly $30 today. Less than what it cost the veteran, Pastor
Larry Butler, that is less than what he incurred trying to get
to vote after the 2011 law. And if it was not for him holding a
press conference with the Governor intervening and others
giving him a special dispensation.
And so here is this great generation, where Black folks and
White folks in this country joined together, they fought and
they bled, they died. Goodman, Chaney, and Schwerner, dying for
voting rights. They grew up at a time when the States like
South Carolina routinely placed these burdens on the right to
vote and made it impossible and even dangerous to try to cast
these votes.
I do not know if you see that this is not that much
different in terms of the cost to this person of trying to
ultimately pay what is in effect a poll tax.
Now my time is about to run out, and I want to say you can
answer up to this because I have only got a minute and 30
seconds. So let me just conclude, and then I know they will ask
you this. But this, this is not complicated to me, sir.
Costs like this create structural barriers that
systematically disenfranchise African Americans, people of
color, and actually poor people of all colors. I am concerned
that a person who believes that we are all one race, like
Scalia says, in the eyes of Government, that could happen
months from now, a couple of years from now. A person who
believes that efforts to promote racial justice are, your
words, naked racial set-asides, they will be blind to the
reality of someone like Mr. Butler and the experiences of poor
folks all around this country.
You refused to answer a lot of my questions about your
views of the race and the law, talking about what Supreme Court
precedent is. We are at a time when States are enacting these
laws all over our country, designed to disenfranchise voters.
As one Federal court said about a North Carolina law, targeting
them with almost surgical precision to disenfranchise them.
And now we do not even have the benefit of the Voting
Rights Act provision designed to curtail discriminatory laws
before they go into effect. Your answers do not provide me
comfort--as a Justice of our Nation's highest court--that you
will fairly take into account the barriers that continue to
disenfranchise minority voters like Mr. Butler today.
Sir, I am optimist. I am prisoner of hope like you. But we
have a long way to go. We have work to do, Black folks and
White folks honoring the history of a united America, fighting
to make us more just. The Supreme Court has a vital role in
that, and nothing you have said here today gives me comfort--
gives me comfort that should you get on the Supreme Court that
you will drive forward and see that we have that work to do and
make the kind of decisions that will make a difference for
people like Mr. Butler, people living east of the Anacostia
River, north of the river, south of the river, all over this
Nation.
Thank you, sir.
Judge Kavanaugh. Can I take a minute to respond?
Senator Kennedy. Sure. And then I am going to recognize
Senator Lee.
Judge Kavanaugh. Senator, a couple of things, on that. I
pointed out in the South Carolina opinion, I wrote the majority
opinion on it, that we see, on an all too common basis, that
racism still exists in the United States of America. The long
march for racial equality is not over.
I cited, I think you have seen, after an African-American
hockey player scored the winning goal, a burst of racial
commentary about him. I think that was just one of many
examples I could have cited in that case.
Senator Booker. Racial commentary? Can you be more
specific?
Judge Kavanaugh. Racist. Racist.
Senator Booker. Racist commentary.
Judge Kavanaugh. I actually said racist. So racist comments
is what I should have said online. And that was just one
example I pointed to say the reality, just one example.
I made clear that the reasonable impediment provision had
to be rewritten. I was all over the real world effects during
the trial that you are raising here, I was all over that--so
were the other judges--of how is this really going to work in
practice? We drilled down and drilled down and drilled down and
caused the rewriting of the reasonable impediment provision to
make sure.
I talked about the fact, for example, that African
Americans in South Carolina at that time did not have as many
cars on the same percentage. And so to get--to your point about
getting the photo IDs, I made clear that I understood that.
We blocked implementation for 2012 because we were worried,
to your point about the form, that it would not be enough time
to get all this in place and to educate people.
It was a unanimous decision. Again, neither side, the Obama
Justice Department did not appeal our decision to the Supreme
Court. I believe, I assume that is because they thought our
decision appropriately accommodated the interests of the
parties in that case to ensure that African Americans in South
Carolina were able to vote on the same basis as before.
In talking about my life and record, you were talking about
that, going back to growing up, but the law journal note that I
wrote on race discrimination talked about something that I know
you have been talking about a lot, which was bias in the
criminal justice system. And I said at the end of that law
journal note that both racial equality and the appearance of
racial equality were critical to the fairness of the racial
justice system.
I provided specific mechanisms for rooting out race
discrimination in the jury selection process and talked about
what you have talked about, implicit bias or subconscious
racism. I specifically talked about that in that decision.
I have been a, I think, a leader. So there is 2010
testimony before the Congress about the lack of minority law
clerk hiring at the Supreme Court, and Justice Thomas and
Justice Breyer were testifying before the Appropriations
Committee, and they were asked about minority law clerks and
the lack of them at the Supreme Court. And they said, in
essence, well, we are hiring from the lower courts. And I
remember reading that and thinking, well, I need to do
something about that. I am the lower court. I am one of them.
And so after that, I thought what can I do? And I did not
just sit there. I went and thought what can I do? And I started
on my own going to the Yale Black Law Students Association
every year, starting in 2012. I think I am the only judge who
has done something like that, or certainly one of the few. And
I just cold-called them, cold-emailed them and said I would
like to come speak about minority law clerk hiring because I am
told there is a problem there.
And I showed up the first time wondering how it would go,
and I explained and I got a good crowd from the Black Law
Students Association. I said we need more law clerks. There is
a problem. And let me tell you how to do it, and here is why
you should clerk, and here is how you clerk, and here is how
you--here are the classes you should take, and here are the
things you need.
And at the end of that meeting, I gave them my phone number
and email and said call me anytime, email me anytime if you
want help. And then it was a big success. I got a lot of emails
after that. I helped students get clerkships with other judges.
One of them recently finished the Supreme Court, emailed me,
thanking me for starting him on that road.
And then it was a success, and I have gone back almost
every year there. And as you know, we are graduates of the same
law school--that is, a lot of people clerk from there, so it is
a good place to go. And I have continued to encourage African-
American law clerks. But it is not just encouragement. I have
given them help and advice and been a source of counsel, I have
tried to be.
And why is that? Because I saw a problem to the extent of
the kind you are talking about. And it is one small thing, I
suppose. But those are the future people who are going to be
sitting around here and sitting here, I think. Those are the
pool.
And I have tried to be very proactive on that, including my
own clerk hiring where the old networks that prevented women
and African Americans and minorities from getting law
clerkships. I have been very aggressive about trying to break
down those barriers and be very proactive on that, recognizing
that part of this is professors who have research assistants.
And so I have done, you know, my cases like the Ayissi-Etoh
case and the Ortiz-Diaz case, and I think the South Carolina
case I understand your concern about, but I am proud of what we
did in that case. So I think if you look at my--your broader
question about my life and my record, I understand what you are
asking about a few comments in those Hawaii--the Hawaii case.
But if you look at the sweep of it, I hope it gives you
confidence that I have at least done my best to try to
understand the real world and tried through my actual decisions
to understand the real world and apply the law fairly.
And through my other role as a judge and hiring law clerks
to be very proactive in trying to advance equality for African
Americans.
Senator Kennedy. Senator Lee.
Senator Booker. Sir?
Senator Kennedy. Senator Lee.
Senator Lee. Mr. Chairman, thank you.
I think it is important. The rules of fairness and the
Rules of the Committee require us to treat our witnesses with
respect, with certain minimum standards of respect such that
you cannot cross-examine somebody about a document that they
cannot see.
Now in this circumstance, the document that was referred to
by my distinguished friend and colleague from New Jersey,
Senator Booker, was designated as ``committee confidential.''
Now there are ways we can deal with this. We can deal with this
either in a closed session so that he can see the document to
which you are referring, or we can also go about different
procedures to make it public.
We have already done this in this very set of hearings with
Senator Leahy and with Senator Klobuchar, who identified some
documents that were identified as ``committee confidential.''
The one thing we cannot do is refer to a document, cross-
examine him about that document, but not even let him see it
because he cannot see it. We would not do that in a courtroom,
and we cannot do that in our Committee. Our rules do not allow
it. So I would just suggest that we go through the proper
procedure to either deal with this in a closed session or
ideally go through the process that Senator Leahy and Senator
Klobuchar went through in order to allow us to address this in
open Committee.
Senator Booker. Mr. Chairman, may I respond?
Senator Kennedy. The objection is duly noted.
Senator Booker. Mr. Chairman?
Senator Kennedy. Thirty seconds, Senator.
Senator Booker. I really respect my colleague from Utah,
and I appreciate that. I am not the first colleague that has
referenced committee confidential emails, not the ones you said
is the exception, they were referenced before. And that is why
this system is rigged is because we have been asking, I have
letters here, sir, that we have asked for.
Now the one email specifically entitled, ``Racial
profiling'' that somehow--I mean, literally, the email was
entitled, ``Racial profiling''--that somehow was designated as
something that the public could not see. This was not personal
information. This was not personal information.
There is no national security issue whatsoever. The fact
that we are not allowing these emails out, as we have asked, as
I have asked, joined the letter with my colleagues asking. And
that is why I am saying the system is rigged.
More than that, Senator, you have this system where there
are whole areas--whole areas that was cleared where----
Senator Kennedy. Senator, if you could begin to wrap up?
Senator Booker. I will wrap up. Thank you, sir, for the
generosity. Where there is whole areas where we are not allowed
to let these out. And so I see you are outlining a process, but
I am saying that process is unfair. It is unnecessary. It is
unjust, and it is unprecedented on this Committee.
Senator Kennedy. Gentlemen, I am trying to be fair to
everybody. I know Senator Lee wants to respond. With respect,
if he would do that briefly, I would like to continue on.
Senator Lee. Senator Booker, I will go with you hand in
hand literally to work with Committee leadership staff to get
that going. I agree with you. There is no reason why it should
not be something that we can discuss in public.
I do not know why it was marked ``committee confidential.''
I was not in charge of that. Regardless, we do have to follow
procedure so that he can have access to it so that he knows how
to respond. I will work with you on that.
Senator Kennedy. Thank you, gentlemen.
Senator Whitehouse. Now that the hearing is half over.
Senator Kennedy. I am next. So, and I do not have any
emails.
[Laughter.]
Senator Kennedy. I want to start, I have watched you for
the last couple of days, Judge, and I want to compliment you on
your demeanor. And I mean that. I know you are on your best
behavior, but--but I appreciate your humility.
We both know some Federal judges who can pretty much strut
sitting down, and I appreciate your attitude and your demeanor,
and I mean that.
Judge Kavanaugh. Thank you very much, Senator.
Senator Kennedy. I just want to ask you a few questions
about--about the law. I am not going to ask you to violate the
canon of judicial ethics. I am not asking you to go thumbs up
or thumbs down. I am truly not.
I may have to interrupt you a few times just to move us
along. I am not trying to be rude. I want you to understand
that.
Judge Kavanaugh. Yes, sir.
Senator Kennedy. You know, you have been nominated for the
most powerful unelected position in the most powerful country
in all of human history. Congratulations, but you understand
also where we are coming from. There is no margin for error.
Judge Kavanaugh. Yes, sir.
Senator Kennedy. We have got to get this right. Yesterday--
gentlemen, take it outside, would you?
Yesterday, I talked a little bit about the fact that judges
have limits on their power, and I do not know if I said it this
way, but I said I think it is inappropriate for a Federal judge
to try to rewrite the Constitution every other Thursday to
advance an agenda that either he or his/her supporters cannot
get by the voters.
Do you agree with that?
Judge Kavanaugh. Yes, of course, Senator. The judges
interpret the law. They do not make the law, and that is
obviously something that is repeated a lot. I know it is
cliche, but it actually matters. If you keep that in mind, it
matters.
Senator Kennedy. Judges also have another duty, though. I
did not get to talk about it yesterday. Federal judges and
State court judges have an obligation to protect inalienable
rights, even if the majority wants to take them away. That is
why they call them ``inalienable.''
And I said this when Judge Gorsuch was here, if you think
about in many cases, the Bill of Rights is really not there for
the high school quarterback or the prom queen. The Bill of
Rights is there for the person who kind of sees the world
differently but has the right to do that.
And I think that is important for a judge. Can we agree on
that?
Judge Kavanaugh. Absolutely, Senator. I think the Bill of
Rights is--protects all of us, but that includes and it is most
relevant for free speech of the unpopular----
Senator Kennedy. Right.
Judge Kavanaugh. Or the unpopular criminal defendant.
Senator Kennedy. Even if the majority says----
Judge Kavanaugh. Yes.
Senator Kennedy [continuing]. We are the majority. Because
we both know that sometimes the majority just means that most
of the fools are on the same side.
[Laughter.]
Senator Kennedy. I mean, just because you are in the
majority does not mean you are right. Correct?
Judge Kavanaugh. Just because you are in the majority does
not mean you are right is absolutely a correct proposition.
Senator Kennedy. Right. That is why we have a Bill of
Rights.
Judge Kavanaugh. Yes.
Senator Kennedy. All right. I want to talk about--now that
is the easy part. I want to talk about how we go about making
these decisions, and there is a tension there, and that has to
do with the language. If I talked about--and you have talked
about it a little bit. But if I talked about the Holy Trinity
doctrine, you would know what I am talking about, I am sure?
Judge Kavanaugh. Yes.
Senator Kennedy. Yes. Now the Supreme Court has rejected
the Holy Trinity doctrine. Okay?
Judge Kavanaugh. Right. Yes.
Senator Kennedy. You talked about we are now textualists
and are originalists, and you called originalism constitutional
textualism, I think.
Judge Kavanaugh. Yes, original public meaning, originalism,
constitutional textualism. I think those describe the same
thing.
Senator Kennedy. Okay. You start with the language, let us
take a statute, with the language in the statute.
Judge Kavanaugh. Yes, sir.
Senator Kennedy. And the first question you ask as a
textualist, is it ambiguous or unambiguous? Correct?
Judge Kavanaugh. If there is a canon of construction that
is there that depends on a finding of ambiguity, that would be
the question. Otherwise, other than that, you would just say
what is the best meaning?
Senator Kennedy. Yes, you read the statute.
Judge Kavanaugh. Yes, read the statute.
Senator Kennedy. You say does it make sense? It either
makes sense or it does not. How do you determine that? How
ambiguous--you alluded to this. But how ambiguous does it have
to be? Does it have to be 100 percent ambiguous? Does it have
to be 51 percent ambiguous?
Is there really any principled way to compare clarity to
ambiguity, or do some judges use it as an excuse to get to
those canons of interpretation about which they have already
read in the brief to do what they want to do, did you know?
Judge Kavanaugh. Yes. I have said many times in my cases
and talks to students that judges should not be snatching
ambiguity from clarity. So that is one thing. I think that goes
right to your question. But to your broader question is that is
one of my concerns about a few canons of construction that
depend on an initial finding of ambiguity, which sounds great
in theory, which is, oh, if it is ambiguous, go to that canon
or this canon or this canon.
But in practice over 12 years, what I have found--and I
have written about this--is that there is not a good way to
find neutral principles on which two or, in my case, three
judges can agree on how ambiguous is ambiguity. And that is
hard to even talk about. I find it ambiguous. I do not think it
is ambiguous.
That has, in my view, frustrated the goal that I have of a
judge as umpire, the even-handed application of neutral
principles in the rule of law, and ultimately that has
concerned me because some of these cases where that has come up
are big deal cases. Yet it is dependent on this initial
determination that when you unpack it and you actually sit in
the judicial conference room like I do, it turns out to be very
hard to apply in an even-handed way.
So that has been the concern I have identified.
Senator Kennedy. Original of the article. You advocate the
best reading of the statute.
Judge Kavanaugh. Yes.
Senator Kennedy. Okay. Let us talk about that, and I want
to talk about it, not in terms of the statute, but the Second
Amendment and talk about the Heller case. You defined
originalism as constitutional textualism, and you--the way to
interpret the Constitution is to ask yourself--tell me if I get
this wrong now. What would--how would a reasonable person at
that time have understood the Constitution? The public
knowledge.
Judge Kavanaugh. The original public meaning. I always want
to add----
Senator Kennedy. Public meaning.
Judge Kavanaugh. Of course, precedent is a huge part of
what we do in constitutional law.
Senator Kennedy. Sure.
Judge Kavanaugh. But if you are looking at the words, the
original public meaning, you look at what the words mean,
sometimes the meanings change. Oftentimes, it has not. But to
your point, I agree.
Senator Kennedy. And there is almost an objective test.
Judge Kavanaugh. You are trying to make it as objective as
possible, absolutely. It is--it is an objective test. I mean,
sometimes there is different evidence about what the meaning of
the word was, I think.
Senator Kennedy. Sure. But you are not looking at intent.
Judge Kavanaugh. Correct. You are not looking at the
subjective intent other than to the extent that helps show
the----
Senator Kennedy. Right. We have thrown that out?
Judge Kavanaugh. Yes.
Senator Kennedy. Okay. If you look at the Heller case--and
I am talking about the DC v. Heller by the U.S. Supreme Court--
it was not a balancing case. You made that point clear at the
court of appeals level. It was a text history and tradition
case. And Justice Scalia wrote the majority opinion. Justice
Stevens dissented, and they both took an originalist approach.
And I went back and looked. Scalia, this is what he relied
on. He relied on founding era dictionaries, founding era
treatises. He looked at English laws, American colonial laws,
British and American historical documents, colonial era State
constitutions. He looked at post-enactment commentary on the
Second Amendment.
And Justice Stevens, also using an originalist approach,
looked at the same documents, and then he added he relied on
linguistic professors, an 18th century treatise on synonymous
words, and a different edition of the colonial era dictionary
that Justice Scalia used. Pretty impressive.
Here is my question. Does the originalist approach not just
require a judge to be an historian, and an untrained historian
at that?
Judge Kavanaugh. I do not think----
Senator Kennedy. I mean, would we not be better off hiring
a trained historian to go back and look at all of this, this
commentary?
Judge Kavanaugh. Well, the Heller case was one of the rare
cases where the Supreme Court was deciding the meaning of a
constitutional provision without the benefit of much, if any,
relevant precedent. On most of the constitutional provisions,
there has been a body of cases over time interpreting the
provision, and you do not have to do the kind of excavation
that Justice Scalia and Justice Stevens did in that case
because it has been done before.
The reason I think why the Second Amendment posed a
challenge in that case in terms of figuring it out is, the
prefatory clause in the Second Amendment, which the question
was did that define the scope of the right indicated
afterwards, the right of the people to keep and bear arms shall
not be infringed. Or did the prefatory clause merely state a
purpose via for which the right was ratified, and therefore,
you read the right as written. The right to keep and bear arms
shall not be infringed.
And to figure out what the prefatory clause meant, you had
to figure out as a general proposition how legal documents at
the time used prefatory clauses and what the purposes of those
were, and that required a lot of historical excavation by the
two Justices who had the competing positions.
Senator Kennedy. Okay. Fair enough. Somebody commented
yesterday, maybe it was you, Judge, they talked about how our
judiciary was one of the crowning jewels of our Government and
the fact that it separates us from other countries.
I think one of the reasons so many of our neighbors in the
world want to come here is because of our independent
judiciary. They know their person and their property will be
protected. I think that singles us out. You know, you never
read about somebody trying to sneak into China. They want to
come to America.
But there have also been studies, I think Senator Booker
talked about this. Maybe it was Senator Whitehouse. People
have--in America, many of them think the United States Supreme
Court is a little Congress that is political, and that is
unfortunate because that means we lose confidence in an
independent judiciary. I am not saying it is true, but
perception is important in government.
Do you think having cameras in the courtroom would help?
Judge Kavanaugh. Senator, that is an issue that I have
thought about, and let me just give you a little perspective on
our court. We have gone to same-time audio in our court. We
started with release of tapes much later, then release of tapes
later in the week, then release of tapes later in the day, and
now we are same-time audio in our court. And I think that has
been a--that has worked at the court of appeals level for us.
I know nominees who sat in this chair in the past have
expressed the desire for cameras in the courtroom only to get
to the Supreme Court and really change their positions fairly
rapidly. So that gives me some humility about making confident
assertions about that, and, of course, joining a Team of Nine
means thinking about that, if I were fortunate enough to do so,
and hearing the perspectives of why did they change their
position? What is their view?
Senator Kennedy. Yes.
Judge Kavanaugh. I will say one thing about that that I do
think is important. Oral arguments are a time for the judges to
ask testing questions of both sides, and there is a perception
sometimes, and you see it in the media that the oral argument,
Judge X is leaning this way at oral argument.
I really cannot stand that kind of commentary about oral
argument because I, at least, have always approached oral
argument as the time to ask tough questions of both sides. And
I do sometimes wonder whether people would get the wrong
impression of oral argument.
Now I have always thought, too, though, the announcement of
the Supreme Court decisions, when they issue the opinions, that
is a different point in time. When if there----
Senator Kennedy. What did you say Justice Marshall said?
People are not fools. You have to trust in people sometimes,
Judge.
Judge Kavanaugh. And as to the decisions, right, that is
when the Court is announcing its decision, and that is the
decision of the Court. Oral argument, lawyers--people are
asking tough questions of both sides, and sometimes you would
think, oh, Judge X thinks this because of the oral argument
question.
Senator Kennedy. I understand.
Judge Kavanaugh. But the decisions, I think that is--let us
put it this way. If I were starting--I think I will stop there.
[Laughter.]
Senator Kennedy. Well, I get your point, and there are good
arguments on both sides. But I do think that the American
people have lost confidence in the institution of the Supreme
Court and Congress and the Presidency, and it is ironic, given
my generation, that the only institution that the American
people I think have a lot of confidence in right now is the
military, which was not true in my era.
Judge Kavanaugh. Yes. Well, that shows----
Senator Kennedy. But you know, you have got to trust the
people, and too many up here on the beltway do not.
Judge Kavanaugh. I agree with your general point.
Senator Kennedy. You know, they do not--the people do not
read Aristotle every day, but they get it. They will figure it
out.
All right. Let me ask you a couple more. You are an
originalist?
Judge Kavanaugh. Yes. I pay attention to the text, the
original public meaning. But informed, I always want to make
sure I say precedent. If you are in a constitutional case,
precedent is critically important, and that is part of the text
of the Constitution, too.
Senator Kennedy. Right. But you may--and the focus of
primarily of an originalist is an understanding of the
Constitution by the people, an objective test, at the time it
was written and ratified?
Judge Kavanaugh. The meaning, as opposed to the intent, and
then informed----
Senator Kennedy. Right.
Judge Kavanaugh. I always have to add precedent.
Senator Kennedy. I get it. I am not trying to trick you.
Judge Kavanaugh. No, I understand. I just----
Senator Kennedy. I could not trick you.
Judge Kavanaugh. I just want to be clear in case someone
takes something out of context.
Senator Kennedy. All right. Are you willing to overturn
precedent that you think conflicts with the original public
understanding of the document?
Judge Kavanaugh. The Supreme Court's rules on precedent,
the precedent on precedent, sets forth a series of conditions
that you look for before you consider what you would overrule--
--
Senator Kennedy. I know that, but I am just asking if you
come upon a case and you say, you know, I am on the Supreme
Court now, and I have looked at this. And that is not--under
originalism, that is not what the public understanding was.
Judge Kavanaugh. So the first inquiry is, is the prior
decision wrong, actually grievously wrong? And if you thought
it was grievously wrong, that would be you would go on to the--
because of that or for some other reason, you would go on to
the next steps of the stare decisis inquiry. But that is how
that would work, if I understand the question correctly.
Senator Kennedy. Okay. All right. Can we agree that there
were State constitutions that preceded the Federal
Constitution?
Judge Kavanaugh. They did, and the Framers at Philadelphia
drew on a lot of the experience of State constitutions.
Senator Kennedy. Yes, they drew from State constitutions.
Judge Kavanaugh. They sure did.
Senator Kennedy. And can we agree that every State now has
a State constitution?
Judge Kavanaugh. Yes, yes. And they protect a lot--a lot of
rights.
Senator Kennedy. Yes. In fact, they before the Federal
Constitution was extended to the States in the Fourteenth
Amendment, the only protection you had from the State
government was the State constitution?
Judge Kavanaugh. That is correct, other than the rights
articulated in Article I, Section 10 of the original
Constitution.
Senator Kennedy. Right.
Judge Kavanaugh. Yes. Ex post facto and----
Senator Kennedy. Can we agree that your right under the
U.S. Constitution, let us take the Bill of Rights, but you know
what I mean. I mean the whole document.
Judge Kavanaugh. Yes.
Senator Kennedy. Let us take the First Amendment. Can we
agree that the First Amendment in the United States
Constitution sets the floor that the State counterpart, the
State First Amendment counterpart can actually give you a
greater First Amendment right?
Judge Kavanaugh. Correct. And I think that is--I have
mentioned a couple of times Judge Sutton's book, and Justice
Brennan wrote an article in the 1970s about State
constitutional law doing exactly what you said and encouraging
State litigants and State courts and State court judges to
think about exactly what you are saying.
Senator Kennedy. And in fact, some States have.
Judge Kavanaugh. Yes.
Senator Kennedy. Like California, for example. Their first
amendment, they do not have a State action requirement. Am I
correct in that?
Judge Kavanaugh. I will admit I have not looked at the
California constitution recently, but I will take your
understanding of it, Senator.
Senator Kennedy. Well, they do not. In a private shopping
center, so long as it is a common area, somebody can go in
there and protest, and you have a First Amendment right under
the State constitution.
Judge Kavanaugh. And the only question in that case would
be if it conflicts with another provision of the Federal
Constitution.
Senator Kennedy. And that is my question.
Judge Kavanaugh. Okay.
Senator Kennedy. That is my question. What happens when a
State interprets its own first amendment, which it can insulate
from review by you guys or by you soon-to-be guys on the
Supreme Court under the adequate and independent State ground
document, but it conflicts with your Fifth Amendment property
right?
Judge Kavanaugh. Well, Article VI of the Constitution makes
clear that the Federal Constitution is the supreme law of the
land, and that trumps not only State legislation, but also
State constitutional decisions. So in that instance, the
property right protected, if it were determined that what you
are talking about violated the property right in the U.S.
Constitution, that would control.
Senator Kennedy. Except that is not what the United States
Supreme Court said in the Pruneyard case.
Judge Kavanaugh. Well, there was a----
Senator Kennedy. Is it?
Judge Kavanaugh. It was a balance--I think because they
interpreted the property right not to be protected.
Senator Kennedy. Protected.
Judge Kavanaugh. But it----
Senator Kennedy. But California won.
Judge Kavanaugh. Yes, but the point being--and I think I
have the premise, I hope I did in what I said to you. If you
concluded that it violated the property protection in the U.S.
Constitution, then the U.S. Constitution would control. In that
case, the Supreme Court concluded that it did not violate the
property protection of the U.S. Constitution.
Senator Kennedy. Right. That is--I am not going to outsmart
you. You are right.
All right. You have got this--you have got this First
Amendment speech right, free speech right on steroids in
California, and there is no State action requirement. In Golden
Gateway, Pruneyard, you know----
Judge Kavanaugh. Yes.
Senator Kennedy [continuing]. They all said it applies to a
private entity like a shopping center. I know that Justice
Kennedy--I do not have the language here--but he has talked
about how the internet is the new public arena. Okay?
If you have--and other States have adopted this approach,
same as California, this enhanced First Amendment right with no
State action requirement. I think New Jersey has, and there are
some other cases. How then can Twitter in California censor any
messages if you are living in California, and you have a First
Amendment right, and it is not limited by the State action
doctrine?
Judge Kavanaugh. Senator, that sounds like a hypothetical I
am not prepared to give you a full answer on, other than I will
give you a broader conception of----
Senator Kennedy. Well, it is coming.
Judge Kavanaugh. Right. So I think one of the things with
these proceedings for judges and Supreme Court Justice nominee
hearings are backward looking in terms of our cases, the cases
I have done and the cases the Supreme Court has decided. But
one of the interesting things that I think about is, what is
the future? What are the big issues coming down the pike?
Senator Kennedy. Well, that is one of them.
Judge Kavanaugh. And so speech, how technology affects our
conception of speech, how technology affects Fourth Amendment
rights and our conception of search and seizure and privacy. I
think on the war powers front, which I was discussing with
Senator Sasse and Senator Flake earlier, cyber war, and how
does the war powers framework fit in with cyberattacks?
And I think those are three things, all technology rooted,
that someone sitting in this seat 10 years from now are going
to be, I think, critical issues, and I think we also think,
again backward looking, but what are the future crisis moments?
Because there will be crisis moments for the Supreme Court, and
usually those are unpredictable.
When Justices Ginsburg and Breyer went through, you would
not have predicted September 11th, for example, or even thought
to ask them questions about----
Senator Kennedy. I am going to stop you, Judge. I am going
to run out of time.
Judge Kavanaugh. Thank you, sir.
Senator Kennedy. I want to talk about Chevron deference
just for a second. Here is my understanding of Chevron, the
deference. First of all, the statute has got to be ambiguous.
And if it is ambiguous, according to our Supreme Court, we have
got to adopt the agency interpretation, even if it is not the
most reasonable interpretation.
Judge Kavanaugh. That is right.
Senator Kennedy. It has just got to be half-way reasonable.
Judge Kavanaugh. They say reasonable, but even your point
was it is not the most reasonable.
Senator Kennedy. It is not the most reasonable, okay? Here
is what I do not understand. You look at the APA. This is what
the APA says, I am going to quote, ``The reviewing court''--not
the agency--``The reviewing court shall decide all relevant
questions of the law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the
terms of an agency action.''
There it is, big as Dallas. Now that is just the Court. How
come we have to defer to a Federal agency under 5 U.S.C.
Section 706?
Judge Kavanaugh. Senator, in my article that I wrote in the
Harvard Law Review on this, I pointed out that statutory
provision and did say that Chevron was intentioned--I think I
used something stronger--with that statutory provision. But
Chevron concluded what it concluded, and it has been applied
over time.
Now I have pointed out some problems with it in terms of
its practical application, the ambiguity trigger. And you are
pointing out a problem at the core, which is where did it come
from to begin with, given what the APA----
Senator Kennedy. Well, not only that, Judge, but I mean, I
know you know this. But it encourages misbehavior. And let us
suppose Senator Whitehouse or Senator Lee, they run for
President. You know, they are not going to go out and run on
their good looks, though they are good-looking guys and all
that. But they are going to run on policy.
And then they get elected, and they need us in Congress.
And a lot of times they cannot get their bills passed.
Judge Kavanaugh. That is right.
Senator Kennedy. So you know what they do.
Judge Kavanaugh. Yes.
Senator Kennedy. They go to one of their agencies, and they
say I am going to take my policy, square peg, and put it in a
round hole of a statute. And all we have got to do is find a
judge to say that the statute is ambiguous, and then we can do
anything we want to do. And that is not right, is it?
Judge Kavanaugh. Senator, that is a problem I have
identified in the real world application of certain broad
conceptions of deference and that it is a judicially
orchestrated shift of power from the legislative branch to the
executive branch. And the phenomenon that you have described I
think is exactly right.
Presidents run for office. I have seen this with the
President I work for, President----
Senator Kennedy. They all do it.
Judge Kavanaugh. And you get--and if you cannot get
legislation through, then you try to see existing statutory
authorities where you can achieve to the extent possible your
policy ends, and then you push the envelope on the theory of,
well, there is ambiguity in the old statute. And then sometimes
courts will uphold it, and that is----
Senator Kennedy. Yes, but your hands are tied when it comes
in front of you if a President does that. And all Presidents
have done it. I am not blaming them. I mean, they all do it.
But your hands are tied if the statute is ambiguous, and
even if the agency interpretation is not the most reasonable,
it can be the tenth most reasonable, and you have got to go
with it.
Judge Kavanaugh. So two things on that. One is, if the
statute is ambiguous, as we have discussed, turns out to be a
much more difficult inquiry. And Footnote 9 of Chevron does say
use all the tools of statutory interpretation before you get to
that.
Senator Kennedy. Right.
Judge Kavanaugh. And that is something I have cited that,
you know, dozens and dozens of times, that footnote, to make
sure that you are not jumping too quick to deferring to the
agency's interpretation.
The other thing is the major questions, major rules----
Senator Kennedy. Could you tell me quickly? I have got 2
minutes.
Judge Kavanaugh. Yes. That means if it is of major economic
or social significance, you should not defer to the agency
because that is a big deal for Congress and----
Senator Kennedy. I want to ask your opinion about universal
injunctions. I do not know how many Federal judges, district
judges we have. Seven hundred? Anybody know? Seven hundred.
As I understand a nationwide injunction, sometimes they
call it universal, it means that a Federal--a single Federal
district judge can enjoin or freeze a law or a regulation. Let
us suppose we have 700 Federal district court judges. One of
them can enjoin a law or a regulation----
[Disturbance in the hearing room.]
Senator Kennedy. Thank you, ma'am. I just got an extra 20
seconds under the rules.
[Laughter.]
Senator Kennedy. Anybody else want to go? I will get up to
40. I am giving myself an extra 20 seconds. Where was I? Oh,
yes, the nationwide injunctions.
One Federal judge can enjoin a law or a regulation for the
entire country, even if every other judge in the country says I
do not agree. Now what is the legal basis for that? It has got
to either be a statute or the Constitution.
Judge Kavanaugh. Senator, that is an issue that is being
contested currently in courts around the country, I think, and
is an issue of debate. And therefore, I think I better say
nothing about it. I apologize for that, but it is an issue of
current debate.
Senator Kennedy. All right.
Judge Kavanaugh. I apologize.
Senator Kennedy. That is okay. I have got 9 seconds. No, I
have got 29 seconds.
All right. This is not meant to be a trick question. This
question is not about Title IX, and it is not about sexual
assault, because I know you cannot answer that. But it is
really a--well, I am not going to ask that. I am going to
strike it.
State action. Is a private security guard a State actor?
Judge Kavanaugh. Well, as stated, your question stated that
way, the answer would be ``no.'' But I think sometimes the
cases, when you are--if you are----
Senator Kennedy. Okay, I am going to take the ``no.''
Judge Kavanaugh. There are questions of contracting, and if
you are a State contractor and this and that. There are lots of
factors.
Senator Kennedy. Well, here is my question because I do not
want to abuse this. I have always wondered this. If a city
privatizes its entire police force, they are private police
officers. Do they have to comply with the Constitution?
Judge Kavanaugh. That is why I pointed out the contracting
issue that I mentioned. Some of the Supreme Court case law
would say you look at the contracting issue, and I think that
is an interesting question that is hard to answer in the
abstract without looking at the particular arrangement of a
particular city or locality and figuring out how much the State
is involved.
Senator Kennedy. Okay. Thanks, Judge.
Judge Kavanaugh. Thank you.
Senator Kennedy. Senator Harris.
Senator Harris. Thank you.
Judge, have you ever discussed Special Counsel Mueller or
his investigation with anyone?
Judge Kavanaugh. Well, it is in the news every day. I----
Senator Harris. Have you discussed it with anyone?
Judge Kavanaugh. With other judges I know.
Senator Harris. Have you discussed Mueller or his
investigation with anyone at Kasowitz Benson & Torres, the law
firm founded by Marc Kasowitz, President Trump's personal
lawyer? Be sure about your answer, sir.
Judge Kavanaugh. Well, I am not remembering, but if you
have something you want to----
Senator Harris. Are you certain you have not had a
conversation----
Judge Kavanaugh. I said----
Senator Harris [continuing]. With anyone at that law firm?
Judge Kavanaugh. Kasowitz Benson----
Senator Harris. Kasowitz Benson----
Judge Kavanaugh. Yes.
Senator Harris [continuing]. And Torres, which is the law
firm founded by Marc Kasowitz----
Judge Kavanaugh. Yes.
Senator Harris [continuing]. Who is President Trump's
personal lawyer. Have you had any conversation about Robert
Mueller or his investigation with anyone at that firm? ``Yes''
or ``no''?
Judge Kavanaugh. Well, is there a person you are talking
about?
Senator Harris. I am asking you a very direct question, a
yes or a no.
Judge Kavanaugh. Okay. I need to know the--I am not sure I
know everyone who works at that law firm.
Senator Harris. I do not think you need to. I think you
need to know who you talked with. Who did you talk to?
Judge Kavanaugh. I do not think I--I am not remembering,
but I am happy to be refreshed or if you want to tell me who
you are thinking of that works----
Senator Harris. Sir, are you saying that with all that you
remember--you have an impeccable memory. You have been speaking
for almost 8 hours, I think more, with this Committee about all
sorts of things you remember.
Judge Kavanaugh. Yes.
Senator Harris. How can you not remember whether or not you
had a conversation about Robert Mueller or his investigation
with anyone at that law firm?
Judge Kavanaugh. I do not----
Senator Harris. This investigation has only been going on
for so long, sir, so----
Judge Kavanaugh. Right. I am not sure I----
Senator Harris [continuing]. Please answer the question.
Judge Kavanaugh. I am just trying to think, do I know
anyone who works at that firm. I might know----
Senator Harris. Have you had--that is not my question. My
question is have you had a conversation with anyone at that
firm about that investigation? It is a really specific
question.
Judge Kavanaugh. I would like to know the person you are
thinking of because what if there is----
Senator Harris. I think you are thinking of someone and you
do not want to tell us. Who did you have a conversation with--
--
Judge Kavanaugh. I am not going to----
Senator Lee. Mr. Chairman, I would like to raise an
objection here. This town is full of law firms. Law firms are
full of people.
Senator Harris. First of all, I would like you to----
Senator Lee. Hold on.
Senator Harris [continuing]. Pause the clock.
Senator Lee. He----
Senator Harris. Thank you.
Senator Tillis [presiding]. The clock is paused.
Senator Harris. Thank you.
Senator Lee. Pause the clock. Let me raise my objection.
Senator Tillis. The Senator is recognized.
Senator Lee. This town is full of law firms. Law firms are
full of people. Law firms have a lot of names. There are a lot
of people who work at a lot of law firms.
[Disturbance in the hearing room.]
Senator Tillis. Senator Lee.
Senator Lee. On that point, law firms abound in this town,
and there are a lot of them. They are constantly metastasizing.
They break off. They form new firms. They are like rabbits.
They spawn new firms. There is no possible way we can expect
this witness to know who populates an entire firm----
[Disturbance in the hearing room.]
Senator Lee [continuing]. That he is not even----
[Disturbance in the hearing room.]
Senator Lee. My point of order, Mr. Chairman, is simply
this. If there are names, if there is a list of names he can be
given of the lawyers to whom she is referring, I think that is
fine, but I think it is unfair to suggest that an entire law
firm should be imputed into the witness' memory when he does
not know who works at the law firm.
Senator Whitehouse. Mr. Chairman? Mr. Chairman?
Senator Tillis. Senator Whitehouse----
Senator Whitehouse. We have a----
Senator Tillis [continuing]. Are you making a point of
order?
Senator Whitehouse. Well----
Senator Tillis. Senator Whitehouse, the----
Senator Whitehouse [continuing]. I am trying to figure out
what the rules are here because we had a very, very long
discussion about whether or not points of order were in order
because this is a hearing. And we were told that all of our
points of order----
Senator Tillis. Senator Whitehouse, there----
Senator Whitehouse [continuing]. About all the documents--
--
Senator Tillis [continuing]. Has never been a time in the 2
days where someone has made an inquiry of the Chair where the
Chair has not recognized the Member for a point of inquiry or
point of order----
Senator Whitehouse. And I have been recognized----
Senator Tillis [continuing]. And that was one of them.
Senator Whitehouse [continuing]. Now, and I appreciate
that. But my point is that if the rule is that nobody on our
side can make a point of order, then it ought not to be
appropriate for Senator Lee to start making points of order----
Senator Tillis. Well, the----
Senator Whitehouse [continuing]. After all of ours were
summarily----
Senator Tillis. Senator----
Senator Whitehouse [continuing]. Silenced on the basis that
we were in a hearing and not in an executive session. If we
have moved out of hearing and into executive session, then I am
more than happy to make motions----
Senator Tillis. Senator Whitehouse----
Senator Whitehouse [continuing]. To adjourn.
Senator Tillis [continuing]. The mere fact that you are
speaking right now means that you have been allowed to make a
point of order. The matter that you were talking about
yesterday was a motion that the Chair said was out of order
because it was an adjournment motion that would have required
us to be in executive session. Anyone who wants to make an
inquiry of the Chair may do so, but we will limit it to that
before we go back to Senator Harris.
Senator Whitehouse. Very good. That is the right result.
Senator Harris. Sir, please answer the question.
Judge Kavanaugh. I do not know everyone who works at that
law firm, Senator.
Senator Harris. And have you had any discussion with anyone
ever about Bob Mueller and/or his investigation?
Judge Kavanaugh. So you said Bob Mueller--or, so have I----
Senator Harris. Or----
Judge Kavanaugh. Ever had a discussion about Bob Mueller? I
used to work in the administration with Bob Mueller.
Senator Harris. What about his investigation? Have you had
a conversation with anyone about his investigation?
Judge Kavanaugh. I am sure I have talked to fellow judges.
Senator Harris. Anyone aside from fellow judges?
Judge Kavanaugh. About Bob Mueller?
Senator Harris. About his investigation, sir. I will ask
again.
Judge Kavanaugh. But----
Senator Harris. I asked the question just a minute ago. I
am surprised you forgot. Have you had this conversation with
anyone about the investigation that Bob Mueller is conducting
regarding Russia interference with our election or any other
matter?
Judge Kavanaugh. The fact that it is ongoing, it is a topic
in the news every day, I talk to fellow judges about it. It is,
you know, in the courthouse in the District of Columbia so I--
--
Senator Harris. And----
Judge Kavanaugh. Guess----
Senator Harris [continuing]. And I will ask it one last
time.
Judge Kavanaugh. The answer to that is, ``yes.'' So the
answer is ``yes.''
Senator Harris. Okay. And did you talk with anyone at
Kasowitz Benson & Torres?
Judge Kavanaugh. You asked me that. I need to know who
works there.
Senator Harris. I think you can answer the question without
me giving you a list of all employees of that law firm.
Judge Kavanaugh. Well, actually, I cannot. I----
Senator Harris. Why not?
Judge Kavanaugh. Because I do not know who works there.
Senator Harris. So that is the only way you would know who
you spoke with? I want to understand your response to my
question because it is a very direct one. Did you speak with
anyone at that law firm about the Mueller investigation? It is
a very direct question.
Judge Kavanaugh. Right. I would be surprised but I do not
know everyone who works at that law firm, so I just want to be
careful because your question was and/or, so I want to be very
literal.
Senator Harris. That is fine. I will ask a more direct
question if that is helpful to you. Did you speak with anyone
at that law firm about Bob Mueller's investigation?
Judge Kavanaugh. I am not remembering anything like that,
but I want to know a roster of people and I want to know more.
Senator Harris. So you are not denying that you have
spoken----
Judge Kavanaugh. Well, I said I do not remember anything
like that.
Senator Harris. Okay. I will move on.
Judge Kavanaugh. Okay.
Senator Harris. Clearly, you are not going to answer the
question. When you and I met, we talked about race relations in
this country, and there has been a lot of talk among my
colleagues with you about the subject. And when you and I met,
I brought up the incident in Charlottesville where, as you
know, there was a rally by White supremacists that left a young
woman dead. You will recall that the President who nominated
you described the incident by saying, quote, ``I think there is
blame on both sides.'' So I think this will be a simple
question for you. Do you, sir, believe there was blame on both
sides?
Judge Kavanaugh. Senator, we did talk, and I enjoyed our
meeting and to talk about the history of this country. And we
talked about that at some length and talked about
discrimination. I appreciated your opening statement yesterday
where you talked about your experience. One of the principles I
have articulated throughout this hearing is the independence of
the judiciary.
Senator Harris. And, sir, I would appreciate it if you
would answer the question.
Judge Kavanaugh. I am, Senator. So one of the principles I
have talked about throughout this hearing is the independence
of the judiciary. And one of the things judges do, following
the lead of the Chief Justice, and what all the judges do is
stay out of current events, stay out of commenting on current
events because it risks confusion about what our role is. We
are judges who decides cases in controversy. We are not
pundits, so we do not comment on current events. We stay out of
political controversy.
Senator Harris. Judge, with all due respect, I only have
limited time.
Judge Kavanaugh. But it is----
Senator Harris. Are you saying that it is too difficult a
question or it is a question you cannot answer, which is
whether you agree with the statement that there was blame on
both sides? We can move on, but are you saying you cannot
answer that pretty simple question?
Judge Kavanaugh. I am saying that the principle of the
independence of the judiciary means that I cannot insert myself
into politics in either of two ways: commenting on political
events or, in my view, commenting on things said by
politicians, a Governor, a Senator, or a Congressperson, a
President. I am not here to assess comments made in the
political arena because the risk is, I will be drawn into the
political arena, and the Justices and judges of the United----
Senator Harris. Sir--and I appreciate your point, but there
was such a robust conversation that happened, especially with
my colleagues on the other side and you about race. So on the
subject of race, I raise this question. But we can move on.
Have you ever heard the term, quote, ``racial spoils
system''?
Judge Kavanaugh. Yes, and that is a term that sometimes is
used to--yes, I have heard that term.
Senator Harris. You twice wrote the term in The Wall Street
Journal opinion piece describing the Cayetano case that you
discussed previously with Senator Hirono. And I will tell you,
the racial spoils system, that term stood out to me, so I
actually decided to look it up in the dictionary, the term
spoils, and in the dictionary, spoils is defined as, quote,
``goods stolen or taken forcibly from a person or a place.''
Can you tell me what the term racial spoils system means to
you?
Judge Kavanaugh. Senator, first of all, the Supreme Court
affirmed the position that I had articulated in the amicus
brief 7-to-2 in Rice v. Cayetano, an opinion written by Justice
Kennedy.
Second of all, the State voting restriction at issue in
Hawaii was a State office, State office for the Native
Hawaiian, and it----
Senator Harris. Judge, that is not what I asked you.
Judge Kavanaugh. But it----
Senator Harris. If you can define the term as you used it,
what does it mean to you?
Judge Kavanaugh. But you raised the case, and the State
voting restriction in that case denied Hawaiians, residents of
Hawaii the ability to vote on the basis of their race. So if
you were Latino or African-American, you could not vote in the
election.
Senator Harris. And I heard your response to that earlier,
and I appreciate the point that you made then. My question is,
you used this term----
Judge Kavanaugh. Right.
Senator Harris [continuing]. Twice, and I am asking what
does the term mean to you?
Judge Kavanaugh. I am not sure what I was referring to
then, to be entirely frank, so I would have to see the context
of it. But what I do know is that the Supreme Court, by a 7-to-
2 margin, agreed with the position articulated in the amicus
brief and that the voting restriction there was for a State
office and denied people the ability to vote on account of
their race. So it was----
Senator Harris. Sir, I appreciate that, but you have been
very forthcoming about the amount of work and preparation that
you put into everything you do. You have certainly led me to
believe that you are very thoughtful about the use of your
words and your knowledge that words matter, especially words
coming from someone like you or anyone of us. So I would like
to know what you meant when you used that term, but we can move
on. But I will say this: Are you aware that the term is
commonly used by White supremacists?
Judge Kavanaugh. Senator, when I wrote that, that was 20
years ago in the context of a voting restriction that denied
African Americans and Latinos the ability to vote in Hawaii. I
was representing a client when I articulated that. And the
answer to your question is no.
Senator Harris. Okay. Well, unfortunately, it has been, and
it is something that you should know. You should know that the
same year you wrote your op-ed, a magazine published a cover
story, a magazine that is described as being a White
supremacist magazine, published a cover story about what it
called, quote, ``the racial spoils system,'' of, quote,
``affirmative action, the double standard in crime, sensitivity
toward Black deficiencies, and everything else.''
The same year a self-proclaimed Eurocentrist wrote, quote,
``While Blacks are generally regarded as the recognized expert
in the game of racial shakedown, it is American Indians who may
actually be the real geniuses at obtaining `racial spoils'.''
So we can move on, but my concern is that this is a loaded
term, and it would be important to know that someone who may
very well and very possibly serve on the United States Supreme
Court would be aware that the use of certain terms will have a
profound meaning because they are loaded and associated with a
certain perspective and sometimes a certain political agenda.
Judge Kavanaugh. Well, I take your point. I would point out
that Hawaii was denying Latinos and African Americans the
ability to vote in a State election at the time, but I take
your point and I appreciate it.
Senator Harris. Thank you. In Griswold and Eisenstadt, the
Supreme Court said that States could not prohibit either
married or unmarried people from using contraceptives. Do you
believe Griswold and Eisenstadt were correctly decided?
Judge Kavanaugh. So those cases followed from the Supreme
Court's recognition of unenumerated rights in the Pierce and
Meyer cases earlier. And so what those cases held is that there
is a right of privacy----
Senator Harris. And do you agree, do you personally agree,
these cases, those two cases were correctly decided? So I am
asking not what the Court held but what you believe.
Judge Kavanaugh. Right. So to just go back to Pierce and
Meyer, those cases recognized a right of privacy, the ability,
one might say family autonomy or privacy is the term under the
Liberty Clause of the Due Process Clause of the Fourteenth
Amendment.
Senator Harris. And with due respect, then, Judge, I am
asking do you agree that those cases were rightly decided----
Judge Kavanaugh. So I think----
Senator Harris [continuing]. And correctly decided?
Judge Kavanaugh. So in Griswold, I think that Justice
White's concurrence is a persuasive application because that
specifically rooted the Griswold result in the Pierce and Meyer
decisions. I thought that was a persuasive opinion and no----
Senator Harris. Do you believe that it is correctly
decided?
Judge Kavanaugh. Quarrel with that. That is a----
Senator Harris. Do you believe it was correctly decided?
Words matter. Again, words matter.
Judge Kavanaugh. Yes.
Senator Harris. Do you believe it was correctly decided?
Judge Kavanaugh. I think, given the Pierce and Meyer
opinions, like I said, Justice White's concurrence in Griswold
was a persuasive application of Pierce and Meyer. I have no
quarrel with it. I----
Senator Harris. So there is a term that actually both Chief
Justice Roberts and Justice Alito used, I believe, and affirmed
in their confirmation hearings that these cases were correct.
And so I am asking you the same question. Are you willing in
this confirmation hearing to agree that those cases were
correctly decided?
Judge Kavanaugh. Well, given the precedent of Pierce and
Meyer, I agree with Justice Alito and Chief Justice Roberts,
what they said.
Senator Harris. That it was correctly decided.
Judge Kavanaugh. That is what they said so----
Senator Harris. Do you believe the right to privacy
protects a woman's choice to terminate a pregnancy?
Judge Kavanaugh. That is a question that, of course,
implicates Roe v. Wade, and, following the lead of the nominees
for the Supreme Court, all eight sitting Justices of the
Supreme Court have recognized two principles that are
important: One, we should not talk about, in this position,
cases or issues that are likely to come before the Supreme
Court or could come before the Supreme Court; and second, I
think Justice Kagan provided the best articulating of
commenting on precedent. She said we should not give a thumbs
up or thumbs down.
Senator Harris. No, I appreciate that. And I----
Judge Kavanaugh. And then----
Senator Harris [continuing]. Did hear you make reference to
that perspective earlier. But you also, I am sure, know that
Justice Ginsberg, at her confirmation hearing, said on this
topic of Roe, quote, ``This is something central to a woman's
life, to her dignity. It is a decision she must make for
herself, and when Government controls that decision for her,
she is being treated as less than a fully adult human
responsible for her own choices.'' Do you agree with the
statement that Justice Ginsberg made?
Judge Kavanaugh. So Justice Ginsberg, I think there, was
talking about something she had previously written about Roe v.
Wade. The other seven Justices currently on the Supreme Court
have been asked about that and have respectfully declined to
answer about that or many other precedents, whether it was
Justice Marshall about Miranda or about Heller----
Senator Harris. And we discussed that earlier.
Judge Kavanaugh. Or Citizens United. And it is rooted--I
just want to underscore. It is rooted in judicial
independence----
Senator Harris. No, I appreciate that, but--I am glad you
mentioned that Justice Ginsberg had written about it before,
because you also have written about Roe when you praised
Justice Rehnquist's Roe dissent. So in that way you and Justice
Ginsberg are actually quite similar, that you both have
previously written about Roe. So my question is, do you agree
with her statement or, in the alternative, can you respond to
the question of whether you believe a right to privacy protects
a woman's choice to terminate her pregnancy?
Judge Kavanaugh. So I have not articulated a position on
that. And consistent with the principle articulated, the
nominee precedent that I feel duty-bound to follow as a matter
of judicial independence, none of the seven other Justices when
they were nominees have talked about that, nor about Heller,
nor about Citizens United, nor about Lopez v. United States,
Thurgood Marshall about Miranda. Justice Brennan asked about
his----
Senator Harris. And, respectfully, Judge, as it relates to
this hearing, you are not answering that question, and we can
move on.
Can you think of any laws that give Government the power to
make decisions about the male body?
Judge Kavanaugh. I am happy to answer a more specific
question but----
Senator Harris. Male versus female.
Judge Kavanaugh. There are medical procedures----
Senator Harris. That the Government has the power to make a
decision about a man's body?
Judge Kavanaugh. I thought you were asking about medical
procedures----
Senator Harris. No.
Judge Kavanaugh. That are unique to men.
Senator Harris. I will repeat the question. Can you think
of any laws that give the Government the power to make
decisions about the male body?
Judge Kavanaugh. I am not thinking of any right now,
Senator.
Senator Harris. When referring to cases as settled law, you
have described them as precedent and, quote, ``precedent on
precedent.'' You have mentioned that a number of times----
Judge Kavanaugh. Yes.
Senator Harris [continuing]. Today, and through the course
of the hearing. As a factual matter, can five Supreme Court
Justices overturn any precedent at any time if a case comes
before them on that issue.
Judge Kavanaugh. Start with the system of precedent that is
rooted in the Constitution.
Senator Harris. I know, but just as a factual matter, five
Justices, if in agreement, can overturn any precedent. Would
you not agree?
Judge Kavanaugh. Senator, there is a reason why the Supreme
Court does not do that.
Senator Harris. But do you agree that it can do that?
Judge Kavanaugh. Well, it has overruled precedent at
various times in our history, the most prominent example being
Brown v. Board of Education, the Erie case, which overruled
Swift v. Tyson. There are tons----
Senator Harris. So we both agree the Court has done it and
can do it.
Judge Kavanaugh. There are times, but there is a series of
conditions, important conditions that, if faithfully applied,
make it rare. And the system of precedence rooted in the
Constitution, it is not a matter of policy to be discarded at
whim.
Senator Harris. But there is nothing, you and I agree, that
prevents the Court from doing it, meaning that it is not
prohibited.
Judge Kavanaugh. The----
Senator Harris. The Court is--if I may finish.
Judge Kavanaugh. Yes.
Senator Harris. The Court is not prohibited from overruling
or overturning precedent. No matter what the steps are that the
Court must take, the Court may overrule precedent.
And so my question also is, then do you believe that this
can happen no matter how long the precedent has been on the
books? For example, there is no statute of limitations during
which, after that statute of limitations has passed, the Court
may not touch precedent. Would you agree?
Judge Kavanaugh. Well, for example, the Supreme Court this
past year said that Korematsu had been overturned in the court
of history. That, of course, was the case that allowed the
internment during World War II----
Senator Harris. Yes. Yes, I am familiar with----
Judge Kavanaugh. Of Japanese Americans. And the Supreme
Court this past term--that was a 1942 or 3 decision and the
Supreme----
Senator Harris. But you would agree there is no statute of
limitations? The Court can go back as far as it wanted if it
believed it was warranted? There is nothing that prevents the
Court from reaching back many years?
Judge Kavanaugh. What I would say is, there are a series of
conditions that the Supreme Court must meet----
Senator Harris. I agree.
Judge Kavanaugh. And the age of a precedent, as, I think,
the Supreme Court itself has articulated many times, does
ordinarily add to the force of the precedent and make it an
even rarer circumstance where the Court would disturb an old--
--
Senator Harris. Thank you.
Judge Kavanaugh. Precedent.
Senator Harris. Thank you. I have a couple of questions for
you about voter suppression. Our history, as you know, is
littered with shameful attempts to deny voting rights,
especially for communities of color and particularly the
African-American community in this country. For 50 years, the
Voting Rights Act has protected against racial discrimination
in voting. I know you had this conversation prior to this with
my colleague, Senator Booker. Under the Act, it states that a
record of discriminatory voting practices had to obtain Federal
permission in order to change their voting laws. I know you are
familiar with that. But then came the Court's decision in
Shelby and by a 5-to-4 vote, the Court gutted the Act,
effectively ending Federal approval requirement.
The majority believed that the requirement had outlived its
usefulness. As you know, that was part of the ruling,
essentially saying that the threat of race-related voter
suppression had diminished.
So my question is, are you aware that within weeks of the
Supreme Court's ruling, Republican legislators in North
Carolina rushed through a laundry list of new voting
restrictions, restrictions that disproportionately
disenfranchised racial minorities? And it is just a ``yes'' or
``no'' question--are you aware of that?
Judge Kavanaugh. I recall reading about efforts in the
aftermath, but one thing I would point out is I believe the
Supreme Court's concern in that case was with the formula that
was used for which States were covered by the preclearance
requirement. I do not believe the Court said that Congress was
proscribed from going back and redoing the formula. So on the
``outlived its usefulness,'' I believe what the Court said--I
am just describing it, not saying whether I agree or disagree--
was saying the formula had not been updated to reflect current
conditions but was not saying that preclearance was precluded
if Congress went back and adjusted the formula and studied
current conditions.
Senator Harris. Are you aware, as it relates again to that
North Carolina action, that the Federal court of appeals later
held that these restrictions intentionally discriminated
against African-American voters, targeting them, quote--and
these are the words of the Court--``with almost surgical
precision.'' Are you aware of that ruling?
Judge Kavanaugh. When was that decision, Senator?
Senator Harris. That was--I believe that was in--it was
shortly after----
Judge Kavanaugh. Okay.
Senator Harris [continuing]. A few years ago, 2016.
Judge Kavanaugh. I am aware that there has been a lot of
voter ID litigation in other voting-related, election-related
litigation in North Carolina----
Senator Harris. Yes.
Judge Kavanaugh. In particular, over the last several
years, and so, I am generally aware of all the litigation in
North Carolina.
Senator Harris. And are you aware that Republicans in
Texas, Alabama, Mississippi, Georgia, and Florida have also
implemented new voting restrictions since Shelby, again,
disproportionately disenfranchising minority voters?
Judge Kavanaugh. Well, I know there is--I am not aware of
the specifics of all that, but I do follow election law blogs
and election law updates to keep generally aware of
developments in the election law area. It is an area----
Senator Harris. Would you not agree, then, reading about
this on the blogs, that it is troubling? In fact, compounding
those with the recent proposal to close more than two-thirds of
polling places in Randolph County, Georgia, where more than 60
percent of the residents are Black. Would you not agree that
that is troubling?
Judge Kavanaugh. I am not aware of that specific, but as I
had the South Carolina voter ID case, what I tried to make
clear through the trial in that case and the opinion, which was
unanimous, that the reality of racial discrimination in America
exists.
Senator Harris. Yes.
Judge Kavanaugh. The long march for racial equality is not
over and that courts must scrutinize efforts to look for
discriminatory intent, or discriminatory effects can always be
evidence of an intent, and uncertain laws, the effects
themselves can be problematic.
Senator Harris. And do you believe that the Court in Shelby
underestimated, then, the danger that was presented in terms of
States' willingness to restrict the right to vote?
Judge Kavanaugh. Well, I do not want to comment on the--I
think that is getting to the correctness or incorrectness of
Shelby, in particular. I just want to underscore, at least as I
recall the opinion, it did say Congress itself could adjust the
formula for preclearance, and I do not think Congress has done
so, but that is----
Senator Harris. And clearly unwilling to do it, so there
will have to be some recourse, do you not agree, for those
voters in these various States if Congress is unwilling to act,
to give them due process in terms of equal access to the polls
so that they can vote? Otherwise, we are looking at widespread
disenfranchisement. Would you not agree, if Congress does not
act?
Judge Kavanaugh. So Shelby dealt with the preclearance
requirement. There is still, of course, Section 2 of the Voting
Rights Act----
Senator Harris. Right.
Judge Kavanaugh. Which allows litigation brought by
plaintiffs to challenge voting restrictions that are enacted
with discriminatory intent or discriminatory effects----
Senator Harris. All right.
Judge Kavanaugh. As well.
Senator Harris. Do you believe that Section 2 is
constitutional?
Judge Kavanaugh. I think that is asking me a hypothetical
about any statute----
Senator Harris. Well, because you referred to it, I would
like to know----
Judge Kavanaugh. Well----
Senator Harris. I would assume that you think it is
constitutional if you think it is a tool.
Judge Kavanaugh. Well, I think as a general matter--I do
not want to pre-commit on any statute that you would identify.
If there is some challenge raised, I will, of course, listen to
the arguments. But Section 2 is an important tool for the
voting rights enforcement. The Voting Rights Act of 1965 is one
of the most consequential and effective statutes ever passed by
Congress, and, you know, I have said that. And the history is,
of course, well-known, but the voting rates before the 1965 act
were abysmal because of the discriminatory restrictions that
were in place. And the immediate effects of the Voting Rights
Act of 1965 were enormous and are very important for people to
understand.
Senator Harris. I agree. And in fact, to that point, in his
confirmation hearing in 2005, Chief Justice Roberts, when asked
about Section 2 and whether it was constitutional said, quote,
``I have no basis for viewing it as constitutionally suspect,
and I do not.'' Do you agree with Chief Justice Roberts that
the law is not constitutionally suspect, or do you have a
different view?
Judge Kavanaugh. I do not have any basis for viewing it
that way either. I was just--if you ask me about any statute, I
want to be careful because I do not know what arguments could
come up, and I always want to make sure I have preserved the
judicial independence and have not pre-committed. But I agree I
have no basis for doing that.
Senator Harris. And then after the President nominated you
to the Supreme Court, you had a chance before now--it was the
only chance actually before now--to introduce yourself to the
American people. You stood in the East Room of the White House
and you thanked the President for your nomination. And then
immediately you said, quote, ``No President has ever consulted
more widely or talked with more people from more backgrounds to
seek input about a Supreme Court nomination.'' Now, by my
count, there have been 163 nominations to the Supreme Court, so
unless you have personal knowledge about every one of these
nominations before yours, including who those Presidents
consulted with and who they talked to, and I cannot imagine
that you have that personal knowledge. My question is did
someone tell you to say that?
Judge Kavanaugh. No one told me to say that. Those were my
own words. They were based on my--I did look into it a little
bit in terms of thinking about what was possible before cell
phones and before phones and then thinking about the history.
And I know some of the history of Supreme Court nominations,
and I also know in that 12-day period, I do know that President
Trump talked to an enormous number of people. I think President
Clinton, when I look back on it--that is why I said no one--
President Clinton, as I recall, had a consultation process that
was very wide as well, but that was my analysis of the
situation. Those were my words, entirely my words, and I
thought it was important to point out the--because I was--as I
said yesterday, I was deeply impressed by the thoroughness of
the process during the 12 days, and I said as much yesterday
and I said as much in the East Room. The 12-day process was--at
least it seemed to me--quite a thorough process.
Senator Harris. Thank you. And then I am going to follow up
with some questions for the record for you on the first
question I asked.
Judge Kavanaugh. Okay.
[The information appears as a submission for the record.]
Senator Harris. Thank you. Thank you.
Senator Tillis. Judge Kavanaugh, we started this about
12\1/2\ hours ago. I am amazed that you are able to continue to
respond and compose yourself in the way that you have. I want
to cover a couple of things, and I am going to try and keep my
comments limited so that we can get you, hopefully, with a
decent night's sleep.
A few minutes ago, you were asked some questions about
emails or an email chain that you were involved in, and you did
not get an opportunity to see them. You have not seen them
before. I had not either. As a matter of fact, when I heard
them read, I thought at least in one case they were being
presented as your words, and then come to find out, because you
astutely asked a question, you found out they were actually
somebody else's words. So I did look into reading them. There
is a reason why you do not have them, and that is because they
are clearly marked ``committee confidential.''
Senator Lee brought up the point when the gentleman from
New Jersey was speaking that we would work hard to try and look
and see if we could get those documents cleared, but I also
point out that those documents were made available to everybody
on this Committee, any staff who supports the Senator on this
Committee, on August the 22nd. And the last confirmation
process with Neil Gorsuch, Senator Feinstein availed herself of
that courtesy to be able to look at documents and have them
cleared. In this confirmation hearing, Senator Klobuchar did
the same thing.
The reason why it is very important for Members of this
Committee to honor the confidentiality requirements is because
we become stewards of documents that were provided under the
Presidential Records Act. Now, we are going to go back and try
and clear these documents. I would encourage all my colleagues
that if you have not taken the time in the weeks that these
documents were available to go through a process that Chairman
Grassley has honored, please do so before you disclose such
information before this hearing. So we will see whether or not
that information is made available. And I will assume that
Senator Lee will work alongside Senator Booker to see if that
is possible.
I also want to go back to Kozinski for a minute, and you
can actually take a break and drink some water because I do not
really expect you to respond to any of this. I am going to get
to a couple of questions. You were asked about Judge Kozinski.
I think you were a clerk for him about 27 years ago. But you
were not allowed to answer those questions. And I am not going
to ask you about any of them right now, but I really want to
kind of lay the groundwork for maybe where we can go with
questions tomorrow. It has given me some food for thought on
maybe where I will go down that line if others do.
You know, it is one thing for the people in the back to
speak over you and make it difficult to hear, but I find it
particularly insulting when Members here ask you questions of
what I consider an incendiary nature and really never give you
a chance to respond.
So here is a question I want--well, maybe I will ask you
this. Are you Judge Kozinski?
Judge Kavanaugh. No.
Senator Tillis. Okay. Because all of this was about
somebody's else behavior for whom you clerked 27 years ago. You
do not even have to answer that. So some of my colleagues are
arguing, because you clerked with him and you knew him, that
you knew everybody about him. Now, this is what is interesting
to me. It turns out you are not the only judge that we have
considered who clerked for Judge Kozinski. President Obama
nominated and the Democrats voted to confirm Paul Watford on
the Ninth Circuit. He clerked for Judge Kozinski. And actually,
when the Ranking Member introduced him, she highlighted that
fact. And, as a matter of fact, Judge Watford, I believe,
worked with Judge Kozinski on the Ninth Circuit Court for about
5 years. I think that is right, about five and a half years.
So I do not want you to respond to this either, but if we
are going to ask somebody who clerked for a judge 27 years ago
why did you not know everything about that judge, then I think
perhaps I would like to get copies of letters from Members of
the Senate here who should be sending letters to Judge Watford
and asking him the same question.
And now let us go a little bit further because I think we
have got a double standard going on here. We had a Member in
the U.S. Senate faced with a number of allegations for sexual
harassment by women. When those allegations surfaced, it even
included photographs in terms of the behavior in question. And
when reporters asked Members about their thoughts on that and
whether or not the Member should resign, they said that is not
a distraction that we should be dealing with here in the
Senate.
So I feel like tomorrow, if we go down this path, then we
should be prepared to make sure that we fully explore the
double standard and perhaps the questions that we should have
for other people who worked with Judge Kozinski.
Now, I want to get to Rice v. Cayetano, and I want you to
go back very quickly, and the thing that you have said multiple
times I think is very important because we have had a number of
discussions here about Voting Rights Act and denying various
people the right to vote. And this particular case, this case
was about potentially denying people in the State of Hawaii the
right to vote based on their ethnicity, Latinos, African
Americans, Asian Americans. Can you tell me a little bit more
about that? And be brief. I am going to try and be brief just
so I can yield back some of my time.
Judge Kavanaugh. Yes. It was the Office of Hawaiian
Affairs, and it was a State office, however, and they
restricted voting for that office and denied voting to people
who were residents and citizens of Hawaii but who were not of
the correct race, and therefore, African Americans and Latinos
and, as you say, Asian Americans, Whites in Hawaii were barred
from voting for that office. And the Supreme Court held that
that was a straightforward violation of the Fourteenth and
Fifteenth Amendments to the U.S. Constitution.
Senator Tillis. And I believe you said by a 7-to-2----
Judge Kavanaugh. By a 7-to-2 majority in an opinion written
by Justice Kennedy.
Senator Tillis. Okay.
Now, I actually have to get to one fun thing that you may
have to do some damage repair on. Yesterday, when you
introduced Margaret and Liza, you told me that Liza, you end
every night--she gives you a hug. You said she gives the best
hugs in the world. Today, you mentioned to Senator Graham that
Margaret came down and gave you a second hug.
Judge Kavanaugh. She did.
Senator Tillis. So I was wondering if those competitive
instincts are at play where she is trying to make up with
quantity over quality.
Judge Kavanaugh. It is possible. As I think I said----
Senator Tillis. I am sure it was an act of love, but it
could have been competitive, too.
Judge Kavanaugh. Margaret is 13 now, and when you are 13,
the hugs are fewer and far between, but----
Senator Tillis. That is right.
Judge Kavanaugh. She came down last night and it was very
nice. She gave me a special extra hug.
Senator Tillis. In the next couple of minutes I want to
talk about--you know, we had people here talk about you being
an advocate for big business, an advocate for the rich, that
you would be somebody who would be beholding to your boss or at
least the person who nominated you.
So I want to go back through in just a couple of minutes
and talk about a few things that have been discussed but I
think they bear repeating, and I think that they--and the first
one we need to add a little bit of context. I was in the White
House when the President announced your nomination, and I
believe in your comments you mentioned that the first date that
you had with your wife Ashley was on September the 10th. Is
that right?
Judge Kavanaugh. That is correct----
Senator Tillis. September the 10th----
Judge Kavanaugh. September the 10th, 2001.
Senator Tillis [continuing]. 2001.
Judge Kavanaugh. Yes, and I----
Senator Tillis. And we know what happened the next day.
Judge Kavanaugh. Yes.
Senator Tillis. And all the terrible events that you had to
deal with, including your President that you have said every
day came in the office and said this can never happen again.
And that was the culture for the whole time you were in the
office.
So then you moved forward a few years later and you are on
the Circuit and you do Hamdan v. United States. Now, you had
personally experienced an evacuation of the building that you
thought could potentially be at risk. You worked with the
President, who was personally very much invested in trying to
protect the American people. And then you had this case. And in
this particular case, tell me what you did.
Judge Kavanaugh. The case involved Salim Hamdan, who had
been an associate of Osama bin Laden's, and the case came to us
through a military commission conviction. And the question was
whether it violated ex post facto principles, and what that
means was were you being convicted of something that was not a
law in place at the time you committed the act.
Senator Tillis. I read your opinion, and basically you said
that----
Judge Kavanaugh. I said it was a violation.
Senator Tillis. Right.
Judge Kavanaugh. Yes. So we reversed the conviction of
Hamdan. In that case, I wrote the majority opinion in that
case.
Senator Tillis. Incidentally, I mentioned yesterday there
was probably a couple of cases that I did not like the way you
ruled--that is one of them--but you did it for the right
reasons. There is another one, EMILY's List v. FEC. Tell me a
little bit about that one. We all know who EMILY's List is.
They proudly support promoting abortion rights and pro-choice
Democratic women candidates. I went on their website today to
confirm that that is still out there. Tell me what you did on
that case.
Judge Kavanaugh. They were challenging FEC--Federal
Election Commission--registrations that prohibited how much
money they could raise and how they could raise it, and I wrote
the majority opinion invalidating those restrictions. And I
wrote the opinion ruling for EMILY's List in that case.
Senator Tillis. Another one, it is another one that I find
interesting, did not like it but understand why you did it,
Republican National Committee v. FEC.
Judge Kavanaugh. In that case, the Republican National
Committee was challenging some restrictions on fundraising,
donations to, contributions to the Republican Party and
Republican Party committees in the wake of--well, in the wake
of Citizens United, they were arguing that certain other
aspects of McConnell v. FEC were no longer good law. I wrote
the opinion rejecting that challenge and ruling for the Federal
Election Commission against the Republican National Committee
in that case.
Senator Tillis. I want to go back to another one. It
involved another boss, actually a boss, a prior boss who was
sitting right down there as the introducers yesterday, and that
was Adams v. Rice. Tell me about that case.
Judge Kavanaugh. That was a discrimination case involving
someone who had had breast cancer in the past and was
discriminated against in her job on that basis and joined an
opinion ruling that that was unlawful discrimination and ruled
against the Government in that case. In that case, the
Secretary of State, in her official capacity, but the
Government in that case, ruled against them.
Senator Tillis. And some have said that you are not for the
employees, you are also big for the big corporations. Tell me a
little bit about Stephens v. U.S. Airways.
Judge Kavanaugh. That was a case where I wrote in favor of
a group of retired airline pilots who were in a dispute about
their retirement compensation with U.S. Airways, and I wrote an
opinion favoring the pilots in the litigation against U.S.
Airways.
Senator Tillis. And, you know, if we go a little bit
further, I think you already covered U.S. v. Nixon, so I will
not cover it there, but I think maybe one or two that I will
ask you about. Tell me a little bit about your environmental
cases, the American Trucking case.
Judge Kavanaugh. That was a case involving a California air
quality regulation, and the argument by industry was that that
regulation was impermissible under the Federal environmental
statutes and Federal environmental law and, in essence--I am
simplifying for effect here--but in essence preempted or
impermissible. And I wrote the majority opinion rejecting the
industry's challenge in that case, which allowed the California
law to stay in effect. There was a dissenting opinion in that
case that would have cast doubt on or validated the California
regulation. I wrote the majority opinion sustaining it.
Senator Tillis. There were other people--and, you know, I
know that there were some in the crowd that expressed a concern
about this, but there were some people here who have suggested
that somehow you are unfriendly to the LGBTQ community. If my
information is correct, back as early as 2003, you participated
in a meeting with some 200 members of the Log Cabin Republicans
to solicit their input and feedback. And I was just kind of
curious if you have any recollection of that meeting and really
what prompted you to go there.
Judge Kavanaugh. So as a member of the administration
working in the White House Counsel's Office on judicial
nominations in particular but other issues as well, we would
have outreach to groups, and one of the groups was the Log
Cabin Republicans. And I went and spoke to them as a
representative of the Bush White House to talk, as I recall,
about judicial nominations. And I cannot remember all the
specifics. I might have talked about some of the other Bush
administration initiatives and received feedback on that. And I
do recall that.
Senator Tillis. Well, I am glad you did that. I also think
it is interesting again because some people have not
necessarily given you a chance to answer the question but have
suggested you would be unfriendly to the LGBTQ community. The
Human Rights Campaign ultimately put a statement out that said
that in fact you have never been involved in any substantive
legislation involving LGBTQ issues. Is that correct?
Judge Kavanaugh. I do not believe I have had any cases
involving----
Senator Tillis. Lawrence v. Texas, Romer v. Evans, United
States v. Windsor, Obergefell v. Hodges, Bowers v. Hardwick,
and they made it very clear that you have not been involved in
any of that.
Judge Kavanaugh. Those cases were not through our court,
and I am not remembering any specific cases as a judge that I
have had involving those issues.
Senator Tillis. Well, I would hope that if it comes up
tomorrow, that perhaps they have found some evidence that you
have, because we have not.
So I am going to try and do what I did yesterday and be the
Member who spoke the least, but I am going to do something a
little bit different because I found out that I can. I am not
going to yield back my time. I am going to potentially reserve
it for use tomorrow. But since I am at the end of the dais, I
will probably be going last, and I probably will not.
So I just want to again thank you for being here. I want to
particularly thank the people that have been sitting in the
chairs. You have got the most uncomfortable position in the
Chamber, but you have got a far more comfortable chair than all
the people sitting behind you, and I am sure they are ready to
get up, but we appreciate you being here.
And I do also--I have got some wrap-up comments. I actually
want to thank the Members on both sides of the aisle because,
consistent with my old Speaker self, I have been keeping a
running total on exactly just how many people went over and how
much time, and they did an extraordinary job, given the
complexity of the issue.
And, Senator Whitehouse, I will add that, technically
speaking, you yielded back time, about 3 seconds. You may want
to bring that in tomorrow.
[Laughter.]
Senator Whitehouse. I will use it wisely.
[Laughter.]
Senator Tillis. But I think it was a sea-change difference
in terms of what we saw here at the dais, and I think it is the
right way to run these Committees.
So, Judge Kavanaugh, I want to thank you. I want to thank
you for your patience; I want to thank you for your stamina.
And the good news is you are more than halfway done. These were
30-minute rounds. Tomorrow will be 20-minute rounds, and I
suspect that the Chair will also ask Members to try and stay
within their time limits.
So we will be back here tomorrow morning at 9:30.
For the information of all the Members, we will stand in
recess and reconvene tomorrow at 9:30 for the 20-minute rounds.
Thank you.
Judge Kavanaugh. Thank you, Senator.
[Whereupon, at 10:07 p.m., the Committee was recessed.]
[Additional material submitted for the record for Day 2
follows Day 5 of the hearing.]
CONTINUATION OF THE
CONFIRMATION HEARING ON THE
NOMINATION OF HON. BRETT M. KAVANAUGH
TO BE AN ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES
----------
THURSDAY, SEPTEMBER 6, 2018
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:33 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
Booker, and Harris.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Well, Judge, I see you got here without
my walking you in.
[Laughter.]
Judge Kavanaugh. Good morning.
Chairman Grassley. Good morning, and welcome back, of
course, and that is to all the people that are here for 3 days
as well as the people that might be here just for a few
minutes. Everybody is welcome. Your testimony yesterday over a
nearly 30-hour day made very clear that you have a strong
command of the law, and even Ranking Member Feinstein said that
you were forthcoming in your answers to questions. Your 12
years of exceptional judicial service, and that obviously
includes your 307 opinions that you wrote and hundreds more
that you joined in, make you very well qualified to receive a
promotion from the second highest court in the land to the
highest court in the land, and we will have the American Bar
Association in tomorrow that will say particularly the same
thing.
I am particularly impressed with your lifetime of public
service that tells something about you, but also more so than
your 12 years, what you have done as an outstanding professor.
You have talked a great deal about being a coach for your
daughters. You have talked a great deal about volunteering for
meal service. I have only done that once in my life, so--and I
should do it more, but you do it regularly, so you are to be
complimented, and, most importantly, being a father.
And, of course, I have enjoyed conversation with your wife
and two daughters, and my wife was here yesterday, and she was
talking about that all night, talking to your wife I mean.
Judge Kavanaugh. Thank you.
Chairman Grassley. And I heard some of my colleagues on
the--I have had some of my colleagues, as I get into some of
the business of this Committee, complain again yesterday about
publicly releasing committee confidential documents. But anyone
who did not get documents released to use during the hearing, I
have to say, as I have tried to cooperate and make everything
available to everybody that they wanted, they only have
themselves to blame if they did not get the documents they
wanted.
This is what I did a long time ago, sent a letter to each
Member of this Committee on August 22nd, and a short quote from
that is, ``I invite all Members of the Committee to submit to
me by noon, August the 28th, a list of document control numbers
specifically identifying committee confidential documents, or
documents publicly released with redactions, that a Member
wishes to use in the hearing.'' And I said I would work with
the former and current President to secure their public
release, and that meant working with lawyers in the Department
of Justice on redaction and all that stuff.
Senator Klobuchar was the only Senator who requested the
release of specific documents, and we secured their release.
And as she told me yesterday, she gets an A for cooperation.
She does get an A for her cooperation. Every Senator who
complained about this process needs then to only look to
Senator Klobuchar as an example to see that my process was fair
and would have resulted in public release of documents before
the hearing if they had only asked me.
But then yesterday, and I think we have accommodated these
Senators, but Senator Leahy, Coons, Blumenthal, and Booker
asked that I obtain the public release of certain confidential
documents, and I have attempted to do so despite the untimely
request. These Senators could have made the same request last
week, but maybe that would have deprived them of more talk that
they have been able to express about my hiding of documents.
With respect to Senator Booker's question to Judge
Kavanaugh, my friend my New Jersey asked the nominee to answer
some questions regarding an email exchange from over 15 years
ago without showing the nominee the email in question. And then
you know what happened? The Senator from New Jersey blamed it
on the fact that the email was labeled ``committee
confidential.'' Well, there was nothing preventing any Senator
from asking me before the hearing to get this document publicly
released. In fact, the request was made to release these
documents for the first time last night after the Senator asked
the question of the nominee. We did not get some requests until
after midnight.
And we have--we, quite frankly, had to have quite an
argument with people in the Department of Justice to get these
released and all the redactions that have to be done. What
Senator would want to release their emails with all the emails
and everything without redaction of phone numbers, Social
Security numbers, addresses, and Social Security numbers? That
all has to be done under law to reduce this. But I think that
we have the Department of Justice cooperating with that, so
before this day is over, Members will have the documents that
they need to ask the questions that they want to ask.
Now, before I ask my questions, and one Senator wants to
make a 30-second comment. I am willing to turn to that, but let
me say, each of our 21 Senators on the Committee get to ask
questions for the 20-minute round. Every couple of hours we
will take a break, and that would include a lunch break. And,
Judge, if you need a break at any time, have your staff inform
my staff. And, as is the standard practice for every judicial
nominee, the FBI conducts a background investigation and
provides to the Senate a background report. Moreover, like with
prior nominees, including Justices Kagan and Gorsuch, there are
a number of Presidential records that are restricted by Federal
law from public release because they contain sensitive
information, including highly confidential advice delivered to
the President, and personal identifying information such as
full names, date of birth, and Social Security numbers.
So, at the end of the questions today, we will move, as we
have before, into a closed session with the nominee where we
will review the FBI report and any committee confidential
records that any Member would like to discuss. This is standard
practice that we do for all Supreme Court nominees, and every
Member is invited to participate.
Now I would like to call on Senator Hirono.
Senator Hirono. Thank you very much, Mr. Chairman. I wanted
to set the record straight on a matter that was brought up late
last night with regard to me and my questioning of Judge
Kavanaugh and his relationship to Judge Kozinski, and whether I
would ask Judge Watford the same questions. I would like to
quote from my response to the Washington Times on September
4th, 2018. And that quote is, and this is from me, ``If
President Trump would be so enlightened as to withdraw Judge
Kavanaugh's nomination and nominate Judge Watford to the
Supreme Court, I would certainly ask Judge Watford about his
relationship with Judge Kozinski.'' Thank you very much, Mr.
Chairman.
Senator Booker. Mr. Chairman.
Chairman Grassley. Senator Booker, before you speak, I hope
that you are not going to say that we have not gotten the
document you want and all that sort of thing because we
worked--my staff was here until 3 trying to accommodate
everybody that asked for documents. Would you proceed, please?
Senator Booker. I appreciate that, sir. And, sir, the very
section of the process that you read points out the absurdity
of the process, and that is what is deeply frustrating to me
and deeply disappointing. The process you read, you invite
Committee Members ``to submit to me by noon, on August 28th, a
list of document control numbers specifically identifying the
committee confidential documents or documents publicly released
with redactions that the Members wish to use in the hearing, so
long as it is a reasonable request,'' so no guarantee that we
will be able to use them, but to submit the ones we want to ask
questions about. And then you will go back to President Trump,
go back to President Bush for review.
Now, I see that plainly--sir, if I could just finish my
point. We were--we had a number of those documents released to
us the night before, and to think that we could somehow ask you
about the documents, reveal to you what questions we wanted to
ask, and then it is not even your determination. It goes back
to Bill Burck, who is then making a determination about
documents. Now, the specific document that I brought up is a
great illustration of the absurdity of the process.
I brought up a document entitled, ``Racial Profiling.'' And
by the way, I asked the candidate about his views today about
that issue. It is a controversial issue, and that document
actually does reveal his thinking about that issue at the time.
And the fact that there is nothing in that document that is
personal information, there is nothing national security
related, the fact that it was labeled as ``committee
confidential'' exposes that this process, sir, is a bit of a
sham; that we are now--this has never been before. We are
holding back not only--not only holding back documents labeled
``committed confidential,'' but not even giving us the time to
review those documents.
In addition to that, this is just the tip of the iceberg of
all the documents that will continue to be released, I assume,
up until the time that we have a vote on the Senate floor and
beyond that. I am sure you can understand, sir, how it puts all
of us in a very difficult situation when it is not you. It is
somebody--you have to then go back to a person named Bill Burck
to decide if some document, who is an associate--who is an
associate and colleague of the nominee to figure out which
documents are going to be released.
And by the way, if all these documents were things, as you
characterized them, they were personal information, if these
were things that were delicate information. But as I read
these, the documents we got the night before the hearing,
including the ones we got before the hearing, I find it--I am
actually flabbergasted that so many of these things are not
controversial whatsoever, but bring up pertinent issues that we
should have a time to digest and to ask the candidate about.
Chairman Grassley. Okay.
Senator Cornyn. Mr. Chairman?
Chairman Grassley. I think--can I--I will call on you, but
I think I ought to respond to the Senator. I would like to
respond at least on two points, one, the word ``sham.'' Senator
Leahy, Chairman of the Committee, accepted documents, committee
confidential. During Gorsuch's nomination, we accepted
committee documents--committee confidential. At that particular
time, Senator Feinstein asked for 19 documents as we are
getting documents for you now in the same way.
So, you read from my letter and you called it a sham. Was
it a sham when we did it for Gorsuch? Was it a sham when
Senator Leahy did it? And the reason we did it is so that we
could get documents so you could review them almost from, I
think, August the 5th or some time--maybe it was August the
10th--so you could start on it very early. And then do not
forget that documents become committee confidential, and then
do not forget on a regular rolling basis, they are not
committee confidential and then put on our website so that 300
million people can view them if they want to.
And then the second point about the lawyer for President
Bush, all of our conversations last night were with the
Department of Justice. Now, I hope you understand that these
people in the Department of Justice are people that are there
for years under both Republican and Democrat administrations.
They are supposed to be non-political. I hope they are non-
political. They are civil servants. We ought to respect their
judgment as they try to take care of the privacy of people by
redacting late into the night Social Security numbers, phone
numbers, cell numbers, and all those sorts of things.
Senator--and then we also have Senator Whitehouse, but I
want to go and let him comment.
Senator Blumenthal. Senator Grassley, may I be recognized
after Senator Whitehouse?
Chairman Grassley. Yes.
Senator Cornyn. Mr. Chairman, thank you. I was disappointed
to see last night that some of our colleagues are unwilling or
unable to conduct themselves in this hearing with regular order
and in accordance with the Rules of the Committee and the Rules
of the Senate. I know last night some of our colleagues even
tried to cross-examine the nominee about documents, but refused
to let him even read them.
Members of the Senate and Members of Congress generally are
privy to sensitive information, including classified
information on occasion, and we are expected to protect that
information for all of the obvious reasons. And it is
inappropriate to raise these in an open session before the
Committee. And I think our colleagues understand that, but
nevertheless decided to go ahead anyway. So, I just think it is
important that we remind one another that there are clear rules
about the discussion of confidential material, and that there
can be consequences to the violations of those rules. And this
idea that somehow President Bush, when his lawyer and the
President decide that information represents legal advice or
other protected information that was given to the President
during the time he was President of the United States, and that
somehow he is unable to make a claim of privilege, or that once
the claim is made in consultation with his private lawyer that
that would be not respected by the Senate is outrageous.
And so, I just--I thought we were doing pretty well
yesterday, but things went of the rails, it looks like, last
night. And I hope we will return to a hearing process that
respects the Rules of the Senate and that treats each other and
particularly the nominee with the civility that he and this
process is entitled to. And I would encourage our colleagues to
avoid the temptation to either violate the Senate Rules or to
treat the witness unfairly by cross examining him about a
document and refusing to show it to him, and violating the
confidentiality of some of these documents as requested by
President Bush in consultation with his private lawyer.
Senator Booker. Sir, maybe I respond because it was a
direct--it was directly invoking--may I respond, sir? No Senate
rule accounts for Bill Burck's partisan review of the
documents. No Senate rule and no history of the Senate accounts
for what is going on right now. There was a--that was following
this archive's--this partisan operative following his
involvement in this process that I think, in my opinion,
undermine the process. And the idea that we could somehow go
through your lengthy process and these documents are--many of
these documents were dumped on us at the last minute.
But Senator Cornyn actually made a very good point. I
knowingly violated the rules that were put forth, and I am told
that the committee confidential rules have knowing
consequences. And so, sir, I come from a long line, as all of
us do as Americans, to understand what that kind of civil
disobedience is, and I understand the consequences. So, I am
right now before you--before you process is finished, I am
going to release the email about racial profiling, and I
understand that that--the penalty comes with potential ousting
from the Senate. And if Senator Cornyn believes that I have
violated Senate Rules, I openly invite and accept the
consequences of my team releasing that email right now.
And I am releasing it to expose, number one, that the
emails that are being withheld from the public have nothing to
do with national security, nothing to jeopardize the sanctity
of those ideals that I hold dear. Instead, what I am releasing
this document right now to show, sir, is that we have a process
here for a person--the highest office in the land for a
lifetime appointment. We are rushing through this before me and
my colleagues can even read and digest the information. And I
want----
Chairman Grassley. Can I ask you--can I ask you--can I ask
you how long you are going to say the same thing three or four
times?
Senator Booker. No, sir, I am saying--I am saying----
Chairman Grassley. How long do you want to take?
Senator Booker. I am saying I am knowingly violating the
rules.
Chairman Grassley. Okay.
Senator Booker. Senator Cornyn called me out for it.
Chairman Grassley. How many times--how many times are you
going to tell us?
Senator Booker. Sir, I am saying right now that I am
releasing--I am releasing committee confidential documents.
Senator Cornyn. Mr. Chairman----
Senator Kennedy. Mr. Chairman.
Senator Cornyn [continuing]. Since the Senator invoked my
name, can I insist on an opportunity to respond?
Chairman Grassley. Yes.
Senator Cornyn. I did not mention his name----
Chairman Grassley. Okay.
Senator Cornyn [continuing]. But he mentioned my name, and
he is right. Running for President is no excuse for violating
the Rules of the Senate or of confidentiality of the documents
that we--that we are privy to. This is no different from the
Senator to release classified information that is deemed
classified by the executive branch because you happen to
disagree with the classification decision. That is
irresponsible and outrageous, and I hope that the Senator will
reconsider his decision because no Senator deserves to sit on
this Committee or serve in the Senate, in my view, if they
decide to be a law unto themselves and willingly flout the
Rules of the Senate and the determination of confidentiality
and classification. That is irresponsible and conduct
unbecoming a Senator.
Chairman Grassley. Since----
Senator Kennedy. Mr. Chairman----
Chairman Grassley. Well, just a minute----
[Voice off microphone.] Mr. Chairman.
Chairman Grassley. I have got something I want to say. I
think we ought to be thinking about this is the last--I got
three Senators are asking for--Senator Kennedy, Senator
Whitehouse, and the Senator from Connecticut.
Senator Hirono. And, Mr. Chairman, I would like to also be
recognized.
Chairman Grassley. So, here is--this is the last day, so
here is something you got to think. We will be here until
midnight if you want to be here, but I have been told that the
Senate Minority Leader or somebody in the Democrat Party
invoked the 2-hour rule. So, if the 2-hour rule is invoked,
that is--nobody on this Committee, Republican or Democrat, is
going to have an opportunity to do what they want to do today
because this is the last day he is going to be here. And so, I
hope you do not invoke the 2-hour rule. So, if you want to talk
now before I start to ask my questions, I will do it.
Senator Whitehouse was the next one, and then Senator
Kennedy.
Senator Whitehouse. Thank you, Mr. Chairman.
Senator Hirono. Mr. Chairman, I would also like to be
recognized because I am in a similar situation as my colleague
here.
Chairman Grassley. Senator Whitehouse. I think--I think he
asked before you did.
Senator Durbin. He did.
Senator Whitehouse. Mr. Chairman, you recognized for 30
seconds, and I will take 30 seconds. Lest silence imply
consent, speaking for myself, I want to make it absolutely
clear that I do not accept the process of this committee
confidential routine that we went through. I do not accept its
legitimacy. I do not accept its validity. Because I do not
accept its legitimacy or validity, I do not accept that I am
under any obligation.
I have not made a big fight about this. I have just gone
ahead with my questioning. But, again, lest silence imply
consent, I think that that rule is as ineffectual as if the
Chair had unilaterally repealed the law of gravity. It simply
is not so. I have not agreed to this rule. I have not voted on
this rule. This rule does not exist in our Committee or Senate
rules, and I will leave it at that.
Chairman Grassley. Did you----
Senator Whitehouse. Just me speaking. I am not willing to
concede that there is any legitimacy to this entire committee
confidential process in this hearing.
Chairman Grassley. Was it just----
Senator Whitehouse. And nothing sensitive, nothing
personal, nothing classified, and nothing confidential has been
released.
Chairman Grassley. Did you object to it when it was
previously used under other Supreme Court nominees?
Senator Whitehouse. It was developed then through a
bipartisan process in which----
Chairman Grassley. Okay.
Senator Feinstein. That is correct. That is correct.
Senator Whitehouse [continuing]. We had reached an
agreement by unanimous consent effectively, not by decree.
Senator Feinstein. No, there was agreement between----
Chairman Grassley. Okay.
Senator Feinstein [continuing]. The Chairman and me.
Senator Whitehouse. Precisely, and that did not exist this
time. And now you have documents that are not personal, not
classified, not confidential, not sensitive that are
nevertheless covered under this----
Chairman Grassley. Senator Kennedy.
Senator Kennedy. Mr. Chairman, I was in the Chair last
night when this issue came up. I made the call when I--I want
to explain why I made it. Senator Tillis my colleague, raised
the point. I allowed Senator Booker to continue. Sometimes
patience ceases to be a virtue, but I did not think in these
hearings following the Chairman's example that that was
appropriate.
Senator Booker examined Judge Kavanaugh about the racial
disparities in this country. I gave Judge Kavanaugh, I think
I--it was 6 minutes and 39 seconds to respond uninterrupted.
So, I was trying to be, and we will continue that, was trying
to be fair to both sides following the example of our Chairman.
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman. There has been
a lot of commentary over the last couple of days about how we
are in uncharted and unprecedented territory here, that the
process has broken down, reflecting what is happening in our
Nation generally, and particularly in the last couple of days
with the publication of a new book and an op-ed that indicate
very serious chaos and breakdown in other parts of Government.
And I am hoping that we can come together as a Committee, and
if there are any rules, do what we have done in the past, which
is adopt them on a bipartisan basis. That has been the way that
``committee confidential'' designation----
It is not classification. There are no classified documents
here. It is a designation. It is an arbitrary and seemingly
capricious designation designed to spare people embarrassment
possibly, but all these documents belong to the people of the
United States. They are covered by the Presidential Records
Act, and eventually they will come out. So, shame on my
colleagues if they conceal them now and deny us the benefit of
questioning this nominee who comes before us for the last time
today. He comes before us for the last time today. This is our
last opportunity, up or down, whether he is confirmed or not,
to question him.
And like any trial lawyer, documents have to be assessed as
the trial goes on, as this witness responds to our questions.
We cannot give the Chairman a list of what documents are
relevant before we hear his answers and our colleagues'
questions. So, not only from the standpoint of there being no
basis for the rules, but also to deny the fairness and
effectiveness of the process, that is the reason that we are
making this protest and we are here under protest.
That is the reason why I asked to adjourn so that we could
consider fairly all of these documents. I appreciate that
Senator Grassley has decided to release the documents that I
would have used yesterday. He has released the documents that
Senator Booker, commendably, would have released even if not
reclassified or re-designated. But I want to reserve the
right--I hereby reserve the right to release documents before
any confirmation vote so that my colleagues can see what the
truth is.
We are literally trying to get at the truth here, and
between now and any vote on confirmation, there is the right,
in my view, on the part of every Member of this Committee to
release documents that she or he believes are appropriate. And
to delegate this decision to an unappointed, and unconfirmed,
and largely unknown figure, Bill Burck, who used to used to
work for the nominee, is the height of irresponsibility. Thank
you.
Senator Lee. I want to start by pointing out that when this
part of the discussion started last night, I was concerned that
as with any witness in any courtroom or any proceeding before
this Committee, I want to make sure than when a witness is
questioned about a particular document, the witness has access
to that document. It is not fair to the witness. The witness
who has over the course of his career been involved in the
creation, the authorship, the review of not just hundreds of
thousands, but many millions of documents in his lifetime. It
is not fair to this witness or any other witness in any other
proceeding anywhere to not give the witness a copy and allow
him to respond to it while he is being questioned about it.
So, that is why I offered to Senator Booker--and Senator
Booker and I had a helpful conversation with the very helpful
Committee staff last night, and they have agreed in the
meantime to release this same document that was now the subject
of it. So, the process worked. It works. We do have the ability
to make these things available, to make them public so that we
can be fair to Senator Booker, we can be fair to the witness,
to the nominee.
I do want to point out since the charge has been made that
this process is somehow rigged, that it is charged, that it is
unfair, that it is arbitrary and that it is capricious, I
completely disagree. We are not dealing in a lawless
environment here. We are dealing here with the Presidential
Records Act. We have got documents that are the subject of
privileges, privileges that have to be asserted.
Now, Bill Burck is the designee for that Presidential
administration, and has the prerogative of asserting
privileges. But through an accommodation with the Senate, with
the Senate Judiciary Committee to allow us to gain access to
other documents to which we would never otherwise be able to
have access, they have agreed to hand those over with the
understanding that we have this committee confidential process,
and that there are means by which we can clear documents like
this one that we would otherwise not be able to clear. It
worked here. It has been cleared, and I think we should move
forward. Thank you.
Senator Hirono. Mr. Chairman.
Chairman Grassley. Senator Durbin or Senator Feinstein,
whichever one wants to go first.
Senator Durbin. No, I would defer to Senator Feinstein.
Senator Feinstein. Well, I will accept it. Thank you. It is
my understanding that by agreement with private lawyer, Bill
Burck, the Chairman has designated 190,000 pages of Kavanaugh's
records ``committee confidential.'' And by doing this,
Republicans argue Members cannot use these documents at the
hearing or release them to the public. Unlike the Intelligence
Committee, and I have been a Member for about 2 decades, the
Judiciary Committee does not have any standing rules on how and
when documents are designated ``committee confidential.''
Previously, the Judiciary Committee has made material
confidential only through bipartisan agreement. That has not
been done in this case, so this is without precedent.
Republicans claim that Chairman Leahy accepted documents on
a committee confidential basis during the Kagan administration.
It is my understanding that those documents were processed
through the National Archives, not private partisan lawyers,
and Republicans agreed. Ninety-nine percent of Elena Kagan's
White House records were publicly available and could be used
freely by any Member. By contrast, the Committee has only 7
percent of Brett Kavanaugh's White House records, and only 4
percent of those are available to the public. No Senate or
Committee rule grants the Chairman unilateral authority to
designate documents ``committee confidential.'' So, I have no
idea how that stamp, ``committee confidential,'' got on these
documents.
I sent a letter on August 10th, 2018 objecting to the
blanket designation of documents as ``committee confidential.''
I offered to work with the Chair. He refused. Judiciary
Democrats sent the Chairman a letter on August 28th restating
the objection to the Chair's designation of the documents as
``committee confidential'' and requesting public release. As I
have looked at the documents that are committee confidential,
they do not affect any of the usual standards that would deny
Committee confidentiality, and, Mr. Chairman, I think that is a
problem.
I think we are entitled to all records, and I think the
public is entitled to all records that are appropriate and do
not put forward personal information or information that
otherwise should not be disclosed. So, I do think we have a
problem, and I think for the future we ought to settle that
problem with some kind of a written agreement between the two
sides, whether that is an agreement between the two sides of
the entire Committee or between the Chairman and the Ranking
Member, I think does not matter much. But I think the fact is
that we should agree on who determines something is ``committee
confidential,'' what the criteria are for it, and the release
to the public, and particularly in the event of a Supreme Court
hearing.
Chairman Grassley. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman. And like my
colleague, Senator Whitehouse, I do not want my silence to be
interpreted as consent to the process that we have faced before
this Senate Judiciary Committee. It is unlike any process I
have ever seen. This designation of ``committee confidential''
should be put in historic context. There will be an opportunity
for us later this afternoon to meet in confidential and secret,
private session to discuss this nominee. That is not unusual.
It is done for virtually every nominee. Some of the meetings
literally last a matter of a minute or two and we say there is
nothing to talking and we are leaving.
But it has happened in the past, but whenever we dealt with
``committee confidential,'' it was something that was very
specific and usually personal to a nominee, and it was done by
bipartisan agreement that we would protect the nominee from
assertions or comments that may not have any truth to them
whatsoever, but the Committee should take into consideration.
That is a far cry from what we have faced with this nominee.
I cannot understand, and I said this in my opening
statement here, the authority that we have given to a man named
Bill Burck, a former assistant to the nominee; that we have
said to Mr. Burck, you will decide what America gets to see
about Brett Kavanaugh. You will make the decision as to which
documents we will be allowed to discuss openly and publicly and
which documents we cannot. Who is this man? By what authority
could he possibly be denying to the American people information
about a man who is seeking a lifetime appointment to the
highest court in the land?
The National Archives is usually the starting point of this
process. I put in the record yesterday a statement from the
National Archives disavowing this whole process, saying this is
not the way we have done in the past. We usually initiate this,
please give us a few weeks to do it in an orderly way. But the
decision was made by the White House and the administration not
to go down that path, not to take the same course we have on
previous nominees, but instead to allow this gentleman, Bill
Burck, a private attorney, the authority to decide what the
American people can see about the background of Brett Kavanaugh
in other capacities.
Who is Bill Burck? All that I know of him is that he was
once an assistant to the nominee. I am told that he is not only
the attorney for George W. Bush, but also for the White House
Counsel, Mr. McGahn, Mr. Preibus, the former chief of staff to
the President of the United States, and Steve Bannon, a man
whom I could not characterize in a few words, but he is his
personal attorney.
And in this situation, he is now the litmus test. He is the
filter to decide what the American people will see about this
nominee, and that is why we bring this issue before you. Lest
you think we are carping on a trifle here, we are talking about
whether the American people have the right to know, and we now
know that less than 10 percent of the documents reflecting the
public career of Mr. Kavanaugh have been made available to this
Committee.
And I just want to say to my colleagues, particularly my
colleague from New Jersey, I completely agree with you. I
concur with what you are doing, and let us jump into this pit
together. I hope my other colleagues will join me. So, if there
is going to be some retribution against the Senator from New
Jersey, count me in. I want to be part of this process. I want
to understand how Bill Burck, this private attorney, has the
right to say, as one of my colleagues mentioned, this should be
considered a classified document, a top secret document, a
document that relates to the national security of the United
States.
By what right, by what authority can Mr. Burck possibly
designate a document as ``committee confidential''? He has no
authority to do that. He only has authority because he has the
consent and the cooperation of the Republican Majority on this
Committee. That is the only thing that brings us to this
moment.
And let me just say in closing one last thing. I am sorry
that one of my colleagues has characterized all of us on the
Democratic side on the first day of this hearing as
contemptuous. I have never heard that said before in a full
Committee meeting, but it has been said. And I am particularly
sorry that he singled out one of our colleagues on this side
and accused him of conduct unbecoming a United States Senator.
I think statements like that are personal. They are
disparaging. They question the motive of a colleague, something
that we should do our very best to avoid in the United States
Senate if we are ever going to restore the reputation of this
body.
Senator Cornyn. Mr. Chairman?
Senator Hirono. Mr. Chairman?
Senator Cornyn. May I make just a brief point? Mr.
Chairman, I am looking at a Wall Street Journal article back
during the Elena Kagan nomination. It says, ``Document
production from Elena Kagan's years in the Clinton White House
Counsel's Office was supervised by Bruce Lindsay, whose White
House tenure overlapped with Ms. Kagan.'' Bill Clinton
designated Mr. Lindsay to supervise records from his Presidency
in cooperation with the National Archives Records
Administration under the Presidential Records Act. So,
President Bush, by choosing Mr. Burck, is doing exactly what
President Clinton did in choosing Bruce Lindsay for that same
purpose.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. Senator Hirono was first.
Senator Hirono. I thank my colleague. Count me in, too. Mr.
Chairman, I, too, referred to a so-called ``committee
confidential'' document, deemed such by one Bill Burck, and we
all know who he is at this point. And had the nominee asked me
for a copy of that so-called ``committee confidential''
document, I would have been happy to release to him or give it
to him. I am releasing that document to the press, and I would
defy anyone reading this document to be able to conclude that
this should be deemed confidential in any way, shape, or form.
Thank you.
Senator Klobuchar. Mr. Chairman, I know you have mentioned
a number of times that I went through the process. I do want to
point out, however, that I also was on numerous letters asking
for all these documents to be released, and that my colleagues
have repeatedly asked for documents to be released. And I go
back to what happened on the first morning of this hearing, and
that is that we pointed out that when there are 42,000
documents that are dumped on us in one night, there is
absolutely no way people are going to be able to adequately
review them. And as they review them, they are going to find
documents that they want to be made public, that they want to
ask the nominee about.
So, the whole point of this is because this hearing was
ramrodded through and we were not given, say, maybe the month
it would take to look at these documents, we are where we are.
So, my remedy for this, in addition to making it clear that I
join my colleagues that we support what Senator Booker is doing
here, is that you must somehow expedite the review of every
single document, and we must have some kind of rules in place
to get them out. I understand you would want to take out Social
Security numbers and things like that. That is normal. But we
simply cannot hide these documents from the American public. It
is the highest court of the land.
And I was looking back. Everyone was citing people--the
Founders of this country, and I found a quote that really works
here by Madison: ``A popular government without popular
information, or the means of acquiring it, is but a prologue to
a farce or a tragedy.'' That is what we are talking about here.
By ramrodding this through for political reasons, by denying us
the access to the documents, we are denying the public the
right to see what is out there, and it is just now how we do
things in my State, and it is not how we have done things in
this Committee.
Senator Coons. Mr. Chairman.
Chairman Grassley. I am going to call on Senator Lee, and
then you, but before that, a couple things she just reminded me
of in her comments. Number one was to take care of all the
people that did not act promptly, like you did, Senator
Klobuchar. That is why we extended it and gave the courtesy of
doing whatever anybody else wants from now, and those are--can
either be brought. Now those that you have got can be brought
up right now to him, and the things that you--that are not
cleared that you want to bring up with the Judge, you can bring
up in the closed session today.
And the other thing is when you talk about getting all the
documents, I do not know who might work for Members of this
Committee, sometimes want to be on the Supreme Court. For
instance, would you--we did not ask for all the documents that
Kagan had and emails or whatever communications she would have
had when she worked with Senator Kennedy. Would you--would you
want to be exposed to that sort of thing? If you want
everything to be made public or all the emails that you have,
whether--I think they are protected for 50 years for a United
States Senator. So, you are talking about the public right to
know, do you want to give up your emails right now, make them
public? I do not think you do.
Senator Lee.
Senator Lee. First of all, Mr. Chairman, I want to say I am
deeply sympathetic to the frustration people feel when they do
not have access to documents they want. As a United States
Senator, I have faced this on a number of occasions. There have
been times when we have been called upon to vote on legislation
literally at the midnight hour, sometimes much later than that,
that we have not seen until moments before it was voted on.
There have been other times, and I kid you not, when I have
been asked to vote on a piece of legislation that has an annex
to it, and I have been told that I cannot see the annex to the
legislation because it is classified and it is classified in a
way that I do not have access to because of a Committee
assignment that I do not have.
It is incredibly frustrating. In those circumstances, we
look for a demon. There are demons in those circumstances. They
are too numerous to name here. In this circumstance, there is a
demon, but that demon is a law of our own creation, and it is
called the Presidential Records Act. That is the demon that you
are after here. That is the only reason we have got this issue.
Now, the custodian of those documents holds and exercises a
privilege on behalf of the Bush administration. These are
documents we would otherwise not have access to because they
are privileged. Pursuant to an agreement with the Senate as an
accommodation to the Senate, the custodian of those records has
agreed, notwithstanding the privileged nature of those
documents, to hand them over to us with an understanding that
when there is a need that arises with respect to one or more of
those documents to make them public, we can as a Committee go
through a process to do that. That is exactly what has
happened. It is what has worked, and it is what has worked here
today.
So, if you are frustrated with the process, then let us
review the Presidential Records Act, but we are just doing what
the law allows us here to do. These documents are not ours.
They belong to someone else. It is not written into the
Constitution. It is not written on stone tablets anywhere that
we are entitled to documents that do not belong to us. It is
significant that William Howard Taft did not release his
Presidential papers. It is significant that Robert Jackson,
having served as Attorney General, did not release all the
papers he had as Attorney General. Why? Well, I assume it had a
lot to do with the fact that they did not belong to us as a
Senate.
If we want to be able to have a process not just with this
administration, but in every Presidential administration,
Democratic, Republican, or of other stripe in the future, we
need to respect the process and respect the privilege that is
accorded to documents that do not belong to us. That is all we
are asking, and the process is working. Let us move forward.
Senator Feinstein. Mr. Chairman?
Chairman Grassley. Yes.
Senator Feinstein. On behalf of this side, I would like to
just say a couple of things. There is no process for the
``committee confidential.'' It used to be that both sides had
to concur, the Chair and the Ranking Member, but now this is--
this is just simply not the case. To some extent with this kind
of thing, ``committee confidential'' becomes a kind of a crock,
and it should not.
I think we need to sit down. I think we need to have a rule
on how ``committee confidential'' is determined, on what it
means, and who makes that decision. For all I know, some
Republican staffer could have made the decision, and I just do
not know. Documents appear. Our side had nothing whatsoever to
do with the designation of ``committee confidential.'' So, it
becomes a way, if there is no rule, for the Majority to
essentially put all information through a strainer. Should we
let this go out, be public, or should we not? And I do not
think that is what this Committee is about.
Senator Booker. Mr. Chairman?
Chairman Grassley. Well, you know--you know, in the absence
of a majority of a Committee opposed, the Chairman acts on
behalf of the Committee, and Chairman Leahy accepted documents
on a committee confidential basis during Justice Kagan's
nomination. And there is no indication that the Ranking Member
agreed to that at that particular time.
Senator Coons.
Senator Coons. Thank you, Mr. Chairman. Just two quick
points if I could. First, the question has been raised whose
documents are these. These are the American people's documents.
The Presidential Records Act gives us a right to obtain them
for a Supreme Court nomination after the review of the
professionals at the National Archives, and Bill Burck is not a
professional at the National Archives. The Archives has said
that this is not their process.
Equally importantly, because some will now make dire
predictions about the appropriateness of the release of any
these documents, Bill Burck himself in his letter to us of
August 31st said, and I quote, ``The Presidential Records Act
exemption, one which protects against the disclosure of
classified information, did not apply to any documents our team
reviewed.''
I agree with Senator Booker. This confirmation is too
important for us to conceal documents that may reveal the
nominee's views, and I think we should not be proceeding under
these grounds.
Senator Booker. Mr. Chairman, may I be recognized, sir?
Chairman Grassley. I hope you do not say the same thing
again.
Senator Booker. Sir, I will not. And first of all, I will
say something that I have not said, which is I appreciate the
patience of Job that you are showing here. And I just also want
to say, too, the representations from Senator Kennedy and
Senator Lee were right on point, right on correctly. They stood
strong last night, challenged me, but they not only were
collegial, but they looked to find a fair way to deal with this
process, and I want to express my appreciation.
I want to clarify something that I said before. There is no
Senate rule that accounts for this process, period. This is not
a Senate rule. I did not violate a Senate rule.
[Disturbance in the hearing room.]
Senator Booker. I will pause. I will pause. There is no
Senate rule that I violated because there is no Senate rule
that accounts for this process. And I say to a Chairman that I
respect, that I believe has been fair and good to me, I will
say that I did willingly violate the Chair's rule on the
committee confidential process. I take full responsibility for
violating that, sir, and I violate it because I sincerely
believe that the public deserves to know this nominee's record,
in this particular case, his record on issues of race and the
law. And I could not understand, and I violated this rule
knowingly, why these issues should be withheld from the public.
Now, I appreciate the comments of my colleagues. This is
about the closest I will probably ever have in my life to an
``I Am Spartacus'' moment.
[Laughter.]
Senator Booker. My colleagues, numerous of them, said that
they, too, accept the responsibility. There are very serious
charges that were made against me by my colleague from Texas. I
do not know if they were political bluster or sincere feelings.
If what he said was sincere, there actually are Senate rules
governing the behavior of Senators. If he feels that I, and now
my fellow colleagues who are with me, have violated those
rules, if he is not a tempest in a teapot, but sincerely
believes that, then bring the charges. Go through the Senate
process to take on somebody that you said is unbecoming to be a
Senator.
Let us go through that process because I think the public
should understand that at a moment that somebody is up for a
lifetime appointment, that this issue--does the public have a
right to know. This is not about the Presidential Records Act.
This is not a violation of the Presidential Records Act, not a
violation of Senate rules, sir.
But if somebody is going to land those charges, I hope that
they will follow through with me and Senator Durbin, Senator
Coons, Senator Whitehouse, Senator Hirono, Senator Blumenthal,
now Senator Feinstein. I hope that they will bring charges
against us, and I am ready to accept the full responsibility
for what I have done, the consequences for what I have done,
and I stand by the public's right to have access to this
document and know this nominee's views on issues that are so
profoundly important, like race and the law, torture and other
issues. Thank you.
Senator Cornyn. Mr. Chairman, may I read the Senate Rule
29.5, the Standing Rules of the Senate, for the benefit of all
Senators. ``Any Senator, officer, or employee of the Senate who
shall disclose the secret or confidential business or
proceedings of the Senate, including the business and
proceedings of the Committees, Subcommittees, and Offices of
the Senate, shall be liable, if a Senator, to suffer expulsion
from the body, and if an officer or employee, to dismissal from
the service of the Senate and the punishment or contempt.''
Senator Booker. Bring it. Bring it.
Senator Coons. Bring it on.
Senator Cornyn. So, I would correct the Senator's
statement, there is no rule. There is clearly a rule that
applies----
Senator Booker. If it applies, Chairman, bring the charges.
Senator Blumenthal. Mr. Chairman, all of us are ready to
face that rule on the bogus designation of ``committee
confidential.'' Just because there is a Senate rule does not
mean it can be misapplied, or misconstrued, or misused. And I
think even the threat raised by one of my colleagues here is
unfortunate, and that is a kind way of putting it, with all due
respect.
And I would just make one other point. We are dealing here
with a lifetime appointment. Nothing we do here is more serious
than confirming a Justice on the United States Supreme Court.
Let the American people appreciate that we are here in the most
solemn responsibility we have under the Constitution. We need
the full truth. Just as this nominee has sworn to give it us,
we are entitled to it from our colleagues.
And the question is, what are they concealing by this
procedure? What are they afraid the American people will see?
What are they afraid we would be asking of this nominee if we
had all of those documents that have been denied us in this
sham and charade.
Chairman Grassley. Senator Lee, then Senator Tillis.
Senator Lee. To Senator Booker's point, the document you
are talking about has now been approved through the Committee
processes. It has been made available to the public. The
process worked, and I pledge to work with each and every one of
you. If you have got a document as to which a privilege has
been asserted such that it is not public yet, I will work with
you to try to make it public. Let us do it. I think we can do
this. It is not that difficult, and we have done it several
times, at least three times now. We can do it more.
The privilege thing is real, though, and this is not our
privilege we are dealing with. This is the privilege that
belongs to somebody else. The privileged nature of documents
has been around for a long time, since the early days of the
republic. The records, the notes of the Constitutional
Convention were ordered sealed for 30 years after the
Constitutional Convention occurred in 1787. I am not sure all
the reasons why, but those who participated in it decided that
that was going to be the rule, sealed 30 years. Those documents
did not belong to anyone else. They belonged to those who
attended that Convention and participated in it.
Now, there were at least two from that list, Oliver
Ellsworth and James Wilson, I believe, who were subsequently
nominated to serve on the United States Supreme Court. No one
demanded, to my knowledge, and no one could have gotten,
notwithstanding the 30-year seal agreement, the notes to the
Constitutional Convention, even though those certainly would
have been probative as to how those people might have served on
the Supreme Court.
Yet no one was accusing the U.S. Senate back then of being
a rubber stamp for the Washington administration or anyone
else. In fact, in 1795, the United States Senate disapproved of
at least one of President Washington's Supreme Court nominees.
This was no rubber stamp, and yet they respected the fact that
they did not own every document, that other people might own
them. We do not own these, and so we have to go through the
process, a process ordained by a law that we passed and that
only we have the power to change. Let us follow that law. We
can follow the law and respect the process, and respect the
rights of each of our colleagues and the rights of the American
people to review documents that might be relevant here. But let
us go through the appropriate process to do it.
Senator Feinstein. Mr. Chairman----
Chairman Grassley. I think I ought to be fair to the
Republicans.
Senator Feinstein. I think you should, too.
Chairman Grassley. Okay. Go ahead, Senator Tillis.
Senator Tillis. Thank you, Mr. Chair. You know, Mr.
Chairman, it took nearly 17 years to get my college degree. I
went to five different institutions. I am pretty sure none of
them have been elevated to the Ivy League.
Chairman Grassley. You finally found one that was right.
Senator Tillis. That is right. I do not ever plan on
running for President in 2020 or any point in the future. I
want to make--I want to make one comment and then one request.
The comment is, I hope everybody will record a transcript of
what is going on right now. Senator Lee explains things, I
think, in eloquent legal terms, but let us talk about the
consequences of making this an untrusted body to receive
documents under the Presidential Records Act. You may rue the
day that you do that because you will probably get fewer
documents in the future.
Now, what I would like to do is ask all of our Members, is
perhaps we can actually demonstrate to the American people that
we are prepared to expose our own records. I would like to
suggest for the purpose of the SCOTUS nomination that all of us
waive any right to the Speech and Debate Clause, and that we
allow all of our email records related to this SCOTUS
nomination to be made public on an immediate basis. I for one
am ready to sign up for it now. I hope all my other Members
would do the same thing, because in the interest of
transparency, certainly it would make sense for every one of
us, regardless of what we want to do in the future, to expose
that information to the American people.
Chairman Grassley. Are you done? I will start with my
questioning. By the way, we are going to have to protect--so
everybody gets an opportunity to look at the FBI and anything
else you want to ask, at 1 we are going to have to go into
executive session and get that done before--if the Senate does
close down at 2. I mean, if they do not give us permission to
meet after 2, we have got to get that out of the way. So, we
will do that at 1.
Senator Feinstein. May I just put a document in the record?
Senator Kennedy. Mr. Chairman, would you yield to a
question?
Mr. Chairman, would you yield to a question about
procedure?
Chairman Grassley. I used the wrong word--``closed.'' We
are talking about ``closed'' instead of ``executive'' session.
So----
Senator Kennedy. Would you yield to a question about
procedure, Mr. Chairman?
Chairman Grassley. Go ahead.
Senator Kennedy. Could you explain to me why we are having
to truncate the hearing today?
Chairman Grassley. Well, I am not sure we do have to
truncate it, but just in case--well, it would be because the
Minority may object to the unanimous consent request the Leader
would make for this Committee to continue to work while the
Senate is in session.
Senator Kennedy. Well, let me be sure I understand. Senator
Schumer is saying that we have to shut down while the Senate is
in session. Do we not generally waive that rule?
Chairman Grassley. Yes, generally it is waived, but if it
is objected to, we cannot meet. So, that means that we want to
make sure that we get the executive--or the closed session out
of the way.
Senator Kennedy. May I ask why Senator Schumer is doing
that?
Senator Durbin. Has he done it?
Chairman Grassley. I do not know.
Senator Kennedy. We have a nominee to the Supreme Court of
the United States. We have all talked about transparency. What
is his basis for doing that?
Chairman Grassley. You will have to ask him. I do not know.
Senator Feinstein. Mr.----
Chairman Grassley. Yes, you go----
Senator Feinstein [continuing]. If I may, I would just like
to put a document in the record. The Committee was told that
President Trump has decided to withhold 102 pages of
Kavanaugh's White House Counsel records.
[Voices off microphone.] A hundred and two thousand pages.
Senator Feinstein. A hundred and two thousand? What did I
say?
Senator Durbin. You were close.
Senator Feinstein. Thank you, 102,000 pages of Kavanaugh's
White House Counsel records, and asserted a new claim of
constitutional privilege. And, of course, that has not been
done before. I am told there is no such privilege. There is an
executive privilege, which is outlined in the Presidential
Records Act and requires the President to notify Congress and
the Archivist, which was not done here. There is a little bit
more to it, but I would just like to put this in the record.
Chairman Grassley. Without objection----
Senator Feinstein. Thank you.
Chairman Grassley [continuing]. That will be put in the
record, yes.
[The information appears as a submission for the record.]
Chairman Grassley. Judge Kavanaugh, we heard a lot
yesterday about your record of independence and impartiality,
and you have done more than talk about your independence and
you have done more than talk about your independence and
impartiality. You have demonstrated the judicial values of the
bench. By my account, you ruled against executive branch
agencies 23 times between May 2006--January 2009.
Of course, President Bush was nominated--who nominated you
to the bench, was the head of the executive branch. You had no
problems ruling against the President who appointed you, if
that is what the law required, and I have no doubt that you
would do the same on the Supreme Court, if that is what the law
requires. You have demonstrated your impartiality.
Some of my colleagues tried to depict you as hostile to the
little guy and always willing to rule for the powerful, but
your record shows that you rule for the party that has the law
on their side. So that makes you out to be not a pro-plaintiff
judge or pro-defendant judge, but to be a pro-law judge.
So let me ask you about a few of your cases that I think
demonstrate that you will vindicate the rights of those who are
less powerful in our society. After all, our aspirations as
Americans is equal justice under law.
[Disturbance in the hearing room.]
Chairman Grassley. So I will ask you on each one of them,
but just so you know the three cases I am thinking about is
Rossello, Essex Insurance, and United Food and Commercial
Workers. So in the first one, a case in which you ruled for the
woman wrongfully denied Social Security benefits, tell us your
approach to that case.
Judge Kavanaugh. This case, Mr. Chairman, was a case in
which the Social Security Administration had denied benefits--
--
[Disturbance in the hearing room.]
Judge Kavanaugh. Was a case where the Social Security
Administration had denied benefits to a woman who had a history
of mental illness, and they had done so because at one point in
time, she had been employed for a brief period of time with a
family member, but it had been subsidized. And this was, in my
view, the height of arbitrary agency decisionmaking.
The case had gone on for 15 years, was kind of a hall of
mirrors for the woman, and we wrote an opinion, I wrote an
opinion reversing the denial of benefits for the woman and also
making clear to the Social Security Administration that any
further delay would not be tolerated and that these kinds of
delays in denying benefits to people with mental illness were
unacceptable.
Chairman Grassley. Let us go to the Essex Insurance Company
case.
[Disturbance in the hearing room.]
Chairman Grassley. Essex Insurance?
Judge Kavanaugh. In the Essex case, it was a case of a
child's family and an insurance company, and the child had been
the victim of sexual abuse, and the--on three occasions, and
the insurance company was trying to give--pay out simply
$100,000 for the total number of--for the abuse. And the
insurance policy said $100,000 for each occurrence, in essence.
And we ruled that the insurance company had to pay $100,000
for each occurrence, each incident of the abuse, and,
therefore, a total of $300,000. So in that case, we ruled and I
wrote for a victim of abuse against an insurance company that
was seeking to squeeze the benefits that were paid under a
policy that was owed to the plaintiff in the case.
Chairman Grassley. Okay. Then the last one would be United
Food and Commercial Workers.
Judge Kavanaugh. And that is a case, a union case against
Walmart, and the case came from the NLRB, and the question was
whether Walmart had engaged in unfair labor practices against a
union in that case. And in that case, we ruled for the union
against Walmart in that case on the ground that the factual
record supported the conclusion that the company had engaged in
unfair labor practices and, therefore, violated the rights of
the union members.
Chairman Grassley. Now to something that I believe I have
discussed with every nominee to the Supreme Court probably for
the last 15 years. It is not about a case or your approach to
the law, and it is something that Senator Kennedy talked to you
about yesterday. It is not a very popular subject with some of
the current and former Justices. I think I make Chief Justice
Roberts uncomfortable when I raise the issue with him when I
speak for a short period of time at the Judicial Conference.
And then there was a former--when Justice Souter was on the
Supreme Court, he made a famous quip about television cameras,
that they would have to roll over his dead body. I can respect
that view. I just think it is plain wrong.
I, and many of my colleagues on this Committee, believe
that allowing cameras in the Federal courthouse would open the
courts to the public and bring about a better understanding of
the Court and its work. You may be aware of that for a number
of years, I have sponsored a bill, the Sunshine in the
Courtroom Act, which gives judges the discretion to allow media
coverage of Federal court proceedings.
Would you keep an open mind on cameras in the courtroom? Or
if you have strongly held views on it, do not be afraid to tell
me.
Judge Kavanaugh. Mr. Chairman, I appreciate your
longstanding interest in the issue and transparency for the
courts, of course. I will tell you what we have done on my
court briefly and then tell you some general thoughts going
forward, if I were to be confirmed.
On our court, we have gone from audio release at some date
much later. Then we went to audio release same week. Then we
went to audio release same day. And now we are allowing audio
to go out live with the oral arguments, and that process has
been one in which the judges have learned, experienced, and
become comfortable with the additional transparency that has
become in the same-time audio over time, and that process has
worked well in our court.
On the Supreme Court, I think the best approach for me is
to listen to the views of people like yourself, Mr. Chairman,
and others I know who are interested in that to learn, if I
were to be confirmed, from the experience there and to see what
the experience there is like, to listen to the Justices
currently on the Supreme Court. As I have said, be part of a
Team of Nine, well, I would want to learn from the other
Justices what they think about this. Because several of them,
as you know well, Mr. Chairman, when they were in my seat,
expressed support for the idea of cameras for oral arguments,
and then, when they were there for a few years, switched their
position after experiencing it. So I would want to talk to
them, why that position.
And as I said to Senator Kennedy last night, too, I would
want to think about the difference between oral argument and
the actual announcements of the decisions. I think those are
two distinct things. There has not been much focus on the
possibility of live audio, for example, of the decision
announcements or video of the decision announcements.
And I think that is a distinct issue from oral arguments,
and I would be interested in thinking about that and talking to
my colleagues, if I were to be confirmed. I will have an open
mind on it, and I do think when you attend oral argument at the
Supreme Court, as I have many times, or you attend the
announcement of decisions, it is extraordinarily impressive to
walk into that building and the majesty of that building.
The building itself conveys the stability and majesty of
the law, and to go into the courtroom and to see the Justices
working together, as they do, to try to resolve cases is
extraordinarily impressive. It makes you confident, I believe,
in the impartial rule of law and in each member of the Supreme
Court to see them in action.
And so I do understand your point of view on this, and I
would certainly keep an open mind on it and listen to you and
listen to the other Justices on the Court, of course.
Chairman Grassley. Senator Feinstein.
Senator Feinstein. Thank you, Mr. Chairman.
I am going to go back to Roe because most of us look at you
as the deciding vote, and I asked yesterday if your views on
Roe have changed since you were in the White House. You said
something to the effect that you did not know what I meant, and
we have an email that was previously marked ``confidential''
but is now public, and shows that you asked about making edits
to an op-ed that read the following, and I quote:
``First of all, it is widely understood, accepted by legal
scholars across the board, that Roe v. Wade and its progeny are
the settled law of the land,'' end quote. You responded by
saying, and I quote, ``I am not sure that all legal scholars
refer to Roe as the settled law of the land at the Supreme
Court level since Court can always overrule its precedent, and
three current Justices on the Court would do so.''
This has been viewed as you saying that you do not think
Roe is settled. I recognize the word said is what legal
scholars refer to. So, please, once again tell us why you
believe Roe is settled law, and if you could, do you believe it
is correctly settled?
Judge Kavanaugh. So thank you, Senator Feinstein.
In that draft letter, it was referring to the views of
legal scholars, and I think my comment in the email is that
might be overstating the position of legal scholars, and so it
was not a technically accurate description in the letter of
what legal scholars thought. At that time, I believe Chief
Justice Rehnquist and Justice Scalia were still on the Court at
that time.
But the broader point was simply that I think it was
overstating something about legal scholars. And I am always
concerned with accuracy, and I thought that was not quite
accurate description of legal, all legal scholars because it
referred to ``all.''
To your point, your broader point, Roe v. Wade is an
important precedent of the Supreme Court. It has been
reaffirmed many times. It was reaffirmed in Planned Parenthood
v. Casey in 1992 when the Court specifically considered whether
to reaffirm it or whether to overturn it. In that case, in
great detail, the three Justice opinion of Justice Kennedy,
Justice Souter, and Justice O'Connor went through all the
factors, the stare decisis factors, analyzed those, and decided
to reaffirm Roe.
That makes Casey precedent on precedent. It has been relied
on. Casey itself has been cited as authority in subsequent
cases such as Glucksberg and other cases. So that precedent on
precedent is quite important as you think about stare decisis
in this context.
A similar analogy, the United States v. Dickerson case in
2000, where the Court considered whether to overturn Miranda v.
Arizona or to reaffirm it. And in that case, the Court, through
Chief Justice Rehnquist, specifically reaffirmed Miranda
despite the fact that Chief Justice Rehnquist had been a critic
of Miranda in his early days and had written some opinions
quite critical of it.
It became that--so that Dickerson case is similarly
precedent on precedent, which is important going forward as you
think about the stare decisis calculation for a case like
Miranda.
So that is why both of those cases, Planned Parenthood v.
Casey and Dickerson, are cases where I would refer to them as
precedent on precedent.
Senator Feinstein. So you believe it is correctly settled,
but is it correct law in your view?
Judge Kavanaugh. Senator, there is on that case or on
Dickerson, or on cases like Citizens United or Heller or United
States v. Lopez or Kelo, just the whole body of modern Supreme
Court case law, I have to follow what the nominees who have
been in this seat before have done.
Senator Feinstein. Judge, a ``yes'' or a ``no'' will do.
Judge Kavanaugh. Well, just if I can briefly explain,
Senator?
Senator Feinstein. Yes, you can.
Judge Kavanaugh. Briefly. I will try to be brief. But
this--when you are in this seat, I am not just sitting here for
myself. I am sitting here as a representative of the judiciary
and the obligation to preserve the independence of the
judiciary, which I know you care deeply about. And so one of
the things I have done is studied very carefully what nominees
have done in the past, what I have referred to as ``nominee
precedent.''
And Justice Ginsburg, but really all the Justices have not
given hints or forecasts or previews. And Justice Kagan, I
think, captured it well, as she often does, with in talking
about questions like the one you are asking, you cannot give a
thumbs up or thumbs down and maintain the independence of the
judiciary. So I need to follow that nominee precedent here.
Senator Lee. Mr. Chairman, could I ask that the email at
issue be made part of the record?
Senator Feinstein. Pardon me?
Senator Lee. I would like to ask that the email at issue be
made part of the record.
Senator Feinstein. We will be happy to do that. Thank you.
During your time in the Bush White House, the
administration actively took steps to limit women's
reproductive choices. This included re-imposing the global gag
rule to prevent foreign organizations from spending their own
money on reproductive health and trying to prevent the FDA from
making Plan B contraception available over the counter.
During your service at the White House, 2001 to 2006, did
you work on any issues related to women's reproductive health
or choice?
Judge Kavanaugh. President Bush was a pro-life President,
and so his policy was pro-life. And those who worked for him,
therefore, had to assist him, of course, in pursuing those
policies, whether they were regulatory. There was partial birth
legislation that was passed as well, and some of those things
might have crossed my desk. I cannot remember specifics.
But he--I think this came up in Justice Kagan's when she
worked for President Clinton. He had a different view than
President Bush on that issue, and she had some work for
President Clinton. I consider myself working for President
Bush, was there to assist him.
Senator Feinstein. Let me go to torture. During the time
you worked in the White House, the Office of Legal Counsel
concluded that harsh interrogation techniques were legal, even
though Congress had passed a law in 1994 banning torture.
The Office of Legal Counsel took a sweeping view of
Presidential power and concluded that the President could
override the statute. In response, in 2005, the Congress
adopted an amendment championed by our colleague Senator
McCain--I was the cosponsor--that stated that only
interrogation techniques that can be used are those authorized
in the Army Field Manual.
Was the Office of Legal Counsel correct when it concluded
that the President could ignore the torture ban?
Judge Kavanaugh. So the Office of Legal Counsel, Senator,
subsequently withdrew those memos, as you know. And as I have
made clear in some of my writings--the review of Judge David
Barron's book, some of my opinions as well--the President does
not have the authority to disregard statutes passed by Congress
regulating the war effort, except in certain very narrowly
described circumstances that are historically rooted. The
common example being command of troops in battle.
So as a general proposition, the President has to comply
with the law. The President is subject to the law, including in
the national security context.
That is the lesson, I think, of the Youngstown Steel case,
of Justice Jackson's categories. Category 3, as I have said
repeatedly in my writings, which is where Congress has
prohibited the President from doing something, is critically
important. That is essential to the rule of law. As Justice
Jackson said, that is the equilibrium of the country is at
stake in Category 3, and I have written about that quite
frequently.
Senator Feinstein. Got it. Thank you.
Today, we have a President who said he could authorize
worse than waterboarding. How would you feel about that?
Judge Kavanaugh. Senator, I am not going to comment on and
do not think I can sitting here on current events.
Senator Feinstein. Well, but you know what the law is. You
have made that clear.
Judge Kavanaugh. I know what the law is, Senator, and I
know your----
Senator Feinstein. So I ask specifically how do you feel
about that?
Judge Kavanaugh. I feel that I should follow the law as a
judge. I know what the law is, and I know your leadership on
this issue, both with the report you did, which was the
thorough documentation of things that happened, as well as
recommendations for the future. And I know your leadership with
Senator McCain on the 2005 Act as well. And I know what the law
is, and I have written about the--how the separation of powers
works when Congress passes laws of the kind that you have.
Senator Feinstein. One last question on this. In December
of 2005, President Bush issued a signing statement regarding
the Detainee Treatment Act of 2005, reserving the President's
right to disregard that the law's ban on torture--disregard the
law's ban on torture if it interfered with his constitutional
authorities as President.
What was your involvement, if any, with this signing
statement?
Judge Kavanaugh. While I was staff secretary, any issue
that reached the President's desk, with the exception of a few
covert matters, would have crossed my desk on the way to the
President's desk. I would not have in the ordinary course
provided the policy advice or the legal advice, but it would
have crossed my desk. So in that case, the signing statement--
the drafts of it, that process--would have crossed my desk at
some point.
Senator Feinstein. Okay. In a 2013 panel discussion, as--
well, you did nothing about it, though. It crossed your desk,
and that was that.
Judge Kavanaugh. Well, there was debate, as I think I have
mentioned, about that. The Counsel to the President, Ms. Miers
at the time, was the ultimate adviser on that matter for the
President and, thus, would have been the one who primarily
dealt with that with the President.
It was important as in the job I had there not to supplant
the policy or legal advisers. That was not my job. My job was
to make sure the President had the benefit of the views of his
policy and legal advisers.
Senator Feinstein. One more Bush era question on this. In a
2000 panel discussion at NYU Law School regarding Bush
administration anti-terrorism policies, you said the Bush
administration went ``right up to that legal line to defend the
security of the United States,'' implying that Bush policies
did not cross the legal line. Do you mean to suggest that Bush
administration's post 9/11 programs, including the CIA torture
program, were legal?
Judge Kavanaugh. No, Senator, that is not what I was
suggesting there, and let me try to provide you an explanation.
President Bush's view, as I think he had said publicly, was in
trying to keep America safe, he was going to do everything he
could within the law. He relied on his lawyers to provide him
the boundaries of what the law is, and then he would go up to
that line as he thought effective as a matter of policy.
It was up to the lawyers, therefore, to make sure that they
were giving sound advice and not--and having the backbone. And
this is something that your legislation reinforces. Lawyers
need to have backbone, even in pressurized moments, to say no,
and I have talked about that many times.
One of the most important responsibilities of an executive
branch lawyer in the passions of the moment, where the pressure
is on, where the President wants to do something perhaps, is to
go into the Oval Office and say, ``No, you should not do
this.'' And that is something that I have written about, talked
about, and experienced in my time with President Bush, and I
have encouraged young lawyers to have that backbone and
fortitude to say no. That is about the most important thing.
Senator Feinstein. Thank you.
A quick change of subject. You sat on a case where a
trainer, Dawn Brancheau, was killed while interacting with a
killer whale during a live performance. Following her death,
the Occupational Safety and Health Administration found that
SeaWorld had violated work force safety laws. The majority
agreed with the agency that SeaWorld had violated the law.
According to what I know, you disagreed. In your dissent,
you argued that the agency lacked the authority to regulate
employers to protect participants in sporting events or
entertainment shows.
However, the statute as enacted applies to each employer,
and it defined ``employer'' as anyone engaged in business
affecting commerce who has employees. Where in text of the law
did Congress exempt employers of animal trainers?
Judge Kavanaugh. Thank you for the question, Senator.
The first point I want to make is that was not a case that
involved potential compensation to the family. That was handled
through the State tort system or through insurance or through a
settlement with the--SeaWorld and the family. So the case
before us had nothing to do with compensation to the family. It
had to do with a separate regulation of SeaWorld.
The issue, Senator, was precedent. I follow--as a judge, I
follow precedent. The precedent of the Labor Department, as I
read it, was that the Labor Department under the statute would
not regulate what it called the intrinsic qualities of a sports
or entertainment show.
So lots of sports and entertainment shows have serious
dangers, whether it is football or the balance beam in
gymnastics or the high wire act at the circus or the lion tamer
show. And the SeaWorld show was of--as I saw it, of a piece
under those with that precedent that said the Labor Department
would not regulate, for example, whether baseball helmets had
to have ear flaps or whether to prohibit the punt return or to
make the balance beam have nets.
And this seemed to be covered by that precedent, as I saw
it. The Labor Department in the oral arguments tried to
distinguish, for example, the dangers of football from the
dangers of the SeaWorld show, and I did not, as I explained in
the opinion, find that distinction persuasive.
But I did make clear two things, Senator. One is Congress
could, of course, regulate the intrinsic--Congress could make
the decision to regulate the intrinsic qualities of sports and
entertainment shows, or the Labor Department could change its
precedent. And I made clear that, of course, State tort law--as
the NFL has experienced with the concussion issue, State tort
law always exists as a way to ensure or help ensure safety in
things like the SeaWorld show.
Senator Feinstein. Thank you.
A question, if I may, about independent agencies. Congress
has established several independent agencies. We believe they
are essential to enforcing our laws and safeguarding consumers.
Congress requires the President to have good cause to remove
the heads of these agencies to insulate them from political
interference.
You have objected to this limit on the President's power
and struck down the for-cause requirement in a case involving
the Consumer Financial Protection Bureau. The D.C. Circuit
disagreed and overturned your decision.
If the President can fire the heads of independent agencies
for any reason, what is to prevent political interference in
these independent agencies?
Judge Kavanaugh. Senator, I have followed the Humphrey's
Executor precedent. I have referred to it as entrenched. That
is the precedent that allows independent agencies and protects
them from at-will firing, the for-cause restriction. So as a
general matter, I have affirmed the--or I have followed the
precedent of Humphrey's Executor.
The example you are talking about, the Congress established
a new independent agency that did not follow the traditional
model of independent agencies----
Senator Feinstein. Yes.
Judge Kavanaugh. Of having multiple members. That is all I
thought was problematic there, and I did not invalidate or did
not say the agency should stop operating. I said the agency can
continue performing its important functions on behalf of
consumers. But either it had to be restructured as a multi-
member agency, or the President had to be able to remove the
single head at will.
Senator Feinstein. The limited set of documents we have
received indicates that you were heavily involved in the Bush
White House's response to congressional investigations after
the Enron scandal. Is that accurate?
Judge Kavanaugh. That is accurate. We had a document
request from Senator Lieberman's Committee, and I was one of
the lawyers that had to help gather the documents from people
within the White House and then had to negotiate documents--I
had to negotiate documents with Senator Lieberman's staff.
Senator Feinstein. Right. So you know that Enron was one of
the greatest corporate scandals in American history. And I can
tell you as a Senator from California, not only did many of my
constituents lose everything financially when Enron collapsed
under the weight of its accounting fraud, but the fraud and
market manipulation contributed to an energy crisis in
California.
White House emails show that you were asked to review a set
of draft talking points for Press Secretary Ari Fleischer that
addressed the role of Enron's market manipulation in the
California energy crisis. Essentially, the talking points said
if there was any misconduct by Enron, it was up to the Federal
Energy Regulatory Commission to investigate and punish the
company.
I am not going to ask you if you remember the specific
document, but was that your view that FERC was the regulatory
body that was supposed to stop this sort of misconduct?
Judge Kavanaugh. I am not recalling the specifics of that,
Senator. My role, as a general matter, was to help gather
documents in response to Senator Lieberman's Committee's
request, as I recall. And I know FERC would have a role
necessarily in something like that, but I do not know if I
thought primary or I do not think that was my area of
expertise. So I am just not recalling it specifically, Senator.
Senator Feinstein. Yes.
[Disturbance in the hearing room.]
Senator Feinstein. Thank you, Mr. Chairman. Thank you.
Chairman Grassley. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
the way you have conducted these hearings in spite of these
type of irresponsible outbursts and so forth that it is hard to
believe.
Now, Judge Kavanaugh, I would first like to commend you for
how you have conducted yourself these last 2 days. You have
displayed the level-headedness and decency that so many of your
friends tell us actually exist and I would say your friends and
former colleagues have described in their letters to this
Committee. I wish you could say the same about everyone who has
attended this hearing or conveyed it--or covered it on social
media, but I cannot.
I am deeply concerned about the theatrics we have seen
these last 2 days. I have been on this Committee for 42 years,
longer than any other person except Senator Leahy. I am the
former Chairman. Never have I seen the constant interruptions
we have witnessed at this hearing.
Confirmation hearings are supposed to be an opportunity for
the American people to hear from the nominee. Unfortunately, it
seems that some on the political left have decided to try to
turn this hearing into a circus. Now I worry about the
precedent this is setting for future confirmations, but that is
not the worst.
The worst of it are the attacks against people who are not
even up for confirmation who just happen to be here in the room
to support the nominee. It is bad enough that Supreme Court
nominations have turned into all-out war against the nominee.
Have we really reached the point where anyone who supports or
even sits behind a nominee must also be destroyed? Has our
tribalism really reached that low?
To those who have been unfairly caught up in the mob
mentality of the last 2 days, I just want to say you are right
to be here supporting someone you believe in. Do not let the
fact that there are a lot of, frankly, sick people out there
cause you to lose faith in our political process. We need good,
decent people to step forward to contribute even when it is
ugly, particularly when it is ugly.
Just now to my questions. Let me ask you this. As I did
yesterday, I would like to ask you to keep your answers to my
questions concise so we can get through as many of them as we
can.
Late last night, one of my colleagues asked you a series of
open-ended questions about any conversations you have had with
anyone at a 350-person law firm about Special Counsel Bob
Mueller or his investigation. You said you do not remember
having had any such conversations.
My colleague did not clarify why my colleague was asking
the questions and did not allow you to complete your answers. I
want to give you a chance to respond if you would like to.
Judge Kavanaugh. Sure, Senator. I do not recall any
conversations of that kind with anyone at that law firm. I did
not know everyone who might work at that law firm, but I do not
recall any conversations of that kind.
I have not had any inappropriate conversations about that
investigation with anyone. I have never given anyone any hints,
forecasts, previews, winks, nothing about my view as a judge or
how I would rule as a judge on that or anything related to
that. So I thank you for the opportunity to clarify and
reassure you on that.
Senator Hatch. Well, thank you.
With all of the accusations and insinuations and innuendo
being hurled around yesterday, there is something I have to
come clean about. I am on the Board of Visitors of the
Federalist Society. It is true. For those who are not familiar
with the Federalist Society, it generally holds debates and
puts together panels on legal issues, covering all sides of
these issues--the liberal, the conservative, et cetera. It is a
very responsible organization.
The American Constitution Society, the Democrat
organization, does much the same thing, and I respect them,
except it focuses on liberal or progressive lawyers. So this is
familiar to my Democratic colleagues on this Committee.
They have been involved with ACS'--with the ACS from
keynoting the annual conference to being an honorary host
committee chair, to speaking on panels, to writing blog entries
for the organization. I even heard the nasty rumor that one of
them spoke at a Federalist Society event. Can you believe that?
You have already said that when it came to your nomination,
you spoke with the President, the Vice President, and the White
House Counsel Don McGahn, not the Federalist Society. So I do
not need to ask you about that. My question for you is this.
What has your experience with the Federalist Society been?
Judge Kavanaugh. Senator, thank you.
The Federalist Society, as you noted, holds debates at law
schools----
Senator Hatch. On both sides.
Judge Kavanaugh. On both sides. The typical program of a
Federalist Society event at a law school will have two speakers
and a moderator--that is typical--with the two speakers
presenting different views on an issue. It could be, for
example, Fourth Amendment privacy, where you have someone who
has got different view on national security-related Fourth
Amendment issues or on free speech issues or all sorts of legal
issues. They try to have debates where both sides are presented
at the law school events that I have been to.
At the conventions, they will always have panels of four or
five with a moderator, where they will have a spectrum of views
represented on a different topic. They are very enriching in
terms of your knowledge of the law, and they are also
enriching, I believe, in terms of providing different
perspectives on the law. And they have--they welcome people and
actually insist on having people from all different
perspectives at the event.
So it is very beneficial to the law. I think the programs
they have at the law schools, they are very educational. They
provide some of the best debates that are held with the law
schools, I believe.
And so I think the organization itself, which itself does
not lobby and does not file amicus briefs or anything like
that, does a very valuable service at law schools and the legal
community as a whole for bringing together different views on
important legal issues. And I applaud them for their efforts to
bring speakers to campus and provide legal debates on campus
and in lawyers' conventions.
Senator Hatch. You have described it quite well.
Earlier this year, I attended oral argument in Microsoft v.
United States, also known as the Microsoft Ireland case.
Naturally, I was very interested in that. At issue in the case
was the meaning of the Stored Communications Act and whether a
warrant for data stored overseas, but accessible in the United
States, falls within the Act's confines.
I had introduced legislation known as the CLOUD Act to
resolve this issue. Following oral argument, Congress passed
the CLOUD Act, thus mooting the case before the Court.
Now the specific question at issue in the Microsoft Ireland
case has been resolved by my legislation, but the case also
raised a broader question that I would like to ask you. When
the Stored Communications Act was passed in 1986, no one
imagined a world where data could be stored overseas but
accessible instantaneously in the United States. It was clear
that the act covered data stored in the United States, but it
was less clear that it extended to data stored abroad using new
technologies that were not available in 1986.
How do we interpret our laws in light of changing
technology? How do we determine whether the authors and
enactors of legislation would have intended the legislation to
cover new technologies and unforeseen situations?
Judge Kavanaugh. Senator, I think there, as elsewhere, the
job of a judge is to focus on the words written in the statute
passed by Congress. Sometimes Congress will write a statute
where the words are very precise, and it is quite clear it
covers only something that might be in existence at the time.
Sometimes Congress will write broader, more capacious words, as
does the Constitution at times, that can apply to new
technologies.
For example, the Fourth Amendment, of course, in the
Constitution applies to things that were not known at the
founding, including cars and communication devices that were
not known at the founding. So, too, with statutes. It depends
on how broadly or narrowly you have written it.
And your question raises a broader point, which is the
issue of privacy and liberty on the one hand versus security,
law enforcement on the other is an enormous issue going forward
for the Congress, in the first instance, I believe, and also
for the Federal courts, including the Supreme Court, going
forward. The Carpenter case this past term is a good example of
that, written by Chief Justice Roberts.
As I look ahead over the next 10 to 20 years, that balance
of Fourth Amendment liberty and privacy versus security and law
enforcement is an enormous issue.
Senator Hatch. Well, I appreciate your elucidation on that.
On the domestic front, there has been debate for some time now
in Congress about whether our laws should be updated to require
a warrant for the content of electronic communications,
regardless of how old those communications are.
As you may know, the Electronic Communications Privacy Act
currently distinguishes between communications that are less
than 180 days old and those that are more than 180 days old,
requiring a warrant for the former, but not the latter. Can you
speak generally to the importance of warrant requirements and
why they are an important bulwark against the Government
overreach?
Judge Kavanaugh. The warrant requirement helps ensure, as a
general matter, that the executive branch is not unilaterally
able to invade someone's privacy, someone's liberty without
judicial oversight. That ensures that there is probable cause
or whatever the standard might be in a statutory situation to
get someone's records or information or otherwise invade their
liberty or privacy.
So that judicial oversight is part of the checks and
balances of the Constitution, and Congress has written that
also into several statutes, as you know, Senator.
Senator Hatch. Well, I want to return to the email Senator
Feinstein was asking you about. You were asked for your
comments on an op-ed that was going to be published by a group
of pro-choice women in support of a circuit court nominee. You
said, ``I am not sure that all legal scholars refer to Roe as
the settled law of the land at the Supreme Court level since
Court can always overrule its precedent.''
You then added, ``The point there is in the inferior court
point.'' Were you giving your opinion on Roe there, or were you
talking about what law scholars might say?
Judge Kavanaugh. I was talking about what legal scholars
might say, and I thought the op-ed should be accurate about
what, in describing legal scholars.
Senator Hatch. Okay. So we have got that cleared up.
You have been critical of the practice of judges sentencing
defendants based on uncharged or acquitted conduct. With regard
to acquitted conduct in particular, I agree that the notion
that a judge can sentence a defendant to a long prison term for
a crime that a jury acquitted the defendant of flies in the
face of the right to a jury trial.
You have written that you believe, ``It likely will take
some combination of Congress and the Sentencing Commission to
systematically change Federal sentencing to preclude use of an
acquitted or uncharged conduct.''
Why do you take issue with the use of acquitted conduct at
sentencing, and why do you believe this is an issue that will
likely require intervention by Congress to resolve?
Judge Kavanaugh. The opinions I have written on this, and I
have written several, say, in essence, the following, Senator.
When a criminal defendant, for example, let us say is charged
with 10 counts, let us suppose, and is acquitted on 9 and
convicted on 1, and then the criminal defendant is sentenced as
if he or she had been convicted of all 10 because the judge
just says, well, I think, you know you did X or that Y, and
under my discretion--which you now have under the Supreme
Court's case law for sentencing--I am just going to sentence
you the same anyway.
Defendants and the public, the families of the defendants
understandably say that seems unfair. I thought the point of
the jury trial was to determine whether I was guilty or not
guilty on all those charges. And if I am getting sentenced
exactly as if I were guilty on all the charges, that seems a
violation of due process.
So I have written about the fairness and perceived fairness
of the use of acquitted conduct at sentencing. Judge Millett on
my court and I have both written about it several times and
made clear our concern about the use of acquitted conduct and
how it affects the sentencing system.
Why I have said Congress might need to look at it, although
I have also pointed out individual district judges can look at
it, is because under the current system, sentencing judges have
wide discretion in picking sentences. So it is hard for an
Appeals Court to say that you have infringed your discretion,
given some of the case law of the Supreme Court which grants
that discretion.
But I do not like the practice, and I have made the clear
in my opinions. So I am just repeating my opinions here because
of the unfairness and perceived unfairness of it.
Senator Hatch. Okay. This Committee has been chasing an
elusive deal on criminal justice reform for quite some time
now. One particular focus of mine in this area has been mens
rea reform. Without adequate mens rea protections, that is,
without the requirement that a person knows his conduct was
wrong or unlawful, everyday citizens can be held criminally
liable for a conduct that no reasonable person would know was
wrong.
Critics of my legislative efforts to bring clarity to mens
rea requirements claim the effort is a ploy to get corporations
and white-collar defendants off the hook. But stronger mens rea
requirements protect the liberty of all defendants in the
criminal justice system, the vast majority of whom are not
corporations or white-collar defendants.
You have written about the importance of mens rea
requirements, including in cases involving unsympathetic
defendants like an armed robber or a convicted murderer. Why,
in your view, are mens rea requirements so important?
Judge Kavanaugh. Mens rea requirements are important
because, Senator, under the Due Process Clause and the
predecents of the Supreme Court, it is not right to convict
someone based on a fact they did not know. It is just an
elemental point of due process.
Justice Jackson described this principle in his famous
Morissette decision that he wrote. It is elementary as the--he
said, as the school child's ``I did not mean to. I did not
know.'' And if someone truly did not know a fact that they--
that is relevant to their conviction, to nonetheless convict
them is contrary to due process.
I have seen cases where a mandatory minimum sentence was
elevated from 10 years to 30 years, a 30-year mandatory minimum
based on a fact that the defendant did not know. I dissented in
that case, in an en banc case joined by Judge Tatel, who was an
appointee of President Clinton to our court, saying that--and I
wrote a very lengthy dissent about the history of mens rea and
just how much of a violation of due process I thought had
occurred in that case. That was not a sympathetic defendant,
given what he had been convicted of, but I thought it was a
complete violation of due process and principles of mens rea
that were longstanding from Morissette to give him a 30-year
mandatory minimum for a fact he did not know.
I have also wrote--or joined an opinion and wrote a
separate opinion reversing a murder conviction of someone where
the jury instructions were unclear about the mental state of
the murderer. It was a question of manslaughter versus second-
degree murder. That would have had a huge difference in the
defendant's sentence, and I wrote an opinion saying this was
not an especially sympathetic case, given the facts, but the
jury instructions were flawed on the issue of the mental state.
And my exact line was, ``I am unwilling to sweep that under the
rug.'' And that is how I felt about that case. There was a
dissent in that case, but I was in the majority reversing the
murder conviction in that case.
No matter who you are, in my court, if you have the right
argument on the law, I am going to rule in your favor. And mens
rea is foundational to due process. I have written that
repeatedly, and I share your concern about mens rea reform,
Senator Hatch.
Senator Hatch. Well, thank you.
I have one last question. Some people seem to think that
religious people should not work in Government because they
swear allegiance to their church, not their country
necessarily. I have faithfully served this country for over 40
years, and I am a--I believe I am a religious person.
Now religion is also a big part of your life. You went to
Catholic school. Your children go to Catholic school. And you
regularly attend church and serve at a church-supported soup
kitchen. I know that religious faith is a personal subject, but
I would like to hear from you how you--how your private beliefs
affect your public decisions. Can you be devout in your faith
and still uphold the law?
Judge Kavanaugh. Senator, my religious beliefs have no
relevance to my judging. I judge based on the Constitution and
laws of the United States. I take an oath to do that. For 12
years, I have lived up to that oath.
At the same time, of course, as you point out, I am
religious, and I am a Catholic. And I grew up attending
Catholic schools. And the Constitution of the United States
foresaw that religious people or people who are not religious
are all equally American.
As I have said in one of my opinions, the Newdow opinion,
no matter what religion you are or no religion at all, we are
all equally American, and the Constitution of the United States
also says in Article VI, no religious test shall ever be
required as a qualification to any office or public trust under
the United States.
That was an important provision to have in the founding
Constitution to ensure that there was not discrimination
against people who had a religion or who people who did not
have a religion. It is a foundation of our country. We are all
equally American.
Senator Hatch. Thank you. Thank you, Mr. Chairman.
Chairman Grassley. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
And as I mentioned to you earlier, I have a number of
letters that I ask consent to be placed in the record, as well
as emails that were declassified, I think some at 3 this
morning, that they be placed in the record.
Chairman Grassley. Without objection, so ordered.
[The information appears as submissions for the record.]
Senator Leahy. Thank you.
And I know there was a claim this morning, the Committee
was following my precedent, Judge Kavanaugh. Not so. For
Justice Kagan, we had 99 percent of her documents for her time
at the White House, and, of course, we do not have--we have
less than 10 percent of yours. And there were 860 documents
designated as ``committee confidential'' by the nonpartisan
National Archives that was discussed with both the Democrats
and Republicans on the Committee. Nobody objected to that.
But let us go to follow up on our questions yesterday. Now
we discussed the fact that while you worked on nominations in
the Bush White House, you received stolen material from a
Republican Senate staffer named Manny Miranda. I thought it was
a digital Watergate. He stole 4,670 computer files from six
Democratic Senators.
And he was doing this in an effort to confirm some of
President George W. Bush's most controversial judicial
nominees. They were some of the most contentious fights of the
day, and this Republican stole 4,670 computer files.
Now in 2004 and 2006, you testified, and a number of
Senators, both Republicans and Democrats, asked you, and you
said you had never received any stolen materials. That does not
appear to be accurate.
You also testified that you knew nothing about the scandal
until it was public, and if you had suspected anything
untoward, you would have reported it. You also testified to
Senator Hatch that you never received any document that even
appeared to you to have been drafted or prepared by Democratic
staff.
Now I also asked you yesterday whether Mr. Miranda asked to
meet privately offsite to hand you documents related to
Senators Biden and Feinstein. I also asked about him sending
you ``intel'' with extraordinarily detailed specifics about
what I was going to ask a highly controversial nominee just
days later, something I never said publicly. I also asked about
your receiving a draft, a nonpublic letter of mine, before any
mention of it was made public.
You testified you did not recall anything specific, but you
thought that sharing information between staffs was common. So
let me ask you this. Has anyone told you what any Democratic
Senators have been advised to do by our staff at this hearing?
Judge Kavanaugh. I think there has been a lot of----
[Disturbance in the hearing room.]
Judge Kavanaugh. There has been a lot of discussion about
what individual Senators might be interested in, and when I
met----
[Disturbance in the hearing room.]
Senator Leahy. I really want to hear what you have to say,
Judge, not what protestors have to say. Please, go ahead.
Have you ever been advised--have you been told what any
Democratic Senator has been advised to do by our staff at this
hearing?
Judge Kavanaugh. Right. So when I met individually with the
65 Senators, including almost every Member of the Committee, a
lot of the Senators, a lot of you in the meetings told me
issues you were interested in. I think your staff was probably
talking to----
Senator Leahy. But has anybody said to you, for example,
Senator Leahy's staff is asking him to do this at the hearing
tomorrow?
Judge Kavanaugh. Well, I think you yourself told me what
you were going to ask. So I----
Senator Leahy. No, I tried to give you a good heads-up, and
I appreciate the meeting. But has anybody else told you this is
what Leahy's staff is asking him to ask at the hearing
tomorrow?
Judge Kavanaugh. Again, I think this might be a different
kind of process because you all were very transparent when I
met with you. I am looking around and saying here is what I am
focused on and here is what I am going to ask you at the
hearing, and it has turned out you were telling--you were
accurately telling me your concerns for that----
Senator Leahy. And you are saying that is normal, but did
anybody hand you anything marked ``Highly confidential'' about
any one of these Senators?
Judge Kavanaugh. For this? No. I am not remembering
anything like that, but you all did talk about the issues. In
other words, there are no surprises. Well, there are not no
surprises. But you know, you gave me basic concerns and issues
you wanted to raise.
Senator Leahy. I want to make sure we are clear on this.
Nobody handed you something marked, ``Highly confidential,''
but that is the material you received from Manny Miranda. For
example, on July 18, 2002, days before an extremely
controversial hearing for Fifth Circuit nominee Priscilla Owen,
Mr. Miranda sent you an email with the subject line, ``Highly
confidential,'' and informed you that Senator Biden's staff was
asking him not to attend the meeting that day.
On March 18, 2003, Mr. Miranda sent you several pages of
talking points that were stolen verbatim, stolen verbatim from
Democratic files. The talking points revealed arguments
Democrats were making on another controversial nominee, Miguel
Estrada. The subject line of the email stated it was not for
distribution, meaning Mr. Miranda was asking you not to share
the information.
This has now been, as of 3 this morning, made public. So
yesterday, when I asked you about these specific events, you
said you did not have any recollection. So I am not going to
ask if you remember receiving this email, I am going to ask you
this.
Why would you ever be asked to keep secret Democratic
talking points if they were legitimately obtained?
Judge Kavanaugh. I am looking at these, Senator, and it
says, for example, it looks like--it looks like that Biden's
staff is asking him not to attend the hearing. I do not know
why that----
Senator Leahy. But look how you received it.
Judge Kavanaugh. I know. Highly--I do not know why that is
even confidential because it----
Senator Leahy. Whether it is or not, would you consider
that somewhat unusual to be receiving from a Republican staff
member something marked, ``Highly confidential,'' telling him
what he has found out that a Democrat is going to do?
Judge Kavanaugh. Well, as I explained yesterday, Senator,
my understanding of this process is that the staffs do talk
with one another, that they are not camps with no
communication, and that was my experience when I worked in the
White House. And so this, it looks like Biden's staff is asking
him not to attend the hearing would have been pretty standard
kind of information that would be----
Senator Leahy. Well, not really. You read this. I would be
amazed if somebody handed me a memo saying this is a
confidential memo that Senator Grassley's staff has prepared
for him. I know I would not read it. I would be on the phone
immediately to Senator Grassley to say I am bringing something
over that just arrived to me for you to take a look at it.
But you received on July 28, 2002, an email from Manny
Miranda that said my staff distributed a confidential letter to
Democratic counsels, not to Republicans. Now Mr. Miranda said I
received that letter in the strictest confidence. You were
asked explicitly by Mr. Miranda to take no action on the email
without his, his further instructions. You never asked him how
he obtained the letter sent in strict confidence to me.
And then July 30, 2002, you received an email from Miranda
saying that he had 100 percent info that I was convening a
meeting about a controversial nominee, and then further, on
August 13, 2002, email he obviously had taken from my internal
emails what I was going to do.
Did any of this raise a red flag in your mind?
Judge Kavanaugh. It did not, Senator, because it all seemed
consistent with the usual kinds of discussions that happen. And
sometimes, people do say things of here is what my boss is
thinking, but do not share it around. I mean, I must have had,
you know, so many conversations in the course of my life like
that where someone is saying like that about something, in
other words, trying to give you a heads up on something. And
that just seems standard Senate staff--so nothing--the direct
answer to your question is, for example, it looks like Biden's
staff is asking him not to attend the hearing. That would not
have raised anything at all for me other than someone was----
Senator Leahy. Not even where he came from? On June 5,
2003, you received an email from a Republican Senate staffer
with subject line ``spying.'' That is not overly subtle. This
staffer appears in over 1,000 documents we received together
with both you and Mr. Miranda. She says, she ``has a mole for
us,'' and so forth. None of this raised a red flag with you?
Judge Kavanaugh. It did not, Senator. Again, people have
friends across the aisle who they talk to. At least this was my
experience back then. Maybe it has changed. And there was a lot
of bipartisanship on the Committee. There was a lot of
bipartisanship among the staffs. There were a lot of
friendships and relationships where people would talk to, oh, I
have got a friend on Senator Kennedy's--Ted Kennedy's staff or
I have a friend on Senator Hatch's staff or I have a friend on
Senator Spector's staff. That kind of conversation and
information-sharing was common, so it did not raise the----
Senator Leahy. Well----
Judge Kavanaugh. Flags.
Senator Leahy [continuing]. Judge, I was born at night but
not last night, and if I had something that somebody said we
have stolen this or do not tell anybody we have this, I think
that would raise some red flags. Now, we only have a fraction
of your record, and I do thank the Chairman for opening these
up at 3 this morning. But as you know, the President asserted
executive privilege, the first time we have had to face this up
here on a nominee from either Republicans or Democrats, of
102,000 pages of material, 102,000 from just your time in the
White House. That includes all judicial nominations.
Can you confirm for me today that that 102,000 pages, there
are no emails from Mr. Miranda marked, ``Highly confidential,''
or ``Do not share,'' or ``Take no action on this,'' describing
what he has found out the Democrats are thinking?
Judge Kavanaugh. Senator, I am not involved in the
documents process, so I do not know what is in them.
Senator Leahy. Well, that is convenient. But we do not know
what is in them either because we have never had so much
withheld before. We do not know what is in all the documents.
They are still being gone through by the archives because this
is being rushed through, and we do not get a chance to see
them. That is not fair to us, and, frankly, Judge, it is not
fair to you. You have probably been told you have the votes to
be confirmed so you do not have to care, but I care. I care
about the integrity of the Supreme Court. I care about who is
on there. I think you should care what is in that, just as we
should care what is in it.
There are even more documents than I had time to discuss
today. I find it impossible to reconcile what you are regularly
being told, your testimony that you received nothing stolen and
no reason to suspect anything was stolen when, frankly, as we
now know, Republican staffer Manny Miranda stole things. And
some of the things he stole went directly to you.
Let me ask you another one. You testified in 2004 that,
aside from participating in a mock court argument, you did not
work on the nomination of Judge William Pryor. Now, he was a
controversial nominee, called Roe v. Wade, the ``worst
abomination'' in the history of constitutional law. He argued
that constitutional right to same-sex intimacy would logically
extend to activities like necrophilia, bestiality, pedophilia.
You said you did not work on his nomination personally, but you
did participate in the Pryor working group, did you not?
Judge Kavanaugh. We all were met--just so you know the
process, there was something called the White House--I think,
Judicial Selection Committee, and Judge Gonzales, the Counsel
to the President, chaired that committee. And that started
immediately after President Bush came into office in 2001. And
so we would meet with memos, and individual members of the
staff would be assigned to different regions----
Senator Leahy. Did you interview William Pryor?
Judge Kavanaugh. I do not believe so. It is possible, but I
do not believe so. But if I did, it would have been part of the
general process where people came in.
Senator Leahy. I put in the record Exhibit C, which said
you did interview him. Did you?
Judge Kavanaugh. It is possible. We interviewed hundreds of
nominees----
Senator Leahy. I understand.
Judge Kavanaugh. As I said, Senator, and we met every week
for several years to go over nominees. And we worked closely
with the home-State Senators. And I had various States for
district court. I had Illinois. I had California I worked on
with Senator Feinstein and Senator Boxer's staff; Maryland,
Senator Sarbanes and Senator Mikulski. But then we would sit in
sometimes on interviews of other people who came in, and then
we would meet and go over the memos. Then, we would meet with
the President. We met every week with the President before
September 11. After September 11, those meetings became less
frequent because----
Senator Leahy. You had recommended him internally for the
Eleventh Circuit seat, had you not?
Judge Kavanaugh. Well, I have no reason that I would not
have recommended him because he was a highly qualified Attorney
General of Alabama, and Senator Sessions, of course, knew him
well and he was well-respected and----
Senator Leahy. The only reason I ask was that one of the
emails that we have up here says, ``Brett, at your request''--
at your request--``I asked Matt to speak with Pryor about his
interest.''
Judge Kavanaugh. Well----
Senator Leahy. I am not asking these questions to get you
in a bind, Judge. I am asking them because it is so easy on
these hearings to say I do not remember, and oftentimes, that
is the case, but you mentioned Mr. Gonzales. He had difficult
remembering when he came here. He had one hearing where--so
that he would not have that problem, I gave him I think 35, 45
of the questions ahead of time. On every one of them, he said I
do not remember, I do not recall, and then every question
asked--almost every question asked by both Republicans and
Democrats he said I do not remember, I do not remember. Shortly
after that, he went to private practice.
I think it is so difficult that you do not remember the
things done by somebody who I think on both sides of the aisle
we would agree is one of the most egregious breaches of
Committee confidentiality when Manny Miranda stole material
from here, stole it to send it to you and others at the White
House. And you have no recollection of that?
Judge Kavanaugh. I obviously recall the emails--or have
seen the emails, but your question, your larger question was
did that raise a red flag, and I have answered that, ``no.''
Senator Leahy. Well, when you were in the White House, was
part of your job to coach President Bush's judicial nominees
how to answer Democrats' questions about Roe v. Wade?
Judge Kavanaugh. Part of our job would have been to prepare
nominees more generally, and it was common for Senators to ask
that question then, as it is now, and so I assume that we would
have been involved in going through mock sessions. I know we
were involved in going through mock sessions, which is very
standard for Democratic----
Senator Leahy. Well, you have been going through some mock
sessions with at least one Republican Senator from this
Committee, and other Republican Senators, and I am not saying
that as a ``gotcha'' thing. You have every right to do that.
You did advise her exactly how she should respond to that,
according to one of the emails.
And my last question: Do you agree that a plastic firearm
created with a 3-D printer so that--it would not have been in
the minds of our Founding Fathers in the 18th century, would
you agree that that could be regulated or banned without
raising any Second Amendment questions?
Judge Kavanaugh. I think there might be litigation coming
on that, Senator, so consistent with judicial independence
principles, I should not comment on a potential case like that
so--thank you.
Senator Leahy. I had actually written out here your answer
ahead of time, and I just wrote it so that you did not see what
I wrote.
Thank you very much, Mr. Chairman.
Chairman Grassley. Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
I would like to introduce into the record an op-ed from the
L.A. Times editorial board entitled ``Can the Supreme Court
Confirmation Process Ever Be Repaired?''; a bipartisan letter
from 23 of Judge Kavanaugh's classmates at Yale; a letter
signed by hundreds of Yale students, alumni, and faculty; a
letter from Georgia's Secretary of State Brian Kemp; an op-ed
in The Clarion-Ledger by Mississippi Governor Phil Bryant. So I
would ask that that be allowed. Just say----
Chairman Grassley. Without objection----
Senator Graham [continuing]. Without objection.
Chairman Grassley [continuing]. So ordered.
[The information appears as submissions for the record.]
Senator Graham. That is good. Okay. All right. Thank you,
Judge. There are several things I want to go over with you.
One, I want to compliment Senator Leahy in this regard, that he
worked with Senator Grassley to get what had been previously
committee confidential released to the public, and sort of,
that is the way it works around here. You do not always get
what you want, but you try to work with your colleagues, and
many times, you can succeed.
From the public's point of view, it has got to work this
way. You just cannot do everything you want in a legislative
body. There are rules, and it is frustrating to be told no on
something you are passionate about. But I am often asked--
people wonder, are these hearings turning into a circus? And I
want to defend circuses.
[Laughter.]
Senator Graham. Circuses are entertaining and you can take
your children to them.
[Laughter.]
Senator Graham. This hearing is neither entertaining, nor
appropriate for young people.
Now, some of my colleagues, who I respect greatly, are
trying to make a point. I do not know what that point is. But I
do know this, if you want to be President, which I can
understand that, it is hard. And what you do will be the
example others will follow.
Back to the subject matter, the Morrison case, was that
about separation of powers?
Judge Kavanaugh. That was a separation of powers case.
Senator Graham. Okay. It was about a congressional statute
and the authority of the executive branch and how they
interacted, is that correct?
Judge Kavanaugh. That is correct, and a very specific
statutory scheme that was unprecedented, had the judiciary
involved in appointing the counsel.
Senator Graham. And apparently, Kagan and Scalia agreed----
Judge Kavanaugh. Yes.
Senator Graham. Kagan agreed with Scalia's dissent.
Judge Kavanaugh. She has called it one of the greatest ever
written, and she has added it gets better every year.
Senator Graham. Well, I do not want to get in the habit of
saying listen to Elena Kagan, but I will here because she is a
fine person.
The situation we have before us about Mr. Mueller, that is
not a separation of powers issue, is it? Are these not
different facts, that Mr. Mueller was appointed through
Department of Justice regulations.
Judge Kavanaugh. Senator, I do not want to talk
specifically about current events, but I will just refer back
to what I have written previously about Special Counsel----
Senator Graham. I am not asking you----
Judge Kavanaugh. Generally are----
Senator Graham [continuing]. How to decide a case. I am
just asking you, do you read the paper, do you watch
television? The special counsel statute in question does not
exist anymore, does it?
Judge Kavanaugh. The independent counsel statute----
Senator Graham. Yes, independent counsel statute----
Judge Kavanaugh. Does not exist anymore----
Senator Graham. Okay.
Judge Kavanaugh. Since 1999.
Senator Graham. Okay.
Judge Kavanaugh. The traditional special counsel system I
have written about is the ordinary way that outside
investigations----
Senator Graham. But is that an executive branch function?
Judge Kavanaugh. That is ordinarily appointed by the
Attorney General and is----
Senator Graham. Who is a member of what?
Judge Kavanaugh. The executive branch.
Senator Graham. So last time I checked, that is not a
separation of powers issue.
Judge Kavanaugh. That, traditionally, as I have written,
has been an executive branch----
Senator Graham. Okay.
Judge Kavanaugh. Now, the question is if someone is
appointed as special counsel by Department of Justice
regulations, who has authority over implementing those
regulations and overseeing those regulations, all I can say is
that that is different legally and factually than the Morrison
situation where you had a statute.
Let us talk a little bit about the law regarding the
President. Clinton v. Jones tells us--see if I am correct--that
you can be President of the United States, you can still be
sued for conduct before you were a President, and when you
invoke executive privilege, the Court has said no, wait a
minute, you have to show up at a deposition because it happened
before you were President. Is that correct?
Judge Kavanaugh. Yes, in a civil suit was the Clinton v.
Jones case----
Senator Graham. Yes.
Judge Kavanaugh. Involving allegations that--or a suit that
involved activity before President Clinton became President.
Senator Graham. So it is pretty well understood through
Supreme Court precedent that if you are the President of the
United States and you engaged in conduct that allowed you to be
sued before you got to be President, you cannot avoid your day
in court on the civil side.
The Nixon holding said what?
Judge Kavanaugh. The Nixon holding said that in the context
of the specific regulations there, that a criminal trial
subpoena to the President for information--in that case the
tapes--could be enforced, notwithstanding the executive
privilege that was recognized in that case as rooted in Article
II of the Constitution.
Senator Graham. So that is the law of the land as of this
moment?
Judge Kavanaugh. United States v. Nixon is the law of the
land.
Senator Graham. Okay. Now, whether or not a President can
be indicted while in office has been a discussion that has gone
on for a very long time. Is that true in the legal world?
Judge Kavanaugh. That is correct. The Department of Justice
for the last 45 years has taken the consistent position through
Republican and Democratic administrations that a sitting
President may not be indicted while in office. The most
thorough opinion on that is written by Randy Moss, who was head
of President Clinton's Office of Legal Counsel in 2000. He is
now a district judge, appointed by President Obama on the
district court in DC.
Senator Graham. And I think you have written on this topic
as well, have you not?
Judge Kavanaugh. I have not written on the
constitutionality.
Senator Graham. You are talking about whether or not it
would be wise to do this.
Judge Kavanaugh. I have made my thoughts known for Congress
to examine----
Senator Graham. Right.
Judge Kavanaugh. Because in the wake of September 11, I
thought one of the things Congress could look at is how to
make----
Senator Graham. Yes.
Judge Kavanaugh. The Presidency more effective.
Senator Graham. I just want my Democratic colleagues--to
remind you that when President Clinton was being investigated,
you took the position that he is not above the law, but in
terms of indicting a sitting President, it would be better for
the country to wait. And the person who echoed that the most or
at least effectively I thought, from his point of view, was Joe
Biden. So there is nothing new here, folks. When it is a
Democratic President, they adopt the positions that they are
arguing against now, but that is nothing new in politics. I am
sure we do the same thing.
So this man, Judge Kavanaugh, is not doing anything wrong
by talking about this issue the way he talks about it. What we
are doing wrong is blending concepts to justify a vote that is
going to be inevitable. You do not have to play these games to
vote ``no.'' Just say you do not agree with his philosophy. You
do not think he is qualified. But the thing that I hate the
most is to take concepts and turn them around upside down to
make people believe there is something wrong with you. There is
nothing wrong with you. The fault lies on our side. Most
Americans after this hearing will have a dimmer view of the
Senate. Rightly so.
I do not want anybody to believe that you stole anything.
Did you steal anything from anybody while you were working at
the White House Counsel's.
Judge Kavanaugh. No.
Senator Graham. Did you know that anybody stole anything,
or did you encourage them to steal anything?
Judge Kavanaugh. No.
Senator Graham. Did you use anything knowingly that was
stolen?
Judge Kavanaugh. No.
Senator Graham. So you can talk about Mr. Miranda, and he
deserves all the scorn you can heap on him, but I do not want
the public to believe that you did anything wrong because I do
not believe you did. So it is okay to vote ``no,'' but it is
not okay to take legal concepts and flip them upside down and
act like we are doing something wrong on the Republican side
when you had the exact same position when it was your turn.
Roe v. Wade, you have heard of that case, right?
Judge Kavanaugh. I have, Senator.
Senator Graham. Okay. Now, there are a lot of people like
it, lot of people do not. It is an emotional debate in the
country. Is there anything in the Constitution about a right to
abortion? Is anything written in the document?
Judge Kavanaugh. Senator, the Supreme Court has recognized
the right to abortion since the 1973 Roe v. Wade case. It has
reaffirmed it many times.
Senator Graham. But my question is did they find a phrase
in the Constitution that said, that the State cannot interfere
with a woman's right to choose until medical viability occurs?
Is that in the Constitution?
Judge Kavanaugh. The Supreme Court applying the Liberty----
Senator Graham. It is a pretty simple, ``No, it is not,
Senator Graham.''
Judge Kavanaugh. Well, I want to just be----
Senator Graham. Those words.
Judge Kavanaugh. I want to be very careful because this
is----
Senator Graham. Okay.
Judge Kavanaugh. A topic on which----
Senator Graham. No, if you will just follow me, I will let
you talk but the point is, will you tell me, ``yes'' or ``no,''
is there anything in the document itself talking about limiting
the State's ability to protect the unborn before viability? Is
there any phrase in the Constitution about abortion?
Judge Kavanaugh. The Supreme Court has found that under the
Liberty Clause--but you are right that specific words----
Senator Graham. Well, is there anything in the Liberty
Clause talking about abortion?
Judge Kavanaugh. The Liberty Clause refers to liberty but--
--
Senator Graham. Okay. Well, the last time I checked----
Judge Kavanaugh. Does not have specific----
Senator Graham [continuing]. Liberty----
Judge Kavanaugh. Yes.
Senator Graham [continuing]. Did not equate to abortion.
The Supreme Court said it did. But here is the point: What are
the limits on this concept? You have five, six, seven, eight,
or nine judges. What are the limits on the ability of the Court
to find a penumbra of rights that apply to a particular
situation? What are the checks and balances of people in your
business, if you can find five people who agree with you, to
confer a right, whether the public likes it or not, based on
this concept of a penumbra of rights? What are the outer limits
to this?
Judge Kavanaugh. The Supreme Court, in the Glucksberg case,
which is in the late 1990s--and Justice Kagan talked about this
at her hearing--is the test that the Supreme Court uses to find
unenumerated rights under the Liberty Clause of the Due Process
Clause of the Fourteenth Amendment, and that refers to rights
rooted in the history and tradition of the country so as to
prevent----
Senator Graham. So let me ask you this. Is there any right
rooted in the history and traditions of the country where
legislative bodies could not intercede on behalf of the unborn
before medical viability? Is that part of our history?
Judge Kavanaugh. The Supreme Court precedent has recognized
the right to abortion. I am----
Senator Graham. But I am just saying what part of the
history of--I do not think our Founding Fathers--people
mentioned our Founding Fathers. I do not remember that being
part of American history, so how did the Court determine that
it was?
Judge Kavanaugh. The Court applied the precedent that
existed and found in 1973 that under the Liberty Clause----
Senator Graham. Yes, but before 1973--I mean, when you talk
about the history of the United States, the Court has found
that part of our history is for the legislative bodies not to
have a say about protecting the unborn until medical viability.
I do not--I have not--whether you agree with that or not, I do
not think that is part of our history. So, fill in the blank.
What are the limits of people in your business applying that
concept to almost anything that you think to be liberty?
Judge Kavanaugh. And that is the concern that some have
expressed about the concept of unenumerated rights.
Senator Graham. Well, here is the concern I have. You got
one word that has opened up the ability for five people to tell
everybody elected in the country you cannot go there, that this
is an ``off limits'' in the democratic process. Whether you
agree with Roe v. Wade or not, just think what could happen,
down the road, if five people determine the word liberty means
``X.'' The only real check and balance is a constitutional
amendment to change the ruling. Do you agree with that?
Judge Kavanaugh. Senator, I am not going to comment on
potential constitutional amendments or what----
Senator Graham. But--okay. If we pass a statute tomorrow in
Congress saying that the Congress can regulate abortions before
medical viability, would that not fly in the face of Roe v.
Wade?
Judge Kavanaugh. So the Supreme Court has said that a woman
has a constitutional right to----
Senator Graham. Does that not trump a statute?
Judge Kavanaugh. The Supreme Court precedent----
Senator Graham. So all of us could vote because five people
have said liberty means right to--the State has no interest
here, compelling interest before medical viability, that we
could pass all the laws we want, it does not matter because
they fall. The only way we can change that is a constitutional
amendment process that requires two-thirds of the House, two-
thirds of the Senate, and three-fourths of the State. Is that a
pretty correct legal analysis?
Judge Kavanaugh. When the Supreme Court has issued a
constitutional ruling----
Senator Graham. Then you can always change it by
constitutional amendment?
Judge Kavanaugh. That is the----
Senator Graham. So here is the point: Whether you agree
with Roe v. Wade or not, the reason some legal scholars object
to this concept is it is breathtakingly unlimited. Whatever
five people believe at any given time in history in terms of
the word liberty, they can rewrite our history and come up with
a new history. And I think the best way for democracies to make
history, is to have the Court interpret the Constitution, be a
check and balance on us, but not take one word and create a
concept that is breathtaking in terms of its application to
restrict the legislative process.
Now, whether you agree with me or not, I think there is a
genuine debate. And you would agree with me if it was something
you liked or you were supporting that got shut out, or you
opposed you could not do. So I hope that one day the Court will
sit down and think long and hard about the path they have
charted, and not just about abortion, whether or not it is
right for people in your business on any given day based on any
given case of controversy to say that the word liberty, looking
at the history of the country and the penumbra of rights, means
``X,'' and it shuts out all of us who have gone to the ballot
box and gone through the test of being elected. All I ask is
that you think about it.
Also, I want to ask you about something else to think
about. You said you were in the White House on 9/11. Is that
correct?
Judge Kavanaugh. That is correct, Senator.
Senator Graham. Did you believe America was under attack?
Judge Kavanaugh. Yes. It was under attack.
Senator Graham. Right. Do you believe that if the
terrorists could strike any city in the world and they had--
like you get one shot at the world, based on your time in the
White House, do you believe they would pick an American city
probably over any other city?
Judge Kavanaugh. Well, it certainly seemed that New York
and Washington, DC, were the two targets.
Senator Graham. The only reason I mention that, to my good
friends--and they are--who believe that America is not part of
the battlefield, it sure was on 9/11. The law. If an American
citizen goes to Afghanistan and takes up the fight against our
forces and they are captured in Afghanistan, the current law is
you can be held as an enemy combatant in spite of your
citizenship. Is that correct? Is that the Hamdi decision?
Judge Kavanaugh. That is what the Supreme Court said in the
Hamdi decision with----
Senator Graham. Okay.
Judge Kavanaugh. Appropriate due process findings.
Senator Graham. Absolutely, appropriate due process
findings. Here is what I want people in your business to think
about. Are you aware of the fact that the radical Islamic
groups are trying to recruit Americans to their cause, that
they are over the internet trying to get Americans to take up
jihad?
Judge Kavanaugh. Yes.
Senator Graham. The likelihood of an American citizen
joining their cause is real because it has happened in the
past. The likelihood of it happening in the future I think is
highly likely. If an American citizen attacking the embassy in
Kabul can be held as an American citizen, here is the question:
Can an American citizen, collaborating with other terrorists
who are not American citizens, be held as an enemy combatant
for attacking the capital? And if they cannot, you are
incentivizing the enemy to find an American citizen because
they have a privilege that no other terrorist would have.
So you said something that was very compelling to me, that
you apply the law and you have to understand how it affects
people, right?
Judge Kavanaugh. Yes, sir.
Senator Graham. I hope you will understand that this war is
not over, that the war is coming back to our shores. It is just
a matter of time before they hit us again because we have to be
right all the time and they have to be right one time. I hope
we do not create a process where if you can come to America,
you get a special deal. It makes us harder for us to deal with
you and find out what you know. We treat you as a common
criminal versus the warrior you have become. That is just my
parting thought to you. And you will decide the way you think
is best for the country.
Is there anything you want to say about this process that
would help us make it better? Because you are going to get
confirmed. I worry about the people coming after you. Every
time we have one of these hearings, it gets worse and worse and
worse. You have sat there patiently for a couple of days. My
colleagues have asked you tough questions, sometimes unfair
questions. Your time is about over. You are going to make it.
And you would probably be smart not to answer at all, but I am
going to give you a chance to tell us what could we do better,
if anything?
Judge Kavanaugh. Senator, I am just going to thank all the
Senators on the Committee and all the Senators I met with who
are not on the Committee for their time and their care. And, as
I said, each Senator is committed to the public service and the
public good in my opinion, and I appreciate all the time of the
Senators. And I am on the sunrise side of the mountain and an
optimist about the future, Senator.
Chairman Grassley. Before we break, I want to bring up some
information because I was wondering how long it would take the
National Archives to get the material that we needed because
you have heard several times that the Archives, that is their
responsibility. The National Archives has 13 archivists who
handle George W. Bush's Presidential records. They can only
review about 1,000 pages per week. We could not have gotten
these documents for 37 weeks if we did not get President Bush's
team to expedite the review process for the benefit of all
Members of the Committee. We received all the documents we
would have received from the archivists, just at a faster time.
We will now take 15 minutes and resume at 12:22.
[Whereupon the Committee was recessed and reconvened.]
Chairman Grassley. Tell me when you are ready, Judge.
Judge Kavanaugh. I am ready.
Chairman Grassley. Senator Durbin.
Senator Durbin. Thanks, Mr. Chairman.
Let me say at the outset, Mr. Chairman, thank you for the
way you have presided over this Committee. It has been a
challenge for the last several days, but you and I have been
through battles in the past, both as allies and as enemies, and
you have always shown fairness, and I appreciate the fairness
you have shown during the course of this hearing.
I also want to say a word about the protesters who have
interrupted the hearing from time to time. As I said at the
outset, this is one of the costs of democracy, and it is one
which the Senate Judiciary Committee, which has been
constructed for the purpose of guarding our Constitution,
should value even when it is inconvenient. I could go into a
long riff here but I will not, in the interests of time. I do
not know who organized these protests or why they did it, but
thank goodness in the United States of America, where we
venerate free speech, these things can happen.
I want to thank the men and women of the Capitol Police and
those who have been in charge of our security during this
period of time, as well.
I would like to also ask for two things to be entered into
the record. First is, statements in opposition to the Kavanaugh
nomination from several groups.
Senator Cornyn [presiding]. Without objection.
Senator Durbin. Thank you very much.
[The information appears as submissions for the record.]
Senator Durbin. And second, Senator Grassley closed the
earlier, last session with some comment. I will have to read it
in its entirety to understand, but I think he said, or someone
said it would take 37 weeks for the National Archives to go
through Judge Kavanaugh's record.
I would like to enter into the record a letter from August
2nd, 2018, from Gary Stern, General Counsel to the National
Archives, which concludes with the following statement: ``By
the end of October 2018, we would have completed the remaining
600,000 pages that we should be considering and unfortunately
cannot.''
So I would ask consent to enter that letter into the
official record.
Senator Cornyn. Without objection.
Senator Durbin. Thank you very much.
[The information appears as a submission for the record.]
Senator Durbin. Judge Kavanaugh, I remember when I got the
results from my bar exam I thought to myself, well, that will
be the last time I will ever have to sit down and take an exam.
So at the end of this day, this may be your last formal exam in
terms of your legal career, and I am sure there is a sense of
expectation, hopefulness, and relief in that.
I want to thank your wife for being here and for bringing
those beautiful daughters. I hope someday they will understand
what happened to their father in a few days here, but thank you
so much for being part of this hearing.
Judge, when I started this, I said this is not just about
filling a key vacancy on the Supreme Court, a deciding vote on
the Court, a vote which may decide life and death issues on
important cases. It is more than the question of release of
documents. It really goes to the heart of where we are in
America at this moment. You have been nominated to be a Justice
on the United States Supreme Court by President Donald Trump.
We have to take your nomination in the context of this moment
in history.
We are at a moment where the President has shown contempt
for the Federal judiciary unlike any President we can recall.
He has shown disrespect for the rule of law over and over
again. He has repeatedly ridiculed the Attorney General of the
United States, whom he chose. He has called for blatant
partisanship in the prosecution of our laws. He is a President
who is the subject of an active criminal investigation, an
investigation which he has apparently sought to obstruct
repeatedly. He is a President who has been characterized in
this hearing publicly, on the record, as an unindicted co-
conspirator. And in the last 2 days, during the course of this
hearing, there have been two incredible events, the release of
a book and an article in The New York Times which remind us
again what a serious moment we face in the history of the
United States.
And that is why your nomination is different than any
other. I cannot recall any that have ever been brought before
us in this context. I cannot recall so many people across the
United States following this as carefully--perhaps Clarence
Thomas. At that time, everybody in America was tuned in.
But it is in the context of the Trump Presidency that we
ask you these questions, in anticipation that you may face
issues involving this President which no other Supreme Court
has been asked to face.
And that is why I want to address your view of the power of
this President, the authority of this President, because it is
an important contemporary question which, of course, has
application for beyond his Presidency.
You have quoted me several times--thank you--yesterday
regarding the independent counsel statute. As our Republican
colleagues are fond of reminding us, judges are not
legislators. So, to state the obvious, my opposition or any
legislator's opposition to reauthorizing a statute is very
different from a judge's opinion on whether a statute is
unconstitutional.
To get to the heart of the matter, the reason why we
continue to return to the Morrison v. Olson decision is because
of its significance in light of the Trump Presidency. The
reason we are so interested in your view that that case was
wrongly decided has little to do with the statute that was in
question. It has everything to do with your views on the power
of the Executive and what that would mean for this President
and future Presidents if you join the Supreme Court.
Justice Scalia's Morrison v. Olson sole dissent embraces
the so-called unitary executive theory which grants sweeping
powers to the President of the United States. Scalia said, and
I quote, ``We should say here that the President's
constitutionally assigned duties include complete control over
investigation and prosecution of violation of law, and that the
inexorable command of Article II is clear and definite. The
executive power must be vested in the President of the United
States.''
In this age of President Donald Trump, this expansive view
of Presidential power takes on added significance. Earlier this
year the Senate Judiciary Committee reported a bipartisan bill
to protect the independence of the special counsel, Bob
Mueller. Several Republican Senators who are here today cited
Scalia's dissent to justify their opposition to a bill
protecting the special counsel, with one even saying, and I
quote, ``Many of us think we are bound by Scalia's dissent.''
At the time, I joked and said, instead of dealing with stare
decisis, we are dealing with Scalia decisis.
Given your views on Morrison v. Olson, we are obviously
worried that you will feel bound by this dissent by Antonin
Scalia if President Trump decides to attempt to fire the
special counsel, Bob Mueller.
It does not stop there. You cited Scalia's dissent in the
case involving the Consumer Financial Protection Bureau, where
you gutted that agency; and in the 2011 Seven-Sky case, you
dissented from a decision upholding the Affordable Care Act and
made a breathtaking claim of Presidential power which has been
repeated over and over again, and you said, ``Under the
Constitution, the President may decline to enforce a statute
that regulates private individuals when the President deems the
statute unconstitutional, even if a court has held or would
hold the statute constitutional.'' Your words.
Of course, the unitary executive theory was the basis for
President Bush's December 30th, 2005, signing statement
claiming the authority to override the McCain Torture
Amendment. Yesterday, I asked you what comments you made on the
signing statement as President Bush's staff secretary. Senator
Feinstein asked a similar question this morning. What you told
me was, ``I can't recall what I said. I do recall there was a
good deal of internal debate about that signing statement, as
you can imagine. I do remember it would be controversial
internally.'' It is hard to imagine you cannot remember that
controversial issue.
Given our concerns about your views on Executive power, it
is important for you at this moment, please, to clarify for us
the power of the Presidency in this age of Donald Trump.
Judge Kavanaugh. Senator, thank you. First, thank you for
your comments about my wife and daughters. My daughters will
return this afternoon for a return engagement so they will
experience democracy once again in action, and I appreciate
that.
On Morrison v. Olson, a couple of things at the outset.
First, that case did not involve the special counsel system. I
have written repeatedly that the traditional special counsel
system, which we have now and have had historically, is a
distinct system appointed by the Attorney General. Morrison has
nothing to do with that. That dealt with the old independent
counsel statute, as you said, which expired in 1999 under
overwhelming consensus that that statute was inappropriate,
unrestrained, unaccountable, as you said.
Second, Morrison, Justice Scalia's dissent, that does not
affect the precedent of Humphrey's Executor. Humphrey's
Executor is the Supreme Court precedent that allows independent
agencies to exist. Those independent regulatory agencies
continue to exist, of course. So both on the independent agency
side, those are unaffected; on the special counsel side, that
is unaffected.
You mentioned the CFPB case. My decision in that case would
have allowed that agency to continue operating and performing
its important functions for American consumers. The only
correction would have been in the structure, because it was a
novel structure that was unlike every other independent agency
that had been created previously.
As to the concept of prosecutorial discretion that is
referred to in the 2011 case, that is a traditional concept of
prosecutorial discretion that is recognized in the executive
branch. The limits of it are uncertain. That has arisen in the
immigration context with President Obama. There are debates
about what the limits are. Those are not finally determined.
But the basic concept of prosecutorial discretion is all I was
referring to there.
I have made clear in my writings that a court order that
requires a President to do something, or prohibits a President
from doing something under the Constitution or laws of the
United States is the final word in our system, our separation
of powers system. That is Cooper v. Aaron. That is Marbury v.
Madison. That is United States v. Richard Nixon. That is an
important principle.
And finally, I would say that the question of who controls
the Executive power within the executive branch, the vertical
question--you have the President at the top, you have
independent agencies which exist consistent with precedent--is
distinct from the question of what is the scope of the
Executive power vis-a-vis Congress.
On that latter question, the scope of Executive power vis-
a-vis Congress, I have made clear in the context of national
security, the Youngstown framework; in the context of
administrative law, my cases questioning unilateral executive
rewriting of the law; in the criminal law where I have reversed
convictions; that I am one not afraid at all, through my record
of 12 years, to invalidate Executive power when it violates the
law.
Senator Durbin. Judge, let me ask you this, because you
have referred to the Youngstown case in the context of a war
and a decision by a President that was immensely unpopular.
Judge Kavanaugh. Yes.
Senator Durbin. Or it might have been popular, I should
say, and the decision of the Supreme Court, which could have
been very unpopular at that moment in history.
What I am trying to ask you is, in historic context, do you
understand where we are as a Nation now, when books are being
written about how democracy dies, when fear of authoritarian
rule and the expansion of the executive branch is rampant in
this country, with illustrations that are found around the
world, why we are asking you over and over again to give us
some reassurance about your commitment to the democratic
institutions of this country in the face of a President who
seems prepared to cast them aside, whether it is voter
suppression, the role of the media? Case after case, we hear
this President willing to walk away from the rule of law in
this country. That is the historic context which this is in,
not a particular case but a particular moment in history.
Judge Kavanaugh. Sir, my 12-year record shows, and my
statements to the Committee show, and all my teaching and
articles show----
[Disturbance in the hearing room.]
Judge Kavanaugh. Show my commitment to the independence of
the judiciary as the crown jewel of our constitutional
republic. My citing of Justice Kennedy, for whom I worked, who
left us a legacy of liberty but also a legacy of adherence to
the rule of law in the United States of America, no one is
above the law in the United States. That is a foundational
principle that I have talked about, coming from Federalist 69,
coming from the structure of the Constitution. We are all equal
before the law in the United States of America.
And I have made clear my deep faith in the judiciary. The
judiciary has been the final guarantor of the rule of law. As I
said in my opening, the Supreme Court is the last line of
defense for the separation of powers and for the rights and
liberties guaranteed by the Constitution and laws of the United
States.
Senator Durbin. You see, that is why the unitary theory of
the executive is so worrisome. What you have said is what I
want to hear from a co-equal and very important branch of our
Government. But what you have said in relation to Morrison
suggests the President has the last word.
Judge Kavanaugh. I have not said that, Senator, and I will
reiterate something I said a minute ago, coming from Cooper v.
Aaron, coming from Marbury. When a court order requires a
President to do something or prohibits a President from doing
something under the Constitution or laws of the United States,
under our constitutional system, that is the final word.
Senator Durbin. Let me ask you one last time a question you
knew I would ask about your testimony in 2006. I am just
struggling with the fact that when I ask you about this issue
of detention, interrogation, and torture, you gave such a
simple declarative answer to me and said that I was not
involved and am not involved in the questions about the rules
governing detention of combatants.
We have found at least three specific examples where you
were, three: your discussions about the access to counsel for
detainees; your involvement in the Hamdi and Padilla cases, and
your involvement with President Bush's signing statement on the
McCain Torture Amendment.
Judge Kavanaugh, you say that words matter. You claim to be
a textualist when you interpret other people's words, but you
do not want to be held accountable for the plain meaning of
your own words. Why is it so difficult for you to acknowledge
your response to the question and acknowledge that at least
your answer was misleading, if not wrong?
Judge Kavanaugh. Senator, you had a concern at the time of
the 2006 hearing, which was understandable, whether I had been
involved in crafting the detention policies, the interrogation
policies that were so controversial, that the legal memos had
been written in the Department of Justice that were very
controversial. As you know, and as the Committee knew then, two
judicial nominees to the courts of appeals had been involved in
working on some of the memos related to that program. Senator
Feinstein led the Intelligence Committee investigation of that
matter, produced a massive report, a large, unclassified
report, and apparently an even larger classified report. The
Justice Department Office of Professional Responsibility
produced a long report about all the lawyers who were involved.
I was not involved in crafting those policies.
Senator Durbin. Do you deny being involved in the three
specific areas involving detention and interrogation which I
have just read to you? Do you say that you had nothing to do
with the Hamdi and Padilla cases, that you were not involved in
the conversation about access to counsel for detainees, that
you were not involved in President Bush's decision on the
signing statement on the McCain Torture Amendment? Are you
saying that none of those things occurred?
Judge Kavanaugh. Senator, what I have made clear is I
understood your question then, and I still understand it now,
and I understood my answer then, and I still understand it now
to be about those legal memos. I was not read into that
program. I was not involved. My name does not appear in Senator
Feinstein's report, which is----
Senator Durbin. That is not the question I asked. Do you
deny the three specific instances where you were involved in
questions involving detention and interrogation?
Judge Kavanaugh. That was the question that I saw that you
asked at the time of that hearing, and my answer was then and
is now, as Senator Feinstein's report shows, and as the
Professional Responsibility report shows, I was not read into
that program.
Senator Durbin. That was not--I did not ask you about that
program. I asked you about the three specific instances.
Judge Kavanaugh. The current question----
Senator Durbin. You keep answering, oh, I was not--
Feinstein is my defense, she came to my rescue. She was talking
about something else. I have asked you about three specific
instances where we have written proof and sworn testimony from
you now that you were involved in these three things, and all
of them relate to detention and interrogation, which you gave
me your assurance you were not involved in.
Judge Kavanaugh. Senator, I am going to distinguish two
things. One is what you were asking me in 2006, and my
testimony then was accurate and was the truth. What you are
asking me now is, for example, on the signing statement, as we
discussed in your office, I made clear that, of course, as
staff secretary, everything that went to the President for a 3-
year period, with a few covert exceptions, would have crossed
my desk on the way from the counsel's office or the policy
advisor or wherever it was going, and would have made its way
to the President's desk, and that includes that signing
statement. So----
Senator Durbin. Well, let me just close. I do not think the
staff secretary to the United States President is a file clerk.
What you have explained to us over and over again, this was a
formative moment in your public career. You were giving
constitutional issue advice, as well as making substantive
changes in drafts that were headed for the President's desk,
and one of them involved John McCain's Torture Amendment. And
that, to me, is involved directly on detention and
interrogation. And I think, unfortunately, your answer does not
reflect that.
Chairman Grassley [presiding]. If you want to speak to
that, then we will go to Senator Lee.
Judge Kavanaugh. I just wanted to close, Mr. Chairman, by
thanking Senator Durbin. And in response to his questions about
the judiciary, the role of the judiciary, he gave me a book
when we met, a biography of Frank Johnson. And that Friday
night, after a lot of Senate meetings and a lot of practice
sessions, I went home, read the whole thing, and I appreciate
it. It is a good model of judicial independence. It is a great
story about someone who was a judge in the south in the civil
rights era who stood firm for the rule of law, and so a good
model, and I thank Senator Durbin for giving me the book.
Senator Durbin. Well, I thank you.
Chairman Grassley. Senator.
Senator Durbin. If I could just say one word, thank you,
Judge Kavanaugh. That night, obviously, the Nationals were not
playing.
Judge Kavanaugh. Yes.
[Laughter.]
Chairman Grassley. Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
Thank you again, Judge Kavanaugh, for your willingness to
answer our questions.
I want to follow up a little bit on this last line of
questioning from Senator Durbin. Senator Durbin and I actually,
notwithstanding the fact that we come from different parts of
the country, have different political ideologies, come from
different political parties, we share many views in common, and
this is one area, indefinite detention, where he and I are
concerned about the Government not overreaching. Only, as I
look at this, I think this cuts in your favor, not against you.
Tell me if I am missing something.
In the first place, what you were asked about was whether
or not you were involved in crafting the policies that would
govern detention of enemy combatants. Is that right?
Judge Kavanaugh. That is correct.
Senator Lee. And that was a classified program, classified
at a very high level, presumably compartmentalized such that
you would have had to have been read into that program in order
to participate in that process. Is that right?
Judge Kavanaugh. I believe that is correct. Read in, I was
not necessarily using the formal sense of that, but what I
meant is I was not part of that program.
Senator Lee. Okay, but that is a binary issue. You were
either involved in the development of that policy or you were
not.
Judge Kavanaugh. That is correct.
Senator Lee. And you were not.
Judge Kavanaugh. That is correct.
Senator Lee. And Tim Flannigan, who was I believe at the
time the White House Counsel----
Judge Kavanaugh. He was the Deputy Counsel.
Senator Lee [continuing]. The Deputy Counsel, has confirmed
that you were not involved in that.
Judge Kavanaugh. That is correct.
Senator Lee. We have your word and the word of the then-
Deputy White House Counsel.
Then there is a separate issue, I guess one could argue a
related issue, but a separate----
[Disturbance in the hearing room.]
Senator Lee. I assume that will not be counted against me
there.
Chairman Grassley. Yes, it will. It will be counted.
Senator Lee. Oh, okay. Well, then I will have to speak more
quickly.
When we talk about being read into, that is a colloquial
term that we sometimes refer to. It is government-speak that
talks about being cleared to discuss certain classified
matters. In any event, you were not brought into the
development of this policy.
Judge Kavanaugh. That is correct.
Senator Lee. Second, there was a separate, arguably related
but a distinct issue involving a meeting where you were asked
for your opinion about how Justice Kennedy might react to
certain legal arguments that people in the administration were
pushing. Is that right?
Judge Kavanaugh. That is correct.
Senator Lee. And you answered that question.
Judge Kavanaugh. I said that indefinite detention of an
American citizen without access to a lawyer, which at the time
was what was happening in that particular case, would never fly
with Justice Kennedy.
Senator Lee. And I happen to agree with you on that, and it
seems like a fairly unremarkable proposition to me.
I do not think anyone disputes that that argument had
problems with it, that that argument would not fly with Justice
Kennedy, and I therefore have difficulty seeing how this cuts
against you. As someone who believes in civil liberties and who
shares many of the same concerns that have been discussed by
many of my Democratic colleagues, I think the advice you
offered here was accurate. I think it was good advice. It
certainly is not inconsistent with the statement you provided,
which was that you were not involved in the development of the
policy governing the program.
Sometimes as lawyers we are called upon to offer litigation
strategy. Sometimes we are called upon to handle litigation.
Other times as lawyers, particularly in the Government, we
might be called upon to develop a policy. Here, you were
involved in neither handling the litigation directly nor in
developing the policy. You went to a meeting, somebody asked
that question, you gave them your answer.
Judge Kavanaugh. That is correct, and it was about
something entirely separate from that policy or the legal
memos.
Senator Lee. Separate and distinct from that policy. It was
about a litigating position that dealt sort of in the same
universe but not with that policy.
Judge Kavanaugh. That is correct.
Senator Lee. I therefore have great difficulty in seeing
that you did anything but the right thing and that you answered
this question in any way other than with the truth, the whole
truth, and nothing but the truth.
Let me turn next, while we are talking about colleagues
with whom I often agree and with whom I often work across the
aisle, Senator Booker is a good friend of mine. He is a
colleague. He and I work together on a lot of issues. He raised
an issue last night that I wanted to touch on with you.
He raised an issue related to some emails. I was concerned
at the time that you did not have the emails in front of you,
and I think that is very important for any witness in any
proceeding to be given access to the documents, documents that
in this case were prepared some 18 years ago. You as a lawyer
have no doubt been involved in the creation of many hundreds of
thousands, possibly millions of documents. So to ask you to
recall from memory something you wrote 18 years ago is going to
be difficult.
In any event, these emails deal with an issue involving
some questions surrounding a Supreme Court case called Adarand
Constructors v. Mineta. So let us refer to a document, Document
00289596. As I understand it, you were being asked in this
instance to provide some advice on what might happen if a
particular argument were presented to the Supreme Court on the
merits. You looked at some Department of Transportation
contracting regulations, and as I understand it--correct me if
I am wrong--if I have understood it correctly, the Government
was considering making a series of arguments before the Supreme
Court, and you did what a lawyer should do when advancing an
argument to the Court, you counted to five. You identified five
Supreme Court Justices who you believed would not accept the
Government's argument in defense of those DOT regulations. Is
that right?
Judge Kavanaugh. That is correct, under the precedent that
existed at the time. The Croson precedent I think was the most
relevant precedent.
Senator Lee. And yet at the time, the Supreme Court of the
United States had already granted review of the case, granted
certiorari, meaning that the Supreme Court, unlike most
appellate courts, is in charge, with very, very few exceptions
remaining today, of its own docket. It decides which of the
10,000 or so cases that want to go to the Supreme Court each
year will in fact be reviewed by the Court. The Court had
already granted certiorari, granted a review in that case. Is
that right?
Judge Kavanaugh. That is correct, I believe.
Senator Lee. So, as I read these emails, I read your
argument as saying, okay, number one, you cannot count to five
here because I am identifying--I am Brett Kavanaugh and have
identified that there are grave doubts as to whether Chief
Justice Rehnquist, Justice Scalia, Justice Thomas, Justice
Kennedy, or Justice O'Connor can embrace these arguments in
defense of these Department of Transportation regulations. But
the Court has already granted certiorari, so what to do?
As I understand the emails--and correct me if I am wrong--
you recommended a course of action that would allow the
Government to make its case, but to make its case in a way that
would allow the Court to decide that perhaps it should not have
granted review in the case. Am I correct so far?
Judge Kavanaugh. That is correct, Senator.
Senator Lee. And what is that called when the Court decides
that it should not have granted a case?
Judge Kavanaugh. Dismissing as improvidently granted, or
colloquially known as digged.
Senator Lee. As a dig.
Judge Kavanaugh. Yes.
Senator Lee. So you came up with a strategy for the purpose
of encouraging the Court to dig a case that it had previously
granted because you believed the Government was going to lose
and the regulations at issue were going to be invalidated, and
you did not want the Government to have to endure that. Did
they accept your arguments?
Judge Kavanaugh. The Supreme Court did, yes.
Senator Lee. So the Government, the Bush administration,
the Solicitor General's Office followed your advice and wrote
the arguments as you had prescribed, thus prompting a dig. And
as a result, the regulations stood. Is that not right?
Judge Kavanaugh. I believe that is so, Senator.
Senator Lee. They stood where they otherwise would have
fallen.
Judge Kavanaugh. That is right.
Senator Lee. Okay. So, here again, I have a hard time
seeing this as anything other than something that helps you,
that helps you not just with Republicans but that helps you
with Democrats. You saw a problem with an argument the
Government was making, you identified that problem, you offered
a remedy, that remedy was embraced by the Solicitor General's
Office and the Department of Justice, and the Court did exactly
as you wanted it to do, and as a result the regulation stood.
The regulation that Senator Booker is concerned about, was
wanting to make sure was not under attack unfairly was, in
fact, preserved. I have a hard time seeing why that should not
want to make him vote more for you. In fact, I think Senator
Booker really should vote for you. I will have that
conversation with him later.
Okay. One additional response to last night's round of
questions. Last night, at the end of a grueling day, my friend
and colleague, Senator Harris from California, asked you
whether you had ever spoken to anyone at the law firm of
Kasowitz, Benson and Torres about the Mueller investigation.
She even implored you to be sure about your answer, which I
suppose is good advice in any context, but it can perhaps sound
somewhat ominous.
The issue with this question is that Kasowitz, if I
understand it correctly, is a law firm that includes 350
lawyers in nine U.S. cities. I am guessing that not even Mr.
Kasowitz himself, who started the firm, can even name every
single attorney. Could you name every attorney that works at
that firm?
Judge Kavanaugh. No.
Senator Lee. As you sit here, can you rule out the
possibility that you may have close friends, former law clerks,
former law school classmates who might work or who might have
worked at that firm at some point?
Judge Kavanaugh. I do not know who works at that firm other
than a few people I am aware of just from the public. I gather
Senator Lieberman works at the firm. I did not know that last
night.
Senator Lee. That is correct. I did not, either, but I
found that out last night. Can you name the nine cities where
this firm has offices?
Judge Kavanaugh. No.
Senator Lee. So my colleague's question may be a very
direct question, but it is something that I think in this
circumstance is unfair, if you cannot identify the people that
she has in mind, or you do not even know who works there.
So let me ask you something that may get at her underlying
concern but in a way that I think is fair, because I think each
of my colleagues, when they have concerns, when they have
questions, they deserve to be able to have their concerns
addressed. So let me ask you in a way that I think is fair.
Have you made any promises or any guarantees to anyone
about how you would vote on any case that might come before you
if you are confirmed to the Supreme Court of the United States?
Judge Kavanaugh. No.
Senator Lee. Have you had any improper conversation with
anyone about the Mueller investigation?
Judge Kavanaugh. No.
Senator Lee. Let's talk a little bit about Executive power.
Is the President of the United States absolutely immune from
any and all legal action, whether civil or criminal?
Senator Lee. Senator, the foundation of our Constitution
was that, as Hamilton explained in Federalist 69, the
Presidency would not be a monarchy, and it specified all the
ways that under the Constitution the President is not above the
law, no one is above the law in the United States of America.
The President is subject to the law. The Supreme Court
precedent in cases such as Clinton v. Jones, United States v.
Richard Nixon establishes those principles. Cases like
Youngstown established it in the official capacity, and Marbury
v. Madison in official capacity.
So the President has authority under the Constitution, the
Executive power under the Constitution. The President, as
established by the Framers of the Constitution, is not above
the law. No one is above the law in the United States of
America.
Senator Lee. As a practical matter, who investigates the
President?
Judge Kavanaugh. As a practical matter, traditionally, as I
have written about in the Georgetown Law Journal article and
written about elsewhere, when there is an allegation of
wrongdoing by someone in the executive branch as to whom there
might be a conflict of interest if an ordinary Justice
Department process took place, there has been traditionally the
appointment by the Attorney General of a special counsel. That
has gone back for 100 years or so of that kind of outside
counsel appointed. Of course, we saw that in Watergate, but we
have seen it lots of other times where special counsels have
been appointed for particular matters where there is otherwise
a conflict of interest or perceived conflict of interest of
some kind.
Senator Lee. Now, I have had colleagues who have worried
about your view that Morrison was wrongly decided. Your view,
just to be clear, is that Morrison applies only in a special
context no longer relevant here. Is that right?
Judge Kavanaugh. That is correct.
Senator Lee. What context is that?
Judge Kavanaugh. That is the context of the old independent
counsel statute, which is distinct from the special counsel
system. The old independent counsel statute had a lot of
features to it, and that statute was viewed by the Congress
when it reconsidered it in 1999 as being unrestrained,
unaccountable, impermissible, and the statute was not renewed,
and the Morrison case was thus a one-off case, as I see it,
about a one-off statute that no longer exists.
Senator Lee. And that is why you can talk about it.
Judge Kavanaugh. That is why Justice Kagan can talk about
it, and that is why I also have talked about it.
Senator Lee. These are the vestigial remains of a once-
existing but no longer--it is a dinosaur in legal terms.
What about your opinion in PHH? Now, PHH is really limited
to independent agencies, right?
Judge Kavanaugh. That is right. The governing precedent on
independent agencies--so think the Federal Energy Regulatory
Commission or the Federal Communications Commission or the
Securities and Exchange Commission, a whole range of
independent agencies governed by Humphrey's Executor, the 1935
precedent of the Supreme Court which established that those are
permissible. They have ordinarily, traditionally been multi-
member bodies, and that was a problem I thought in the Consumer
Financial Protection Bureau case, that it was only a single-
director independent agency, but the remedy would still have
allowed that agency to continue operating and performing its
consumer functions and protecting consumers from improper
behavior.
Senator Lee. What is the biggest single difference between
the independent counsel statute, which is now a dinosaur, and
the special counsel regulations, which are still in effect?
Judge Kavanaugh. Well, there are a whole host of
differences. The appointment mechanism was different, the
removal mechanism was different, the jurisdictional mechanism
was different, how Justice Department policies applied was
different. There were so many different features of that old
independent counsel statute that combined to convince Congress
that that statute was a mistake, worse than a mistake really,
and also showed why the statute was inconsistent with our
constitutional traditions.
Senator Lee. And the reason for that is because when you
create an entity within the Federal Government, within the
executive branch, it is not accountable to anyone. It sounds
appetizing. It sounds appealing to some at the outset to say,
well, we are insulating it from political forces, but what that
really means is it is not accountable to anyone. It is not
accountable to anyone who is, in turn, elected. Was that not
really the problem Justice Scalia was pointing out in Morrison?
Judge Kavanaugh. That is what he pointed out. It is what
Senator Durbin and many others on this Committee and elsewhere
pointed out after experience with the statute for some years,
and then seeing how it operated in practice. I think there was
overwhelming bipartisan agreement that the statute did not
operate in a good way and that the flaws in the statute's
operation stemmed from some of these features of its design
that you just discussed, which distinguished it from the
traditional special counsel system that we had had, and then
starting in 1999 have had since 1999 to the present.
Senator Lee. What were we dealing with in Watergate, a
special counsel or an independent counsel?
Judge Kavanaugh. It was the traditional special counsel at
the time. We have had historically the kind that we now have
and have had since 1999, the traditional special counsel
system.
Senator Lee. So he was appointed by regulation, not by
statute. Nixon fired him, and Nixon fired Archibald Cox, and we
all know how that turned out. I am not going to ask you to
respond to this but it seems to me that this remains an
effective tool. It is not as though the absence of the
independent counsel statute renders the President completely
immune, because that simply is not the case.
You have never taken a position on the immunity question,
on the question of whether the President is immune from
prosecution.
Judge Kavanaugh. Well, just to be technically accurate, the
question is deferral, not immunity. So the constitutionality of
indicting a sitting President, I have never taken any position
on that. The Justice Department for 45 years has taken the
position that a sitting President may not be indicted while in
office, and that is the Justice Department's longstanding
position under Presidents of both parties. But I have not taken
a position on the constitutionality of that.
Senator Lee. And among academics and practitioners of every
ideological stripe that I know of, that is where the dispute
is, not whether there is absolute immunity so much as the
timing of it.
Judge Kavanaugh. It is all about the timing. It is not an
immunity question. Correct, Senator.
Senator Lee. There are people on both ends of the
ideological spectrum who take different positions on that.
Chairman Grassley. Let me--we are going to----
[Disturbance in the hearing room.]
Chairman Grassley. Before I give the schedule, because we
are soon going to break for lunch, I have had another request
for documents. So I would like to give you an update on that.
After two deadlines that only Senator Klobuchar honored, my
staff stayed up all night pushing the Department of Justice and
the former President to make public every committee
confidential document the Minority has requested, including a
request after midnight. Senator Leahy made a request today, and
we have pushed the Department of Justice and the former
President----
[Disturbance in the hearing room.]
Chairman Grassley [continuing]. To honor this request. They
have agreed----
[Disturbance in the hearing room.]
Chairman Grassley [continuing]. And will be producing the
documents imminently. And so, like with Justice Gorsuch's
confirmation, the process that I set up works when it is
followed.
We will now take a 30-minute lunch break.
Senator Cornyn. Mr. Chairman, may I ask a brief question
about that?
[Disturbance in the hearing room.]
Chairman Grassley. Yes.
[Disturbance in the hearing room.]
Senator Whitehouse. I have a question about that, too.
[Disturbance in the hearing room.]
Senator Cornyn. I could not hear everything you said, so I
just want to clarify. It is my understanding that every
document requested by any Senator that had previously been
designated as ``committee confidential'' has now been vetted
and made available to that Senator, or will be shortly.
Chairman Grassley. Yes, including what Senator Leahy asked
for today.
Before I read the schedule--oh, I am sorry. I did not mean
to interrupt.
Senator Cornyn. No, I was just going to make the point that
there is nothing that a Senator has requested that has not been
made available to them and then been properly vetted with the
Department of Justice and now is available to the public.
Chairman Grassley. And before I make the announcement----
Senator Whitehouse. On the schedule, Mr. Chairman?
Chairman Grassley. Yes, you will be--go ahead.
Senator Whitehouse. I think I am the lead-off batter when
we return?
Chairman Grassley. Yes, yes.
Senator Whitehouse. I am told that we have a vote that is
scheduled to begin at 1:45. They often do not begin exactly at
1:45. Could you please build in time so we can vote and come
back here?
Chairman Grassley. Well, do not go yet. We are going to
accommodate you from this respect. We are going to take a 30-
minute lunch break. It might be longer than that, so be alert,
Judge.
There are two votes, but I am hoping you will vote first,
come back, do your questioning, and then go back and vote on
the second one, and I should probably come back with you unless
I get some other Republican to come back, and I will do the
same thing. Then we will proceed that way through the two
votes.
Adjourned.
[Whereupon the Committee was recessed and reconvened.]
Senator Tillis [presiding]. The Committee will come to
order.
Senator Whitehouse.
Senator Whitehouse. Welcome back, Judge Kavanaugh. Let me
know when you are good.
Judge Kavanaugh. I am ready. Thank you.
Senator Whitehouse. Thank you. Judge Kavanaugh, journalists
go to jail to protect sources, unless and until the source
releases the journalist from their obligation of
confidentiality. Will you now release from that obligation any
journalist that you spoke with during and about the Starr
investigation?
Judge Kavanaugh. I am not sure I am understanding the
question.
Senator Whitehouse. There were journalists you spoke with
during and about the Starr investigation. They are not
disclosing what you spoke with them about because you are an
undisclosed source. If you say do not worry, that is over, say
whatever happened, then they are freed of that obligation, and
we can find out about what you said to the journalists during
and about the Starr investigation. Will you do that?
Judge Kavanaugh. Senator, I spoke to reporters at that time
at the direction and authorization----
Senator Whitehouse. I know, but that is not what--that is
the basis of my question. If you had not done that, I would not
be asking this. You do not tell me that. The question is, will
you release those reporters from whatever source
confidentiality protection they feel you are owed? It is up to
you to do that.
Judge Kavanaugh. I spoke to reporters at the direction and
authorization of Judge----
Senator Whitehouse. You have just recited the exact same
words that you answered me with beforehand. Will you release
them----
Judge Kavanaugh. Because that is relevant to the answer to
the question if I could continue?
Senator Whitehouse. What I would really get is an answer to
the actual question I asked rather than a disquisition on the
general topic area that I asked. This is a very simple thing.
You either will or will not, or if you wish, this is--you are
welcome to say, look, I would like to take that under
advisement and I will get back to you after some reflection and
consultation.
But our situation right now is that reporters may very well
have information about what you told them during the Starr
Clinton investigation that they are unwilling to divulge now
because you were a confidential source. Can you release them
from that by simply saying here publicly, look, anybody I
talked to, say what I said. It is not a problem. I do not need
confidentiality any longer.
Judge Kavanaugh. Right. Senator, and if I could just 30
seconds on this, if that is okay.
Senator Whitehouse. If it is 30 responsive seconds, I am
all for that. Go for it.
Judge Kavanaugh. Okay. I spoke to the reporters at the
direction and authorization of Judge Starr, and, therefore,
Judge Starr would be the one who would be part of that process.
I was not acting on my own, so.
Senator Whitehouse. No. No. Nope, that is not the way that
reporters look at it. They look at it as you were the source.
You were the one to whom they owe the obligation of
confidentiality. Starr's name has not come up.
Judge Kavanaugh. But I was in turn acting as part of that
office, and, therefore, I guess the answer----
Senator Whitehouse. But it is yours to divulge.
Judge Kavanaugh. The answer to your question is because I
cannot do that or do not think I should do that as a matter of
appropriateness given that I was working for someone else who
was running the office. I talked, of course, on the record and
publicly----
Senator Whitehouse. Okay, that answers it. You are
unwilling to do it. I will move on. You have said today you
have never taken a position on the constitutionality of
indicting the President. Let me ask you, has there ever been
any statutory law on Presidential immunity from an indictment
or from due process of law?
Judge Kavanaugh. There has been Justice Department law.
Senator Whitehouse. Statutory law is the question. Has
there ever been a statute that limited the--or protected the
President against indictment or due process of law?
Judge Kavanaugh. This has been Justice Department law, but
not--I do not believe there has been statutory law.
Senator Whitehouse. The Justice Department is not a
lawmaking body, is it?
Judge Kavanaugh. Oh, I think it does--I guess, the term all
encompasses regulations, so, yes.
Senator Whitehouse. Directive to the Department's own
employees, correct? The OLC opinion is what you are talking
about.
Judge Kavanaugh. Well, that is encompassed, as I think
about it, within the concept of law.
Senator Whitehouse. Well, if you are going to the general
concept of law perhaps, but there is no law law that Congress
has ever passed that protects a President from either
indictment or due process of law, correct?
Judge Kavanaugh. Congress has never passed something. The
Justice Department----
Senator Whitehouse. Has an opinion about it. I understand
that.
Judge Kavanaugh. Which is binding on everyone----
Senator Whitehouse. On the Justice Department.
Judge Kavanaugh. Mm-hmm.
Senator Whitehouse. So, if, as a matter of law, a sitting
President cannot be indicted, that must be constitutional law
since there is no statutory law as a proposition of logic. Is
that not correct?
Judge Kavanaugh. That is not correct as I see it because if
the Justice Department has law that binds that Justice
Department, that is another source of law as well.
Senator Whitehouse. Okay. So, let us go back to Georgetown
Law Journal, 1998, and a conference you attended. And you spoke
at it, and the panel that you were on was asked the question
who on the panel believes as a matter of law that a sitting
President cannot be indicted during the term of his office, and
your hand shot up, and I think you have probably seen the film
clip of that because it has been posted already. Did you mean
as a matter of law the OLC guidance when you said that?
Judge Kavanaugh. I know that right before the passage you
read, I said there is a lurking constitutional question.
Senator Whitehouse. Bingo.
Judge Kavanaugh. The fact that I said that suggests that I
did not have a position on the constitutional issue.
Senator Whitehouse. Although you shot your hand up when you
said--when the question as a matter of law a sitting President
cannot be indicted came up. And it seems to me there are really
only two kinds of law, unless you are really stretching the
envelope here. One is laws that Congress passes, and the other
is laws that are founded in the Constitution. An internal
policy directive within the Department of Justice, I think it
is a real stretch to call that law.
Judge Kavanaugh. I appreciate that, Senator, but it has
been a longstanding Justice Department position.
Senator Whitehouse. Policy, yes.
Judge Kavanaugh. And right before----
Senator Whitehouse. And is that what you meant when you put
your hand up, do you know?
Judge Kavanaugh. That was 20 years ago, I do not know. I do
know right before I said that that I said----
Senator Whitehouse. Here is why it is important, is because
you have been telling us, ``I have never taken a position to
say this was a constitutional principle. I have never taken a
position on the Constitution on that question. I did not take a
position on constitutionality period. I have never taken a
position on constitutionality of indictment.'' Those were all
things you have said during the course of this hearing, and it
looks to me like that is a bit of a conversion.
Judge Kavanaugh. Well, right before that, though, Senator,
to be fair to me, I did say there is a lurking constitutional
question, which implies----
Senator Whitehouse. Yes, and----
Judge Kavanaugh. And I----
Senator Whitehouse. And then you were asked to answer that
question by putting your hand up, and you put your hand up
saying, ``I.''
Judge Kavanaugh. The question was----
Senator Whitehouse. So, it seems to me you answered your
question by putting that hand up the way you did.
Judge Kavanaugh. But the question was not the Constitution.
The question was law, and there was Justice Department position
had been----
Senator Whitehouse. So, that is what I am saying you are
saying is you are saying that what you meant was the OLC policy
position when you answered a question about law.
Judge Kavanaugh. What I said is--I do not know what I was
thinking in a panel 20 years ago, but I do know having looked
at it that the question was about law, that the Justice
Department position has been consistent for 45 years.
Senator Whitehouse. As a matter of constitutional law,
right? The Justice Department position reflects a view of
constitutional law.
Judge Kavanaugh. But it is an interpretation binding on
everyone in the Justice Department, as I understand it, and----
Senator Whitehouse. Because they are employees of the
Department of Justice in the same way that you cannot steal the
computer or you cannot, you know, bring a pet into your office,
whatever other rules there might be.
Judge Kavanaugh. Well, I think internal regulations are
still law.
Senator Whitehouse. Okay. As long as it is your position
that that was what you meant by a matter of law.
Judge Kavanaugh. Well, just to be clear, I said I do not
know what I meant----
Senator Whitehouse. You answered the question.
Judge Kavanaugh. But when I look at it now, that is what
I--that is what I think.
Senator Whitehouse. So, let us go on to recusal, and let
me--there is a case that is somewhat on point on all of this.
It is the Caperton case out of West Virginia. And as you will
recall, it was a civil case, right?
Judge Kavanaugh. Yes.
Senator Whitehouse. And it came to the Supreme Court
because there was an objection that a judge should not sit--
basically, the nemo iudex problem, should not sit in his own
cause, so to speak, and the problem was that the--one of the
litigants had received three--the judge had received $3 million
in political support from one of the litigants. Is that--the
fact pattern correct?
Judge Kavanaugh. I believe that is correct, Senator.
Senator Whitehouse. Yep. And the standard that the Court
came up with was whether that judge had--whether that donor,
that party, had a significant and disproportionate influence--
ooh, we did not spell ``influence'' right--in placing the judge
on the case.
Judge Kavanaugh. Right.
Senator Whitehouse. Correct?
Judge Kavanaugh. I believe so. That is my memory.
Senator Whitehouse. So, and the--Justice Kennedy----
Judge Kavanaugh. A Justice Kennedy opinion.
Senator Whitehouse [continuing]. Decided that the
Constitution requires----
Judge Kavanaugh. Right.
Senator Whitehouse [continuing]. Recusal. If the
Constitution requires recusal of a judge who was the
beneficiary of a $3 million piece of political support to help
him get into office, was it not follow perforce that the person
who actually appointed the judge would be in a similar or
stronger position of significant and disproportionate
influence?
Judge Kavanaugh. Senator, the question in the Caperton
case, as I understand, was because of the amount of money, the
financial interest, which is a whole separate brand.
Senator Whitehouse. Correct, which would have a significant
and disproportionate influence on the judge becoming a judge,
right? That is what the connection was. The spending of money
by the party helped make the judge the judge. In this case, if
a criminal matter involving President Trump came before you, he
would not have just spent $3 million to make you a judge. He
would have flat out made you the judge, 100 percent--finito,
right?
Judge Kavanaugh. Senator, the question of recusal is
something that is governed by precedent, governed by rules. One
of the underappreciated aspects of recusal is whenever I have
had a significant question of recusal as a judge on the D.C.
Circuit, I have consulted with colleagues, and so, too, they
have consulted with me when they have had their own questions.
So, that is part of the process. In other words----
Senator Whitehouse. Is not actually the 100 percent
responsibility for direct appointment more significant in terms
of influence than simply making a big political contribution to
a judge? That is the 100 percent responsibility, appointed,
period, done.
Judge Kavanaugh. Well, just on the--I do not mean to
quibble, but on the premise of your question, the Senate
obviously, it is a shared responsibility. The President and the
Senate participate in a Supreme Court confirmation process--
appointment process.
Senator Whitehouse. Well, you were very clear yesterday in
our discussion that it was the President of the United States
who appointed you, and this is about that. This is about how
you get to the seat, and you got appointed by the President.
Would that not pertain as a significant influence--I mean, what
possible greater influence could there be on who is in the seat
that you are nominated to than the nomination of the President
to that seat?
Judge Kavanaugh. So, two points, if I could, Senator.
First, I have said already, I do not believe it appropriate in
this context to make decisions, and recusal is a decision, on a
case, and so, I do not think it is appropriate.
Senator Whitehouse. Okay. Well, if it is not appropriate,
then let me move on with something else because--let me ask you
about the question of Presidential, shall we say, ``conflicts
with prosecutors.'' When you were in the Starr prosecution
effort, you were exposed to this contest with the Clinton White
House, and you described the Clinton White House as running a,
and I am quoting you here, ``Presidentially approved smear
campaign,'' was one phrase you used; ``a disgraceful effort to
undermine the rule of law,'' was another phrase you used; and,
``an episode that will forever stand as a dark chapter in
American Presidential history.''
Judge Kavanaugh. That was about something different.
Senator Whitehouse. And you--``Presidentially approved
smear campaign against Starr'' was what the topic was. You then
said in a later memo that ``the President has tried to disgrace
Starr and his office with a sustained propaganda campaign that
would make Nixon blush, and he should be forced to account for
that.'' Have your views of Presidential interference or
smearing of independent or special counsel changed since you
made those statements?
Judge Kavanaugh. Those comments were in a memo written, as
I recall----
Senator Whitehouse. Two actually. Two memos, but close
enough, yes.
Judge Kavanaugh. Well, the one that I am remembering
written late at night after an emotional meeting in the office,
dashed off, and some of the language in that, as I think I told
you or some of the Senators in individual meetings, was heated,
and I understand that. But that was what my memo at the time.
Senator Whitehouse. And now?
Judge Kavanaugh. I do not think--I think I have been clear
I do not want to talk about current events because I do not
think a sitting--I am a sitting judge as well as a nominee. I
do not think I should talk about current events.
Senator Whitehouse. How about just the guy, the guy who was
outraged at being on the receiving end of a smear campaign?
Does that guy still exist, or is he long gone?
Judge Kavanaugh. Well, that is--that is what I wrote at the
time, how I felt one night after a meeting we had had in August
1998, I believe, at least the memo I am remembering.
Senator Whitehouse. Okay. Last topic because my time is
getting short here. The hypothetical problem that I have has to
do with an appellate court which makes a finding of fact,
asserts a proposition of fact to be true, and upon that
proposition hangs the decision that it reaches. And the
question is, what happens when that proposition of fact
actually in reality--you have referenced the real world so
often--actually in reality turns out not to be true. What is
the obligation of an appellate court if it has hung a decision
on a proposition of fact, and then the proposition of fact
turns out not to be true? Does it have any obligation to go
back and try to clean up that discrepancy, to clean up that
mess?
Judge Kavanaugh. I think, Senator, it is probably hard to
answer that question in the abstract because----
Senator Whitehouse. But if I give you specifics, then you
will say you cannot answer that because that would be talking
about a case. So, I am kind of in a quandary here with you.
Judge Kavanaugh. Well, I was going to give you a couple
thoughts, which are I think that would be wrapped up in the
question of precedent and stare decisis. And one of the things
you could look at, one of the factors you could look at, how
wrong was the decision and if it is based on an erroneous
factual premise, that is clearly one of the factors you would--
you would----
Senator Whitehouse. You would look at it and whether it
could be----
Judge Kavanaugh. A mistake of history. Sometimes there have
been cases where there were mistakes of history in decisions,
mistakes of facts, and so forth.
Senator Whitehouse. So, just quickly, the two examples that
comes readily to mind, one is Shelby County in which the Court
said in looking whether there was still any kind of
institutional racism in the preclearance States that they
needed to worry, nope: The ``country has changed and current
conditions''--to use their phrase--``are different.'' First,
where do you suppose the five Justices who made that decision
got expertise in vestigial State racism to make that
determination at all?
Judge Kavanaugh. Senator, I cannot comment on the decision
other than to say it is a precedent. I understand the point you
are making about the----
Senator Whitehouse. Because you do know that since then,
both North Carolina was found to have targeted minority voters
with ``surgical precision,'' which is a pretty rough phrase,
and Texas got after it so frequently that a Federal court
finally said, look, we think there is a penchant for
discrimination here. So, if you--if you have got the five
judges saying that it is over in these States and then it turns
out it really is not over, that there is actually still
surgical precision targeting of minority voters, and that there
is a penchant for discrimination in the Texas State government,
that ought to be something that might cause some
reconsideration of the Shelby holding, ought it not?
Judge Kavanaugh. So, three things on that, I think,
Senator. One, I think the case did not strike down preclearance
as opposed to saying the formula needed to be----
Senator Whitehouse. De facto it did. Preclearance ended in
all those States with that decision.
Judge Kavanaugh. I agree. I understand that.
Senator Whitehouse. Okay.
Judge Kavanaugh. But the----
Senator Whitehouse. So, I have got 1 minute left. Let me
jump to the other example because I think it is an important
one, and my time is running out. And that is Citizens United.
Citizens United took on the proposition that the unlimited
spending that it authorized by people capable of unlimited
spending would be both transparent and independent, correct?
Judge Kavanaugh. The Court upheld the disclosure
requirements in that case, if that is the question. I am not
sure----
Senator Whitehouse. It actually said more than that. It
said that it is the transparency and the independence of the
spending that it authorized----
Judge Kavanaugh. Yes.
Senator Whitehouse [continuing]. That were the guardians
against corruption.
Judge Kavanaugh. Right, so it was not contributions to
parties or candidates, correct.
Senator Whitehouse. So, the First Amendment ends where
efforts to corrupt begin, correct? You do not have a First
Amendment right to corrupt your Government.
Judge Kavanaugh. The Supreme Court has relied on corruption
and the appearance of corruption as part of the test, and it
is--you know the story.
Senator Whitehouse. Correct, and in order to fend off the
argument that big money corrupts and absolute money corrupts
absolutely, they said, no, because there is going to be
independence and transparency. In fact, if I remember
correctly, they said--well, I do not have it front of me and I
am out of--oh, here we go: ``The separation between candidates
and independent expenditures negates the possibility of
corruption.'' So, if they are wrong factually about this
spending being transparent, and we know that they do from what
we have seen since then, and if they are wrong factually about
the independence of this spending, and we know that they are
from actual events that have happened since then, then that
strikes a pretty hard blow against the logic of Citizens
United, does it not?
Judge Kavanaugh. So, Citizens United, as you know, is a
precedent of the Supreme Court, so entitled to respect as a
matter of stare decisis. But as you know, and I would just
reiterate, if someone wants to challenge that decision, they--
one of the things that anyone can raise about case is that it
is based on a mistake in premise or a mistake in factual
premises, and that is always the kind of thing that courts are
open to hearing.
Senator Whitehouse. My time has expired. I thank the
Chairman for the indulgence of the extra minute.
Senator Tillis. A couple of things. First, I would just
note that I believe Justices Breyer and Ginsburg sat on the
Supreme Court during Clinton v. Jones and three out of four of
President Nixon's appointees were on the Supreme Court that
heard U.S. v. Nixon. And, Judge Kavanaugh, I have a--my
colleague and friend, Senator Whitehouse, attempted to imply
you would resolve the constitutional question of whether a
sitting President can be indicted. Is it not that, in a
contemporaneous law review article you authored, you explicitly
stated--these are your words--``whether the Constitution allows
indictment of a sitting President is debatable''?
Judge Kavanaugh. That is what I said in the contemporaneous
Georgetown Law Journal article. I have said that subsequently
as well.
Senator Tillis. And without objection, I would like to have
that article submitted for the record.
[The information appears as a submission for the record.]
Senator Tillis. And before I transition, if Senator Cruz
will indulge, I reserved 13 minutes of my time last night, and
I was wondering, there were two instances where you were not
allowed to answer the question. I did not know if you wanted to
make any clarifying comments on disclosing sources relative to
the discussion around Judge Starr. And at one point you were
saying that Senator Whitehouse said something you said, ``that
is about something different.'' I do not know if you remember
what that was, but if you want to clarify it before we
transition to Senator Cruz, I will give you a minute to do so.
Judge Kavanaugh. I think I will just leave the record as it
stands.
Senator Tillis. All right.
Judge Kavanaugh. That third comment that he referenced was
about something--a different aspect of that investigation.
Senator Tillis. Okay.
Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman, and I want to note
at the outset that the Senator from Rhode Island took his
questioning as an opportunity to impugn the residents of North
Carolina and the residents of Texas as having a penchant for
bigotry, and I appreciate the compassion from the Senator from
Rhode Island. I will point out--I will let you rise to the
defense of your own State, but I will point out in the State of
Texas, that we had just a few years back, three Statewide-
elected African-American officials, all Republican, I might
note, which I believe at the time was the most of any State in
the Union. And I think it is the case that Rhode Island has
none.
[Disturbance in the hearing room.]
Senator Cruz. And I would note as well----
Senator Whitehouse. For the record, I apologize to my
colleague if he takes any umbrage about my reference to the
general residents of Texas. This was a specific quote from a
Federal court decision in Texas referring to the decisionmakers
in that case. So, I apologize----
Senator Tillis. Senator Cruz, you have 30 additional
seconds.
Senator Cruz. Judge Kavanaugh, yesterday you had some
discussion with Senator Lee about what it means to be a
textualist. And I want to go back and revisit that conversation
and ask for someone at home who is watching this, why should it
matter to them if a judge is a textualist. What difference does
that make to somebody not involved with the Supreme Court?
Judge Kavanaugh. Senator, it goes to the foundation of the
Constitution and the system that the Framers designed with a
legislative branch, an executive branch, and a judicial branch
that were all separate. As was said in Federalist 78, the
judiciary does not exercise will, but it exercises judgment.
The policy decisions are made by the legislative branch with
the President, of course, in terms of signing legislation, so
the House, the Senate, and the President. The President
enforces Federal law, comes to the judiciary.
When we interpret a statute, if we as judges must adhere to
the text of the statute, why is that? Two reasons I think are
paramount. The first is the statute as written is what was
passed as a formal matter by the Congress, by both Houses of
the Congress, signed by the President into law. So, as a formal
matter, that is the law. So, if we are going to exercise
judgment and not will, we need to adhere to the law as passed,
and the law as passed is reflected in the written words that
were--went through both Houses and signed by the President.
Second, in supporting that, as a practical matter,
legislation is a compromise, and within the Senate, within the
House, with the President as well, lots of compromises are
inherent in any legislative product. Now, that is what my
experience shows. That is what, I know, your experience shows
as well, Senator. So, when a case comes to court, a statute
comes to court, we upset the compromise that you so carefully
reached and where people might have given up this for that in
terms of the legislative final language. And we then insert
ourselves after the fact into the process and upset the
compromise if we do not stick to the actual words of the text
of the statute as passed by Congress.
So, as both a formal matter of what the law is and as a
practical matter of not inserting ourselves into the
legislative process and upsetting the legislative process, it
is critical that judges stick to the law as written, the text
of the statute as passed by Congress and signed by the
President.
Senator Cruz. What in your view is the proper role, if any,
for legislative history in statutory adjudication? As you know,
different Justices have different views on this.
Judge Kavanaugh. Well, I think all judges are much more
skeptical of legislative history than they once were. That is
the influence, as you know, Senator, largely of Justice Scalia,
but really very mainstream now to be very skeptical of
legislative history. And, again, two reasons support that
skepticism, if not outright refusal to use it. The first is
that the legislative history, and by that I mean the Committee
reports or the floor statements made by individual Members on
the floor of the House or Senate, are not part of the law as
passed. And that is important because it would be very easy,
and I have said in my articles, for Congress, if there are a
paragraph or a paragraph or more in the legislative history and
a Committee report that was really important, we will put it
into the law. Put it into the introduction of the law, have it
be part of the law that is passed. When it is a Committee
report, it might have just been seen by one Committee in one
House. It might not have even been seen by the other House. The
President, of course, who is part of the process, might never
have seen it. So, to rely on that is to upset the formal
process by which law is enacted in the United States.
So, too, again, the legislative history, the Committee
report, is not part of the compromise that is reached between
the House and the Senate and the President, at least not
ordinarily. And so, you are allowing one Committee, for
example, or one Member to go down to the floor of the House or
Senate, and to say something that will shape subsequent
judicial interpretation and upset the careful compromise that
is reflected in the text that is passed by the Senate, passed
by the House, and signed by the President.
So, again, both formal and practical reasons why skepticism
of legislative history is warranted, and why Justice Scalia, I
think, was able to persuade Justices across the spectrum,
judges across the spectrum, that legislative history is useful
for understanding why something came to be, but not as a tool
for upsetting or changing your interpretation of the words of
the statute.
Senator Cruz. Also, yesterday when you were talking with
Senator Lee, I believe you described yourself as an
originalist.
Judge Kavanaugh. Yes.
Senator Cruz. Can you explain what that means to you, what
you mean by that, and why, again, people at home should care,
why that should matter if a judge or justice is an originalist.
Judge Kavanaugh. So, by ``originalist,'' it is important to
be clear because there are different things people hear when
they hear the term ``originalist.'' There was an old school of
original intent, the subjective intentions of the drafters or
ratifiers, and that is not really the proper approach, in my
view, for similar reasons to the discussion of legislative
history of the statutes.
By ``originalist,'' what I have meant is original public
meaning or the ``constitutional contextualism'' is a term I
have used that refers to the same concept, which is, pay
attention to the words of the Constitution. The Constitution,
as Article VI of the Constitution makes clear, is law. It is
not aspirational principles. It is law. It is the supreme law
of the land, and in that sense it is superior to statutes, but
it is law-like--just like statutes are, superior law.
The Constitution itself, including the amendments, but the
original Constitution, was itself a compromise, so it is law
and it is a compromise reached at Philadelphia in the summer of
1787. And, of course, Madison's notes and the history of that
shows all the compromises that were reached. Probably the most
famous compromise is the compromise that allows for
representation according to population in the House,
representation according to State in the Senate, the
Connecticut compromise, as it is often referred to.
It is important for judges, again, not to upset the formal
law that is written in the Constitution or to upset the
compromises reached either in the original Constitution or in
the amendments. Now, one key thing to add to that is precedent
is part of the constitutional interpretation as well as
Federalist 78 makes clear and the Judicial Power Clause of
Article III also makes clear. So, a system of precedent is
built into how judges interpret the Constitution and
constitutional cases on an ongoing basis. So, that is part of
the proper mode of constitutional interpretation and important
system of precedent.
Senator Cruz. Thank you. Let us shift back to the topic you
and I discussed yesterday, which is religious liberty, which is
a topic of considerable interest and importance to a great many
Americans. In private practice, you wrote an amicus brief in
the Santa Fe case for Congressmen Steve Largent and J.C. Watts.
Could you describe to this Committee what that case was about
and your representation there?
Judge Kavanaugh. I will. Of course, Senator Cornyn argued
the case as Attorney General for the State of Texas and did an
outstanding job. I remember participating in the moot court, as
the Senator recalled.
Senator Cornyn. It did not turn out too well, Judge.
[Laughter.]
Judge Kavanaugh. You did an excellent job, Senator, as I
remember being there. So, the case involved prayer before a
football game, and the Supreme Court, of course, has had a
number of cases on religious expression in schools, and these
are always challenging cases and very fact-specific. There are
two principles that the precedents have set forth. One is that
school-sponsored prayer at school events is often
impermissible, either at the school day, Engel v. Vitale, or
graduations, Lee v. Weisman.
At the same, when students want to express themselves in
some way--tee shirt, clothing, or saying their own prayer, say,
before a football game or other event, if students want to say
a prayer for themselves, or there is an open forum where
students are allowed to say whatever they want and one student
chooses to talk about religion or say a prayer--that is
generally on the free speech side of the house, freedom of
religion side of the house of the Supreme Court precedent,
which would protect the religious liberty of the individual in
that circumstance.
The Santa Fe case came--I think Senator Cornyn would say--
well, Senator Cornyn would say it came on the free speech,
freedom of religion side of the house. The Supreme Court
thought that the school was too involved, I would say, in the
prayer opportunity in that case, and, thus, attributed the
prayer in that case to the school. And the Supreme Court,
therefore, said that the prayer in that case was impermissible.
It was a very fact-specific decision, I think, based on how
some of the actual prayers had gone down in the school district
there. And so, it was really in the gray area on the facts
between these two principles--freedom of speech and freedom of
religion for individuals on the one hand, no school-sponsored
prayer on the other--and those two principles are part of the
Supreme Court precedent that I think the Courts have applied
for a long time now.
Senator Cruz. So, what led you to want to take on that
representation in the amicus brief?
Judge Kavanaugh. Well, I think at that time I worked on
several--I was asked to work on several cases involving
religious liberty and religious speech. I also did a case in
the--amicus brief in the Good News Club case, and that was a
case where a school district allowed use of a--the gymnasium
auditorium area after school for whatever group from the
community wanted to use the facility. And they would allow
everyone to come in, you know, Boy Scouts, the community--any
community group to come in, but they did allow religious groups
to come in. And that seemed to be discrimination against
religion, discrimination against religious people, religious
speech.
And I was asked to do an amicus brief, which made the
point--I wrote that made the point that religious people,
religious speakers, religious speech is entitled to its place
on an equal basis in the public square, including, in this
case, in the school auditorium or gymnasium. The Supreme Court
agreed with that principle in that case, stating that
discrimination against religion in public facilities in the
nature of what was going on in that case was impermissible and
a violation of freedom of speech, freedom of religion, and,
therefore, unconstitutional.
Those cases are important, I think, because it is important
that the--to recognize that the Constitution, the First
Amendment of the Constitution as well as many statutes, of
course, protect religious liberty in the United States,
religious freedom in the United States. And as I have said in
some of my opinions, we are all equally American, no matter
what religion we are or no religion at all, and that means
religious speakers and religious speakers have a right to their
place in the public square.
Senator Cruz. Another case you were involved in as a judge
is, you wrote a dissent from denial of re-hearing en banc in
the Priests for Life case. Can you tell this Committee about
that case and your opinion there?
Judge Kavanaugh. That was a group that was being forced to
provide certain kind of health coverage over their religious
objection to their employees. And under the Religious Freedom
Restoration Act, the question was, first, was this a
substantial burden on their religious exercise, and it seemed
to me quite clearly it was. It was a technical matter of
filling out a form--in that case they said filling out the form
would make them complicit in the provision of the abortion-
inducing drugs that they were, as a religious matter, objected
to.
The second question was, did the Government have a
compelling interest nonetheless in providing the coverage to
the employees. And applying the governing Supreme Court
precedent from Hobby Lobby, I said that the answer to that was,
yes, the Government did have a compelling interest, following
Justice Kennedy's opinion in Hobby Lobby, said the Government
did have a compelling interest in ensuring access.
And then it came down to the least restrictive means prong
of the Religious Freedom Restoration Act. And that prong of the
act, to my mind, is an opportunity to see is there--is there a
win-win in some respects. In other words, the Government
interest in ensuring healthcare coverage, can that be provided
without doing it on the backs of the religious objector. So,
that is what the Court is looking for.
In that case, Professor Voll has written about that, and in
that case it seemed to me that the Government had avenues to
ensure that the coverage was provided without doing so on the
backs of the religious objectors, and I so ruled, following the
Supreme Court precedent in Hobby Lobby and in a subsequent
case, Wheaton College, where they had an order that I followed,
and it seemed to me to dictate the result that I identified in
the Priests for Life dissent.
Another case, the Religious Freedom Restoration Act, just
to reiterate, was overwhelmingly passed by Congress in the
early 1990s and signed by President Clinton, and was an
important addition to the protection of religious freedom in
the United States to supplement the constitutional protection
that exists in the Free Exercise Clause.
Senator Cruz. Well, and I would note, much like yesterday
when we discussed your pro bono representation of the
synagogue, that Priests for Life, using the paradigm that some
on the Democratic aisle have suggested of little guy versus big
guy, by any measure Priests for Life, where the little guy
against the almost all-powerful Federal Government. And in that
opinion, presumably because you felt the law dictated it, you
sided with the Priests for Life in that decision.
Judge Kavanaugh. That is correct, Senator, and I think in a
lot of the religious freedom cases that the Supreme Court has
had, that has been the case. There was a prisoner, in an
opinion written by Justice Alito, I believe unanimous opinion
where the prisoner is being--a Muslim prisoner was being forced
to shave his beard in violation of his religious beliefs.
Justice Alito, as I recall, wrote the opinion for the Supreme
Court saying that was a substantial burden on his religion and
was not necessary. And that is just another example of how
religious liberty protects all of us no matter what our
religious beliefs are, and that is an important principle--
foundational principle both of the Constitution and of the
Religious Freedom Restoration Act.
Senator Cruz. Another case that you were involved in, in
your career, that stood out to me personally just by being a
Cuban American is that, as I understand it, in November 1999
when Elian Gonzalez came to this country as a young child. And
sadly, the Federal Government ended up coming into the home he
was staying, with machine guns, taking him into custody and
removing him to Cuba. You worked on Elian Gonzalez's case pro
bono against the INS returning him to Cuba, and if you could
talk about that case a little bit to the Committee.
Judge Kavanaugh. Yes, thank you, Senator. I was asked by
another person in my firm who had gotten a call from someone in
Florida whether we could on an emergency basis do, as I recall,
a re-hearing en banc petition in the Eleventh Circuit, and then
a cert petition in the Supreme Court on a really very short
notice because he was going to be returned.
The question was really due process, what kind of hearing
needed to be held before the INS returned him to Cuba. It was a
question under the Refugee Act as what that required, and also
a question under the Due Process Clause. And interestingly, it
seemed that the INS had not--was interpreting the Refugee Act
in a way that seemed a stretch of the statutory language, and
it was not some kind of formal regulation. So, the question of
Chevron deference to an informal agency position was a question
in the case, and I wrote the cert petition and the en banc
petition before that saying that the agency was stretching the
language of the statute beyond recognition, and was doing so in
a way that was entitled to no deference because it was not in
any kind of formal regulation, which years later turns out to
be a position the Supreme Court has agreed with in terms of
administrative law.
But in that case, I got involved because I was asked to get
involved on a moment's notice in a case of importance for
people who needed help.
Senator Cruz. Let me just ask one final question. You have
been nominated to the highest court in the land. As you know,
there is another highest court in the land. That is the
basketball court atop the U.S. Supreme Court courtroom.
Judge Kavanaugh. Yes.
Senator Cruz. And I believe that no sitting Justice has
played regularly there since Justice Thomas many years ago when
he was a much younger Justice. If you are confirmed, do you
intend to break that tradition and return to having a Justice
play on the highest court in the land?
Judge Kavanaugh. Well, I do, if fortunate enough to be
confirmed. I will--Justice Thomas did at some point get
injured, so I hope that precedent is not one that I would
follow. But if I am fortunate enough to be confirmed, yes,
indeed, Senator. Thank you.
Senator Cruz. Excellent. I am very glad to hear it.
Chairman Grassley. Before I call on Senator Klobuchar,
there are a couple of things. One, I became aware of the fact
that a lot of the committee confidential material that has been
requested, some of the requests we got were already public. So,
somebody is not doing very good homework if they are asking us
for committee confidential stuff to be disclosed that is
already available to the public.
Then I want to ask you, Judge Kavanaugh, you testified in
2004 that you were not involved in handling Judge Pryor's
nomination while you were in the White House Counsel's Office.
Is that right?
Judge Kavanaugh. I believe that is----
Chairman Grassley. I am talking about the handling of it.
Judge Kavanaugh. Yes, the handling. We had one person who
would be assigned to each judge. I was not the--as I recall, at
least, I was not the primary person on that.
Chairman Grassley. So, is it not the case that somebody
else handled the nomination, and if you know who that is, I
would like to give you a chance to say so, and if you do not, I
want to suggest a name.
Judge Kavanaugh. I do not remember who it was.
Chairman Grassley. Could it have been Benjamin Powell?
Judge Kavanaugh. It sure could have been, yes. He was
another associate counsel.
Chairman Grassley. What, if any, involvement did you have?
Judge Kavanaugh. I do not recall specifics. We would have
met at meetings. I could have attended a moot court where we
did a mock hearing. I do not remember specifics, but I--it
sounds--that sounds right to me that Benjamin would have been
the person primarily in charge of that, handling it.
Chairman Grassley. Well, I had colleagues attempting to
insinuate that you were interviewed--that you interviewed Judge
Pryor, the documents that we have, that he was referring, is
one of your colleagues asking how the Pryor interview went. It
certainly seems to me that this email is more likely to
indicate that you know the people who interviewed Judge Pryor,
but may have even been kept in the loop because it was
something that you were interested in.
Judge Kavanaugh. That sounds correct. I knew him, and,
therefore, was interested in his process.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. I am
going to do some follow-ups from our discussions yesterday,
Judge. I thought I would start with campaign finance. The
document that the Chairman has pointed out several times was
originally designated ``committee confidential,'' that I put
the request in and got made public. And on that document, you
said that contributions to--limits on contributions to
candidates have some constitutional problems. And I asked you
about Buckley v. Valeo, which is notable because it did not
apply strict scrutiny to campaign finance laws. You really did
not answer yesterday about whether you would follow that
precedent of Buckley, and so, I want to be more specific. Do
you think that strict scrutiny is the right standard to apply
to all campaign finance laws?
Judge Kavanaugh. Well, the Supreme Court, as you say,
Senator, has, since 1976 in the landmark Buckley case, applied
a different level of scrutiny, is one way to put it, to
expenditures on the one hand and contributions on the other.
And that divide has persisted since then to the current day so
that now contributions to parties as well as candidates are on
the one side of the line, and independent expenditures or
expenditures and donations to outside groups are on the other
side of the line.
So, that law is precedent of the Supreme Court. That has
been around for a long time and has set the basics for the
campaign finance framework that we are all familiar with.
Senator Klobuchar. Okay. So, do you see--but will you say
it is settled law or precedent? I am trying to----
Judge Kavanaugh. It is precedent of the Supreme Court that
has been applied since 1976, and, therefore, entitled the
respect under principles of stare decisis. And anyone seeking
to upset that--there are people who do not like the
expenditure--the freedom to--the Court's blessing of freedom to
make unlimited expenditures, of course. There are people from
the other direction that do not like some of the contribution
limits who do not like Buckley v. Valeo from that side either.
So, there are people who kind of hit it from both sides.
Senator Klobuchar. I understand.
Judge Kavanaugh. But it is a precedent that has been
applied repeatedly.
Senator Klobuchar. And so, do you think Brown v. Board of
Education is settled law?
Judge Kavanaugh. I think Brown v. Board of Education, as I
have said many times before, is the single greatest moment in
Supreme Court history.
Senator Klobuchar. I know, I know, I know, you said it, and
I appreciate that.
Judge Kavanaugh. And it is correct. It is correct.
Senator Klobuchar. Okay. So, it is----
Judge Kavanaugh. It is correct because it corrected a
historic mistake in Plessy v. Ferguson.
Senator Klobuchar. I understand, but is it settled law? I
am trying to get at this difference between when you say some
things are precedent, which is what, you know, we had an issue
here because the last hearing we had, Justice Gorsuch said a
bunch of things were precedent, and now he is on the Court and
he has already dissented actually from Justice Roberts, and did
not even want to uphold the reasonable expectation of privacy.
So, I am trying to get at the difference between when
people that come before us say it is precedent versus settled
law. Do you think there is a difference in those two words?
Judge Kavanaugh. Well, here is what I know, Senator, which
is for cases or issues that might come back before the Court,
it is important as a matter of independence as reflected in the
nominee precedent not to give a forecast or hint about that.
And part of that is giving a thumbs up or thumbs down on those
precedents that could be involved in that.
Senator Klobuchar. Got it. But so, if Brown v. Board of
Education is settled law and say, like, Roe v. Wade you just
say it is precedent. Precedent, non-precedent with Casey, is
that a difference, because I--Brown v. Board of Education was--
how many years ago? So, that was 64 years ago, but Roe v. Wade
was 45 years ago. And I am trying to figure out if you are
using these words in different ways when something is precedent
and something is settled law.
Judge Kavanaugh. All right. So, what I am trying to do is
adhere to the line that has been drawn by the eight Justices
currently sitting on the Supreme Court. And the line they have
drawn is for the vast body of Supreme Court precedent, they
have refused, in Justice Kagan's words, to give a thumbs up or
thumbs down on that precedent. There are some historical cases
where there is no prospect of that case coming back where they
felt free to indicate their agreement with them.
Senator Klobuchar. And so, that is Brown v. Board of
Education.
Judge Kavanaugh. Correct. In Brown v. Board of Education, I
said, single greatest moment in Supreme Court history.
Senator Klobuchar. But it is just that Roe is now 45 years
old. I mean, that is the issue. Why is that not a thumbs up
settled law?
Judge Kavanaugh. Well, no--none of the currently sitting
Justices of the Supreme Court have opined on that.
Senator Klobuchar. Okay. I want to go back to Presidential
power, and this is not a hypothetical. I am just going back to
2009, which is not that long ago, in the University of
Minnesota Law Review. And that is where you said, ``We should
not burden a sitting President with civil suits, criminal
investigations, or criminal prosecutions.'' And when you and I
talked about this yesterday, you said that Congress could still
pursue an impeachment proceeding, right?
Judge Kavanaugh. Yes, the impeachment mechanism.
Senator Klobuchar. Your view back then because you would
not comment on it, but your view when you wrote this was that--
well, your view now is that Congress should still be able to
pursue an impeachment.
Judge Kavanaugh. Well, the Constitution specifies
impeachment always as a tool for--in the Constitution itself.
Senator Klobuchar. Okay. So, when we go back to when you
wrote this, it is not a hypothetical, but when you wrote this
in 2009 and you were thinking about it, did you think then, and
this is what you meant, that a President should not have to be
investigated. I mean, you said it, right?
Judge Kavanaugh. The context there, I believe, Senator, was
talking about civil suits, or criminal investigations, or
criminal lawsuits, and it was not my position on the
constitutionality. It was something for Congress to consider,
and the idea was reflecting on my experience after September
11th and what we could do to make the Presidency the most
effective for the American people.
Senator Klobuchar. I am trying to understand in
practicality when you look at the last impeachment proceedings
how you would, in effect, do this if you did not have an
investigation, because these other ones have used independent
counsel. They have used special counsel. And if you do not have
that, do you not effectively eviscerate the impeachment part of
the Constitution?
Judge Kavanaugh. Not at all, Senator. Historically,
Congress has often had investigative bodies that have done the
work for----
Senator Klobuchar. But why would we want to foreclose our
ability to use a special counsel or an independent counsel?
Judge Kavanaugh. So, that was--that is your decision
ultimately in Congress to decide. That is one view that you
just articulated. And, of course, Congress has not enacted any
special deferral for civil suits, so Congress is stuck with the
Jones v. Clinton result from that case, and is stuck with, of
course, the existing system of special counsels.
Senator Klobuchar. But when you--to get back into where you
were in 2009 when you wrote this as opposed to just using a
hypothetical, so we have said several times here no one is
above the law, and I said that in my opening statement. But
when you said then, you mean no one is temporarily above the
law. So, if a sitting President, if she was in office and there
was some crime committed--murder, white-collar crime,
everything--then you are saying in this article at the time
that she should not be subject to criminal prosecution.
Judge Kavanaugh. That is a--that would be an issue for
Congress to consider if it wanted to pursue providing a
temporary deferral. There is--there are statutes that do that
for members of the military, so servicemembers serving
overseas. In fact, I think President Clinton's brief in the
Clinton v. Jones case cited that example as something where
there is statutory deferral, not immunity. It is important to
distinguish immunity from deferral. And not above the law, but
the timing of when a particular litigation will occur. So, I
would not call that above the law. I would call that a timing
question.
Senator Klobuchar. Okay, but there would be a long time. If
a President was serving for 4 years or 8 years given--and,
again, I am reading the words, ``We should not burden a sitting
President with civil suits, criminal investigations, or
criminal prosecutions.'' So, it feels to me that that was your
view when you wrote that.
Judge Kavanaugh. Well, it was an idea for Congress to
consider along with many other ideas I had in there about
judicial confirmations and war powers, and it was all
reflecting--again, that one was reflecting on an idea Congress
could consider. The whole point was to make the--you know, help
the country do better based on my observations from 3--5 and a
half years working in a White House where--during war. During
wartime.
Senator Klobuchar. Okay. I want to turn to another topic.
This is a follow-up from Senator Harris' questions from last
night. She asked you questions about voting rights. I am the
Ranking Member of the Rules Committee, and as she noted, many
States have restricted access to voting since the Supreme
Court's decision in Shelby County, which struck down a key
provision of the Voting Rights Act. And according to the
Brennan Center, 23 States now have more restrictive voting laws
than they did in 2010. Many of these laws have been challenged
in court. Some have been overturned.
So, here is one more question on this. Should courts
consider these widespread efforts to restrict voting, what has
been going on since 2010, when ruling on challenges to statutes
that affect the right to vote?
Judge Kavanaugh. I think in any particular case, Senator,
you would want to see what the record established in the case
was, and the record could include what is going on in that
particular State, and I can imagine a factual record where that
would include also potentially what is going on in other States
as well.
Senator Klobuchar. Thank you. Thanks. Studies by the
Brennan Center and other nonpartisan organizations have found
no evidence of widespread voter fraud, and a study by The
Washington Post found only 31 credible instances of fraud from
2000 to 2014 out of more than 1 billion ballots cast. Do you
believe there is evidence of voter fraud? Do you believe--I
know you told Senator Harris that you read some election law
blogs that were sitting here last night. And so, have you read
one of these articles on widespread voter fraud on one of these
blogs you mentioned? I am just concerned because that is out
there, and I would think that would be something that could be
looked at.
Judge Kavanaugh. Well, I would certainly look at Professor
Hassan's election law blog, and that is one of the ones that I
have looked at. I have looked at other blogs as well, and there
is discussion of this issue, and I would want--as a sitting
judge, I would want to se a record before me of what is going
on in a particular case. I hesitate to opine on something based
on something I have read in a law review article or blog. I
think you have a better sense of what is going on there. But I
would want a record in a particular case to determine what the
evidence in that particular case was.
Senator Klobuchar. Okay. And I want to turn now to
affirmative action, and Senator Booker raised these questions
as well late last night. And in a 2017 speech at Notre Dame,
you discussed how affirmative action represents a
``longstanding exception'' to the ``basic equal protection
right not to be treated by the Government on account of your
race.'' And you summarized the Court's debates on this issue
and remarked, ``On what basis is the Court making those
decisions? Is there something in the text of the Constitution
that tells us one is good enough and the other is not good
enough? Not really. Again, this is common law judging to define
the contours of the exception to the constitutional right.''
So, what did you mean by that statement?
Judge Kavanaugh. Well, what I meant by that is we, in many
areas of constitutional law, have, say, free speech rights, but
we have exceptions analyzed, usually we are just talking about
under strict scrutiny, and we have talked a lot about the
Second Amendment, how the regulations that co-exist with the
individual Second Amendment right. And so, too, in the
Fourteenth Amendment context, the equal protection context,
what kinds of programs are permissible, consistent with the
equal protection right. And the precedent is critical on this.
The precedent has built up things over time, the Bakke case, of
course, the most prominent in the higher education context
where the Court rejected remedying past societal discrimination
as a basis for an affirmative action program, but the Court
accepted diversity as a compelling interest for an affirmative
action program. And that rationale has remained as part of the
Supreme Court's precedent in the higher education context.
So, the Court applies these principles. They build up case
law over time, and that is part of the system of precedent that
develops, and that is what I was referring to there, I believe.
Senator Klobuchar. Okay. While at the White House, you
suggested that a Federal program meant to encourage the
participation of minority- and women-owned businesses in
transportation contracting was unconstitutional. This was a
document that was just made public by the Chair today. Although
you say that your--it was your personal opinion in the
document, you told Senator Booker that this was just your view
as a lawyer for a client. The client was the President at the
time.
The program remains in place today, and it is intended to
level the playing field and increase the participation of
minority- and women-owned businesses in local and State
transportation projects. So, I am just trying to understand
your views here. Do you believe that the use of race as a
factor in Federal contracting programs violates the Fourteenth
Amendment?
Judge Kavanaugh. So, my note in that case, as I understand
it and have seen it briefly, was rooted in Supreme Court
precedent, the Croson case. And I think it even says, ``See
Croson,'' in the email, and Croson is the Supreme Court
precedent where the Court had invalidated a Richmond
contracting program, as I recall. And so, that precedent made
clear what conditions need to be satisfied before a racial--a
contracting program of that kind could be sustained consistent
with the Constitution.
And the analysis that we went through suggested that, at
least as it was being applied, as I recall, the Federal program
went afoul of the Supreme Court precedent specified in the
Croson case. So, in that sense, I was providing advice about
how the program would fit within the Supreme Court's existing
precedent in the Croson case. At least that is my best
understanding. I have not gone back to re-study it, but that is
my best understanding was, that it was rooted in the precedent
of the Supreme Court.
Senator Klobuchar. Okay. Well, maybe we can get that in
writing at some point if you want to look back at it.
[The information appears as a submission for the record.]
Senator Klobuchar. We have witnessed unprecedented attacks
on journalists and journalism over the past several months.
This should be concerning to everyone because the role of
journalists is critical to our democracy. This is personal for
me. My dad was a journalist his entire life, and even wrote a
blog--he is now 90--for a while. You probably did not read that
one, though.
[Laughter.]
Senator Klobuchar. In New York Times v. Sullivan, the Court
issued a landmark ruling in support of First Amendment
protections for the press by affirming that when newspapers
report on public officials, they can say what they want unless
they say something untrue with ``actual malice.'' Under New
York Times v. Sullivan, do you believe the First Amendment
would permit public officials to sue the media under any
standard less demanding than actual malice, and can you explain
what that standard means to you?
Judge Kavanaugh. Well, the Supreme Court has elaborated on
and applied that standard repeatedly over time. I have, too, as
a lower court judge, so that precedent has now been applied
over and over and over again. I am not aware of much effort to
deviate from that standard. Interestingly, in New York Times v.
Sullivan, the Court in the course of that opinion said that the
Sedition Act of 1798 had been overturned in the court of
history, which I thought was an interesting turn of phrase in
New York Times v. Sullivan. Of course, the Sedition Act was the
act that said that criticism of public officials was illegal in
the United States in 1798. Never actually struck down by the
Court, but New York Times v. Sullivan made clear that that act
had been overturned in the court of history.
Senator Klobuchar. Okay. I also want to talk about First
Amendment protections for journalists and how journalists have
been deterred from doing their jobs at times under threat of
jail time. And I have raised this issue in the hearings for
many of the Justice Department nominees this Congress. But it
is also critical for the Court.
In Branzburg v. Hayes, a 5-to-4 Court did not recognize the
reporter's privilege, at least in the context of criminal grand
jury testimony. Since then, various circuit courts have debated
the contours of the decision with most courts----
[Disturbance in the hearing room.]
Senator Klobuchar. With most courts now recognizing some
type of privilege, particularly in civil cases. Can you talk
about the scope of that decision and whether there are
instances where the Court should recognize a reporter's
privilege?
Judge Kavanaugh. In civil cases. So I did sit on a case
once where we had exactly that question presented.
Senator Klobuchar. I knew that.
Judge Kavanaugh. And we had a great oral argument, and it
was fascinating, and I put a lot of time into something, and
then it settled before our opinion ever came out. So I never
actually released my opinion on that issue and--but I know the
issue well from the time I spent on that case at the time, and
I know the arguments.
Senator Klobuchar. You want to share them with us----
Judge Kavanaugh. Well, I think it is----
Senator Klobuchar [continuing]. In the remaining minute
with me here?
Judge Kavanaugh. It is a matter that obviously is the
subject of current litigation and could come before me again.
So I--as a matter of judicial independence, I cannot do so. But
I will say it is a very interesting issue, a question of
precedent, and the oral argument in the case, which is
available publicly, was fascinating because of the issue
presented as you described it.
Senator Klobuchar. Okay. How would you apply the First
Amendment to a reporter's decision to protect a confidential
source?
Judge Kavanaugh. So there is also important precedent on
that matter that makes clear the importance of the
relationships of reporters and their sources. Again, the
criminal-civil divide there is something that I think has been
a part of the case law in the--in the past where the criminal
context has been deemed in some cases sufficiently compelling.
But that is set forth as important part of the reporter's
privilege, and the relationship with confidential sources is
very important, I understand, to the role of journalists in
bringing sunlight to American democracy.
Senator Klobuchar. Thank you.
Chairman Grassley. Before we go to Senator Sasse, I would
like to note that we have had some good luck in confirming this
week eight Federal judges to lifetime appointments.
[Disturbance in the hearing room.]
Chairman Grassley. Eight Federal judges to lifetime
appointments this week. Last week, we did seven judges. Twelve
were confirmed without any objection from Democrats. And so we
have had a pretty good record finally of being able to show
that you do not have anything to fear from lifetime
appointments for Federal judges like we have heard a big issue
it is today.
Go ahead.
Senator Sasse. Thank you, Mr. Chairman.
Judge, welcome back. Congratulations on your last day of
interviewing in your life.
I would like to talk about precedent. You have been a law
professor--how long have you been a professor?
Judge Kavanaugh. I started in 2007 was the first year. I
have taught 12 separate calendar years.
Senator Sasse. Okay. Let us pretend you are a sixth grade
civics teacher for our 20 minutes together instead of a law
professor. I think precedent is critically important, but I do
not think the American people--it is not something that we
debate in front of them much, so it is something that maybe we
could benefit from having more shared understanding about.
Has the Supreme Court ever made a mistake?
Judge Kavanaugh. The Supreme Court has made some major
mistakes at times--Dred Scott, Plessy v. Ferguson, good
examples.
Senator Sasse. How do you know when you have a mistake?
Judge Kavanaugh. Sometimes you know right away, and I think
in those cases, with the dissents written in those cases, those
dissenters knew right away, and I think they were mistakes
right away. Plessy v. Ferguson was wrong the day it was
decided.
Senator Sasse. It was 1896, and we knew it was wrong when
it happened. What was the ruling count? Do you remember the
vote?
Judge Kavanaugh. There was only one dissenter, Justice
Harlan, the first Justice Harlan was the only dissenter in that
case.
Senator Sasse. Okay. It is so close to McCain's event that
I do not--I know we should not be joking right now, but I just
want to talk about lunch. Republican Senators have lunch
together three times a week, and whenever we do, if somebody's
phone goes off, it was always John McCain's.
[Laughter.]
Senator Sasse. When he would get bored at lunch, he would
be watching CNN, and he would not know that it came on at full
volume 10. So it just felt like a ghost of lunches past.
You wrote a really important article in Catholic Law Review
last year, ``The 10 Principles of Good Umpiring,'' and it was
not about you as basketball coach. It was about the job of a
judge.
I am going to speed through them. So I am oversimplifying,
but I think your top 10 list was if you are a judge--or if you
are an umpire, you cannot be a partisan. You have got no
rooting interest. You have got no fan favorites.
Number two, the rules have to exist before the game.
Number three, you have to apply the rules consistently.
Four, you cannot remake the rules based on your
preferences. If your view of the game changes--Dez Bryant a
couple of years ago, that catch at the goal line,
[Disturbance in the hearing room.]
Senator Sasse. It may be the case that the NFL decides in
the course of a year that the targeting penalty does not work.
A judge does not get to remake that rule on the fly.
Number five, you have got to have backbone or courage.
Number six, you have to be able to tune out the crowd.
Number seven, you have to have an open mind. You think you
know what case is coming before you, and people may present
arguments that are different than you thought.
Number eight, you need the right demeanor and temperament.
Number nine, you have to work collegially with your
colleagues.
And number 10, you have to be good at explaining.
Rule number two, the rules have to exist before the game.
You then go from having a kind of paragraph-by-paragraph
structure, you pause and have a long 2(b), and you explain a
little bit about precedent. Can you give us a 60- or 90-second
view about how precedent relates to having rules of the game
before the game?
Judge Kavanaugh. Yes. Precedent is important for stability
and predictability. And so to know what the rules are ahead of
time is important for good judging and for good umpiring, and
to do it consistently with how it has been done before I think
is part of the system of precedent.
The point is when the rules are set ahead of time by the
precedent or by the law, then you are not making up the rules
as you go along in the heat of the moment, which will seem
unfair, which will seem like you are a partisan because you are
going to seem like you are favoring one side or another because
of allegiance to that team or favoritism to that team rather
than applying the rules ahead of time.
Which is why in sports, as you know well, Senator--because
I know of your devotion to sports--there are a lot of detailed
rules that are set forth about how the game is played and how
referees and umpires are supposed to call the game. And that is
to ensure that there is predictability, there is stability,
that the players can rely on that and that it is overall
fairness.
Due process is not a word used often in the refereeing
context, but it really is an element of due process. Notice
about what the rules are ahead of time so that everyone has
confidence in the fairness of the game and that the umpiring,
which is critical to the outcome of many games, is done in a
fair and impartial way.
So it facilitates impartiality, integrity of the game,
fairness of the game. And it is true for games, sports, and it
is true--I think the analogy is very strong, frankly, and this
is--why I wrote that article is because the Chief Justice of
the Court had talked famously about the judge as umpire, and
because I coach and play a lot of sports and I really thought
about the analogy, and I thought there are actually a lot of
parallels between being a good judge and a good umpire. I am a
connoisseur of umpiring.
Senator Sasse. I want to jump in here because I agree with
you that the analogy is strong and tight, but I think it is
imperfect, right?
Judge Kavanaugh. Yes.
Senator Sasse. Because in a football--mind you, I was a
football coach. In a football game, everything that is going to
happen inside the four corners of that 120 yards with end zones
is predictable in that Woody Hayes comes off the sideline in
1971 and punches a player in the face. That was new, and yet it
was still nonparticipation.
There is a rule you can only have 11 players. Coach cannot
play. Another 12th player cannot play. And so there was a rule
that spoke to that.
But in what you are doing, it is not as defined because the
cases that may originate are not as perfectly cabinable, if
that is a word, as in football, what might happen. So help me
understand the distinction between judging as umpiring and the
fact that the Supreme Court has made decisions in the past. It
is not the case that every decision the Supreme Court has ever
made is right and is now a part of the permanent rulebook. You
sometimes have to throw them out.
So sixth-grade level, help us understand how, from 1896 to
1954--you have repeatedly called Brown the greatest moment in
Supreme Court history. I think it is one of the greatest
moments in American history as well.
In those 58 years, the Court was wrong for that whole time,
and yet the way we think about precedent, we might have our
sixth-graders thinking we should always take every received
decision as right. So how do you reconcile the two?
Judge Kavanaugh. Well, with the factors the Supreme Court
looks at or whether the decision is not just wrong, but
grievously wrong, whether it is inconsistent with the law that
has grown up around it, what the real world consequences are,
including workability, and then reliance.
And one of the genius moves of Thurgood Marshall, among
many genius moves he made as a lawyer, was to start litigating
case by case. He knew Plessy was wrong the day it was decided,
but he also knew as a matter of litigation strategy the way to
bring about this change was to try to create a body of law that
undermined the foundations of Plessy.
And he started litigating cases and showing case by case
that separate was not really equal. And he did it in cases like
Sweatt v. Painter and many other cases. And he built up a
record over time that by the time he went to the Supreme Court
to argue Brown v. Board of Education, he had shown its
inconsistency with the law that had built up around it for
those who were not otherwise as quickly onboard with the idea
that Plessy was wrong the day it was decided. He was taking no
chances.
Senator Sasse. I want to interrupt you because I want you
to keep coming forward these 58 years. But just as a civics
commercial, what you are describing right here, in the new
documentary ``Marshall,'' every mom and dad and teacher ought
to show it to their kids.
I actually got to see it before it was out because Senator
Harris gave me a copy, and my kids and I watched it before it
was public. But everybody should watch the Marshall documentary
that is going through the history of what he was doing as a
long-term litigation strategy.
But continue, please.
Judge Kavanaugh. Well, I think that by the time it got to
Brown v. Board of Education that the foundations for
overturning Plessy had been strengthened by showing what the
real world consequences were and by building up a body of law
that was inconsistent with the principle, the erroneous
principles set forth in Plessy.
And so he had a strategic vision of how to do this, which
was brilliant, and he effectuated along with a team of lawyers
over time litigating case after case after case and building up
factual records that would show the harm, the badge--the
Supreme Court ultimately said the badge of inferiority from
separate educational facilities and separate--separate
facilities more generally. And that is--that is how he was able
to show that the precedent, even with principles of stare
decisis in place, should be overturned.
Senator Sasse. But so if you were on the Court during that
period, that 58-year period--I want to get at some point to
this distinction between precedent, super precedent, precedent
on precedent, super-duper precedent. But one of the reasons you
think this is because of the Harlan dissent.
So back up. And again, sixth-grade level, what is the
purpose of a dissent? Why do we write them?
Judge Kavanaugh. We write dissents because we, in a multi-
member court, disagree with the decision that is being made by
the majority and because we think that the issue is
sufficiently important if you are on the Supreme Court that
perhaps a future court will pay attention to your decision, or
in a statutory case, sometimes maybe Congress will think that
your interpretation of the statute was better, and maybe
Congress will update the statute to reflect your review.
But the purpose of dissents in constitutional cases, I
think Justice Ginsburg has said this, Justice Scalia used to
say this, dissents often speak to the next generation, and it
is important, therefore, in constitutional cases of importance
to have those dissents. And Harlan's dissent was a classic. It
had some lines that are very memorable about the separation of
the races in the Louisiana railcars, and that law had just
recently been enacted. So this was an example after the
Fourteenth Amendment.
After the Civil War and the Fourteenth Amendment, there was
a period of positive movement, at least some positive movement,
not complete by any stretch. And Strauder v. West Virginia
reflects that in 1880, where the Supreme Court says what is
this, but the law should be the same for the Black and the
White.
That was a case where African Americans were being excluded
from juries--all-White juries--and the Supreme Court said no to
that. And, but then progress, any progress went backward, as
reflected in the Plessy v. Ferguson decision, which upheld the
separation of the races in that case.
And so the Harlan dissent was very important for setting
forth a clear principle rooted in the text of the Constitution
and rooted in the principles of the Fourteenth Amendment and
subsequently vindicated, at least on paper, of course, in Brown
v. Board of Education.
Senator Sasse. Why do you write a concurring dissent?
Judge Kavanaugh. You can write a separate dissent or
concurring opinion in the majority opinion. Sometimes you will
write a concurring opinion to the majority opinion because you
have a different rationale for reaching the same result. So you
might have a----
Senator Sasse. So who is your audience?
Judge Kavanaugh. Your audience, that is a good question.
Sometimes it is also future courts. But oftentimes, when you
are at the Supreme Court level, I think--I obviously do not
know, but I think they are writing concurring opinions
sometimes to influence or suggest things to lower courts about
how this case, either another issue or related issue or
tangential issue, should be resolved or thought about in the
lower courts.
Sometimes the concurring opinion is written to the future
Supreme Court that might be 5 years down the road about an
issue that is related to the issue being decided by the
majority opinion. There are lots of different purposes that one
might have for a concurring opinion when you are on the Supreme
Court, at least as I have read them over the years.
Senator Sasse. So let me give you a hypothetical. You are
on the Court, and there is a 6-to-3 decision. And you are on
the losing side, and so you write your dissent. And the next
year there is a case that looks to you to be almost exactly the
same. So you do not grant cert. You do not vote for it, but
other people do. And so a case is coming back before you.
And I know you are going to tell me that you need to be
open-minded, and maybe the case is really different and you
were wrong when you did not grant cert. But just bracket that
problem for a minute. Let us pretend, a 6-to-3 case, you lost.
Then there is a new case that comes before you. Are you
supposed to have the view of the majority the next year, even
though you disagreed last year, or do you write the same
dissent again?
Judge Kavanaugh. So as a matter of precedent, the ordinary
course is that you follow the precedent of the Supreme Court,
even if you were on the losing side, maybe especially if you
were on the losing side. There are times when Justices have
persisted in their dissents repeatedly over the years,
particularly in certain critical constitutional issues, or
sometimes they have not persisted in the dissent but joined the
majority, but said I still agree with myself back in the prior
precedent where I had dissented originally.
You see different approaches to this by different Justices
on different issues. I do not think it is a one-size-fits-all
answer to your question, at least in terms of what the Justices
have done over time on that particular question. Most famously,
Justices Marshall and Brennan dissented in every death penalty
case because they did not accept the precedent of the Supreme
Court that allowed the death penalty under the Eighth
Amendment.
Senator Sasse. So how do you imagine you would act in that
circumstance if there is a difference--there is a diversity of
views across Justices in our history. But if you have got the
same case coming back the next year, do you dissent again, or
do you accept a majority opinion? Could you write the majority
opinion?
Judge Kavanaugh. Well, that is what I think a good judge
does, which is once the decision has been made, you accept the
precedent, subject to the rules of stare decisis. And yes,
there are lots of historical examples where that has happened,
and that has been done.
Justice White had been a dissenter in Miranda v. Arizona
famously and then wrote many decisions applying Miranda
subsequent to that, accepting the decision. Chief Justice
Rehnquist, of course, ultimately wrote the decision where the
question was whether to overrule Miranda and wrote the decision
reaffirming Miranda because he decided that, at that point, it
had--did not meet the conditions for overruling a precedent in
that case.
So I think ordinarily, ordinarily you get onboard the
precedent, but you might still write separately to say I think
this was a huge mistake, and we should go back to a different
approach. You see that sometimes. I think there are lots--there
are lots of permutations to the question you are asking,
Senator, but the ordinary course----
Senator Sasse. I want to ask them, but the Chairman will
only let me have 3\1/2\ more minutes. He is miserly about this.
Judge Kavanaugh. Yes.
Senator Sasse. What is the difference between an appellate
court judge's job and a Supreme Court Justice's job?
Judge Kavanaugh. There are many.
Senator Sasse. Specifically with regard to questions where
there has been a precedent.
Judge Kavanaugh. So at the D.C. Circuit level or the court
of appeals level, we follow vertical stare decisis, absolutely,
and that means that we are not permitted to deviate from a
Supreme Court precedent. With respect to Supreme Court, or let
us put it this way, when I am on the D.C. Circuit and we are
reconsidering en banc a prior precedent of our own, we can do
that at times if the conditions for overruling a precedent are
met. We cannot do that with respect to Supreme Court precedent.
We have to follow that.
And why is that? Because that is there is one Supreme Court
in our hierarchical system, and lower courts have to follow
that, or there would be chaos in the Federal system if lower
courts were not strictly bound to follow the precedents of the
Supreme Court.
Senator Sasse. Is there a single Supreme Court Justice
today who agrees with the every extant opinion of the Court?
Judge Kavanaugh. I think that has got to be zero.
Senator Sasse. Right. So how does that get netted out in
the next controversial case? When you use these terms--
precedent, super precedent, precedent on precedent--how does
that get netted out?
Judge Kavanaugh. Ordinarily, it gets netted out by the
Court following the precedent until--until unless or until the
conditions for overturning something are met. Brown v. Board
being the most prominent example of when that happened. Erie
Railroad case overruling Swift v. Tyson. There are examples
throughout our history where that has happened.
But it is rare, and ordinarily, what happens is once a
decision has been decided, that is what stare decisis means.
You follow the decision that has been set forth by the Supreme
Court, subject to the rules of stare decisis.
And you see that time and again. That is part of stability.
That is part of predictability. That is part of impartiality.
That is part of public confidence in the rule of law that it is
not just going to move pillar to post, that the law is stable
and foundational.
Again, it is not--Brown v. Board shows it is not absolute.
And that is a good thing, but it is critically important to the
impartiality and stability and predictability of the law.
Senator Sasse. And the fact that Harlan should have been
the guiding opinion for those 58 years is not true just for the
Supreme Court. It was also true for appellate courts? Could an
appellate judge have gone with Harlan in 1940?
Judge Kavanaugh. An appellate judge was bound by the
precedent of the Supreme Court, and that would have been,
sadly, Plessy v. Ferguson at that time.
Senator Sasse. So the core difference here for the Supreme
Court is there is greater latitude to reconsider the previous
errors of the Court.
Judge Kavanaugh. Of the Supreme Court, that is correct,
Senator.
Senator Sasse. I am at 30 seconds left. So I have got to
get my last one out to get in under the bell. I will shift
gears just a tiny little bit.
What is the Declaration of Independence? In what way--the
Constitution is fundamental law for us. What is the Declaration
of Independence?
Judge Kavanaugh. So, the Declaration of Independence, first
of all, is a legal document, legally declaring independence, of
course, from Great Britain. But it also sets forth a series of
grievances against the monarchy, the system, many of which are
reflected in the Constitution in terms of protections that are
in the Constitution.
If you trace to the Declaration of Independence, you see
the grievances they had reflected and protections we have in
the Constitution, starting with the separation of powers, but
also including the individual protections, whether it is ex
post facto law or freedom of speech or quartering. The Third
Amendment not much mitigated, as we know, Senator, but you can
trace it.
But this Declaration of Independence is a set of principles
that I think guide our beliefs of life, liberty, and the
pursuit of happiness. All men are created equal. All people are
created equal in our society. And those principles have guided
us, inspired us, been the source of our liberty, the source of
much of what we have done as a country since the Declaration of
Independence.
But it is not law in the same way the Constitution is law
that is applied in courts.
Senator Sasse. Thanks.
Chairman Grassley. Senator Coons.
Senator Coons. Thank you, Chairman Grassley.
[Disturbance in the hearing room.]
Senator Coons. Thank you, Chairman Grassley.
Thank you, Judge Kavanaugh. To you, to Ashley, to your
family and friends, thank you for being here and for the
opportunity to engage with you. Again, you have certainly shown
great persistence and engagement.
[Disturbance in the hearing room.]
Senator Coons. In the last round, we talked about the
bedrock constitutional principle that no one should be above
the law, including the President, which is a principle
foundational to our democracy. It is about more than any one
person and any one President. And I just want to continue
asking you about the President's obligation to cooperate with a
Federal investigation and how your view of the President's
power might implicate an investigation.
As we all know, in 1974, senior officials in the Nixon
administration in the campaign were on trial for crimes related
to Watergate. And with so many former White House and Justice
Department officials implicated in crimes, then-President Nixon
felt threatened by the investigation.
So special prosecutor Archibald Cox, when he issued a grand
jury subpoena for the Watergate tapes, audio recordings of
White House conversations, reasonably believing they contained
evidence of criminal activity, the President acted. Instead of
complying with the subpoena for tapes and providing the
evidence, President Nixon had the special prosecutor fired, and
he fought the subpoena for the tapes all the way to the Supreme
Court.
I want to focus on the question of the President's action
in firing the special prosecutor because that is what I think
is a key issue here. Judge, when President Nixon fired special
prosecutor Archibald Cox, did he violate the law or the
Constitution?
[Disturbance in the hearing room.]
Judge Kavanaugh. I know that the regulation in place for
Leon Jaworski after the firing had special protection for
against firing, and I think that has become the model for the
regulations. I am not recalling the specifics of the Cox
regulation in place at the time.
Senator Coons. I will tell you that there were for-cause
restrictions in place in regulation at the time. Given that, do
you think firing the special prosecutor violated the law or the
Constitution?
Judge Kavanaugh. Well, if it violated the regulation, it
violated the regulation.
Senator Coons. Would it have violated the Constitution?
What I am getting at, Judge, is your view of Presidential power
and whether or not it would be a violation of the Constitution
for there to be these for-cause restrictions on the President's
ability to fire the special prosecutor?
Judge Kavanaugh. Well, I think the Supreme Court in United
States v. Richard Nixon analyzed the specific regulation at
issue in that case and actually relied on the specific
regulation in finding that the case was justiciable under the
precise terms of the regulation in place at the time. In fact,
the Court analyzed that in really specific detail, pointed out
that so long as the----
[Disturbance in the hearing room.]
Senator Coons. Let me be clear about the point I am trying
to get to.
Judge Kavanaugh. Okay.
Senator Coons. It is your views about whether or not, when
President Nixon fired Archibald Cox, he obstructed justice in
violation of the Constitution or the firing itself violated the
Constitution. It is important to know your views on U.S. v.
Nixon as well, and we will turn to that. But I am interested in
your understanding of the Constitution and whether or not it
prohibits restrictions on the President's ability to fire a
special prosecutor at will.
Judge Kavanaugh. So the Supreme Court said, and so you are
asking my views. My views are what the precedent says. In other
words, I follow the precedent. The precedent of the Supreme
Court in the U.S. v. Nixon case did apply that regulation,
analyzed----
Senator Coons. And Judge, U.S. v. Nixon was unanimous.
Correct?
Judge Kavanaugh. It was unanimous, 8-to-0.
Senator Coons. Are you aware of any Justice having
questioned the decision in U.S. v. Nixon since then?
Judge Kavanaugh. No. I have called it one of the four
greatest moments in Supreme Court history, U.S. v. Richard
Nixon.
Senator Coons. You have, and that is exactly what I want to
get to because you have also, in another context, as we talked
about yesterday, in a roundtable in 1999, volunteered
unprompted that maybe Nixon was wrongly decided. Do you think
U.S. v. Nixon was wrongly decided?
Judge Kavanaugh. I have said it was one of the four
greatest decisions and correct decisions in terms of the
specific regulation at issue in the case and the Court's
holding in the context of a criminal trial subpoena, that the
subpoena for the information, the tapes was enforceable in that
context. And that is what I have said before publicly about the
Nixon case.
And that 1999----
Senator Coons. So, Judge, you would agree that it was
correctly decided? Did I just hear you right?
Judge Kavanaugh. Can I--yes, of course. When I say it is
one of the great--I mean, when I say something is the greatest,
that means I agree with it. And the point was under the
specific regulation at issue in that case, a criminal trial
subpoena for the information, and it was a moment of judicial
independence, a moment where the Court, I think, came together
as unanimous opinion written by Chief Justice Burger. So that
is an important moment in the Court's history.
Senator Coons. So you would agree then, just following the
U.S. v. Nixon precedent, that a Court can order a President to
produce records in response to a grand jury subpoena or can be
compelled to testify in front of the grand jury?
Judge Kavanaugh. I am not going to answer hypotheticals
about to apply U.S. v. Nixon.
Senator Coons. But that is the holding?
Judge Kavanaugh. The holding of U.S. v. Nixon was that the
subpoena for the information in the context of the criminal
trial had to--could be enforced and that, therefore, given the
regulation at issue in the case, the case was justiciable, and
the subpoena could be enforced. I am not going to answer
hypotheticals about how it applies in other contexts.
By the way, I should add that the context of what you have
up there is incorrect. So, but I have said Nixon was one of the
four greatest moments in Supreme Court history. I have written
it several times before----
Senator Coons. You have.
Judge Kavanaugh. Including 1999. The context of that, if
you want to know, was a roundtable with me and some lawyers who
had represented the Clinton administration. We were just
talking, reflecting on the independent counsel investigation.
And my point to them, they were concerned that the subpoenas
that were enforced by the courts during the Starr independent
counsel investigation had weakend the Presidency. That was the
position of the Clinton lawyers.
And I said, well, we were just following U.S. v. Nixon.
That was my position. So my position was either you are wrong
or Nixon is wrong, to the Clinton lawyers. And that is the
context of that comment. The tone of voice there makes the
printed words look much different from how they were intended,
and I think that been seriously mischaracterized.
Senator Coons. And the striking thing about the context,
which we discussed before and I made clear in a letter I was
going to question you about, is that Phil Lacovara, who was
facilitating this roundtable, who was the Watergate prosecutor
who argued U.S. v. Nixon, in a later interview said he did not
think you were just being provocative, this was just some
academic give-and-take with some Clinton lawyers. Lacovara has
been quoted saying that statement that perhaps Nixon was
wrongly decided was Brett staking out his jurisprudential
approach since law school.
It seems Lacovara thought you were serious about raising a
question about whether U.S. v. Nixon was wrongly decided
because--and this is what you said at the roundtable--Nixon
took away the power of the President to control information in
the executive branch.
Judge Kavanaugh. Right. And that is why the Clinton
lawyers, I thought, were wrong.
Senator Coons. So----
Judge Kavanaugh. That was my point.
Senator Coons. Why should the person being investigated----
Judge Kavanaugh. The point, the point--the point that I was
making was that Clinton lawyers, who were--were saying that the
independent counsel office had weakened the Presidency, I was
saying to the Clinton lawyers it was not the Starr office who
had done that. It was United States v. Nixon that had done
that. And then I pointed out to the Clinton lawyers--and I
think we have discussed this in the office, had a good
discussion in your office about this--was I said, but you were
unwilling. I said this to the Clinton lawyers. You were
unwilling to challenge United States v. Nixon.
Well, that was the governing precedent, and that is the
precedent we were litigating, and that is where your concern
should be. And that is the context in which that line was said.
With all respect to Mr. Lacovara, I think he is
misunderstanding what I was saying there.
And here is how I know he was misunderstanding. Because in
a contemporaneous Law Review article at that same time, I
specifically talked about U.S. v. Nixon and the importance of
that precedent. So that is how I know he was misunderstanding
the point of what--I respectfully think he was misunderstanding
the point of what I was saying there.
Senator Coons. So if U.S. v. Nixon was rightly decided, was
Morrison v. Olson rightly decided?
Judge Kavanaugh. Well, I have talked about Morrison v.
Olson.
Senator Coons. Yes. That was the whole point of our
exchange yesterday, and that is the root of my core concern.
And what I am getting at in this whole line----
Judge Kavanaugh. I have associated myself with Justice
Kagan's position on Morrison v. Olson.
Senator Coons. And given our exchange yesterday, I went
back and looked at ``Presidential Administration,'' her article
where she expressly rejects unitarianism, as she calls it, the
unitary executive theory. The theory that you do not just
mention in passing but expound in your PHH dissent.
Judge Kavanaugh. I do not----
Senator Coons. It is exactly this reason that I have
concerns, Judge.
Judge Kavanaugh. But I specifically recognize, Senator--and
I understand the point. But I specifically call Humphrey's
Executor the precedent that we must follow in the independent
agency context. Humphrey's Executor, of course, accepts
independent agencies, as did I in that case, as precedent of
the Supreme Court that I have referred to as entrenched.
The only thing I was--the only question in PHH was can we
go further than that kind of independent agency, consistent
with Article II, or does Humphrey's Executor draw the line that
sets forth the permissible boundaries under which Congress can
establish independent agencies?
Senator Coons. In an exchange you had with Senator
Feinstein earlier today, this was exactly the question where I
do not think you ever really answered it.
As I understand your dissent in the CFPB case, PHH v. CFPB,
your exact problem with the structure Congress created for this
independent agency was that the Director was not removable at
will by the President. The Director is removable, but only for
cause.
That is the line that I am drawing here between your
concerns or criticisms in one context a long time ago about
U.S. v. Nixon, your comments about being able to fire the
prosecutor at will in a number of Law Review articles, your
comments in some roundtables and discussions in 2016, and the
dissent in PHH and the structure of the CFPB. What offended
your constitutional sensibilities, as I understand your
dissent, Judge, this year in PHH, was that the President could
not fire at will the Director.
And that is the whole reason of my asking you about did the
President violate the Constitution, in your understanding, in
firing the special prosecutor in Watergate? It is a coherent
theory. You can have a coherent theory that the Congress cannot
restrain the President's ability to fire at will lesser
executive branch officials. I just want to have a clear
understanding of it.
Judge Kavanaugh. I want to understand the question. So the
first part of the question was, part of your premise----
Senator Coons. So earlier today, let us return to an
earlier exchange you had with Senator Feinstein. She was asking
you about your dissent in PHH. What was it that caused you to
write an opinion, what was the constitutional view, the
underpinnings of your decision that having a single Director
removable for cause by the President was constitutionally
unsound?
Judge Kavanaugh. Okay, I can explain. Can I get a minute?
Senator Coons. Yes.
Judge Kavanaugh. Okay. So I was following a precedent of
the Supreme Court from about 10 years ago, Free Enterprise Fund
case. I had written the dissent at the D.C. Circuit in that
case, a novel independent agency structure for the PCAOB, the
accounting oversight board.
Senator Coons. Right. I am familiar.
Judge Kavanaugh. I wrote a dissent saying that the--that
structure departed from the traditional independent agency
structure. I dissented. The Supreme Court took the case, agreed
with my dissent in a majority opinion by Chief Justice Roberts
saying that the outer lines, at least as I interpret what Chief
Justice Roberts said for the Court, the outer lines of
independent agencies are the traditional independent agency
structures set forth in Humphrey's Executor. At least that is
how I interpreted the opinion.
And then----
Senator Coons. But was Humphrey's Executor not also, Judge,
critically about removable at will versus for-cause?
Judge Kavanaugh. Yes. And that is so long as it----
Senator Coons. And is this not exactly why the majority in
your Circuit said that your dissent flew in the face of
Morrison?
Judge Kavanaugh. They thought Humphrey's Executor allowed
structures beyond the multi-member agency that was upheld----
Senator Coons. Yes, exactly.
Judge Kavanaugh. In Humphrey's Executor. I disagreed, based
on the Free Enter--the same thing had been said about my
dissent in Free Enterprise Fund. The Supreme Court took it and
agreed with my dissent in Free Enterprise Fund. I thought this
case is very similar to what I had written in Free Enterprise
Fund. In fact, I block quote my old dissent.
Senator Coons. But what you did not say in response to
Senator Feinstein's question that I am still trying to get an
answer to, was not your core concern in your PHH dissent that
the President could not fire at will the Director of the CFPB?
Judge Kavanaugh. That was the concern because that departed
from history to have a single Director independent agency
structure, not the multi-member independent agency structure
that existed in Humphrey's Executor, and that had----
Senator Coons. And you can see how that then raises
questions and concerns about your distinction between fireable
at will or fireable for cause.
Judge Kavanaugh. But----
Senator Coons. And as this body has taken up and debated
whether or not it is permissible for us to legislate a
protection for special prosecutors that they can only be fired
for cause, not at will, your repeated citation of the Scalia
dissent in Morrison v. Olson rises again to the fore. Thus, my
question to you. Will you also agree that Morrison was
correctly decided?
It is good law. It is a settled case. You may have in a
response to a previous question said, oh, it is a one-off case
about a now extinguished statute.
Judge Kavanaugh. Right.
Senator Coons. But as I said yesterday, why then pick it
out of the whole constellation of constitutional opinions as
the one you most want to put a nail in its coffin? Why the
animus against this if you do not think it was wrongly decided?
Judge Kavanaugh. I have said what I have said about
Morrison, but Justice Kagan said that it is one of the greatest
dissents ever written by Justice Scalia, which----
Senator Coons. Yes.
Judge Kavanaugh. Unless I am misreading something----
Senator Coons. You are misreading something, Judge, with
all due respect. I went back to look at ``Presidential
Administration'' by Justice Kagan after you cited it to me
yesterday. That is clearly not what she is saying. She is not
endorsing the unitary executive.
Judge Kavanaugh. You are conflating----
Senator Coons. She is saying Scalia wrote a beautiful
dissent, in my view.
Judge Kavanaugh. You do not think she agrees with it?
Senator Coons. I do not think she agrees with it at all.
Judge Kavanaugh. I think when she calls something the
greatest, she probably agrees with it.
Senator Coons. But let us get to what you believe. What I
am encouraged by is, that you have said when you call U.S. v.
Nixon the greatest, you think it is rightly decided. What I am
not getting an answer from you on is whether you think Morrison
v. Olson was rightly decided.
But I would be interested in hearing whether you think
Griswold v. Connecticut or Eisenstadt v. Baird were correctly
decided. An opinion that Justices Kennedy, Ginsburg, Roberts,
and Alito proffered when they were before this Committee in
their confirmation hearing----
Judge Kavanaugh. I think I----
Senator Coons [continuing]. Were those correctly decided?
Judge Kavanaugh. I think I said last night in response to
Senator Harris, who asked me about whether I agree with
Senator--with Justice Alito and Chief Justice Roberts on that,
I said yes.
Senator Coons. That they were correctly decided?
Judge Kavanaugh. I answered that I agreed with Justice
Alito and Chief Justice Roberts.
Senator Coons. Can I just take a minute and explore your
view of the independent counsel, the idea that the independent
counsel statute is unconstitutional? Because you have written
and spoken about that repeatedly. 1998, 1999, in law journal
articles and public speeches. As I perhaps pointedly raised
yesterday, in 2016, you called the independent counsel statute
a ``constitutional travesty.''
Judge Kavanaugh. That is what Senator Durbin had also, in
essence, called it.
Senator Coons. Well, what I am concerned about is what you
said about it because you are the nominee for the Supreme
Court, not Senator Durbin.
Judge Kavanaugh. That is what the entire--that is what the
entire Congress, the entire Congress had basically taken that
view in 1999 that it was unrestrained, unaccountable, a
disaster.
Senator Coons. Let us say it was widely panned.
Judge Kavanaugh. But it is very different----
Senator Coons. But you chose to call it out as a
constitutional travesty, and you are the nominee for the
Supreme Court in front of me. So just give me a moment. While
you worked for Ken Starr as independent counsel under the
independent counsel statute, you took an oath of office to
defend the Constitution. Correct?
Judge Kavanaugh. As interpreted by the--you know, you
follow precedent of the Supreme Court. If the Supreme Court has
upheld something, you still work in your public service.
Senator Coons. So you took an oath. You were engaged in
public service. You believed then, as we all do, that it was
your job to act in compliance with the Constitution. But you
also fully utilized the tools available to the independent
counsel, right? You were part of a team that sought a subpoena
against President Clinton for evidence, for DNA evidence. Yes?
Judge Kavanaugh. Can I get 30 seconds?
Senator Coons. I think this is a ``yes'' or ``no''
question. I am down to 2 minutes.
Judge Kavanaugh. Can I get 30 seconds?
Senator Coons. If it is your last 30 seconds.
Judge Kavanaugh. Okay. I want to emphasize that the special
counsel system that is in place now is something that I have
specifically repeatedly and expressly said is consistent with
our traditions in my 1999 Georgetown Law Journal article and in
the CFPB decision. The special counsel system, I have said, is
part of our tradition.
That is the system in place. You are talking about
something that has not been in place for 20 years.
Senator Coons. That is right. The independent counsel
statute, that structure, has not been in place for 20 years. My
core concern, first, was that you were perfectly happy to use
all the tools available to the independent counsel when you
worked there. After working there, discovered an enthusiasm for
its invalidation as a constitutional matter.
In trying to understand that, I have dug into your
writings, your opinions, your speeches and concluded that you
hold a view of the executive branch, which I believe you made
clear this year in your PHH dissent, which I believe is in line
with Justice Scalia's view as expounded in his dissent in
Morrison v. Olson, which is that there has to be in the
President, as the chief law enforcement officer of the United
States--this is the unitary executive theory, not mine--the
ability to fire at will any special prosecutor.
And the ability--and I have got quotes from you in
different contexts saying that what is appropriate in this
traditional special counsel setting like the Watergate period
is if the President disagrees with the conduct of the
prosecutor, he should simply fire him and bear the
consequences.
My point essentially is this. I am convinced that you--you
have said repeatedly you support the traditional practice of
appointing special counsels, but you have not acknowledged you
have supported this practice because the President has retained
the power to fire the special counsel at will. And those of us
who have tried to enact statutes that might restrain the
President in some way, by putting in place for-cause removal
restrictions, have had thrown back at us the dissent from
Morrison v. Olson, a dissent which you embrace and cite and a
dissent which I think reveals a deep commitment to a view of
the President that in our current context is profoundly
dangerous.
And I simply wish, Judge--and we will have a third round to
explore this. I simply wish you would be clear with us and the
American people about your view of the scope of Presidential
power and what its consequences might be. I do not think you
are being direct with me about that because I think to be
direct with me about that in this context would put your
nomination at risk.
Judge Kavanaugh. And I would respectfully disagree,
Senator. You are talking about a statute that has been--not
existed for 20 years.
Senator Coons. That is no longer what I am talking about,
Your Honor, as you know. What I am talking about is your view
of Presidential power as made clear in speeches and in writings
and in a decision this year. We are not talking about the
independent counsel statute now. We are talking about the scope
of Presidential authority, and I think it has consequences for
our Nation.
Chairman Grassley. You can answer.
Senator Coons. You are clearly a capable and good man.
Chairman Grassley. You can answer.
Senator Coons. And a good neighbor and a good coach, and we
have heard a lot about that. What I want to hear more about is
an honest answer about your view of Presidential power.
Chairman Grassley. You can answer.
Judge Kavanaugh. You are talking--if I can answer
uninterrupted for 25 seconds?
Chairman Grassley. You can answer--you can answer on the 10
minutes I did not use.
Judge Kavanaugh. Yes. Respectfully, Senator, first of all,
I appreciate your care--and we have known each other since law
school, we have been friendly with each other since law
school--and your devotion to this. Respectfully, I believe you
are talking about a statute that has not been in place since
1999.
Second, the special counsel system I have specifically
written about multiple times and approved. Third, if there were
some kind of protection, for-cause protection or some other
kind of protection that were different from the old independent
counsel statute, I have said that I would keep an open mind
about that. So I have not said anything to rule that out.
And finally, I have reaffirmed repeatedly or I have applied
repeatedly the precedent of Humphrey's Executor for traditional
independent agencies and have never suggested otherwise. I have
referred to that as an entrenched precedent.
So those are--and I have referred to U.S. v. Nixon as one
of the greatest decisions in Supreme Court history.
Chairman Grassley. We will soon take a break, and then
Senator Flake is up next. But before, there is a couple of
things.
One, it will be a 15-minute break, but if you can make it
7\1/2\ minutes, I would appreciate it.
[Laughter.]
Chairman Grassley. Well, I am not ordering you to do that.
I just said I would appreciate it.
But before you go, I want to get back to this Justice
Kagan's comment on Morrison, and this is something that you and
the Senator from Delaware have discussed a long time. Somehow
that the only commentary on Morrison v. Olson is from Kagan's
Law Review article, ``Presidential Administration.''
But she also said this in a magazine, Stanford Lawyer, 3
years ago. And it says, ``Justice Kagan has called Justice
Scalia's dissent in Morrison one of the greatest dissents ever
written and said that every year it gets better.''
We are in recess.
[Whereupon, at 3:48 p.m., the Committee was recessed.]
[Whereupon, at 4:03 p.m., the Committee reconvened.]
Chairman Grassley. Tell me when you are ready, Judge.
Judge Kavanaugh. Thank you, sir.
Chairman Grassley. Senator Flake.
Senator Flake. Thank you. Judge Kavanagh, if it is fourth
quarter and you are down by 1 point, what play do you call and
which one of the young ladies in the front row do you get the
ball to?
[Laughter.]
Judge Kavanaugh. I cannot choose. They are all great
players, as you know, Senator. It is awesome to have them all
here.
Senator Flake. Do you want to let us know who they are and
what your team is here?
Judge Kavanaugh. These are a variety of teams that I have
coached. So, I started coaching many years ago, and some of
these girls are as old as 10th grade now, so they are older
than my daughters. I started coaching the Fifth-16 then, I
guess, 4 years ago. So, the oldest girls, Caroline and Abigail,
10th grade; Sara and Fiona, 10th graders; Madison, ninth
grader. Girls over here. Well, these are my two, of course, and
Keegan, and Coco, and Anna, and Shawnee, Quinn, Sophie are all
here. And so, let us see. We have got: Liza is going into the
fifth grade, Margaret is in seventh, Keegan is in fifth, Coco
is in fifth, Anna is in seventh, Shawnee is in seventh, Quinn
is in sixth, and Sophie is in seventh. So, I think I got it all
right, yes.
[Applause.]
Senator Flake. Well, thank you.
Judge Kavanaugh. And they are all awesome players. They
really are. I mean, they are tough as nails, right, Caroline?
Caroline Conahan, no one tougher.
Senator Flake. Well, there goes my whole line of
questioning.
[Laughter.]
Senator Flake. Well, thank you all for coming. Welcome
here. Let me ask a variation on the question that Senator Sasse
asked a few minutes ago. He asked you what Supreme Court
decisions over the years were decided wrongly. You answered.
You have decided over the past 12 years about 307 cases, I
believe, on the circuit court. Are there any that you look back
on and say I just did not get it right, or this one has not
held up well over time? And I know that is a difficult
question. I mean, as politicians, that is a tough thing for us
to answer, but I would be glad to, you know, tell you the
number of cases where Senator Sasse got it wrong.
Senator Sasse. And I will reserve my time for rebuttal.
Judge Kavanaugh. Well, Senator, I will point out where I
reconsidered something in one case. So, the Bahlul national
security case that I had, one of the questions in that case was
what did the ``law of war'' mean in Section 821, and I
referenced it in a prior case as being limited solely to the
international law of war. And then after reflection and
actually after the Deputy Solicitor General for President Obama
argued in our court, at oral argument he planted a seed in me
that I interpreted it too narrowly, and that it included not
just the international law of war, but the U.S. historical
practice.
And I went back and really thought about that. He made a
compelling case at oral argument, and I went back and dug
deeper and studied it, and ultimately concluded he was right in
what he had said at oral argument, and I referenced that in my
subsequent Bahlul opinion that based on the arguments of the
Deputy Solicitor General, I had gone back. It is like--it is
like a replay official. You know, I made the call on the
original case, but gone back and looked at it again carefully,
studied it over and over again, and went back to the history,
and concluded he was right. So, that is one example where I
myself in one of my opinions pointed out that in a previous
decision, I had, you know, under-interpreted the scope of one
statute.
Senator Flake. Going a little further there, which ones
have you struggled with? Which ones were the most difficult,
and how did you deal with those?
Judge Kavanaugh. Senator, I think what Justice Kennedy used
to say in response to that question is something that always
comes into my mind. When he was always asked what is the
hardest case, what is the most difficult case, he would always
say, ``The one I am working on right now.'' And I think that
is--I think that--there is something to that, which is every
case you want to give it your all and you are focused on the
case you are working on at that moment.
There, of course--more responsive to your question, I think
what Justice Kennedy said is correct, but perhaps more directly
responsive to your question, I, of course, think national
security cases are quite difficult and quite important because
you know the significance of them. But, so, too, every case has
an effect on real people in the real world. So, I want to give
every single case, give it my all. I do not treat any case as a
second-tier case. I treat every case as the most important
case. And that is why I think Justice Kennedy's comment really
does resonate with me and does point out something, which is to
the litigant before you in that particular case, that is the
most important case they will ever have. It is probably the
only case they will ever have, and it is important that I treat
it as the most important case for me at that moment in time and
while I am deciding it.
Senator Flake. Can you talk briefly a little bit about the
process that you have undergone in the appellant court. It will
be a little different at the Supreme Court level. But when a
case comes before you, you sit down with your clerks I am sure,
and assign research to them. Do they frequently work with other
clerks, compare notes? Do you do that with the other judges?
How does it usually work, and how might that be different with
the job you are applying for?
Judge Kavanaugh. I think there are a lot of similarities to
the Supreme Court in terms of the process from my time clerking
for Justice Kennedy at least, my experience there and seeing
how it works now. So, in basic terms, what I do is I read the
briefs very carefully. I have my clerks prepare binders, many,
many binders of all the cases I need to read, of all--I like to
know the law review article and treatises on point. I like to
go back and see if there are any historical materials that
might be, and they are all in the binders. Then I will talk
about it with the clerks. I will have one clerk who is handling
it, but sometimes talk about it with all the clerks, about my
tentative views.
The judges, interestingly, do not talk about the case ahead
of time with each other, and the reason for that is we each
want to come into the oral argument having formed our own
tentative approaches and questions, and not having been
influenced by maybe, well, this is what the other judge thinks,
and so, that will suddenly influence you. But if we come into
the oral argument with three independent perspectives, the
practice has been that will help us reach a more informed
decision. Each of us will be prepared.
Then at the oral argument itself--it is so important--we
learn from the lawyers, but we also learn from each other at
the oral, the questions, similarly the way this process works.
You hear the questions of other Senators, and that sparks
thoughts for you to ask questions and other Senators to ask
questions. So, too, for the judges. Then we conference right
after oral argument, and we give our tentative views and go
around and debate and discuss. And it is very collegial, and
there is a lot of fluidity in that discussion. It is not as--it
is not here is my position and that is it. It is never--for 12
years, I have never been in a single conference where any judge
has said anything like that. Rather, it is a here is what I am
thinking, what are you thinking, and we go around and go in
turns, and then discuss it, and reach a tentative resolution.
Then we write it up. One judge is assigned to draft up the
opinion and writes--that is an intense process for me and I
think for all judges of draft after draft after draft, and I
talked about that, to get it exactly right. I want it to be
clear, and I want it to be consistent with precedent, and I do
not want to--I want the losing party to think they have gotten
a fair shake. I want the affected parties to be able to
understand it, to be as clear as possible.
And that discipline of writing sometimes convinces you you
might have gotten it wrong when you first were thinking about
it, and sometimes you change 180 sometimes, but often will just
shift your views. But the writing is such a discipline. That is
an important--the whole thing is a process with three judges,
or nine on the Supreme Court, that is designed to make sure you
get it right. And so, the collective decisionmaking process
combined with the discipline of preparing and the discipline of
oral argument, the discipline of writing it out.
That is why judges when they come here are very reluctant
when they get a hypothetical to just give a one-off answer
without going through that process. Process protects us as
judges. It protects the people who are affected by our
decisions. So, we are--we love process because we are used to
process, and process, in our view, helps us make better and
more informed decisions.
Senator Flake. Thanks. Let me talk a little about what I
touched on yesterday, obviously the independence of the
judiciary or separation of powers are what's at issue here, and
the most important questions I think you have been asked are
about that. Senator Coons and I, along with a few others,
traveled to Southern Africa a few months ago, and we met there
with the constitutional court of South Africa at a time when
just a few weeks before, or a month before, they had ruled
against the sitting president, expenditure of funds issue and a
few other things. But rendered a decision against the president
of the country, the executive, that allowed the parliament then
to go in and remove him.
And we talked about that, and they marveled at how this
country--this country of South Africa had had such a court that
understood their role and how important it was to be completely
independent of the executive. One of the justices put it, well,
he said, we cannot allow the executive to climb over the
lectern, and I thought that that was an image that is apropos
here as well. There have to be some limits to Executive power
where he, head of the executive branch--the President in our
case--cannot climb over the lectern. And in many cases, just
north to Zimbabwe where for the past 37 years, Robert Mugabe
had over a period of time climbed over the lectern enough
where--to put judges in place that would rule whatever he
wanted.
And the genius of our system, or separation of powers, and
the independent judiciary is that we can never allow that to
happen, and there have to be constraints. And you mentioned
some of them yesterday with regard to what constrains the
President. But still, the President has immense powers largely
because we have conceded too much from the Article I branch to
the Article II branch.
But when we talk about Presidential power now, I was struck
by a conversation you had yesterday with Senator Feinstein, and
I want to explore it a bit. You mentioned as a point of pride,
and I think it is a point of pride, that you had ruled in the
Hamdan case after 9/11. This is one of the bodyguards or
drivers for Osama bin Laden. It was an extremely unpopular
decision, but one to protect his constitutional rights, and to
ensure that we just did not look and say, here, here is
something unpopular, we cannot protect his rights.
Yet when you were asked why you feel how you do now on the
independent counsel statute, you feel differently than you did
in the 1990s. And you mentioned to Senator Feingold that you
feel differently because of 9/11. And that ostensibly, the
President needs to be given more reign, I guess, because he
needed to focus on national security issues. But I am trying to
square that. I think that your explanation of how you ruled in
the Hamdan case is admirable. I am not sure about your
explanation with regard to giving the President more leash or
more authority because of 9/11 squares with that. Can you shed
some light?
Judge Kavanaugh. That was simply a proposal in 2009 when
President Obama was coming into office that for Congress to
consider, but there would be pros and cons if Congress did
consider something like that, about--and it was not immunity.
It was simply the timing of litigation, the Clinton v. Jones
scenario, for example. And it was something--an idea based on
my experience, but Congress would, of course, consider the pros
and cons.
The principle I emphasized there was no one is above the
law in the United States Constitution under the--in the United
States Government. There is a question, and that is Federalist
69, of course, but it is also woven right into the text of the
Constitution. But there is a question about timing for members
of the military, for example. That is why we defer--have
deferral for them. But it was not a constitutional position, so
I really want to emphasize that, Senator, that that was not a
position of what I thought was required by the Constitution;
rather, something to be studied as Congress studies things all
the time to ensure the effective operation of the Government.
On your point about Hamdan, I do think some of the--and
your point about your trip, some of the great moments in
Supreme Court history have been those moments of judicial
independence and moments of political crisis, the Youngstown
Steel case. We were at war with Korea, and the President seizes
steel mills, well intentioned because it is well intentioned to
serve the war effort, but the Court says it is not consistent
with law, and, therefore, unlawful, and the Court rules against
President Truman.
We talked a lot about the United States v. Richard Nixon
case, a unanimous decision in 1974 by Chief Justice Burger who
had been appointed. The Clinton v. Jones case itself was a
moment where the President of the United States was ruled
against by the Supreme Court, including two of his appointees.
The Boumediene and Hamdan cases in the Supreme Court, before
Hamdan came back to me, were cases; Boumediene by Justice
Kennedy in 2008 ruling against President Bush, Boumediene v.
Bush, in a wartime case.
And so, to my Hamdan case, I do look at that as a case
where the rule of law protects all who come into court
regardless of who you are. And no one is above the law, and the
President is subject to many legal restraints in terms of the
official capacity, the war effort. And I think my decisions
have shown that independence in a variety of areas.
Senator Flake. Thank you. Let me shift gears in my final
couple of minutes to technology. We struggle here in Congress
with striking a balance obviously between security, freedom,
between innovation, privacy. We just had the Facebook hearing
in this room along with the Commerce Committee, and questioned
Mark Zuckerberg on these issues. A late night comic that night
commented that with all of us questioning out here, at least
five of us, our password for our email is, ``password.'' And
so, we were not as nimble in dealing with a lot of these
issues, but the same applies to the Court.
How does the Court, how will the Court, how would you as a
Supreme Court Justice deal with these issues? Would you
describe yourself as technologically literate? I know you have
dealt with these issues on the D.C. Circuit, but balancing
privacy, and innovation, and security, and freedom. This is
going to make up a big chunk of what the Supreme Court does
over the coming months and years.
Judge Kavanaugh. Senator, I do think that technological
developments are going to be a huge issue for the Supreme Court
over the next generation. And Chief Justice Roberts has been
a--writing some of the key opinions, the Carpenter case most
recently, which was a very important decision, the Riley case
before that. And you see how he is--and this would not
necessarily have been predicted at the time of his 2005
hearing, how he has focused and led the Court in making sure
the Fourth Amendment keeps abreast of technological
developments, and his opinions are very clear.
Senator Flake. Specifically, what impact does technology
have on the Fourth and the First Amendments?
Judge Kavanaugh. So, I think the Carpenter case explains
that once upon a time if a piece of information of yours ended
up in the hands of a third party and the Government got a third
party, that really was not any effect on your privacy. But now
when all of our data is in the hands of a business, a third
party, and the Government obtains all your data, all your
emails, all your texts, all your information, your financial
transactions, your whole life is in the hands of a data company
and the Government gets that, your privacy is very well
affected. And that is the importance, I think, of the Carpenter
decision is that it recognizes that change and understanding of
our understandings of privacy. And I think going forward that
is going to be a critical issue.
One of the cases I did write an opinion in, GPS
surveillance, and putting a GPS tracker on your car. And I
wrote an opinion in the D.C. Circuit where I recognized that
putting a GPS tracker on your car was an invasion. A new
technology was an invasion of your property. And, therefore,
was something that violated the Fourth Amendment.
[Disturbance in the hearing room.]
Judge Kavanaugh. So, and was something that the Supreme
Court then in an opinion by Justice Scalia adopted that
approach to recognizing the GPS surveillance. But I think going
forward, as I have said, these are backward-looking hearings
sometimes, but the forward-looking question you asked is, I
think, a very important one about the change in Fourth
Amendment, not doctrine, but the change in technology that in
turn requires us to understand it as we apply Fourth Amendment
doctrine going forward, and First Amendment free speech
principles as well. Our conception of speech will have to take
account of the technological developments as well.
Senator Flake. Just one last question. What does an
independent judiciary mean in terms of judges and their
personal political or religious beliefs? Have you known good
judges who are Democrats, Republicans? Do you see a difference?
Are they viewed that way? What about Catholic, or Mormon, or
Muslim, or an atheist? What should be our approach to judiciary
in that sense?
Judge Kavanaugh. Well, I think, Senator, all judges are
independent. We do not sit in separate caucus rooms. We do not
sit on sides of an aisle. We are not Republican judges or
Democratic judges. We are independent United States judges, and
so, too, with respect to religious beliefs. As I have written,
we are equally American no matter what religion we are or if we
have no religion at all. And so, too, as judges. We are all
equally United States judges no matter what religion we are,
and we see that right in the text of the Constitution that no
religious test shall be imposed as a qualification for any
office in the United States.
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Good afternoon,
Your Honor.
Judge Kavanaugh. Thank you.
Senator Blumenthal. And welcome to your team.
Judge Kavanaugh. Thank you, Senator.
Senator Blumenthal. I want to, first of all, tie up a
couple of loose ends from yesterday. I asked you yesterday
whether during your service in the Bush administration you took
the position that not all legal scholars believe Roe v. Wade is
settled law, and whether the Supreme Court could overrule it.
You said, in fact, that the Supreme Court could, and you
declined to say whether you would commit to saying that you
would not vote to overturn Roe v. Wade. I believe, thanks to
that exchange, that an email has now been made public in which
you took exactly that position, and you argued in that email
that Roe can be overturned.
My question to you is whether during that break, did anyone
suggest to you that I would ask about this email? I think we
took a break before I asked you my question. Did anyone ask you
whether--did anyone suggest to you that I might ask about this
email during the break before the questioning?
Judge Kavanaugh. Just now?
Senator Blumenthal. No, yesterday.
Judge Kavanaugh. Boy, I am not remembering. I am not
remembering one way or another. What did I--I am not
remembering.
Senator Blumenthal. Did anyone show you this email during
the session yesterday at any point?
Judge Kavanaugh. I would have to check actually. I do not
remember. During each break yesterday, I have had--I have had
these emails, I think.
Senator Blumenthal. And you reviewed this one before you
came to testify.
Judge Kavanaugh. I am not--I am not going to remember,
Senator, but I do know that that email does refer to what--my
impression of what legal scholars think. It is not--I think the
premise of your questions was, respectfully----
Senator Blumenthal. Well, if you do not--if you do not
remember somebody--whether someone showed it to you or not, I
want to move on to another area. You were asked yesterday by
Senator Harris as to whether you had certain conversations
about the special counsel investigation with anyone outside of
the group of judges on the D.C. Circuit. At that point, your
answer was vague, and it was again this morning when Senator
Hatch asked you about it. So, I want to ask you very
specifically, have you discussed the special counsel
investigation with anyone outside of the group of judges on the
D.C. Circuit?
Judge Kavanaugh. I have had no inappropriate discussions
with anyone. Of course, it is on----
Senator Blumenthal. Have you had any discussions with
anyone, appropriate or inappropriate?
Judge Kavanaugh. Well, when----
Senator Blumenthal. Have you ever talked about the special
counsel investigation with anyone outside the----
Judge Kavanaugh. If you are walking around in America, it
is coming up, Senator, so people discuss it. But in terms of--I
have never made any--let me just finish if I could. I have
never suggested anything about my views about anything,
commitments, foreshadowing. I have had no inappropriate
discussions. Of course, first of all, let me tell you a few
contexts in which it can come up. Our courthouse has a lot of
activity going on in it because of that. There are a lot of
people there, so those are discussions that will come up.
Senator Blumenthal. Let me be more specific so that we sort
of hone in on what my concern is. Have you ever talked to
anybody in the White House about the special counsel
investigation?
Judge Kavanaugh. I have no discussions with people in the
White House about----
Senator Blumenthal. No one, including----
Judge Kavanaugh. What do you mean by--I guess I just want
to make sure I am understanding what your question is going
for. I have had no issues where I have discussed my views on
any matters, issues, cases, no hints, previews, forecasts, no--
--
Senator Blumenthal. But have you ever talked about the
special counsel investigation with Don McGahn, who is behind
you, or anyone else in the White House? That is a simple
``yes'' or ``no.''
Judge Kavanaugh. I am not remembering any discussions like
that. Of course, in preparing for this hearing I prepared for
questions like the one you are asking.
Senator Blumenthal. And they have----
Judge Kavanaugh. So, those are--those are moot court
sessions where we have----
Senator Blumenthal. Well, what discussions have you had
about the special counsel with people in the White House?
Judge Kavanaugh. I have not had discussions--if I am
understanding your question correctly, I have not had such
discussions, but I want to make sure I am understanding your
question correctly.
Senator Blumenthal. It is pretty simple English. Have you
talked about the special counsel with anyone in the White
House, anybody who works for the President of the United
States?
Judge Kavanaugh. Well, you just rephrased the question,
though. That was about Mr. Mueller this time, and previously it
was about the investigation. But I have had no--if I am
understanding the question correctly, no discussions of the
kind you are asking.
Senator Blumenthal. So, you are saying, no, you have had no
discussions. You have not talked to anyone in the White House
about Robert Muller or the special counsel investigation.
Judge Kavanaugh. So, you changed the question again,
Senator. Of course, I know Mr. Mueller personally from my prior
experience in the--I mean, I have not seen him in a long time,
but I knew him when we worked in the Bush administration. So,
but I have no discussions of the kind that I think you are
asking about.
Senator Blumenthal. Well, I am asking about the kind you
are thinking about, not myself.
Judge Kavanaugh. Well, I have not had any discussions of
the kind I am thinking about either.
[Laughter.]
Senator Blumenthal. Well, I am going to take that as a
``no,'' which you are giving under oath, and we can put aside
the humor for the moment.
Judge Kavanaugh. Right, I am not trying to be humorous, I
am trying to be accurate. For example, if someone says your
courthouse----
Senator Blumenthal. No, I am talking about discussions with
anybody who works for the President of the United States in the
White House about the special counsel. And so far, frankly,
your answer has been ambiguous.
Judge Kavanaugh. I do not think it has been ambiguous.
Senator Blumenthal. You have dodged the question. You have
ducked it. It is the same question again and again and again,
and I am going to move on because I have other ground to cover.
Judge Kavanaugh. Okay.
Senator Blumenthal. Have you had conversations about the
special counsel investigation with anyone at the Kasowitz,
Benson, and Torres firm?
Judge Kavanaugh. No, I do not remember anything like that.
Senator Blumenthal. Are you acquainted with anyone at that
firm?
Judge Kavanaugh. I know Ed McNally used to work at the
White House Counsel's Office, and I now--I understand that he
works at that law firm.
Senator Blumenthal. Have you ever talked to him about the
special counsel investigation?
Judge Kavanaugh. No.
Senator Blumenthal. Are you acquainted with Marc Kasowitz?
Judge Kavanaugh. I am not.
Senator Blumenthal. Are you acquainted with anyone else at
the Kasowitz law firm?
Judge Kavanaugh. I do not believe so, but as I discussed
with Senator Harris last night, I did not know, for example,
Senator Lieberman worked at that firm, and he spoke to the
judges a couple of years ago before this. But that is the kind
of thing I was worried about when I was talking with Senator
Harris last night is that I do not have the full roster. But I
am pretty confident the answer is no.
Senator Blumenthal. Okay. We have talked about the
independence of the judiciary, and you have spoken compellingly
about the importance of an independent judiciary, and I could
not agree more. I think the heroes of this era will be the
independent judiciary and our free press. I want to talk to you
about President Trump's attacks on the judiciary. They have
been blatant, craven, and repeated, and I want to quote to you
a couple of those attacks.
I have achieved a partial quotation of them, 41 tweets
attacking the judiciary. But the one I want to cite to you is
from July 13, 2013 when he said, of Justice Ruth Bader
Ginsburg, ``Justice Ginsburg of the United States Supreme Court
has embarrassed all by making very dumb political statements
about me. Her mind is shot. Resign!'' November 10th, 2013,
again, speaking about Justice Ginsburg, ``Supreme Court Justice
Ruth Bader Ginsburg was going to apologize to me for her
misconduct. Big mistake by an incompetent judge.'' Do you
believe that Justice Ginsburg ``embarrassed us all''?
Judge Kavanaugh. Senator, I have, of course, spoken about
all the Justices individually during the course of this
hearing, and my----
Senator Blumenthal. If I may interrupt, and I say this with
all due respect, this is a question where less is more in the
answer. Do you think Justice Ginsburg has embarrassed us all?
Judge Kavanaugh. Senator, I am not going to get drawn into
a political controversy, a line I have maintained. I am not
going to get three zip codes of a political controversy here.
Senator Blumenthal. This is not political. This is about
Justice Ginsburg. Do you believe that her ``mind is shot''?
Judge Kavanaugh. Senator, respectfully, you are asking me
to, after having read those comments, you are asking me to
comment on something another person said, and I am not going to
do that. I have spoken about my----
Senator Blumenthal. Do you believe that----
Judge Kavanaugh. I have spoken about----
Senator Blumenthal [continuing]. She's an incompetent
judge?
Judge Kavanaugh. I have spoken about my respect and
appreciation for the eight Justices on the Supreme Court, my--
the honor it would be if I were to be confirmed to be part of
that Team of Nine with those eight people, all of whom I know
and respect, and I know they are all dedicated public servants
who have given a great deal to this country. And so, I have
made that clear throughout this hearing.
Senator Blumenthal. Do you believe that a judge should be
attacked based on his heritage? The President of the United
States attacked Judge Gonzalo Curiel saying that the Judge--
``the judge who happens to be, we believe, Mexican'' in
attacking him? Do you believe that judges should be attacked
based on their heritage?
Judge Kavanaugh. Senator, again, I am not going to comment
on----
Senator Blumenthal. Well, these are issues that concern the
independence of the judiciary, Your Honor. With all due
respect, you talked about your heroes who have the grip and
backbone to stand up and speak out. We are talking here about
an independent judiciary, and my colleagues have raised this
point. And I might just say to you as I said to Judge Gorsuch,
then-Judge Gorsuch, now Justice Gorsuch, that the judiciary and
nominees like yourself have an obligation to stand up for the
judiciary. And he said that these attacks are ``disheartening
and demoralizing.'' Do you agree?
Judge Kavanaugh. Senator, I am not sure of the
circumstances, but the way we stand up is by deciding cases and
controversies independently without fear or favor. Beyond that,
we follow the canons in the leadership of Chief Justice
Roberts, who is a superb leader of the American judiciary in
terms of maintaining the independence of the judiciary and
staying well clear of political controversy.
Senator Blumenthal. Let me ask you something else then
about the intersection of President Trump and yourself. On the
night of the announcement of your nomination, you were at the
White House.
Judge Kavanaugh. Yes.
Senator Blumenthal. And you chose to begin your speech
introducing yourself to the American people by saying, and I
quote, ``No President has ever consulted more widely or talked
with more people from more backgrounds to seek input about a
Supreme Court nomination.'' What was the factual basis for that
statement?
Judge Kavanaugh. So, I did think about that. Those were my
words. Senator Harris asked me about that last night, and the
President and Mrs. Trump when we were there, my family was
there that night at the White House. He and Mrs. Trump were
very gracious. I was very impressed with during the 12-day
period between Justice Kennedy's announcement of his retirement
and the announcement of my nomination, I was impressed as a
citizen and as a judge with the thoroughness of the process.
And I did look into, to your point directly, and thought about
and looked into comparing what I knew about past processes and
made that comment----
Senator Blumenthal. You looked into past appointments? Did
you talk to President Clinton about how many people he talked
to before he nominated Justice Ginsburg?
Judge Kavanaugh. So, last night I said to Senator Harris
that President Clinton, I do recall, talked to a lot of people
as well. And I indicated that is why I used the phrase----
Senator Blumenthal. He talked to just about everybody in
Washington, did he not?
Judge Kavanaugh. And President Trump talked to a lot of
people as well, and so I said to Senator Harris last night, I
mentioned President Clinton specifically as an indication of
someone who likewise consulted very widely, as I recalled.
Senator Blumenthal. But you did not have any factual basis,
any record, any research at the time of that statement, did
you?
Judge Kavanaugh. I did actually look into it as best I
could, you know, thinking about the technological developments,
and I did think about it very carefully. He talked to an
enormous number of people based on my understanding in those 12
days.
Senator Blumenthal. I want to talk to you now about real-
world consequences; that is, impacts in the real world on real
people of the decisions that courts make. We were talking
yesterday about the statement that you made in Seven-Sky v.
Holder, and I think we have it here. Under the Constitution
essentially, that statement says to me a President can deem a
statute to be unconstitutional, even if a court has held or
would hold the statute constitutional. Now, you stated
yesterday to me when we talked at some length that your view
was compelled by Heckler v. Chaney and other cases on
prosecutorial discretion. I disagree. Nothing in Heckler
suggests that the President can essentially nullify, simply
deem a law unilaterally unconstitutional based on his personal
view of the law's constitutionality.
So, Heckler stands for the principle that courts will
generally not second guess executive branch's decision on how
to use scare enforcement resources, like I did as a U.S.
Attorney or as Attorney General of my State of Connecticut.
Nowhere it says that Chief Executives are free effectively to
nullify duly passed statutes that have been upheld by the
Court. But I want to go to the real-world impact.
Clearly, Heckler does not say that there are no limits, but
for the sake of real-world impacts, I think there must be
impacts. And one of them affects the Affordable Care Act and
the protections it provides to millions of Americans, about 13
million Americans, including 500,000 in Connecticut who suffer
from diabetes or high blood pressure or mental health issues.
There are 15 to 20 or more pre-existing conditions.
And one of them affects a young boy. His name is Connor
Curran. He is 8 years old. He suffers from Duchenne muscular
dystrophy, and I want you to think about Connor. This is a
chronic and terminal condition. It will slowly erode his motor
function. Unless we find a cure, eventually it will take his
life. His parents have told me, and I have gotten to know his
family pretty well, although he appears healthy and happy
today, he will slowly lose his ability to run, to walk, even to
hug them goodnight. As Connor gets older, he will need more and
more help. He will need the Affordable Care Act more and more.
He will need protection from abuses that involve pre-existing
condition.
My reading of your view of the constitutional authority of
Donald Trump is that he could simply deem the Affordable Care
Act unconstitutional even if it is upheld by the D.C. Circuit
Court of Appeals and then by the United States Supreme Court,
and even though it has been signed by a President who deems it
to be constitutional and passed by a Congress who deem it to be
constitutional. Do you think the President of the United States
has that unilateral authority to nullify protection for Connor,
and should the Connor family be afraid?
Judge Kavanaugh. Senator, thank you for bringing up this
example. In my opinions on the Affordable Care Act in the
Sissel case where I upheld the Affordable Care Act against an
Origination Clause challenge and in the Seven-Sky case where I
made clear that I thought the timing of the case was premature,
in both those decisions I expressed my respect for the
congressional goal in that legislation of ensuring health
insurance for uninsured Americans and providing more affordable
healthcare for all Americans to take care of people who did not
have health insurance, people who had conditions like the one
you are bringing out here.
I understand the real-world impacts of the Affordable Care
Act. I have made that clear in my decisions. I have also----
[Disturbance in the hearing room.]
Judge Kavanaugh. So, in my decisions on the Affordable Care
Act, I have shown respect for the act and respect for Congress,
respect for the law, and understanding of the real-world
impacts. In terms of prosecutorial discretion, the United
States v. Nixon case did say that the executive branch has the
exclusive authority and absolute discretion whether to
prosecute a case----
Senator Blumenthal. I am just going to interrupt you
because I am out of time.
Judge Kavanaugh. Okay.
Senator Blumenthal. And if the Chairman wants to give you
more time, I am more than happy to hear the rest of your
answer.
Judge Kavanaugh. Thank you, Senator.
Senator Blumenthal. But I just want to express to you my
fear and my deep concern that you will not apply the law to the
facts, but use the law to advance an ideological position that
may affect the people of America like Connor. Thank you.
Chairman Grassley. Before I go to Senator Crapo, did you
say all you wanted to the Senator?
Judge Kavanaugh. I did.
Chairman Grassley. You do not have to respond to what I am
going to say, but I think that we need some clarification if
you want to give it, but only if you want to give it. We have
heard it suggested that you did not give clear testimony about
the--any relationship you might have with various people in
regard to the Mueller investigation. So, have you made any pre-
commitments or offered any hints, previews, forecasts, winks,
nods, or secret handshakes to the President, the Vice
President, the White House lawyers, anyone else in the
administration or anyone at all about if and how you would rule
on any matter related in any way to Special Counsel Robert
Mueller's current investigation?
Judge Kavanaugh. No, I have not.
Chairman Grassley. Senator Crapo.
Senator Crapo. Well, thank you, Mr. Chairman. And before I
begin asking questions, I would like to follow up on that exact
line. I have in my hands a printout of the story that was
published 2 hours ago on CNBC. The headline says, ``Trump
lawyer Marc Kasowitz denies Kavanaugh ever spoke to anyone at
the firm about Mueller probe.'' It goes on to discuss this in a
little more detail, but I would like to ask unanimous consent
that this report be put into the record.
Chairman Grassley. Without objection, so ordered.
[The information appears as a submission for the record.]
Senator Crapo. Thank you, Mr. Chairman. Judge Kavanaugh,
before I go to some of my questions, and which I am going to
ask you just to describe mostly some of the legal parameters in
which we work together with regard to the separation of powers,
I wanted to go back to the independent counsel versus special
counsel issue just one more time. You will recall yesterday in
my questioning I went through the differences between the
independent counsel and special counsel.
The reason I am coming back to it is I have been a little
puzzled by my colleagues' attacks on your writings about the
Morrison case back in--which was talking then about the 1988
case in which the Supreme Court upheld that then old
independent counsel system. And I have concluded--maybe I am
wrong, but I have concluded that the reason they keep bringing
it up and bringing it up and bringing it up is that they may be
trying to create some confusion between the old case--the old
system, which you were criticizing, which Justice Scalia
criticized, if I understand correctly, which Senator Durbin
criticized, and others did, and the current system.
And I think--I wonder if maybe they are trying to create an
impression in the public that you were criticizing the current
system, so I just want to give you one more chance to make it
clear. In your writings about the Morrison case, were you
criticizing the current special counsel system?
Judge Kavanaugh. Thank you, Senator. No, I was not, and I
have tried to make clear to Senator Coons and you and otherwise
that I have repeatedly discussed the special counsel system,
the tradition of that kind of system with approval in the
Georgetown Law Journal article that I wrote in the late 1990s,
as well most recently in the PHH decision where I specifically
distinguished that from the independent counsel system. The old
independent counsel system in Morrison, which dealt with it has
not existed since 1999. The current special counsel system I
have always spoken approvingly of the general system and the
tradition of special counsel.
Senator Crapo. Well, thank you, and I hope that that puts
it to rest. Like I said, for several days now, I have been
perplexed as to why it is that your criticism of a system that
ended in 1999 was of such concern. And I hope that any
confusion that has been created by those consistent attacks
does not create and will not create an impression that you were
making any comment about our current situation. So, thank you
for that.
What I would like to do with the rest of the time I have is
to go through some issues related to the separation of powers,
and I realize that you have been through this it may seem like
endlessly in the last few days. But I want to go back and first
start with the notion of deference with regard to rulemaking in
the Chevron doctrine. Could you just describe to us what the
Chevron doctrine is?
Judge Kavanaugh. Yes, Senator. What that says, that
doctrine, when Congress passes a statute in an administrative
agency, executive or independent agency is implementing that
statute, the agency's interpretation of that statute will be
upheld by a court so long as it is a reasonable interpretation
of any ambiguity or gap that may exist in the statute. If the
agency is interpreting it in a way contrary to its language as
interpreted by the text structure, history as reflected in
Chevron Footnote 9, then it is an impermissible interpretation.
But otherwise, if it is--there is an ambiguity or a gap and the
interpretation is reasonable, the courts under the Chevron
doctrine uphold it.
Senator Crapo. And when you talk about interpreting the
statute, you are talking about agency rulemaking.
Judge Kavanaugh. Ordinarily, it will be a--typically it
will be an agency rulemaking or at least often it will be an
agency rulemaking.
Senator Crapo. And there is an exception, correct, for
major cases? What is the exception?
Judge Kavanaugh. For rules of major economic or social
significance, the Supreme Court has long made clear that the
deference to the agencies will not apply in those cases. In
those cases we expect Congress, in the words of the Supreme
Court most recently in the UARG case, we expect Congress to
speak clearly if it wants to assign rulemaking on an issue of
major economic or social significance to an agency. And that is
a doctrine that Justice Breyer in the 1980s first talked about,
I believe, Justice Rehnquist in a 1980s decision as well talked
about. And those--that doctrine has been applied by the Supreme
Court since the 1990s most recently in the King v. Burwell and
UARG decisions.
Senator Crapo. It seems to me that that is a pretty broad
or maybe narrow exception, and what I mean is ill defined. How
does a judge----
[Disturbance in the hearing room.]
Senator Crapo. How does a judge determine when you have a
major circumstance that would be impacted by the exception? Is
there a standard or are there some rules of how a judge makes
that determination?
Judge Kavanaugh. There is no clear rule on that. I have
talked about that in the U.S. Telecom decision that the Supreme
Court has not as yet provided specific guidance. And you look
at the number of people affected, the amount of money involved,
the kind of attention it has received in Congress, the kind of
attention it has received in the public, and you make a
judgment based on that whether this is the kind of rule, as
Justice Breyer first explained, that is really filling a
smaller intricacies of a statute or as a big social or economic
decision. And there are lots of factors you can look into to
determine that.
Senator Crapo. Well, also it seems to me, and this is
relevant to a number of other comments that you have received
in questions, that if the congressional statute that is passed
is vague or broad, that the room for agency discretion is
greater. Does that play an impact--play a role in the
determination as to whether it is a major exception that would
require a deeper review by the Court?
Judge Kavanaugh. Well, the question of ambiguity is
something that applies in all of these Chevron cases, but I do
think, as well, in the major rules situation, what Justice
Scalia said for the Supreme Court in the UARG case is, if it is
a rule of major economic or social significance, we expect
Congress to speak clearly. And that ``speak clearly'' phrase in
Justice Scalia's opinion for the Court is quite important. In
other words, we want to see an express assignment of authority
to decide a major social or economic issue if that is going to
be upheld as a rule by the courts.
Senator Crapo. Well, thank you. I appreciate that. This
issue is very important to me and to a number of my colleagues
because there is a concern among many Members of Congress that
Congress has delegated too much of its responsibility to the
executive branch by giving them this deference in rulemaking.
And the broader and more vague the congressional delegations
are, the greater the opportunity for the Executive to simply
write law through rulemakings. And so, it is a very significant
issue.
A further question I have is, and I know you have also been
asked this earlier, is there a point at which congressional
delegation can be so broad as to be unconstitutional? For
example, one of the cases or examples you were given earlier
was if Congress just decided to create another group and say we
are going to have them be Congress now.
Judge Kavanaugh. So, the Supreme Court has long applied the
non-delegation doctrine that allows broad delegations, at least
under the precedent, but there is a limit to how broad those
delegations can be. And there are--there is litigation in the
Federal courts now and in the Supreme Court now about certain
applications of the non-delegation doctrine. But the general
law is that Congress can delegate broadly, but there are
limits. It has to be ``an intelligible principle'' is the
phrase that the Supreme Court has used.
Now, what that means in practice has been decided under a
series of cases applying that principle over time, and those
precedents build on one another, and that is what the Court
applies to figure out whether a delegation has gone too far.
Senator Crapo. And this brings in the issue of independent
agencies as well, and I know you have talked about that a lot
as well. Humphrey's Executor is the case that sets the
standard, correct, as to what is an appropriate--appropriately
constitutionally created independent agency?
Judge Kavanaugh. That is correct. The 1935 decision in
Humphrey's Executor upheld the concept of independent agencies
where the heads of the agencies are removable only for cause,
not at will, and the--so we see agencies such as the FERC, the
Federal Communications Commission, the SEC, and the like.
Senator Crapo. And you have ruled in the PCAOB case that
the creation of that independent agency was unconstitutional?
Judge Kavanaugh. That particular independent agency was
differently structured than the typical and traditional
independent agencies. I dissented in the D.C. Circuit on the--
in a challenge to the constitutionality of that structure
because it was two levels of for cause removal, in essence. The
Supreme Court granted review. In an opinion by Chief Justice
Roberts, they agree with the approach I had set forth, in
essence, in the dissent in the Free Enterprise Fund v. PCAOB
case in Chief Justice Roberts' opinion for the Court in that
case.
Senator Crapo. And what about the CFPB case? I understand
that you did not rule that the CFPB could be--was so
unconstitutional that it had to be eliminated, but that its
structure needed to be changed with regard to the President's
authority to replace the director. Could you first of all just
describe your reasoning in that case a little bit, and then I
have one follow-up question on that.
Judge Kavanaugh. That decision, in my view, followed from
the PCAOB case Chief Justice Roberts had written for the
Supreme Court. The CFPB was also structured differently from
the traditional independent agency, and the Supreme Court,
speaking through Chief Justice Roberts, had made clear that
independent agencies that were novel, not historically rooted,
the structure, were problematic constitutionally, and the
single director head of an independent agency was something
novel, not something that had traditionally occurred in
independent agencies.
So, I felt under the precedent set forth by the Supreme
Court in the Free Enterprise Fund case that that was a problem,
but I did not say that the agency was invalid or could not
continue to pursue its important functions, regulatory
functions for consumer protection. Rather, I said simply that
the single director head of it had to be removable at will, not
for cause. And I also made clear, though, if Congress wanted to
have a traditional multi-member independent agency, Congress
could, of course, change that structure if it wanted.
The important point for your question is that the agency
would continue to operate. There was another judge who did say
that due to that flaw, the whole agency should stop, cease
operation. I did not agree with that remedy because I did not
think that was the proper remedy under the Supreme Court's
precedents remedying constitutional problems.
Senator Crapo. Well, that is really my follow-up question.
I am one of those who has been working since almost before the
creation of the CFPB to establish a board, a balanced board to
run the CFPB, which I think would have addressed the
constitutional issue that you found. But the question I have is
why did you choose the route that kept the agency operative
rather than joining with the other judge to say that it had to
cease operating until it was fixed?
Judge Kavanaugh. Senator, that is a question of a doctrine
known as severability, and that--what that doctrine means is
suppose you have a law, a big law, and one provision of the law
is unconstitutional, what do you do as a court? Do you strike
down the entire law or do you hold simply the one provision
invalid and excise that provision from the law. And the
traditional approach is reflected perhaps best in Marbury v.
Madison, which found a section of the Judiciary Act of 1799 on
jurisdiction of the Supreme Court, of the courts, to be
unconstitutional. And what did the Court do in Marbury v.
Madison? Did it strike down the entire Judiciary Act? No, it
excised the one provision that was--or did not enforce the one
provision that was unconstitutional, and simply excised that.
The traditional approach to severability is ultimately one
of congressional intent to try to figure out what Congress
would have wanted in the statute, but I have written about this
both in cases and in articles that as a general proposition,
the proper approach for a court is to try not to disturb more
than is necessary of the work Congress has done in setting
forth the statute to a scheme. And, therefore, severability, as
I referred to it, narrow severability is the norm unless
Congress has specified a contrary intent, or unless the whole
law just--unless it just would not work otherwise.
Senator Crapo. All right. I appreciate that explanation.
And to go back to agency deference for just a minute, I would
like to talk about the Administrative Procedures Act just to
create the full picture. When we were talking about the Chevron
doctrine, that is a Court-made doctrine with regard to
deference on agency rulemaking and other interpretation of
statutes.
The Administrative Procedures Act contains a statutory
requirement, does it not, that requires the findings of fact
that the agency makes in quasi-judicial proceedings to be
honored. Have I got that right?
Judge Kavanaugh. That is with some deference, that is
correct.
Senator Crapo. And the reason I bring that up is not so
much because it is a judicially created issue, but because it
just shows the broad parameter of deference that either through
Congress or through judicial precedent has been given to the
executive branch in terms of what many of us believe is the
equivalent of making law. And just as we do not want you making
law, I personally do not want to see the executive branch
making law without involvement of Congress to the maximum
extent possible.
And so, these are issues that I just hope that you will pay
attention to in terms of the appropriate establishment and
precedent necessary for the kind of separation of powers in our
constitutional system that we need to have as we move forward.
I am not even asking you to comment on that. I am just making
an observation.
Judge Kavanaugh. Well, I will add one comment, which I do
think it is important when we do review adjudications, which is
another part of the bread and butter of the D.C. Circuit, so
agency adjudications where, for example, it could be a benefits
case of some kind or a--an adjudication of an NLRB case. That
when we review those adjudications, I do think it is important
that courts be aware of the importance of those cases for the
individuals affected by those cases, and to make sure that the
adjudications are complying with the principles of American
justice and due process that we expect in the adjudication when
someone's life, liberty, or property is on the line. And
administrative adjudication is something I have written about
in many of my cases to make sure that the proper kind of fact
finding is occurring even in the administrative adjudications.
Senator Crapo. Well, thank you. I appreciate you making
that note, and I actually have pages of summaries of your
adjudications on those kinds of issues. And I will just make a
conclusory statement there for the argument that you are not
watching out for the little guy or that you are not making sure
that the litigants in their engagement with executive agencies
are protected, people just have to read the cases. I commend
you for being very, very carefully attentive to making sure
that the rights of individuals in agency adjudications are
protected and honored.
Judge Kavanaugh. Thank you, Senator.
Senator Crapo. Last thing I will do with my 2 minutes is, I
want to talk to you about western States issues. Senator Flake
got into this a little bit yesterday, and I actually was
surprised to hear him say--I think he said--83 or 85 percent of
Arizona was owned by the Federal Government. I am impressed. I
am sorry for him, but in Idaho it is 63 percent of the State is
Federal land. We believe that--you know, we have got the
bragging rights to gorgeous country, whether it is mountains,
rivers, deserts, fishing, hunting, recreation of all different
kinds. The environment that we have in Idaho is a wonderful
place. That is one of the reasons people go there to live.
We are also very concerned about the management of that
Federal land. We want to make sure that at the same time we
protect and preserve this heritage, we also allow the people
who live there to be able to have an ability to make a life and
to make a living. And there is a conflict there. I do not
believe it is an irreparable conflict. In fact, I believe it is
something where both a strong economy and a strong environment
can be achieved. I am not asking you to make any commitments
about anything, except I would like you to just acknowledge to
me as you did to Senator Flake that you understand we have got
some incredibly different types of issues in the West that
relate to the differences in land ownership.
Judge Kavanaugh. Absolutely, Senator. I understand that,
and I have tried through my decisions--cases like the Otay Mesa
case, cases like the Carpenters case--to understand the
situation with the West, the land, the designations of land. It
is not my job, of course, as a judge to make the policy
decisions for those land or environmental regulations, but it
is my job to police the boundaries of what you have set forth
in the statute, and to make sure that the Executive is not
unilaterally rewriting the law or going beyond what has been
authorized by Congress.
It is also my job when constitutional boundaries are
crossed in terms of action taken by the Government with respect
to land or landowners, to make sure that I am enforcing the
Constitution. I understand, and I hope my opinions demonstrate
my understanding and appreciation for the importance of land
and land owners in the western States and throughout the entire
United States for that matter. But I know how important it is
to you and Senator Flake as well.
Senator Crapo. Thank you very much.
Judge Kavanaugh. Thank you, Senator.
Chairman Grassley. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman.
The Chairman asked and you responded that you had not
engaged in any secret handshakes, winks, and no discussions
relating to the Mueller investigation. On the other hand, your
Minnesota Law Review article, wherein you said Congress should
protect a sitting President from criminal or civil proceedings,
is a pretty big signal or notice to this President, and as far
as I can see, it is a very big blinking red light.
I was also listening to the series of questions asked of
you by Senator Blumenthal regarding the comments made by the
President referencing judges. Is disagreeing with the President
a concern to you?
Judge Kavanaugh. I am an independent judge. I have ruled in
cases such as the Hamdan case where that was a signature
prosecution of the Bush----
Senator Hirono. So you are saying that disagreeing with the
President is not a concern to you. Is that what your response
is?
Judge Kavanaugh. I am saying that, as a judge deciding
cases or controversies, I decide cases based on who has the
better position. I have done that for 12 years, and I have a
record to show that in 307 opinions and----
Senator Hirono. Is----
Judge Kavanaugh. Over 2,000 cases.
Senator Hirono [continuing]. Is disagreeing with the
President a concern to you when it is not a case in front of
you?
Judge Kavanaugh. Following the lead of the judicial canons,
following the lead of Chief Justice Roberts who leads the
Federal judiciary, we stay out of politics. We do not comment
on politics, we do not comment on comments made by politicians.
We stay out--way away from politics.
Senator Hirono. So to the extent that a comment is made by
the President, then disagreeing with him, any statement that
the President makes is political to you and you will not
respond. Thank you.
Let me follow up with some questions that some of us had of
you yesterday and last night. Yesterday evening, Senator Tillis
asked you about Rice v. Cayetano, and that is the case that I
discussed where the issue was whether the State of Hawaii could
restrict those voting for offices of the officers of the Office
of Hawaiian Affairs, which administers certain lands held in
trust for Native Hawaiians to only Native Hawaiians.
In fact, Hawaii felt so strongly about the importance of
its trust obligations to the Native Hawaiian community, the
people of Hawaii--the people of Hawaii voted to create the
Office of Hawaiian Affairs, also known as OHA, in our
Constitution. It is not just a law; it is in our Constitution
that we created the Office of Hawaiian Affairs in 1978.
In answering Senator Tillis, you describe the case, Rice v.
Cayetano, giving it a different and a grossly misleading spin.
What you said totally ignored and disparaged the trust
obligation that the State had to Native Hawaiians, and this
trust obligation led the State to create the Office of Hawaiian
Affairs and to decide who should be able to vote for the
leaders of that office, Native Hawaiians.
You said the State, quote, ``denied voting to people who
were residents and citizens of Hawaii but were not of the
correct, correct race, and therefore, African Americans and
Latinos and Asian Americans and Whites were barred from voting
for that office.'' You then misstated the holding of Rice v.
Cayetano. You said, quote, ``The Supreme Court held that that
was a straightforward violation of the Fourteenth and Fifteenth
Amendments of the U.S. Constitution.''
I will get to your misstatement later, but my first
question to you is, Do you think that Rice can be used to
justify the argument that programs to benefit Native Hawaiians
are subject to strict scrutiny and of questionable validity
under the Constitution, as you noted in the email that I
referred to last night?
Judge Kavanaugh. I appreciate the question, Senator, and
thank you for raising it. In Rice v. Cayetano Justice Kennedy
wrote the opinion, for 7-to-2 Supreme Court, saying that the
voting restriction in that case violated the Constitution.
To your question about--I am getting to your question--
about the other question, that was something I wrote in an
email then, and if that issue came before me, I would--there
has been subsequent precedent that would be relevant, and I
would have an open mind about how to apply the precedents of
the Supreme Court, the strict scrutiny or intermediate scrutiny
that would apply in a case like that and would consider the
facts and circumstances and arguments.
Senator Hirono. Rice is a Fifteenth Amendment case. It was
a State-action case, so should another State-action-voting case
come to you, you would apply Rice.
My question was, whether you would turn to Rice with a
proposition that programs that benefit Native Hawaiians should
be subject to strict scrutiny because they are of questionable
validity under the Constitution----
Judge Kavanaugh. Right, but----
Senator Hirono [continuing]. Then to my question----
Judge Kavanaugh. Yes, so I appreciate that, Senator, and I
think that would be analyzed in the light of Rice but in the
light of all the other precedents of the Supreme Court on
programs that--so contracting programs and higher education
programs, which has set for the body of precedent under which
programs like that would be analyzed. And I would look at the
specific program under the facts and arguments of that case----
Senator Hirono. So considering that Rice was a Fifteenth
Amendment case and you are citing to other examples where other
constitutional provisions may come into play, Rice should be
limited to a Fifteenth Amendment case because that is what the
Court decided. But, in fact, you answered last night that the
case was decided under the Fourteenth and Fifteenth--you said
it was a straightforward violation of Fourteenth and Fifteenth
Amendments of the U.S. Constitution. So that is not what the
Court did, as I have iterated, and I think you agree because, I
mean, that is what you wanted the decision to be based on. You
wanted the Rice decision to be based on the Fourteenth and
Fifteenth Amendments, so that is not what they did.
So this reminds me of the criticism that was lodged against
you in the U.S. v. Anthem case where the majority said that you
applied the law as you wanted it to be, not what it is.
A question to you is where in the Rice Court's opinion did
the Court decide the case on Fourteenth Amendment grounds?
Judge Kavanaugh. Well, the principal of the Fifteenth
Amendment is that there cannot be voting restrictions on the
basis----
Senator Hirono. I am asking you where in the decision does
the Court rely on the Fourteenth Amendment. You are citing to
the Fifteenth Amendment. This is the Fourteenth Amendment.
Judge Kavanaugh. Well, I think the Fourteenth and Fifteenth
Amendments, I think both prohibit restrictions on voting on the
basis of race. The Fifteenth Amendment explicitly--this refers
to voting, but the Fourteenth Amendment, of course, applies, as
I read the precedent, to all State restrictions on the basis of
race.
Senator Hirono. Well, the Fourteenth Amendment mainly
relies on one man, one vote. That is a whole other line of
cases, but that is not what the Court chose to decide to base
its decision on Rice, so I would expect someone who is going to
be on the Supreme Court to be very, very careful in citing
precedent and to be very accurate in saying what the Court
based its decision on.
And it is totally clear to me because you have not been
able to cite to the opinion in Rice that says we are deciding
this case based on the Fourteenth Amendment. They did not. So
that is very disturbing to me that you would cite that case for
the proposition that it was based on the Fourteenth Amendment
when clearly it was not. And you have been, as I noted, been
criticized for citing law as you wished it to be and not as it
is.
Let me go on to Priests for Life case. And the Free
Exercise Clause of the First Amendment ensures that each person
has the freedom of conscience to pursue their own religious
values. These rights end where they would interfere with
another's ability to do the same. However, in recent years, a
wide range of individuals and institutions have received
special dispensation to impose their beliefs on others. And, of
course, most notably this is the Hobby Lobby v. Burwell case.
So a case that raised those kinds of issues came before you
in the Priests for Life, and in that case one of the things you
had to determine was whether there was a substantial burden on
the employers. And the employers, their claim, the act of
filling out a form to let their insurance company and Health
and Human Services know that they had a religious objection
were not going to cover the contraception, was overly
burdensome.
And it was not the priests who were providing the
contraception coverage. A third party was. And the priests were
not forcing that third party to cover birth control. Congress
was through the ACA. In your dissent you thought that was too
much. You said the employer's religious exercise was
substantially burdensome and that they could deny contraceptive
coverage to their employees.
So my question to you is do you believe that the Freedom of
Religion Clause supersedes other rights?
Judge Kavanaugh. No, Senator. I made clear in that decision
that the Religious Freedom Restoration Act has a three-part
test: first, substantial burden. I found that satisfied their
based on the Hobby Lobby precedent, which I was bound to follow
and the Wheaton College; second, compelling interest. I did
find a compelling interest there for the Government in ensuring
access. And then the third prong is least restrictive means,
and I made clear there--I cited Reva Siegel's law review
article, which makes clear the----
Senator Hirono. Let me get to the first prong, which is
whether this was an unduly burdensome. So you determined that
filling out a two-page form was unduly burdensome. Did you now?
Judge Kavanaugh. I concluded that penalizing someone
thousands and thousands of dollars for failing to fill out a
form when they did not fill it out because of their religious
beliefs was a substantial----
Senator Hirono. No, if they filled out a two-page form,
they could have been totally insulated from thousands and
thousands of fines. So the question became not the fines. That
was irrelevant. The question was whether a two-page form was
overly burdensome, and you determined it was overly burdensome.
So, you know, it kind of defies logic to me.
Let me go on to what I would consider to be a related case,
which is Garza v. Hargan. And I would consider these two cases
as being related because, first of all, they are both cases
about women's reproductive freedom. And second, while you
balance the interest of the parties involved in very different
ways, you come to different conclusions, what is similar is in
both cases you ruled against the women.
In Garza v. Hargan, been brought up before, you argue that
the Government's basically charade of trying to keep the young
women in custody until it was too late to get an abortion was
not an undue burden on her rights. So forcing her to remain in
HHS's custody and in fact considering this to be a parental
consent case, which was not the case, that was irrelevant. And
in Priests for Life you insisted that a Government requirement
that religious employers fill out a pretty short form declaring
their objection to providing health care was too much of a
burden.
And in each case you reached your desired outcome, which is
against women's reproductive rights and you ignore the
commonsense meaning of burden. By the way, filling out the two-
page form, the majority opinion did not consider that overly
burdensome. And, you know, I really think that your conclusions
that filling out this form was overly burdensome defied logic,
but it is logical in the sense that in both cases you were
against women's reproductive rights.
So how is it possible for me to draw any other conclusions
that basically you really want to limit a woman's reproductive
rights? So even though you engaged in a balancing test in the
case of Priests for Life, filling out a two-page form was too
much, but in the case of Garza, it was not too much to have
this young woman remain in custody and to be forced, as far as
you are concerned, to wait around for foster parents to be
found.
Judge Kavanaugh. In each case, Senator, I was doing my best
to apply the precedent on point. The Hobby Lobby and Wheaton
College case--the Wheaton College case had dealt with a form,
and so I followed as best I could the Wheaton College case. The
Supreme Court had, I think, a 6-to-3 vote, found--or granted
emergency injunction in that case. I tried my best to follow
that precedent.
Senator Hirono. See, that is the thing about following
precedent because, you know, oftentimes, your own perspective--
a judge's ideological viewpoints, et cetera, come into play as
to which precedent to apply, how to apply the precedent, and
what parts of the precedent you want to apply.
Let me get to something that should be really simple. I
think you said yesterday that Korematsu had been overruled. And
in Trump v. Hawaii, the Chief Justice wrote, ``Korematsu was
gravely wrong the day it was decided. It has been overruled in
the court of history and to be clear has no place in the law
under the Constitution.'' I am just really curious. Is being
overruled by the court of history a valid way to overrule a
case?
Judge Kavanaugh. I think what the Chief Justice was
recognizing in that case was the same thing the Supreme Court
Justice Brennan had recognized in New York Times v. Sullivan
where he said the Sedition Act of 1798 had been overruled in
the court of history. In other words, there was not a specific
case that arose, but it was important for the Supreme Court to
nonetheless recognize that this law in the case of the Sedition
Act and this precedent in the case of Korematsu was no longer
good law and to note that. And so the Chief Justice noted that
in the Trump v. Hawaii case.
Senator Hirono. This was, by the way, long after a coram
nobis case was brought many, many years later when it was made
very clear that Korematsu had been wrongly decided. It would be
nice if the court of history can overrule cases, but let me go
on to Trump v. Hawaii.
The Chief Justice declared that Korematsu has nothing to do
with this case, but Justice Sotomayor called the--I am quoting
her holding--``all the more troubling given the stark parallels
between the reasoning of this case and that of Korematsu v.
United States.'' And she continued, quote, ``In Korematsu the
Court gave a pass to an odious, gravely injurious racial
classification authored by an Executive order and basically the
Court invoked an ill-defined national security threat to
justify an exclusionary policy in sweeping proportion.''
Now, are not the parallels between the cases very strong?
Because in Trump v. Hawaii, as it was in Korematsu, the
President discriminated against a minority group on national
security grounds, and in both cases the Court did not question
an obviously bogus justification. They did not, in both cases,
go behind the bald-faced assertion by the President that this
was based on national security.
So where does this reasoning take us? Because if the
President can claim national security as a shield against any
challenge to his actions, under what circumstances do you think
a Court--based on the most recent case, Trump v. Hawaii, should
a Court look behind the President's stated justification of
national security?
Judge Kavanaugh. The Supreme Court has made clear, Senator,
in a variety of cases that it will hold the executive branch to
account in national security cases, the Boumediene case in
2008, the Youngstown case in 1952, the Hamdan case. National
security is not a blank check for the President. The Supreme
Court has said, Justice O'Connor writing in the Hamdi case. And
that is an important principle under our Constitution, is that
even in the context of wartime, the courts are not silent.
Civil liberties are not silent.
In the particular case you are raising, Chief Justice
Roberts concluded that there was no violation in that case, but
the general principle that, I think, is important to reiterate
is, that we are a nation of laws, including in the national
security context, and that precedent of the Supreme Court over
the course of our history has recognized that the law applies
even in wartime and national security.
Senator Hirono. Well, the thing is, though, the most recent
iteration of an articulation of national security to justify an
Executive order is Trump v. Hawaii. The record was replete with
references and statements that the President had made as to
what his true intentions were, that this was a Muslim ban. He
talked about it during the campaign. He talked about it after
the campaign. He told the Justice Department----
[Disturbance in the hearing room.]
Senator Hirono. He told the Justice Department, as
President, get me an iteration of this ban that would withstand
constitutional challenge, and so the most recent iteration is
very concerning because it says to me that the President can
say this is based on national security, and the Supreme Court
made very plain that it would not look behind that
articulation. Let me move on. I am running out of time.
So the Warren Court, in 2017 you gave a tribute to the late
Chief Justice William Rehnquist. You explained that you chose
the topic because ``it pains me''--you--``that many young
lawyers and law students, even Federalist Society types, have
little or no sense of the jurisprudence and importance of
William Rehnquist to modern constitutional law.'' And then you
went on, ``they do not know about his role in turning the
Supreme Court away from its 1960s Warren Court approach where
the Court, in some cases, seemed to be simply enshrining its
policy views into the Constitution, or so the critics
charged.''
And then you praised Chief Justice Rehnquist because he
``righted the ship of constitutional jurisdiction.'' What
decisions of the Warren Court were you referring to as,
``simply enshrining its policy views into the Constitution''?
Were you thinking about Brown? Were you thinking about Loving?
Were you thinking about any of the Warren Court decisions that
created rights for individuals? Privacy rights? There is a
whole array. So which were the Warren Court decisions that you
thought needed to be righted by the Rehnquist Court?
Judge Kavanaugh. And I said, ``or so the critics charged.''
I identified the areas where Chief Justice Rehnquist had helped
the Court, I think, reach consensus or maybe a middle ground on
areas such as criminal procedure that is Religion Clause cases,
and I identified all those in the speeches. When he passed
away--and even before he passed away, many of the Justices who
worked with him were very much praiseworthy of Chief Justice
Rehnquist for fiercely defending the independence of the
judiciary----
Senator Hirono. I would really be interested to know the
particular cases that you are referring to, not general kinds
of cases, particular cases.
Judge Kavanaugh. I think I referred to them in the speech,
but thank you, Senator.
Chairman Grassley. After Senator Kennedy asks his
questions, we will take a 30-minute dinner break. I expect we
will be back around 6:15 then, and four Senators will be able
to ask questions, Booker, Tillis, Harris, Cornyn, and then
several Members have requested a third round. After all
questions are finished, we will then move to Dirksen 226 for
the closed session. Senator----
Judge Kavanaugh. I just wanted to say one thing----
Chairman Grassley. I am sorry. I----
Judge Kavanaugh. Mr. Chairman. When I introduced the
players earlier, I did not see the three in the second row,
Mary Grace, Shay, and Keke are in the second row. They are all
three eighth-graders.
[Disturbance in the hearing room.]
Judge Kavanaugh. And Megan.
Chairman Grassley. Okay.
[Disturbance in the hearing room.]
Judge Kavanaugh. They are getting an introduction to
democracy, Mr. Chairman----
[Laughter.]
Judge Kavanaugh. So it is noisy and I will explain that to
them later.
Chairman Grassley. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. Welcome, ladies.
You will get used to the yelling. Senator Tillis is keeping
count. It has happened over 200 times in the last 3 days. It is
not really how democracy is supposed to work.
Judge, I will repeat what I said yesterday. I am not going
to ask you to give me a hint about how you might vote on the
Court if you are confirmed. I certainly do not want you to
violate the judicial canons of ethics, and I may have to gently
interrupt you a few times to kind of move you along or move me
along.
Yesterday, you started to talk about Justice Harlan and his
feeling about whether he should vote in a political election,
and somehow we ran out of time, and I thought I would give you
an opportunity to finish that thought.
Judge Kavanaugh. Thank you, Senator. And one of the things
that we have to do as judges, as I have emphasized many times
in this hearing, is maintain the independence of the Federal
judiciary, independence from politics, independence from
political influence or public pressure or public influence. And
part of that, part of the canons for Federal judges, Federal
judiciary is that we do not attend political rallies, we are
not allowed to donate to political campaigns, support political
candidates, put bumper stickers on our cars, signs in our yard.
And one of the things I decided--we are allowed technically
to vote, but one of the things I decided after I voted in the
first election and I read something about how the second
Justice Harlan had decided not to vote in elections because he
thought that reinforced the independence that he felt as a
judge. And I thought about that and I decided to follow that
lead.
I am not saying my approach is right and other judges take
a different approach on that, and I fully respect that, but for
me it just felt more consistent for me with the independence of
the judiciary not to vote because I have always consider voting
a sacred responsibility and one in which I think very deeply
about the policies I am supporting and the people I am
supporting. And that seemed almost as if I were taking policy
views at least to myself into the voting booth, and I did not
want to do that as a judge. So I decided to follow the lead of
the second Justice Harlan.
I will be the first to say I am not the second Justice
Harlan. He was a great Justice on the Supreme Court and
someone, of course, who I would be very--if I were to be
confirmed, honored to be on that Court and follow in his lead.
Senator Kennedy. You do not vote in political elections?
Judge Kavanaugh. I do not vote in political elections.
Senator Kennedy. Interesting. Last night, you talked a
little bit about your outreach efforts to attract more women
and minority law clerks. Would you quickly go through that for
me again? I think I was getting coffee when you were talking
about that.
Judge Kavanaugh. Senator, one of the issues in American
society generally, of course, but also in the judiciary in
particular, has been to advance--to overcome the discriminatory
history of the country and to help advance the cause of women
and minorities in the legal profession. And one of the areas
where that has revealed itself is law clerk hiring. And one of
the--and that is important because the----
Senator Kennedy. Law clerks for judges, you mean?
Judge Kavanaugh. Yes, law clerks for judges. We get four
law clerks each year, and they are there for just 1 year and
then they turn over after a year. They are like a team. They
turn over after the year and you get a new team of four the
next year. Those law clerks are among the best and brightest
out of American law schools, and they often will go on to
leadership positions in the Congress or in the State
legislatures or in the judiciary or in the bar or in public
service, and so those are important training positions for the
future leaders of America.
And there were disparities when I came on the bench in the
number of women and minorities, so I decided to be very
proactive about that. There was a problem identified. I decided
to be proactive. So on the women law clerk front I am very
proud that of my 48 law clerks, a majority of them have been
women, and they are the best and brightest. And one of them was
just confirmed as a Federal judge on the U.S. Court of Appeals
for the Eleventh Circuit, Britt Grant, and she was in my second
class of clerks.
That is important because, as I talked about, my mom was a
trailblazer in the law and overcame barriers to help women
achieve equality in the law, and I want to do my part as well
and not just because of her but she was an example to help
achieve equality for all women to give them an equal place at
the table and future opportunities. And I think I have helped
one small--I am just one small piece and I do not want to
overdo it, but I have tried to be proactive about it and to
make a difference. So, too----
Senator Kennedy. What about minority outreach?
Judge Kavanaugh. Right. So in 2009 or 2010, so after I was
on the court for about 3 years, there was a hearing I think in
the House Appropriations Committee with--the two Justices
usually go up every year and talk about the Supreme Court
budget and testify before the Appropriations Committee to get
money or to explain the need for money for the Supreme Court
for the following year. And Justice Thomas and Justice Breyer
were there that year, and they were asked about the seeming
disparity with minority law clerks in general, African-American
law clerks in particular, and one of the things they said--and
they were talking about Supreme Court law clerks. Those are the
law clerks for the Supreme Court Justices. And one of the
things they said was they hired from the lower courts, from the
courts of appeals. And they pointed out that the pool in the
courts of appeals had the disparities, and so they were really
dependent on what the court of appeals did and does. I took
that as a bit of a call to action to do something about it
myself.
Senator Kennedy. And what did you do, Judge?
Judge Kavanaugh. I reached out initially to the Black Law
Students Association at Yale Law School, emailed them and asked
them if I could come talk to them. Yale Law School is a school
that produces a lot of law clerks, so I thought--and it is my
alma mater----
Senator Kennedy. I have heard of it.
Judge Kavanaugh. I start there, and I went and spoke to
them. What I did is I went and spoke to the group and I
explained to them the importance of clerking. I encouraged them
to clerk. I explained the history of the disparities. Then I
gave them in essence what I thought were tips about how to make
yourself a better clerk, kind of like a coach, tips to how to
be a better clerk candidate, classes to take, professors, how
to deal with professors----
Senator Kennedy. Do you think that helped?
Judge Kavanaugh. I do think it helped. I was uncertain
frankly when I walked into the room how that would work, and it
worked great in terms of the reaction I got and also in terms
of I think the real-world results. And the way I thought about
it is if I make even a difference for one clerk or one student,
it is worth it.
Senator Kennedy. Sure.
Judge Kavanaugh. And I think I did for more, and I have
kept it up year after year. I have done it also where I teach
at Harvard Law School, and I am proud of the results. I think
it has made, you know, again, a small difference, but it is one
person at a time, one clerk at a time, one student at a time,
and I think hopefully by talking about it in this forum, I can
encourage more efforts of that nature, which are really just
recruiting efforts and explanation for--many of the students at
law schools are first-generation professionals and do not have
the networks necessarily that others do and so----
Senator Kennedy. I know we could--I can tell you enjoy
talking about it.
Judge Kavanaugh. I could go for about 2 hours on that, but
yes, Senator, thank you for cutting me off.
Senator Kennedy. And I will be glad to go if the Chairman
will give me 2 hours, but I do not think he will.
[Laughter.]
Senator Kennedy. I know you have read an opinion before
where you agree with the conclusion but you do not agree with
the reasoning. Have you had that experience?
Judge Kavanaugh. I have.
Senator Kennedy. Yes, I think we all have.
Judge Kavanaugh. Yes.
Senator Kennedy. Here is why I ask that. Can you tell me
what in God's name a penumbra is?
Judge Kavanaugh. Senator, the Supreme Court, as I think you
are referring to, once used that term, but it does not use that
term anymore for figuring out what otherwise unenumerated
rights are protected by the Constitution of the United States.
What it refers to now is a test in the Glucksberg case--and
Justice Kagan talked about this in her confirmation hearing
when she was sitting in this seat. The Glucksberg case sets
forth a test where unenumerated rights will be recognized if
they are rooted in history and tradition. And why that matters
I think to your point----
Senator Kennedy. Can I stop you? It is deeply rooted----
Judge Kavanaugh. Yes.
Senator Kennedy [continuing]. And are those roots that are
just deep or are those roots that are deep that have been
growing there a long time? Do you understand what I am asking?
Is it----
Judge Kavanaugh. I fear I do not.
[Laughter.]
Senator Kennedy. Well, that is my fault, not yours. Is it
something that Americans have cherished for a long time or can
it be something that is a moray of contemporary society?
Judge Kavanaugh. So when the Court is referred to deeply
rooted in history and tradition, it has looked to history. Now,
how deep the history must be, I do not think there is a one-
size-fits-all answer to that and how much contemporary practice
matters. I also do not think there is a one-size-fits-all. But
the important thing is the Court--and again, Justice Kagan
emphasized this in her hearing--that the Glucksberg test means
that the Court is not simply doing what your role is, which is
to figure out the best policy and to enshrine it into the law,
in the Constitution in the case of the Court, but rather is
looking for as best it can objective indicia of rights that are
not explicitly enumerated in the Constitution but that are
nonetheless protected.
The best example I think is the Pierce case. Oregon passed
a law saying that everyone--and this is in the 1920s--saying
that everyone in the State of Oregon, every student had to
attend a public school and could not attend a parochial or
private school. And parents who wanted to send their children
or child to a Catholic school sued and argued that that
violated the United States Constitution. It made it to the
Supreme Court. The right in essence, the claimed right was, the
right of parents to direct the upbringing of their children by
sending them to a private or parochial school. And the Supreme
Court affirmed and recognized that right under the United
States Constitution even though that is----
Senator Kennedy. And that is a good example, Judge, and
again, I apologize for interrupting, but we are dealing here
with values, are we not, that we all cherish together as
Americans like the rule of law or privacy or equal opportunity
or personal responsibility? How are you to determine what
values all Americans cherish? How do nine people determine what
values all Americans cherish enough to read into or to discover
as a result of the superior intellect of those nine individuals
is a part of the Constitution and has been there for a long
time? But most of us could not see it except the nine Justices.
Judge Kavanaugh. Well, I do not think that is the
conception of the judicial role that the Supreme Court has
articulated.
Senator Kennedy. I agree, but that is the perception some
people have, and perception is important in appreciation of
government.
Judge Kavanaugh. Well, I agree with you. The values
question is one that, of course, is first and foremost for
Congress to figure out the policy or the State legislatures.
Judges, Federal judges, the Supreme Court, we are not supposed
to be, I think consistent with your question, simply importing
our own values into the Constitution. It is not just supposed
to be five people. We are five people like every other
American. We do not have a charter to create new rights just
because we think they are best. Rather, we find them----
Senator Kennedy. Excuse me again for interrupting, but I
think Justice Scalia would say and has said that, no
disrespect, but that five people, whoever they may be in the
United States Supreme Court, can establish this value and that
their sense of morality or their value system is no better or
worse than picking the first five names in the Washington, DC,
phone book.
Judge Kavanaugh. He did say that, and I think that is a
comment that I think is shared by the Justices on the Supreme
Court, and it is reflected now in the Glucksberg test. But I
recognize that it is important to explain that to people so
that people do not get confused about our role. Our role is
rooted in law, it is rooted in precedent, it is rooted in not
our values per se but the values reflected either in the
Constitution or reflected in the legislation passed by
Congress. And I realize there are gray areas in what I am just
saying, but it is very important to explain that to people.
Senator Kennedy. And here is my point. Excuse me again for
interrupting. I will bet most Americans could agree today and
would agree that we have a privacy right. Search and seizure
privacy is important, but we also believe now that disclosure
privacy is important, autonomy privacy is important, and it is
part of our Constitution. And frankly, I am glad that it is.
But how it got there matters. How it got there matters. It is
not just the end result. Let me leave that for a second----
Judge Kavanaugh. I agree with that.
Senator Kennedy [continuing]. And just kind of shift gears.
I have just got a few minutes left. I can tell from your
testimony the last 3 days or 2 days that high school, those
were formative years for you. You went to Georgetown
Preparatory School?
Judge Kavanaugh. I did Georgetown Prep, a Jesuit high
school here. It was very formative.
Senator Kennedy. What was it like for you? What were you
like? Did you ever get in trouble?
[Laughter.]
Senator Kennedy. Were you more of a John-Boy Walton type
or----
[Laughter.]
Senator Kennedy [continuing]. A Ferris Bueller type?
[Laughter.]
Senator Kennedy. These ladies are old enough to understand.
Judge Kavanaugh. I loved sports first and foremost. I think
that--I worked hard at school. I had a lot of friends. I have
talked a lot about my friends.
Senator Kennedy. Yes.
Judge Kavanaugh. And they have been here. So it was very
formative. And when I think back on it----
Senator Kennedy. You left out of the trouble part. I was
waiting for that but----
Judge Kavanaugh. Right, so that is encompassed under the
friends I think. Yes.
[Laughter.]
Senator Kennedy. Yes. You were an athlete?
Judge Kavanaugh. Yes, I played football and basketball. My
football coach was named Jim Fegan, and he is a legendary
football coach. And so over the last 8 weeks where I have been
in a slightly different situation than I have been for the
previous 53 years in terms of where I can go freely, I have
been working out on weekends at my old high school and running
on the track and ran into him out there. It was awesome to run
into him. He still helps out with the football team, and he
sent me a text three nights ago, so it is awesome.
Senator Kennedy. Okay. That is all I am going to get out of
you, is it not? I understand. All right. Let me yield back.
Strike that, Mr. Chairman. Just in case we have to have the
time, I am going to reserve my 2 hours and 10 minutes. I am
sorry, my 2 minutes and 7 seconds.
[Laughter.]
Senator Kennedy. Now, see, I was going to ask the Judge
if--not him but any of his underage running buddies had ever
tried to sneak a few beers past Jesus or something like that in
high school, but I am not going to go there.
[Laughter.]
Judge Kavanaugh. Okay.
Senator Cornyn [presiding]. I want you to.
[Laughter.]
Senator Cornyn. Well, I for one am grateful for the
Senator's self-restraint.
[Laughter.]
Senator Cornyn. Judge, your endurance has been remarkable.
Those of us on the dais have been able to come and go and tend
to other business along the way. You have had to sit there for
two full days and you are not through yet----
Judge Kavanaugh. No----
Senator Cornyn [continuing]. But you are getting close. I
think you said you have run a couple marathons. Consider this
about the 20-mile mark----
Judge Kavanaugh. Yes.
Senator Cornyn [continuing]. Where you hit the wall.
Judge Kavanaugh. Yes.
Senator Cornyn. But we are getting closer.
I just want to say briefly that your conversation with
Senator Kennedy about your recruiting female law clerks and the
importance of being proactive there reminds me of a
conversation I had briefly before you and I met when I served
on a State Appeals Court, the Texas Supreme Court, where I
would also hire law clerks, and most often they would be female
law clerks. And I would ask them occasionally, I said, ``Well,
why do you think it is that I end up hiring predominantly
female law clerks?'' She said, ``It is easy, Your Honor. We are
smarter and we work harder.''
[Laughter.]
Judge Kavanaugh. Yes.
Senator Cornyn. So with that, we are going to take a 30-
minute break. We will be back about 6:15, and then Senator
Booker, Senator Tillis, Senator Harris, and I will ask
questions before we go to the third round.
[Whereupon, at 5:48 p.m., the Committee was recessed.]
[Whereupon, at 6:16 p.m., the Committee reconvened.]
Chairman Grassley. Are you ready, Judge?
Judge Kavanaugh. I am.
Chairman Grassley. Senator Booker.
Senator Booker. Thank you, Mr. Chairman.
Judge, we, at 1:20 p.m. today, received another 1,000
documents, and I am just wanting to know, are you familiar with
the 1,000 documents we just received at 1:20 p.m. today? Are
you familiar with those documents or what is in those
documents?
Judge Kavanaugh. I have not been involved in the documents.
So I do not know what you have and what--I do not know.
Senator Booker. So even if I were to ask you questions from
one of those 1,000 documents, you would not--you would need to
see them?
Judge Kavanaugh. Even if I have seen them before, I would
like to see them.
Senator Booker. I understand. So 1,000 documents, the idea
that any Senator up here could go through 1,000 documents since
1:20 p.m. and ask you questions, have you have a chance to see
what we would like to ask you questions, seems a little absurd.
If Bill Burck was the one to give those documents, I cannot
help but wonder what else, again, he might be holding back,
what else they might be trying to hide.
And so I understand you stand by your record, but it is our
job to try to examine that record, the fullness of that record.
And so I just want to ask you some questions perhaps that can
illuminate Bill Burck's role. And so, Judge, have you
communicated in any way with Bill Burck or his team since
Justice Kennedy's retirement announcement on June 27, 2018?
Judge Kavanaugh. I saw him on the Saturday after my--the
Saturday after my nomination, I saw him at an event, a social
event with a number of people.
Senator Booker. Was that--did you communicate with him
beyond that?
Judge Kavanaugh. No, I have not communicated with him
beyond that, nor do I--have I had--I said before on the
documents, I have not been involved in the substance, the
process. I have stayed away from that. That is an issue for the
Senate and the Bush library.
Senator Booker. Okay. So if you have not communicated
directly with him about this process, have any of your
intermediaries that have been working with you or preparing you
for this been in discussions with Bill Burck or his team since
Justice Kennedy's retirement announcement on June 27, 2018?
Judge Kavanaugh. All I can say is what I know.
Senator Booker. So to your knowledge, you do not know if
your people who have been preparing you for this have been in
consultation or coordination with Bill Burck?
Judge Kavanaugh. When you say people?
Senator Booker. Who you have been helped to prepare for
these hearings, I imagine?
Judge Kavanaugh. You mean White House and Justice
Department people?
Senator Booker. Whoever might be helping you prepare for
these hearings.
Judge Kavanaugh. I do not know what the White House--the
White House and Justice Department people could speak for
themselves about that.
Senator Booker. I guess what, you see, I am asking you is
if the folks who are preparing you have been communicating with
Bill Burck about these documents, what is being released, or
anything like that. Do you have no knowledge of that, or do you
know if people who have been preparing you have been in contact
and communication with Bill Burck about these documents?
Judge Kavanaugh. I do not know what the process has been,
other than what I----
Senator Booker. But I am not asking about the process. I am
asking do you know if the people who have been preparing you
have been in touch with Bill Burke about the documents, content
of the documents, or anything related to the documents?
Judge Kavanaugh. I do not know the answer to that question.
Senator Booker. You do not know if the people who have been
preparing you have in any way been communicating with Bill
Burck about the documents?
Judge Kavanaugh. Can you--do you want to identify some
specific----
Senator Booker. No, sir. I am just asking you that.
Judge Kavanaugh. Is who prepare--I just want to make sure
we are on the same page.
Senator Booker. Yes, sir.
Judge Kavanaugh. So that there is no confusion. I do not
know who is--I have been staying out of it for obvious reasons.
I mean, I let other--it is not my privilege to assert.
Senator Booker. So you have never taken--you have never
taken a stand regarding the release of the documents with
anybody in the White House, the DOJ, or anyone else? You have
never taken a stand on this?
Judge Kavanaugh. This was an issue for the Bush library.
Senator Booker. I understand there is an issue. You have
stated this on the record. I am just asking have you ever taken
a stand with anyone from the White House or the DOJ about
document release?
Judge Kavanaugh. No. I do not have a--I do not have a
position, stand on----
Senator Booker. I know you do not have a position. I am
asking what has transpired.
Judge Kavanaugh. Right. And I am in the position that I
think Justice Scalia was in when he was being asked about his
memos from the Office of Legal Counsel, and he said that is a
decision----
Senator Booker. Again, I have a lot--a short amount of
time. I appreciate your knowledge of Justice Scalia's record
and statements. I just want to know what you think, sir, and
what you know.
Judge Kavanaugh. What I think is that--I am just going to
repeat myself. But what I think, it is an issue for the Senate
and the Bush library.
Senator Booker. So why do we not move on? You told Ranking
Member Feinstein and Senator Coons that you had never taken a
position on the constitutionality of criminally investigating
or indicting a sitting President. You stand by what you told
the Ranking Member?
Judge Kavanaugh. I am happy to have my recollection
refreshed.
Senator Booker. Sir----
Judge Kavanaugh. But that is my recollection.
Senator Booker. Okay. You told Senator Klobuchar that you
``did not take a position on the constitutionality, period.''
You stand by that?
Judge Kavanaugh. Again, I am happy to have my recollection
refreshed, but that is my recollection as I sit here.
Senator Booker. And that is your position now? Because you
have said this to me in private as well, that you had never
taken a stand on the constitutionality of this issue about--
about investigating or indicting a sitting President.
Judge Kavanaugh. I think in the various Georgetown events,
I referred to it as an open question. In my Minnesota Law
Review, I referred to it as an open question. I think here I
have referred to it as an open question.
And I have said if it comes to me, you know, a lot of
things would have to happen. I just----
Senator Booker. But you indicated----
Judge Kavanaugh. Just 20 seconds.
Senator Booker. I just want to try to get the question, so
you understand what I am asking.
Judge Kavanaugh. Yes. Yes, sir.
Senator Booker. That the constitutionality itself, have you
taken an issue on the constitutionality of these issues about
criminally indicting or investigating a sitting President?
Judge Kavanaugh. No. I have said repeatedly, and here is--
--
Senator Booker. No. That was it. ``Yes'' or ``no.'' You
said ``no.'' Can I refresh your recollection with things you
have said, sir?
So this is a Georgetown article, and again, I have the
quote----
Judge Kavanaugh. I have--seems that----
Senator Booker. Okay. I just want to walk through it, okay?
So you agree you did say this. You said, ``The
constitutionality itself seems to dictate.''
Judge Kavanaugh. Yes.
Senator Booker. So you are expressing a view on the
constitutionality. Look at what you wrote in The Washington
Post. The Constitution--again, you use the conditional word--
appears to preclude, but you talked about the
constitutionality. Appears to preclude.
Judge Kavanaugh. And that was----
Senator Booker. Please.
Judge Kavanaugh. In the Georgetown Law Journal in 1998 and,
as has been reported, I advised--my advice to Independent
Counsel Starr was not to seek----
Senator Booker. In the Minnesota Law Review article, you
said that the Constitution establishes a clear mechanism,
talking about what the Constitution establishes, yes?
Judge Kavanaugh. Well, let us be very clear. Can I get 30
seconds?
Senator Booker. Yes, of course.
Judge Kavanaugh. Okay. So the Constitution obviously sets
out a mechanism for removal.
Senator Booker. Yes.
Judge Kavanaugh. Right. The question of criminal indictment
is simply a question of timing, and the question is does it
have to be after or may it also be before? The Justice
Department--10 more seconds. The Justice Department for 45
years has said it must be after.
Senator Booker. And I guess you see what I am getting at
here is that you have talked about this issue quite a bit. Even
what Senator Whitehouse brought up when you were asked, people
were asked to raise their hand, give a hand how many people
believe a sitting--as a matter of law that a sitting President
cannot be indicted during a term of office.
We saw the videotape. You raised your hand. You have
commented on it multiple times. I guess this is sort of what I
am saying. I am going to get this----
Judge Kavanaugh. It said law, right, in the Justice--it did
not say Constitution.
Senator Booker. As a matter of law, yes.
Judge Kavanaugh. Right. And I do think it is important--
again, I do not want to take too much of your time, but it is
important to know that the Justice Department, since 1973 and
to this day, through Republican and Democratic administrations,
has had that position.
So before it could come to a court, if I am on the D.C.
Circuit, before it could come to a court, that position
presumably would have to change after 45 years. So it would
have to change. And then a prosecutor with a President would
have to decide I want to go forward as a matter of prudence.
And then, third, would have to decide you have the evidence.
Senator Booker. Okay.
Judge Kavanaugh. And fourth, a--it would have to be
challenged.
Senator Booker. Sir? Okay.
Judge Kavanaugh. After all that, it would get to court. And
then I would consider----
Senator Booker. Sir? Okay. I want to move on, but you--you
have made clear that you have never, you know spoken about
these issues in a constitutional manner. And I just want to say
that in a lot of your statements it seems like that you are not
just talking about this as a matter of policy, you are making
some speculations about the constitutionality of it, which I
think sends a clear signal about where you stand on those
issues.
I really want to move on because----
Judge Kavanaugh. I promise you I have an open mind.
Senator Booker. Okay. You speak a lot in your speeches and
articles about the matter of character. And just looking at
President Trump's comments, there is a number of sources that
keep track of how many lies he tells. There is about--it is
sort of stunning that according to one source, he has made
4,200 misleading claims during his Presidency. That is an
average of about 7.6 false or misleading statements per day.
Now I have listened to you speak a lot about character and
the character of the Presidency. At Duke University in 2000,
for example, you said that character matters and that the
President of the United States should not--should be a role
model for America. Do you still think character matters for the
President of the United States?
Judge Kavanaugh. Senator, given the lead-in to your
question that you have heard me talk about, I need to stay so
far away from any political conversation.
Senator Booker. Three zip codes away. I have heard you say
that a number of times.
Judge Kavanaugh. Three zip codes.
Senator Booker. And, but that was not what you did when you
were a Bush appointee. You talked a lot about Bush's character,
even in your confirmation hearing, you said at your swearing-in
ceremony. You were willing to comment about President Bush,
who--and his character. In fact, you said he was--you had the
greatest respect for President Bush.
Now we have a President now that has said a lot of
comments, and this is not in any way a partisan or political
issue because people on both sides of the aisle have denounced
the kind of statements that this President has made, matters of
character. Trump--President Trump during the campaign referred
to immigrants as rapists. He said a Federal judge was not able
to do his job because of his heritage.
He bragged about sexually assaulting women. He has mocked a
disabled reporter. I could go on and on and on. The list they
provided me is long, but my time is brief.
Do you want to say right now, do you have the greatest
respect? You said this about the last President, you thought it
was okay. Do you have the greatest respect for Donald Trump?
Judge Kavanaugh. Senator, to reiterate, you do not hear----
Senator Booker. You cannot even say if you have great
respect for Donald Trump?
Judge Kavanaugh. You do not hear sitting judges commenting
on political----
Senator Booker. I am just asking what you said about
President Bush in the last time you were before the United
States Senate. Do you have the greatest respect for Donald
Trump?
Judge Kavanaugh. I appreciate the question. And what I have
said during this process is I need to stay away----
Senator Booker. And you do not need to--three zip codes.
You do not need to repeat again. You are not answering my
question. And I want to tell you why I am building toward this.
Because there is an issue of this President who is asking for
loyalty tests from the people he is putting forward for
offices.
Now you heard how he is continuing to bash the Attorney
General of the United States of America and saying that if you
knew he was going to recuse himself that he would not have put
him forward. You have seen this President demanding loyalty,
expecting loyalty. President Trump not only said that about
Jeff Sessions, but you know he has said that about other folks.
And so you are not willing to say about--to comment on the
character of this President. You are not willing to say if you
have great respect for this President. Just last night, you
would not comment on the fact that the President, to one of my
other colleagues when he was talking about both sides being to
blame, really excusing, it seemed, the behavior of neo-Nazis.
And I am just wondering what kind of loyalty is being required
of you for this job? That is what I am building to by asking
you and trying to keep apples to apples.
What you said about President Bush, why are you not saying
it about President Trump? And so I want to just--just build to
this in the remaining time I have left. In May 2016, then-
candidate Trump put out his first list of potential Supreme
Court nominees. You were not on that list.
In September 2016, he put out another longer list. You were
not on that one. Then in May 2017, something incredible
happened. Robert Mueller was appointed by the special counsel
to investigate any links and coordination between the Russian
government and the Trump campaign. The President was now in
jeopardy, or at least his campaign was in jeopardy. He was a
subject of a criminal investigation.
And then President Trump puts out a third list of nominees,
and your name is on that list. Now you have heard so many of my
colleagues asking about your views, the constitutionality of a
President being investigated. You are failing to at least hold
President Trump in your eyes to the same level of the
Presidential character, which you have talked about in speech
after speech. And suddenly, you are going mum as to the
character of this President, given all his lies, all his
remarks that have been renounced, actually criticized on both
sides of the aisle.
And now there is a suspicion, and I do not think it is a
big leap to think that the public has this suspicion that
somehow you want a position, and I wonder, do you credibly
believe that if you agreed right now to recuse yourself, do you
credibly believe that somehow, like he said with Jeff Sessions,
that he would not hold your nomination up. If you recused
yourself. Do you credibly believe that?
Judge Kavanaugh. Senator, in this process, I need to uphold
the independence of the judiciary. And one of those----
Senator Booker. But that is what is at question right now.
I mean, right now, there is a shadow over the independence of
the judiciary because a President who has been credibly accused
by his former lawyer of being an unindicted co-conspirator has
the opportunity to put a judge on the Bench.
The only judge from that list that was added after the
Mueller investigation, of all those judges, you are the only
one that has spoken extensively, from raising your hand at a
Georgetown Law School event to speaking about it. I do not
think it is a big leap to have the common person begin to
suspect that you are being put up right now, a person that
cannot even speak to the character of this President, will not
even say what you said about George Bush, that you have the
greatest respect for a President.
And granted, it is hard to say about someone who brags
about sexually assaulting women. It is understandable for
people to suspect that there is something going on, that
somehow this is rigged that you are going to get on that bench.
And I hear your admonitions that you are going to be
independent, but the suspicion is clearly there.
And so you have written extensively about this. You have
spoken to the issue. You have written about the issue in law
journals. Can you tell me why the common person, millions of
Americans, would not sit back and say, well, this is Donald
Trump, who has demanded loyalty from an FBI Director, demanded
loyalty from the Attorney General, all the people he seems to
be putting in positions of law enforcement.
In fact, he criticizes in the most--as a tweet we saw right
before these hearings began, criticizes very dramatically the
Justice Department for doing investigations on folks, it seems,
because they are Republicans in the most partisan way. And to
me, that cast a shadow over these whole processes.
It is a shadow. Of course, it is extended by not having
your documents. It is extended by not having access to your
full record. But can you speak to that for me, sir? Can you
speak to that credible suspicion that people might have that
the system is somehow rigged and the President is putting
somebody up just to protect him from a criminal investigation?
Judge Kavanaugh. Senator, three quick points. One, my only
loyalty is to the Constitution. I have made that clear, and I
am an independent judge. Two, the Justice Department for 45
years has taken the position, and still does, that a sitting
President may not be indicted while still in office. Three, I
have not a position on the constitutionality and promised you I
have an open mind on that question.
And four, I did talk about a congressional proposal which
was not enacted, and as you have heard me say for 2 days, I
draw a distinction between what Congress does and what the
Constitution requires. So just because I talked about something
for Congress to consider in the wake of the experience with
President Bush does not mean that I think that is in the
Constitution. I have made clear that I have not taken a
position on the constitutionality and have an open mind.
So if you put those four points together, I think you
should conclude that I--and read my 12 years of opinions and
read the letters and read the teaching evaluations and look at
my whole life, I think you should conclude, respectfully, that
I have the independence required to be a good judge.
Senator Booker. And I appreciate it and respect--and I
afford you, sir, respect as well. You have spent your whole
life in public service. And you and I both know, and I am not
sure if you will say it right now, but this is unusual times in
the United States of America. If you had told me what has been
going on the last 3, 4 months was going to happen 4 years ago,
I would think you are describing a fiction novel and not
something that actually could be happening in our country right
now.
You have seen in these last few days everything from a
high-level White House official writing about the chaos and the
President, invoking the Twenty-fifth Amendment, which you know
very well, and much more. We have a President under
investigation. People surrounding him being indicted,
criminally charged.
All of us, I really believe this, every single Senator up
here is going to be tested. The test for all of us is coming,
and the test for the Supreme Court is coming as well. And this
is going to be a time, if we have a constitutional crisis,
where the faith in this country will be tested, shaken again.
And it is really important that the Supreme Court be above
suspicion.
And so Senator Blumenthal asked you this. I sent you a
letter. Why not right now, right now, even at the jeopardy of
President Trump pulling back your nomination, why not now
alleviate all of that suspicion that the reasonable person can
have? Why not just announce right now that you will recuse
yourself from any matters coming before the Supreme Court
involving the Mueller investigation?
Judge Kavanaugh. Because if I committed to how I would
decide or resolve a particular case and that it would be----
Senator Booker. But would not a recusal take you out of the
position that you had to decide or resolve? To say that this is
a time in this Nation where I should do the right thing, and
just take that suspicion off to restore the faith in the
Supreme Court and in this country.
Chairman Grassley. I have 10 minutes on my time. I will
give you whatever time you want to respond to it, and I will
make sure you are not interrupted.
Judge Kavanaugh. Just a few seconds.
Chairman Grassley. Look at me, will you, please? I am the
guy that gave you the time.
[Laughter.]
Judge Kavanaugh. Oh, yes, sir. I will try to keep you both.
If I committed to deciding a particular case, which
includes committing to whether I would participate in a
particular case, all I would be doing is demonstrating that I
do not have the independence of the judiciary that is of the
judging that is necessary to be a good judge. Because all of
the nominees who have gone before have declined to commit
because that would be inconsistent with judicial independence.
Chairman Grassley. Senator Tillis.
Senator Tillis. Thank you, Mr. Chair.
And Judge Kavanaugh, if you want to continue to look at the
Chair, you can, because he gave me the time.
[Laughter.]
Senator Tillis. Mr. Chair, I would like unanimous consent
to introduce some documents for the record. First is, from 13
States' Attorneys Generals who, among other things, said that
Judge Kavanaugh has an unshakable respect for the proper role
of the courts within the constitutional structure.
I have an op-ed from the New Hampshire Union Leader. Among
other things, they said that Kavanaugh is an experienced, well
qualified pick.
Another document is from 80 former law students at Harvard
Law. They say Judge Kavanaugh consistently encouraged his
students to voice different viewpoints, even if others or the
Judge himself might disagree.
Another document written--or I should say an article
written by Jonathan Turley of The Hill, who says that no one
can use the Mueller probe to hold up the Supreme Court nominee.
Another document from Salvador Rizzo from The Washington
Post, and basically, the question is, does Brett Kavanaugh
think that the President is immune from criminal charges? And
his assumption--or his assertion is that Kavanaugh does not
think so.
Ed Whelan, National Review, ``Dems' Latest Documents
Hullabaloo.'' Catholic Charities CEO, someone that I know Judge
Kavanaugh has worked closely with. He says, ``I know Brett to
be a man committed to his community and to those less
fortunate.''
Catholic Youth Organization basketball parents--and I might
add, I coached my kids, and I actually think that parents are
the toughest constituency to get support from. And you
apparently have done that, and they have submitted letters to
that effect.
Also, a letter from the Charleston Post and Courier
editorial board, ``Kavanaugh, the Right Choice.'' From the
Boston Herald staff, ``Nix the Toxic, Give Brett Kavanaugh a
Shot.''
From William Whitaker, the president of the Washington
Jesuit Academy, lauding Judge Kavanaugh for the work that he
has done for tutoring over the past several years. From my
former colleagues in the House; a letter from the Majorities of
the House and Senate supporting Brett Kavanaugh's nomination;
from my Lieutenant Governor supporting same.
And finally, a letter from the DOJ dated August 5, 2005, in
response to Senator Joe Biden's, at the time, request for
Justice Roberts' information. I think it is a very interesting
read.
Now before I make some comments and hope to keep the record
alive for yielding back the most----
Chairman Grassley. Wait a minute. You asked permission to
put them in the record.
Senator Tillis. I did.
Chairman Grassley. Without objection, so ordered.
[The information appears as submissions for the record.]
Chairman Grassley. Proceed.
Senator Tillis. Thank you.
First, before I get started, I think it is really
important. I ran over to a convenience store when I was taking
a break and thinking, I am taking a break. The other Members
are taking a break. Hopefully, Judge Kavanaugh did. The ones
who were not taking a break were the staff.
So I would like to thank the staff on both sides of the
aisle. I know you work hard.
And to the police, who are working mandatory 16-hour
shifts. You know, it is one thing----
[Applause.]
Senator Tillis. It is hard--it is very--it is very
difficult for those of you facing forward to see what they are
doing. But I do not think you understand the complex operation
and the work they are doing to keep us all safe. And those who
are exercising their First Amendment right safe.
And finally, to the Chair, thank you. You have done a great
job, as you always do. And I appreciate your fairness. I love
your sense of humor, and I look forward to us continuing this
for probably about another 5 hours. Now----
[Laughter.]
Senator Tillis. Now I have got to get on to a few things,
and you know, Judge, I was Speaker of the House in North
Carolina for 4 years. And when we would get into extended
debates and our conference would meet, at a break I would say,
``Guys, if it has already been said, do not say it again.'' So,
there is not a whole lot more I am going to say.
Clearly, we have got an impasse here, but that impasse did
not start based on the discussions we had over the last 3 days.
The impasse started in some cases before you were ever
nominated. There are people on the other side of the aisle,
including people on this Committee, who opposed your nomination
on a fill-in-the-blank basis before you were ever nominated.
And all they did is fill in the blank on July 10th.
These are the assertions people made. They already
concluded before they saw the first document, and they were not
going to change their minds. Now they do deserve getting as
many documents as possible, and they will have more time to get
documents.
I want to make a point on the 1,000 documents that the
Senator from New Jersey mentioned. It is actually 1,000 pages,
not 1,000 documents. So let us just be sure to be clear on
volume. And let us also be clear that those documents are
publicly available.
And let us also be clear that the record will be held open
until early next week so additional questions for the record, I
assume, and other information can be submitted.
Next week, you will go into the hearing--or you will go
into the Committee, you will be held over. That is another
week. The following week, you will go to Committee. We will
have debates again. Another opportunity for comments to be made
by the same Members who have already made up their minds.
And then, hopefully, the following week, you will be on the
floor, and every Member will have an opportunity to have their
say on the floor. So for anybody to say that this discussion is
over and the discovery is over, over the next couple hours is
simply creating theater.
Now I want to talk a little bit about theater. I want to
talk about what happened last night. I did something I seldom
do. I seldom interrupt another Member, regardless of how much I
want to talk. Last night was the first time of probably only
three times in the 3\1/2\ years I have been in the U.S. Senate.
But the reason I did it is, I felt like we were going down
a path that subsequently proved to be true, and at the time,
Senator Kennedy was chairing. He rightfully allowed the
discussion to go. But I want to talk about the timeline that
occurred and then what happened this morning.
So at about 9:30 last night, we had an exchange where you
were being asked to respond to something that you had not seen.
We subsequently found out, it was because it was ``committee
confidential.'' And again, I am not an Ivy League school
attorney, but I really feel like when you have got in 30-point
type running diagonally across the page something that says
``committee confidential,'' you probably ought not read
verbatim from it. But that is what happened last night.
But about 9:30 last night, a request was made to release
those documents. That is one of the reasons why I thanked the
staff, because those staff stayed up until about 4 a.m. this
morning, talking first with President Bush's people, then
talking with the White House and getting it cleared. And they
were cleared and in an email box at about 3:15 this morning,
3:30.
Now I do not expect somebody to check their email at 3:15
or 3:30. Maybe some of you do. But certainly in the 6 hours
between the time that email hit your email box and the
theatrics that happened in this Chamber today, you could have
actually found out that you did not have to be Spartacus. You
did not have to go interact with civil disobedience. You got
what you wanted.
You could have come in here and started out, had a
discussion about it if you wanted to, incorporated it into the
discussion today. But that would have given you an opportunity
to put that in the proper context. So perhaps it was not as
helpful.
The fact of the matter is what happened today and what has
happened subsequent to this afternoon reminds me of something I
am more likely to see at the Kennedy Center. Maybe, maybe a
version of ``Much Ado About Nothing,'' but not really
appropriate for what we are doing here.
Now I have noticed--I love watching people and body
language, and I have noticed you--I have had hash marks for the
number of times we have been interrupted. I just did not think
I could keep track of the number of times that you touched that
pocket Constitution.
[Laughter.]
Senator Tillis. And I have to know--and I know it is
tattered. It is almost a metaphor for the very document itself,
challenged, kind of torn through, but kept together, largely
intact, hopefully will continue to be intact. But do you have a
story behind that pocket Constitution?
Judge Kavanaugh. Well, I got it about 25 years ago. I know
that because the Twenty-seventh Amendment, which was ratified
in 1992, is not in my version. So I have written in the Twenty-
seventh Amendment in my handwriting.
And then I have used it each year teaching my classes at
Harvard Law School on separation of powers in the Constitution,
and I have written a lot of notes, and there is a lot of ink in
there. And the assignment on the first--for the first day of
class, the students have to read the entire Constitution word
for word. And for the last day of class, they have to read the
entire Constitution word for word.
And on the first day of class for about the first hour or
hour and a half, I give them a tour of the Constitution. So I
start with the beginning and kind of roll through the whole
thing, Article I, and I go through the different clauses.
Article II, Article III, Article IV, go through the whole
thing. Article V, Article VI.
Then we go through the amendments, and but I really focus
on the original text of the Constitution because people have
heard a lot about a lot of the individual amendments, although
I point out some of the less--the ones that are not always
discussed as much. But I go through the structure because I try
to explain how the structure fits together to protect
individual liberty. And some of the clauses about how the House
of Representatives and the power of Congress, the power of the
Senate, how that all fit together, the different----
Senator Tillis. I just find it remarkable----
Judge Kavanaugh. Sorry.
Senator Tillis [continuing]. That in spite of your
encyclopedic knowledge that you keep it with you, and you
always refer back to it. And the fact that you have had it for
25 years is a testament to those cheap pocket Constitutions.
Judge Kavanaugh. I will say that when I met with Senator
Feinstein, I wish she were here, but she saw this, and she--and
because she talked about how much she appreciated the words of
the Constitution, and I pulled it out. And she said, ``Well,
that looks tattered.'' And she gave me a new one.
So if this thing ever totally falls apart and hers has the
Twenty-seventh Amendment in it--so if this falls apart, I told
her I would use her copy for the future.
Senator Tillis. Thank you. Well, I am going to ask you a
few other personal questions, but also, you know, I started out
by saying we know where everybody was beforehand because a
couple people made public statements. We know people want more
documents. You have more time.
If you have more questions, ask them and submit them for
the record. If you want more documents, request them because
they have been in each and every case granted. Do not wait
until the day before the floor to say I have not gotten the
document, when now you have had a running clock since August
the 22nd to request some documents that were actually cleared
overnight.
I also want to point to this. I do not understand how
somebody with that kind of track record, with either judges
appointed by a Democratic President and judges appointed by a
Republican President on the district court or the D.C. Circuit
could actually be viewed in such a divisive way. I do not see
how somebody who has clearly judged on both sides of the issues
here, sometimes you have judged in a way that made some of my
folks mad, and sometimes you have judged in a way that made
some of their folks mad.
But I think if we go back and really examine this, this has
been a political exercise more than anything else. I, for one,
think you should be very proud of that record, and I, for one,
will not be surprised if you do not have--meet or exceed that
when you get on the Bench.
And that is the last thing I want to talk about. You know,
last night I went through some of the cases, and I kept on
going through more. But folks, I mean, let us get real. Read
his opinions. And the amazing thing about these opinions, I had
never read an opinion. I read a few when I was speaker, but not
many.
I first started reading opinions when Justice Gorsuch was
in front of us. And the first thing that I was amazed with is
how approachable they are. You do not have to read all the
footnotes. If you are like me, you can read the summary. You
get the point. You can go to some of the footnotes, but read
them. Because if you do, you will be amazed by them.
Do not judge it based on a tweet or some sort of get out
and protest. Read them.
John Locke, I think, said, ``To prejudge other men's
notions before we have looked into them is not to show their
darkness, but to put out our own eyes.'' Do not put your eyes.
You may disagree, but you may want to take a look at how
thoughtful all of Judge Gorsuch's 307 opinions are. I said
Gorsuch--and Judge Kavanaugh.
[Laughter.]
Senator Tillis. So just look at it. I mean, go away. I
walked over to this convenience store to get me some kombucha
and come back here and--and I was just thinking. I talked with
some people there. Apparently, they were in the audience. I
think they were clearly on the other side, and they said,
``What are you doing here?'' I said, ``I am getting a drink.''
And I said, look, you know, what really bothers me is how
we go into this process and we take these incredible people,
and you wonder why they do it. So that is the last thing. And I
told them the same thing. I said read some of his opinions. Do
not believe what you have been told. Do not judge someone based
on someone else's judgment.
Judge them based on the body of work. And your body of work
extends long before the 12 years that you have actually been in
the role of public service, and that is what I am going to end
with. I actually started public service about the same time you
did, Judge Kavanaugh. Actually, we have, I think, some
similarities.
I was a partner at a big four accounting firm. I traveled
all over the place. I have two kids. I coach their tee-ball,
their soccer. I was sometimes flying in for practice on Monday
night and trying to get home on Friday night to be on the
ballfields.
I then went into the legislature in 2011. That is really
the first time I did, or 2007, I should say, public service.
And then became Speaker of the House, and came up here.
And sometimes when I am in settings like this, I ask myself
the question I am about to ask you. Why on earth do you do
this, and why on earth do you want to do it? You are brilliant.
You have augmented your God-given talents with an extraordinary
education, and you have served so extraordinarily well. You
know well that in the private sector--I mean, your potential is
endless.
So in the remaining time, and whatever you do not use I
will yield back, why on earth are you doing this?
Judge Kavanaugh. Senator, I appreciate that. I am doing--
been a judge and doing this and going through this process
because from an early age, I tried to commit myself to public
service. I have talked about the motto of our Jesuit high
school, which was, ``Men for Others''--and that motto of public
service is something I have always tried to pursue.
And following the example set by my mom of law, and I found
that an important way to contribute to public service. And then
became, of course, a lawyer and within public service as a
lawyer, I think one of the highest forms--not the only, but one
of the highest forms of public service as a lawyer is to be a
judge. Because our rule of law in this country, our rights and
liberties depend on independent, neutral, impartial judges, and
I thought I could contribute in that way to the public service
and the rule of law.
And so I, when that opportunity arose, I was honored to be
considered and honored to become a judge. And I have enjoyed
and been honored to do it for the last 12 years because I know
that it is not abstract. It is not academic. It has real
effects for real people in the real world.
And being part of the process of our Government by which
the rights and liberties of people are protected in the real
world was the highest form of public service. At the same time,
I have recognized that that is not the only way to contribute.
So I have, as I have mentioned before, sought to teach, sought
in hiring law clerks to train the next generation, teaching the
Constitution, sought to volunteer with Father John in
Washington Jesuit Academy.
Coaching has been just an enormous part of the last 7
years, and then, you know, my family.
So, but the public service as a judge is--it is a great
honor, and it is a great--it is a great responsibility. To the
discussion I just had with Senator Booker, I understand the
responsibility I bear as a nominee to this Court. I appreciate
that. I hope my experience gives me the ability to, if I were
to be confirmed, to live up to that responsibility. I will give
it my all, if I am confirmed, as I have tried to do for the
last 12 years.
So thank you for the question.
Senator Tillis. Judge Kavanaugh, thank you. Thank you for
what you are going through. Thank you for your past service and
what I believe is going to be a distinguished career on the
Bench. And God bless you and your family.
I yield the rest of my time.
Judge Kavanaugh. Thank you, Senator.
Chairman Grassley. Thank you for the 2 minutes you did not
use.
Senator Harris.
Senator Harris. Thank you.
Judge, as you know, these hearings are placed to hopefully
get answers, and as I am sure you have noticed, your lack of a
clear answer to a question I asked you last night has generated
a lot of interest.
I received reliable information that you had a conversation
about the special counsel or his investigation with the law
firm that has represented President Trump. As you will recall
last night, I asked you whether you had had such a
conversation, and under oath, you gave no clear answer.
Then today my Republican colleagues raised the issue with
you, and again, you said you do not recall and that you had no
``inappropriate conversations'' with anyone at that law firm,
which has led a lot of people to believe that that was
equivocal in terms of a response.
So whether a conversation was appropriate in your opinion
is not a clear answer to my question. My colleague, Senator
Blumenthal, again, asked you, and you said you were pretty
confident the answer was ``no.'' So, frankly, if last night you
had just said ``no'' or an ``absolute no'' even today, I think
this could be put to rest.
But I will ask you again and for the last time. ``Yes'' or
``no,'' have you ever been part of a conversation with lawyers
at the firm of Kasowitz Benson Torres about Special Counsel
Mueller or his investigation, and I ask were you ever part of a
conversation? I am not asking you what did you say. I am asking
you were you a party to a conversation that occurred regarding
Special Counsel Mueller's investigation? And a simple ``yes''
or ``no'' would suffice.
Judge Kavanaugh. About his investigation. And are you
referring to a specific person?
Senator Harris. I am referring to a specific subject, and
the specific person I am referring to is you.
Judge Kavanaugh. No, who was the conversation with? You
said you had information.
Senator Harris. That is not the subject of the question,
sir.
Judge Kavanaugh. Okay.
Senator Harris. The subject of the question is you and
whether you were part of a conversation regarding Special
Counsel Mueller's investigation.
Judge Kavanaugh. The answer is no.
Senator Harris. Thank you. And it would have been great if
you could have said that last night.
Judge Kavanaugh. Well, I----
Senator Harris. Thank you.
Judge Kavanaugh. In my--never mind.
Senator Harris. Let us move on.
Judge Kavanaugh. Okay.
Senator Harris. Yesterday, Senator Blumenthal asked if you
could recuse yourself in cases involving the personal civil or
criminal liability of the President. You declined to say that
you would. So my question is could a reasonable person question
your independence in cases involving the President's civil or
criminal liability?
Judge Kavanaugh. I am sorry. Can you repeat it for me?
Senator Harris. Would it be reasonable for someone to
question your independence in cases involving the President's
civil or criminal liability, should that occur?
Judge Kavanaugh. My independence I believe has been
demonstrated through my 12-year record and what you have heard
from the people who have worked with me, and I believe deeply
in the independence of the judiciary. I rule based on the law,
and you can look at cases that I have ruled against when I
became a judge against the Bush administration. And I have
talked about the history of our country and the history of the
Supreme Court.
Senator Harris. And on that point, sir, and particularly
history of the Supreme Court in confirmation hearings. Justice
Kagan, during her confirmation hearing, committed to recusing
in cases she handled as Solicitor General. Justice Breyer
committed to recusing in cases implicating his financial
interests in Lloyd's of London.
Justice Ginsburg refused to commit to recusing in cases
that were on her D.C. Circuit recusal list. Justice Scalia
committed at the hearing to recuse in a case implicating an
issue that was the same as an issue he had decided as a D.C.
Circuit judge. So my question to you is will you commit to
recusing in any case involving the civil or criminal liability
of the President who appointed you--or nominated you?
Judge Kavanaugh. The independence of the judiciary requires
that I not commit to how I would decide a particular case and
to issue a commitment on a discretionary recusal issue in
either direction. So if I answered that question in either
direction----
Senator Harris. But do you think it is inappropriate----
Judge Kavanaugh. That would be a--I would be violating my
judicial independence, in my view, by committing in this
context. I have explained----
Senator Harris. But with all due respect, sir, I shared
with you that other nominees sitting at that desk, or some desk
like that, have committed to recusing. There have been
circumstances where they have committed. So is it your opinion
then that they violated some ethical code or rule?
Judge Kavanaugh. I do not know all of the circumstances,
but I believe those were situations that were required recusals
where they had previously had to recuse and were simply
indicating their required recusals. But I do not know all of
the circumstances.
A discretionary recusal as a commitment to get a job or a
discretionary nonrecusal as a commitment to get a job, either
direction would be violating my independence as a judge, as a
sitting judge and as a nominee to the Court.
Senator Harris. Okay. It is clear you are unwilling at this
point to commit to recusal. So we can move on.
One of your mentors, Justice Kennedy, wrote landmark
opinions in the area of LGBTQ rights that have had a major
impact on the lives of many Americans. Let us assess one of
those cases, and that is the Obergefell case.
In Obergefell, as you know, the Court held that same-sex
couples have a right to marry. My question is whether the
Obergefell case was correctly decided, in your opinion?
Judge Kavanaugh. Senator, Justice Kennedy wrote the
majority opinion in a series of five cases, Romer v. Evans----
Senator Harris. If we can just talk about Obergefell, that
would be great.
Judge Kavanaugh. I want to explain it.
Senator Harris. I actually know the history leading up to
Obergefell, so can you just please address your comments to
Obergefell?
Judge Kavanaugh. I would like to explain it, if I can? He
wrote the majority opinion in Romer v. Evans, Lawrence v.
Texas, United States v. Windsor, Obergefell, and Masterpiece
Cakeshop. Concluding in Masterpiece Cakeshop importantly with a
statement, if I could just read this?
Senator Harris. But, no, please do not. Because I actually
have read it, and I am sure most have. My question is very
specific. Can you comment on your personal opinion on whether
Obergefell was correctly decided? It is a ``yes'' or ``no,''
please.
Judge Kavanaugh. In Masterpiece Cakeshop, and this is, I
think, relevant to your question, Justice Kennedy wrote in the
majority opinion joined by Chief Justice Roberts and Justice
Alito and Justice Gorsuch and Justice Breyer and Justice Kagan,
the days of discriminating against gay and lesbian Americans or
treating gay and lesbian Americans as inferior in dignity and
worth are over, paraphrasing.
Senator Harris. Are over. Right. Do you agree with that
statement?
Judge Kavanaugh. That is the precedent of the Supreme Court
agreed with by a----
Senator Harris. Sir, I am asking your opinion.
Judge Kavanaugh. I----
Senator Harris. You are the nominee right now, and so it is
probative of your ability to serve on the highest court in our
land. So I am asking you a very specific question. Either you
are willing to answer or not. And if you are not willing to
answer it, we can move on.
But do you believe Obergefell was correctly decided?
Judge Kavanaugh. So each of the Justices have declined, as
a matter of judicial independence, each of them, to answer
questions in that line of cases.
Senator Harris. So you will not answer that question?
Judge Kavanaugh. Following the precedent set by those eight
Justices, they have all declined----
Senator Harris. Thank you.
Judge Kavanaugh. When asked to answer that question.
Senator Harris. I have limited time.
Judge Kavanaugh. But it is important that----
Senator Harris. I would really like to move on. You have
said that Brown v. Board of Education was one of the greatest
moments in the Court's history. Do you believe that Obergefell
was also one of those moments?
Judge Kavanaugh. I have said, Senator, consistent with what
the nominees have done, that the vast swathe of modern case
law, as Justice Kagan put it, you cannot, as a nominee in this
seat, give a thumbs up or thumbs down. That was--that is her
words.
Senator Harris. Do you think that Obergefell was one of the
great moments in the history of the Supreme Court of the United
States?
Judge Kavanaugh. And for that reason, those nominees have
declined to comment on recent cases, all of them.
Senator Harris. Is it a great moment, is what I am asking
you, not to comment on the legal analysis. Do you believe that
was a great moment in the history of the Court?
Judge Kavanaugh. So Justice Kennedy wrote the majority
opinion saying the days of treating gay and lesbian Americans
or gay and lesbian couples as second-class citizens or inferior
in dignity and worth are over on the Supreme Court. That is a
very important statement, Senator.
Senator Harris. I agree. That is why I think you repeated
it. Thank you.
Let us move on. Over the last several months, we have all
witnessed the inhumane and heartbreaking separation of
immigrant children from their families by this administration.
Despite a court order requiring the administration to reunite
them over a month ago, nearly 500 immigrant children are still
separated from their parents.
Do you believe that constitutional rights of parents,
specifically fundamental due process rights, are implicated in
such family separations?
Judge Kavanaugh. Senator, that is a matter of pending
litigation, I believe. And as a sitting judge on the D.C.
Circuit or as the nominee, I, of course, cannot comment.
Senator Harris. Have you watched the coverage of any of
these cases on television, or have you read about the
experiences those parents and those children have had?
Judge Kavanaugh. I have seen some television.
Senator Harris. In the 1889 Chinese Exclusion Case, the
Supreme Court permitted a ban on Chinese people entering the
United States. The Court said Chinese people are ``impossible
to assimilate with our people'' and said they were immigrating
in numbers ``approaching an invasion.''
This case has never been explicitly overruled. You have
said you would be willing to talk about older cases. So can you
tell me, was the United States Supreme Court correct in holding
that Chinese people could be banned from entering our country?
Judge Kavanaugh. Senator, the cases in the 1890s, as you
know----
Senator Harris. 1889, to be specific.
Judge Kavanaugh. Okay, in that era reflect discriminatory
attitudes by the Supreme Court. Of course, that is the era also
of Plessy v. Ferguson.
Senator Harris. But would you be willing to say that that
was incorrectly decided?
Judge Kavanaugh. Senator, I do not want to opine on a case,
a particular case without looking at it and studying with the
discrimination----
Senator Harris. Are you aware that that case has not been
overturned?
Judge Kavanaugh. Senator, I know that with a number of the
cases, like Korematsu. Let me use that as an example.
Senator Harris. Which we have discussed earlier.
Judge Kavanaugh. That is----
Senator Harris. But this case in particular, were you aware
that it had not been overturned?
Judge Kavanaugh. Senator, I realize that there are still
cases in the immigration context----
Senator Harris. Have you ever written about any of those
cases and your thoughts about whether they should be re-
examined or potentially overturned, and sometimes obviously
they should be overturned?
Judge Kavanaugh. Well, there is a swathe of cases----
Senator Harris. Have you talked about this case ever?
Judge Kavanaugh. I do not believe. I am happy to be
refreshed if you have something that suggests I have.
Senator Harris. No, it is actually a question.
[Laughter.]
Judge Kavanaugh. Okay.
Senator Harris. And under the Constitution, Judge, do you
believe that Congress or the President can ban entry into the
United States on the basis of race?
Judge Kavanaugh. That was, of course, one of the issues
that was just in litigation, and there is still litigation
about the immigration laws and how exclusions----
Senator Harris. So you are not going to answer that.
Judge Kavanaugh. That is pending litigation, so I think I,
as a matter of independence and precedent.
Senator Harris. Will not answer that. That is fine. Let us
move on.
In 2013, Texas passed a law that imposed new restrictions
on healthcare facilities that provide abortions. The effect was
that after the law was passed, half those facilities closed,
which severely limited access to healthcare for the women of
Texas.
In 2016, Whole Woman's Health was decided, wherein the
Supreme Court invalidated the Texas restrictions. Was Whole
Woman's Health correctly decided? ``Yes'' or ``no''? And we can
keep it short and move on.
Judge Kavanaugh. Senator, consistent with the approach of
nominees----
Senator Harris. You will not be answering that.
Judge Kavanaugh. Following that nominee precedent.
Senator Harris. Okay. I would like to ask you another
question, which I believe you can answer. You have said
repeatedly that Roe v. Wade is an important precedent. I would
like to understand what that really means for the lives of
women. We have had a lot of conversations about how the
discussion we are having in this room will impact real people
out there.
And so my question is what, in your opinion, is still
unresolved? For example, can a State prevent a woman from using
the most common or widely accepted medical procedure to
terminate her pregnancy? Do you believe that that is still an
unresolved issue? I am not asking how you would decide it.
Judge Kavanaugh. Senator, I do not want to comment on
hypothetical cases. Roe v. Wade is an important precedent. It
has been reaffirmed many times.
Senator Harris. So are you willing to say that it would be
unconstitutional for a State to place such a restriction on
women for Roe v. Wade?
Judge Kavanaugh. Senator, you can--the process on the
Supreme Court was--in Roe was reaffirmed in Planned Parenthood
v. Casey, of course, and that is precedent on precedent. And
then there are a lot of cases applying the undue burden
standard. And those themselves are important precedents, and I
had to apply them----
Senator Harris. And we have discussed that many times. I
actually had the benefit of sitting through most of the hours
of your testimony over the last 2 days.
Judge Kavanaugh. Thank you.
Senator Harris. I know you have talked a lot about that.
Can Congress ban abortions nationwide after 20 weeks of
pregnancy?
Judge Kavanaugh. Senator, that would require me to comment
on potential legislation that I understand, and therefore, I
should not, as a matter of judicial independence following the
precedent of other nominees, do that.
Senator Harris. Okay. Then we can move on. I am going to
ask you about unenumerated rights. So you gave a speech
praising former Justice Rehnquist's dissent in Roe. There has
been much discussion about that, and you wrote celebrating his
success that ``successful in stemming the general tide of
freewheeling judicial creation of unenumerated rights.'' That
is what you said in celebration of Justice Rehnquist.
So, ``unenumerated rights'' is a phrase that lawyers use,
but I want to make clear what we are talking about. It means
rights that are protected by the Constitution even if they are
not specifically mentioned in the Constitution.
Judge Kavanaugh. Right.
Senator Harris. So they are not in that book that you
carry. So what we are talking about is the right to vote. That
is an unenumerated right. The right to have children, the right
to control the upbringing of your children, the right to refuse
medical care, the right to love the partner of your choice, the
right to marry, and the right to have an abortion.
Now putting those unenumerated rights in the context of the
statement you made, which was to praise the stemming of the
general tide of freewheeling creation of unenumerated rights,
which means you were--the interpretation there is you were
praising the quest to end those unenumerated rights. My
question to you is which of the rights that I just mentioned do
you want to put an end to or roll back?
Judge Kavanaugh. Three points, I believe, Senator. First,
the Constitution, it is in the book that I carry. The
Constitution protects unenumerated rights. That is what the
Supreme Court has said.
Senator Harris. But it does not explicitly protect the
rights that I just listed, and we both know that that is the
case.
Judge Kavanaugh. Right. So that is point one. Point two is
Glucksberg, the case you are referring to, specifically cited
Planned Parenthood v. Casey as authority in that case. So Casey
reaffirmed Roe. Casey is cited as authority in Glucksberg. That
is point two.
And point three, Justice Kagan, when she sat in this chair,
pointed repeatedly to Glucksberg as the test for recognizing
unenumerated rights going forward. In describing the precedent,
I agree with her description of that in her hearing.
Senator Harris. So thank you for that. So then let us put
the rights that I mentioned, which are unenumerated, in the
context of your praise of Justice Rehnquist as having ``stemmed
the general tide of freewheeling judicial creation of
unenumerated rights.'' Arguably, every right that I mentioned
on that list was a judicially created unenumerated right.
And my question then is when you praised a jurist who
attempted to end those rights, which rights in particular do
you believe are praiseworthy of ending?
Judge Kavanaugh. So that was the test that was set forth by
the Supreme Court going forward for recognition of additional
unenumerated rights. That was cited as authority in that case,
Planned Parenthood v. Casey, which reaffirmed Roe. The point--
--
Senator Harris. So let us talk about the right to vote. Do
you believe that that falls in the category of having been
caught up in the general tide of freewheeling judicial creation
of unenumerated rights?
Judge Kavanaugh. What I was describing with Chief Justice
Rehnquist, and it was a description of his career was in a
variety of areas and his role----
Senator Harris. But specifically your reference was to
unenumerated rights, sir.
Judge Kavanaugh. Right. And in a number of areas I have
described five different areas of his jurisprudence, where he
had helped the Supreme Court achieve what I think has been a
common sense middle ground that has stood the test of time in
terms of precedent in a variety of areas. At least that is how
others have described it.
The Glucksberg case, as Justice Kagan explained when she
was in this chair, is the case that the Supreme Court has
relied on for forward-looking future recognition of
unenumerated rights. It did not----
Senator Harris. Thank you, sir. I am familiar with that. I
think you are not going to address the specific unenumerated
rights, or are you? Because if not, we can move on.
Judge Kavanaugh. I think I have addressed it. Thank you,
Senator.
Senator Harris. Okay. In 2011, you were a judge on one of
the challenges to the Affordable Care Act. The court you sat
upon held there that you dissented on procedural grounds on the
court, which upheld the Act.
One of your former law clerks described your opinion in
that case, and that is the Seven-Sky case, as ``a thorough
take-down of the individual mandate.'' He would go on to clerk
for Supreme Court Justice Kennedy that year or the next year,
and the Supreme Court then held or heard the challenge to the
Affordable Care Act. And according to him, your opinion was ``a
road map'' for the dissenting Justices, the ones who would have
struck down the Affordable Care Act.
Given you wrote the ``road map,'' according to your law
clerk, could one reasonably conclude that you would have voted
to strike down the Affordable Care Act, had you been on the
Supreme Court?
Judge Kavanaugh. A couple points, Senator. First, I
concluded--in one case I upheld the Affordable Care Act against
an Origination Clause challenge. In the case you are referring
to, I did not reach the merits. But I discussed the merits pro
that were being argued in both directions.
My opinion has been described as the road map for both
sides because I described both positions, and actually, it was
not a road map at all because I did not reach----
Senator Harris. He also described it as a take-down.
Judge Kavanaugh. Well, I speak for myself, and my own
opinions speak for themselves. And what my----
Senator Harris. So he was out of bounds--of line then? And
I am sure the Chairman wants to close this questioning, so we
can leave it with that.
I thank you, Judge.
Judge Kavanaugh. All right. Thank you for your time,
Senator.
Chairman Grassley. Before I call on Senator Cornyn, the
Minority has requested a third round of questions, and that is
perfectly legitimate. It may make your day longer, Judge, but
we did the same thing in the Gorsuch hearing.
We have agreed to 8-minute rounds. Senator Leahy has given
his additional 8 minutes to Senator Hirono. So she will have 16
minutes. And then we will go to our traditional closed session
down in the regular Committee room, 226, that we have already
discussed.
So two things I need to know. Would you like to have a few
minutes from me if you would like to respond to some of the
issues my colleague has raised, including recusal from any
cases involving the Mueller investigation, your opinion or
response to whether Obergefell was correctly decided, and about
Whole Woman's Health issues, that due process rights of family
separation? Any of those things that you did not get a chance
to explain you want to explain?
Judge Kavanaugh. No. That is okay, Mr. Chairman. I think we
had a good dialogue.
Chairman Grassley. Okay. Then one other thing, would you
like--when we get done with Senator Cornyn, before we start the
third round, because that adds up to about 80 minutes, assuming
none of you guys want to talk--and I hope you do not want to.
[Laughter.]
Chairman Grassley. Would you like to have a 2\1/2\-minute
break or a quick 10-minute break or 7----
Judge Kavanaugh. I can go with 5, Mr. Chairman.
Chairman Grassley. Okay. When Senator Cornyn is done, we
will take a 5-minute break.
Senator Cornyn. Mr. Chairman, this side may have a few
pearls of wisdom, too.
Chairman Grassley. Okay, but here----
Senator Cornyn. No, I take your point.
Chairman Grassley. Okay. Well, let me explain.
Senator Cornyn. I think most everything has been asked and
answered.
Chairman Grassley. I would not want to cut anybody off if
they get really warmed up about something.
Senator Cornyn. Mr. Chairman, I have in my hand a
description of a series of letters and editorials. I would like
to ask that those letters and editorials described in this
document be made part of the record.
Chairman Grassley. Without objection, so ordered.
[The information appears as submissions for the record.]
Senator Cornyn. So, Judge, a lot of things going on here
today and yesterday, I think you will agree. One of the things
that bothers me a little bit is the suggestion that some
Americans can participate in the political debates and others
should be demonized and be condemned, sort of a guilt by
association.
And we have heard in particular you being criticized, and
the Federalist Society in particular being criticized for
participating in the judicial selection process, debating legal
issues, social issues, and the like. But, and I recall my
friend from Minnesota talked about the Brennan Center. She
referred to it as a nonpartisan group. I would not call it
that. I would call it a left-leaning, progressive group, just
like I would call NARAL, the Alliance for Justice, Sierra Club,
Emily's List, and others.
I mention all of those because each of those organizations
and their members have weighed in on the important topic of
your confirmation. And I just think it is--well, it reminds me
a little bit of Joseph McCarthy, talk about one of the dark
periods of the Senate's history. In the red scare of the 1950s,
he was known for asking, ``Were you now or have you ever been a
member of the Communist Party? ''
And he was appropriately admonished and ultimately left the
Senate because he made irresponsible allegations in public
against innocent people. But the idea that we would somehow
disparage Americans or their associations and somehow disparage
their right to express themselves on a matter of public
interest like the confirmation of a Supreme Court Justice
strikes me as a bad road to go down.
That is not a question. That is a statement. I want to--I
have found this hearing, I hope you have, to be edifying in a
number of ways. It is not always pretty. It is like democracy
itself. Sometimes it gets pretty messy. But that is what we do
here in the Senate. We make sausage and--or we give those who
make sausage a bad name sometimes by what we do here.
But this is democracy. This is the people--people's
representatives in action, advocating on their behalf different
points of view. And the ultimate decisionmaker in all this, of
course, is the American people, and that is as it should be.
But one of the things that Senator Crapo and Senator Sasse
and others have raised during the course of this hearing is,
the role of administrative agencies in our Government. First of
all, were there any administrative agencies at the founding of
America?
Judge Kavanaugh. Senator, in the First Congress, they
created a Secretary--Department of War and Foreign Affairs,
Treasury. So there were a few departments created at the
beginning of the republic. But obviously, those were ones of
core executive functions, and as more--so those were the ones
at the beginning.
But to your point, not anything approaching the number of
agencies now.
Senator Cornyn. Well, that is very helpful. I had not
really thought about those as being administrative agencies,
but they certainly are departments of Government, and they
would issue regulations and rules that essentially what we see
today when administrative agencies issue rules and regulations,
they have the force of law, do they not?
Judge Kavanaugh. They do, Senator.
Senator Cornyn. And we do not get to vote on the
bureaucrats who occupy those agencies, do we?
Judge Kavanaugh. Senator, for the independent agencies, of
course, they operate with for-cause protection, and the
executive agencies are appointed by the President with the
advice and consent of the Senate, the principal executive
officers. They are not elected. As to your point, they are not
elected.
Senator Cornyn. Well, one of the things that I think is
part of the genius of our representative Government is the fact
that those of us who do make policy are--run for election, and
we can either be voted into office or voted out of office. But
when it comes to administrative agencies, the American people
do not have that choice, do they?
Judge Kavanaugh. They are not elected. That is correct,
Senator.
Senator Cornyn. And so what I want to talk to you about
briefly here is just the growth of the administrative--of
administrative agencies in our Government and the fact that
over time an enormous body of decisionmaking has been delegated
from the collected representatives of the people, the Congress,
to these administrative agencies that issue voluminous rules
and regulations, which have the force of law.
And to the comments made by some of my colleagues more
eloquently than I am making them, Congress has delegated more
and more responsibility to them and accepted less and less
responsibility to make the hard judgments that ultimately we
will be held accountable for at the ballot box. And I want to
just talk to you a little bit about--we talked about the
Chevron case, and you have explained that. I will come back to
that in a minute.
But if a community bank or credit union in Austin, Texas,
the regulatory agencies that govern them and audit them and the
like, they have--they issue regulations and rules and can
basically penalize or otherwise punish those community banks
and credit unions in Austin, Texas, can they not?
Judge Kavanaugh. That is correct in terms of establishing
rules and then being able to bring enforcement actions
sometimes that are brought before administrative law judges
subject to sometimes deferential judicial review.
Senator Cornyn. And because of the Administrative
Procedures Act that Senator Crapo talked about and because we
presume that these administrative agencies have expertise that
courts do not, there is deference afforded to the fact-finding
and the legal conclusions in the application of those rules to
contested cases, correct?
Judge Kavanaugh. That is correct. That is a concern that I
have identified in some of my cases about fact-finding and the
fact that sometimes it appears not always to live up to the due
process requirements. It is something I have identified in a
few cases. It is a part of our administrative system, so I am
talking about specific cases where I have ruled that in that
specific case there was a problem with how the adjudication was
conducted.
Senator Cornyn. And if the courts will defer under
Administrative Procedures Act and under that body of law to the
fact-finding by an administrative agency and the courts say,
well, unless it is arbitrary and capricious or some similar
standard, they are going to let it stand. There is really no
recourse for an individual even in a court of law if in fact
what that agency has done has made an erroneous decision in all
circumstances, right?
Judge Kavanaugh. That can be correct.
Senator Cornyn. I know we are getting into a little bit of
complexity here and there are some nuances associated with----
Judge Kavanaugh. But----
Senator Cornyn [continuing]. But I think you get my drift.
Judge Kavanaugh. Your general description is right. I have
been very in the weeds sometimes in cases involving individuals
in administrative adjudications where we have had judicial
review because I know those of the cases where individual lives
and liberty and property--the Rossello case was a good example
where the woman was denied Social Security benefits for her
disability because of a claim that she had had employment at
some point even though she really had not. It had gone on for
15 years, and I was very stern, I would say, in the opinion I
wrote in that case about how that was inconsistent with basic
due process and the law.
And so I have been--every case matters, of course, but the
cases with individuals who seem to have gotten the runaround
from the Government are cases where I think judicial review is
especially important. And that can be criminal defendants, that
can be in administrative adjudications. Whoever it is, you want
to make sure they are getting treated fairly under the law.
Senator Cornyn. And I do not know if it happened in the
case of the woman you described, but in some instances even
after the agency makes a decision, if you want to appeal the
decision of that agency, they tell you to go next door and talk
to another employee of the same agency and state your grounds
for appeal, hardly due process in my regard. Is that generally
a concern about whether there is an independent review process
even within an administrative agency?
Judge Kavanaugh. That is an issue many have raised as a
concern in the Supreme Court since Crowell v. Benson has upheld
the general concept of administrative adjudication. But whether
it is Article III adjudication or administrative adjudication
and we are reviewing it, we need to make sure that people's due
process rights are being respected.
Senator Cornyn. Well, it just strikes me that, given the
explosion of administrative agencies and the people that work
for them, the explosion of regulations that Congress never
passes on and that the courts are, by doctrine, by precedent,
deferential to both the finding of fact and the conclusions of
law under the Chevron doctrine, then there is a lot of room for
a lot of abuse, and a lot of individuals strike me as--the
frustration they feel that their Government is no longer
responsive to them is very real and a serious issue.
But now let us get into the Chevron case, it strikes me--
and I may not get this right. You will correct me if I am
wrong. That basically where Congress is ambiguous on the grant
of authority to an administrative agency, the Court will defer
to the agency in the interpretation of its own legal authority
if it is a reasonable conclusion. Is that right?
Judge Kavanaugh. That is a correct description of the
Chevron doctrine.
Senator Cornyn. Well, I got lucky, I guess.
[Laughter.]
Senator Cornyn. But my point is why in the world would an
agency be able to determine their own legal authority? I mean,
given the other concerns we have about a lack of
accountability, a lack of due process, would the courts then
say, well, we are going to let them define the scope of their
own legal authority where they can act, and we are going to
defer to that. Why in the world would the courts do that?
Judge Kavanaugh. Well, that is one of the critiques that
has been leveled at Chevron, one of the things that is
important, I believe, is to recognize Chevron itself--I hate to
get in the weeds, but Footnote 9 of Chevron is very important
in terms of using all the tools of statutory construction
before you make a finding of ambiguity in the statutory term at
issue or otherwise. And I think that is important for courts to
take seriously.
As I have pointed out, the ambiguity finding is
sufficiently uncertain that, that is, in my view, as I have
written, in tension with the notion of the judge as neutral
umpire and something that has been of concern to me. There is
also the major questions exception, major rules exception to
the Chevron doctrine that I have written about.
Senator Cornyn. Well, I am certainly not going to ask you
on how you might rule in a future case, but this has been
identified by legal scholars and by judges of all description
and orientation as a serious issue that may need to be
revisited in the future.
And like I did with our Santa Fe School District case, I
will just express my own frustration with that, but especially
when you compound it with the Consumer Financial Protection
Bureau where Congress insulated the Bureau from any sort of
oversight by Congress and where they appointed a head of the
Consumer Financial Protection Bureau with vast powers to get
into the personal financial information of every American and
give them really more authority than we would ever give any of
our intelligence agencies, it just strikes me as a tremendous
abuse of power. Again, it is not a question, but I will use the
opportunity to express a frustration I know Senator Crapo, as
the Chairman of the Banking Committee, shares with me.
In the 5-minutes I have left, let me ask you a softball
question, cameras in the courtroom. One of the reasons why I
think these confirmation hearings, as painful as they are to
the nominee and their family and friends, are so important is I
think more people in America have learned about how their
Government should operate and does operate by watching the last
2 days and you and the doc then they have through all their
time in elementary school, junior high school and high school
and college.
Most Americans do not really study American history
anymore, much less civics, and so I think this is a wonderful
opportunity, and I am glad your students, your team are here on
the front row may be listening to a few things because I think
this is really important. If Americans are going to accept
responsibility for their Government and if they are going to
hold public officials accountable for performing their
responsibilities according to the Constitution, they need to be
able to understand the sorts of issues we have been talking
about here today, and they need to get involved and express
themselves.
So, to me, cameras in the courtroom I know are
controversial on the Supreme Court. I will tell you--and you
know this already--many State courts, for example----
Judge Kavanaugh. Yes.
Senator Cornyn [continuing]. The Texas Supreme Court has a
fixed camera in the corner that never moves, and everybody
forgets it is there and nobody grandstands and they have oral
arguments and the judges do their thing and ask questions. The
lawyers give answers. And I think it is another great
opportunity for people to see their government in action.
And I know the Supreme Court, no cameras in the courtroom,
you maybe pay to have a very nice artist rendition of your oral
argument. I was given a copy of mine from my staff when I
argued the case we talked about, and my staff said, ``Well, we
paid $50 to take 5 years and 10 pounds off.'' And I said,
``Thank you. Money well spent.''
But the point is, I think the American people would learn
an awful lot by seeing the Supreme Court in action, and I
applaud the action that your court and others have taken to
make that more accessible with recordings and the like. But I
would hope that the Court would continue to look at the
possibility that more and more of its activities would be
available to the American people because not everybody can go
across the street and get a nice seat in that wonderful marble
palace over there and see the Court in action. I think they
would be awed, I think they would be impressed, and I think
they would learn a lot about how the courts do operate and
should operate in our system of government.
So, I know the O.J. Simpson trial--and I am showing my age
here--gave cameras in the courtroom a bad name and certainly
some of the activities we see at hearings like this where
people know they are going to be on TV camera encourages them
to misbehave and disrupt. That may be the cost of doing
business sometimes. I am confident that the Court could control
that much better than we in Congress can.
But I would just like for you to take a couple minutes to
comment on that. And how should the judiciary look at this
great opportunity to inform and educate the American people
about how their Government works and certainly the judiciary
and what the risks you see to the litigants into the fair
administration of justice?
Judge Kavanaugh. Senator, thank you. First, you mentioned
that this--you used the word painful. For me, this has been a
great honor to be here, the greatest honor, and for my family
to be here. I have enjoyed the discussions with all the
Senators on the Committee. I have enjoyed--and it is
continuing, I know. And I have enjoyed it, the 65 meetings. I
know this is not my last comment, but I have enjoyed the 65
meetings, I have enjoyed the hearing. It is a great honor.
As I have said repeatedly, I am a sunrise side of the
mountain. I am an optimist. I am positive about the future of
the judiciary. I am positive and optimistic about the future of
the country. We are always forming a more perfect union,
seeking to fulfill the promises of the Constitution, and to be
here is a great honor.
You mentioned people watching. If there is one thing they
take away, I hope they understand that an independent judiciary
is the crown jewel of our constitutional republic in my view
and that the judiciary has been, must be, and must continue to
be independent of politics, that we do not make the policy
decisions. We do the best we can to decide the law under the
precedent of the Supreme Court, the laws passed by Congress.
To your point about cameras, I view it as of vital
importance going forward, vital importance to maintain the
confidence of all Americans, all Americans in the independence
and impartiality of the judiciary. And I know how concerned and
focused Chief Justice Roberts is on maintaining confidence--and
all the Justices on the Supreme Court--maintaining the
confidence of all the American people in the independence of
the judiciary and the rule of law in the United States of
America. And I understand that. I understand the responsibility
I bear as a nominee and, if confirmed as a Justice, to do
everything I can and everything I do to maintain confidence in
the independence of the judiciary going forward.
I do agree with you; when you watch an oral argument of the
Supreme Court and you see the Justices in action grappling with
cases, it is inspiring to see them in action grappling, as I
have said, not sitting on different sides of an aisle, not
caucusing in different rooms, as one group seeking as best they
can to get the right answer under the precedent and laws of the
United States. It is inspiring, and it is something, if I am
fortunate enough to be there, that I will give it my all to
live up to that responsibility. As I said to Senator Booker, I
understand the responsibility I would bear if I were on that
Court, and I would do everything I can to live up to it and
maintain it.
As to cameras, consistent with what I have said, I have an
open mind on that. I have seen the benefits of live audio, but
I would want to listen first, listen to the eight Justices who
are there and have thought about it, have experienced it. But I
have an open mind.
And I will close with this: I want to do everything I can,
as I said to the Chairman, to maintain confidence of the
American people, all the American people in the independence
and impartiality of the judiciary.
Chairman Grassley. Okay. We will take a 5-minute break.
[Whereupon the Committee was recessed and reconvened.]
Chairman Grassley. Judge, I want to apologize to you. I am
the one that did not get back here on time.
Okay. I think we will start with Senator Durbin with your 8
minutes right now. Well, if she wants to go first, she can,
but----
Senator Durbin. Yes.
Chairman Grassley [continuing]. I would like to have
somebody start. Why do you not take a couple minutes right now
just to use up two of your minutes? I do not think she will
care. Go ahead.
Senator Durbin. You are going to have to represent me in
this. Is she here? All right.
Judge, thank you very much. I have a granddaughter who is
going into the second grade, and she came home from school in
first grade last year to tell her mom that there had been an
instruction from the teacher about what to do in her first-
grade classroom if a shooter came into their school. She was
told to get on the floor and stay away from the windows. Her
mom called me in tears and said I cannot believe it has come to
this, that in the first grade we have got to warn our kids
about shooters coming in to schools. But we know we do. And I
talked to Senator Blumenthal and Senator Murphy about the
tragedy at Sandy Hook and so many other tragedies.
That is why I want to spend a moment talking about the
Second Amendment here because you have taken a position on the
Second Amendment which you yourself have described as a lonely
voice. You have taken a position which I do not believe is
responsible from a public safety viewpoint. You laid out your
text history and tradition test for reviewing Second Amendment
challenges to gun laws and your dissent in the D.C. Circuit
Court Heller case. Your test would have courts ignore the
public safety impact of laws and instead search to see if the
laws had historic analogs.
In a March 31, 2016, speech at the American Enterprise
Institute, you said, quote, ``I thought Justice Scalia said
pretty clearly what the test is, that history and tradition-
based approach. I have been a lonely voice in reading Heller
that way,'' end of quote. Indeed, Judge, I am not aware of any
Circuit that follows your test, the history and tradition test.
They all apply intermediate or strict scrutiny and ask basic
questions about public safety.
In the 2011 Heller case, the two judges in the majority of
the D.C. Circuit, both Republicans I might add, said this about
your lone dissent: ``Unlike our dissenting colleague, we read
Heller straightforwardly.''
Now, one lonely voice can connote that you are inspiring,
insightful, or brave. It might also connote that you are just
plain wrong. And in this situation it is a life or death test,
whether it is an assault weapon or the person who can buy it or
use it. I need to know from you how you can reconcile your
position with your opening statement to this Committee. Do you
remember what you told us, the rule of common sense? The rule
of common sense suggests to me that you would not be a lone
voice on an issue of life and death involving innocent
Americans. Common sense would suggest that you would join with
Justice Scalia and other Federal courts who believe that
scrutiny, which involves public safety, should be the test.
Judge Kavanaugh. Senator, thank you. It is not my test. It
is my interpretation of the Supreme Court's test. In my opening
statement I emphasized precedent. It is all about precedent
so----
Senator Durbin. You are alone. You are alone. You have
admitted you are alone.
Judge Kavanaugh. Not anymore.
Senator Durbin. How can you read the same case others have
read and come up with a completely different solution and say,
``I am just following the precedent''?
Judge Kavanaugh. Many other judges since I gave that talk
have agreed with the approach I set forth in that case, but the
important thing is the opinion speaks for itself. It goes
through in painstaking detail the Heller case for the Supreme
Court authored by Justice Scalia and then the McDonald case
authored by Justice Alito and explains that the exceptions to
the individual right protected by the Second Amendment are laid
out in part three of the Supreme Court's Heller opinion.
You mentioned intermediate or strict scrutiny. I said
specifically in my opinion that the history and tradition test
may allow some additional regulations than strict scrutiny
test, so in terms of comparing how much, to your point, gun
regulation is permissible, I made that explicit point in my----
Senator Durbin. But would not the commonsense rule that you
stressed in your opening statement, at a time when so many
innocent people are being killed with guns, suggests that we
ought to be mindful that the Second Amendment is not a suicide
pact? We ought to make America safe and to find a construction
of this which sets you apart from those who are looking to
public safety as the standard is a troubling thing. I am sure
that some groups--I am not going to name names; you know what I
am talking about--applaud your position, but I would just say
from the viewpoint of parents and families and people worried
about gun safety, why do you set yourself aside from the
mainstream of thinking on this?
Judge Kavanaugh. Because that is how I read the precedent
of the Supreme Court as best I could. I specifically talked
about at the end of that opinion, too, as well, the real-world
consequences. I was very aware of the real-world consequences.
I am very aware of the drills that are done in the schools
these days. I am very aware that I lived in the DC area, which
was known as the murder capital of the world, for a time in the
1980s with mostly handgun violence. I am very attentive to that
issue.
At the same time, I am a judge. My duty, as I have
explained repeatedly, is to follow the Constitution, as
interpreted by the Supreme Court. I explained in as much detail
as I possibly could how I analyzed Justice Scalia's majority
opinion and Justice Alito's plurality opinion in McDonald.
They, as I read them, seem to reject the balancing test that
had been articulated in Justice Breyer's dissenting opinions in
both cases. I explained that in detail. It is important to
underscore the Supreme Court said and I have said, following
it, machine guns can be banned----
Senator Durbin. That has been the case since the 1930s.
Judge Kavanaugh. But I just want to reiterate, machine guns
can be banned under the Supreme Court precedent.
Senator Durbin. Thank goodness.
Judge Kavanaugh. And so, too, the Supreme Court said
traditional laws such as felony possession laws, concealed
carry laws are permissible, bans on possession by mentally ill,
bans on possession of guns in schools and government buildings,
all of those were articulated by the Supreme Court as
permissible regulations, and those are some of the regulations
that has traditionally existed.
But I understand and I am aware of what you are talking
about in terms of schools, and I understand the drills. And, of
course, the test----
Senator Durbin. Common sense.
Judge Kavanaugh. Gun violence----
Senator Durbin. Rules of common sense.
Last question I have for you is this: When the President
introduced you as his nominee, you said, ``Throughout this
process, I have witnessed firsthand''--you said this to the
President--``I have witnessed firsthand your appreciation for
the vital role of the American judiciary.'' What did you
witness about this President's appreciation for the vital role
of the judiciary?
Judge Kavanaugh. I witnessed his discussion with me in my
interview, his discussion with me the night he announced me at
the White House, his discussion on that Sunday night when I
went to the White House--he and Mrs. Trump met with me--and his
discussion of the judiciary with me. What I based that judgment
on was my interactions with him on the Monday, on the Sunday,
and on the Monday.
Senator Durbin. We usually instruct juries not to put their
life experience and common sense aside when they make a
verdict, and I think the verdict on this President and his
vital role in the judiciary would include more than those
meetings. Thank you.
Chairman Grassley. In between any Democrat, if a Republican
wants recognition, ask for it. Otherwise, Senator Hatch.
Senator Hatch. Well, let me just ask one question. Hang on.
Let me just ask one question to you. You told Senator Durbin
earlier that, quote, ``We are all equal before the law in the
United States of America,'' unquote. And yesterday, you said
that, quote, ``No matter where you come from, no matter how
rich you are, no matter your race, your gender, no matter your
station in life, no matter your position in government, it is
all equal justice under the law,'' unquote.
So in your opinion, what does equal justice under the law
mean to you?
Judge Kavanaugh. Equal justice under the law means that
every American, every citizen, everyone who ends up in an
American court is entitled to equal treatment, due process,
equal protection, your argument will prevail on the facts and
the law in a particular case, not----
[Disturbance in the hearing room.]
Judge Kavanaugh. Not based on the identity of the parties
or the litigants, not based on policy views, and that is a
critical foundation of the rule of law in the United States and
of the independence and impartial judiciary that we hold dear
in the United States.
Senator Hatch. Well, thank you, Judge. That is all I care
to ask.
Chairman Grassley. Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
If I do not use all my time, I would like to cede what
remains to Senator Coons.
Chairman Grassley. That will be done, yes.
Senator Feinstein. Thanks.
Judge, you have very expansive views on Presidential power,
and they are not limited in whether the President can be
checked by Congress or the courts. I think you believe that a
sitting President cannot be indicted, cannot be prosecuted,
cannot be investigated, and should have the authority to fire a
special counsel at will.
It is my understanding in 2016 you told the American
Enterprise Institute that you will put the final nail into the,
I guess, coffin of the independent counsel. Would you comment
on that, please?
Judge Kavanaugh. Senator, thank you. The nail in the
independent counsel statute was put in by Congress in 1999 when
Congress overwhelmingly decided not to reauthorize the law as a
general matter.
In terms of Executive power, I would just urge--we have not
discussed a few issues here today, but by opinion on the
political question doctrine in El-Shifa, my article on national
security and my book review of Judge David Barron's book, my
mens rea opinion dissent in Burwell joined by Judge Tatel, my
administrative law--the Harvard Law Review piece, if you just
read those four pieces, just read those four pieces, I think
you will understand that I am not someone who has an unduly
expansive view, that I am one who has held the executive branch
to account in a number of different areas, consistent with our
constitutional structure. And those are important, so if you
are just going to read a few things, just read those four
things----
Senator Feinstein. I will.
Judge Kavanaugh. And I think you will understand my
understanding----
Senator Feinstein. I will.
Judge Kavanaugh. Of how Executive power and legislative
power interact.
Senator Feinstein. Okay. In 2003 while you were in the
White House Counsel's Office, the Supreme Court decided to hear
two cases involving University of Michigan's efforts to
increase racial diversity. The Bush administration filed briefs
in the Michigan case arguing that the University of Michigan's
programs were unconstitutional. Senator Booker asked you about
this. So please tell me, what was your view on whether the Bush
administration should oppose the University of Michigan's
efforts to increase racial diversity on the campus? And do you
support using race as one factor in admission to college or
universities to achieve racial diversity on campuses?
Judge Kavanaugh. Thank you, Senator. This was an issue on
which the existing precedent of the Supreme Court and President
Bush's views, in my view, dovetailed. I was working for
President Bush. He was interested in promoting racial
diversity. He had said as much as Governor of Texas. That was
his position as President of the United States. He believed
also, and this is consistent with Supreme Court precedent as
well I believe, in using race-neutral means first to see if
that--in Texas, the top 10 percent plan in the wake of the
Hopwood decision of 1996, then-Governor Bush had been part of
that. He always talked about the importance of diversity. And
in the Michigan case, he insisted that the brief filed by the
administration reflect his position that promoting racial
diversity was an important goal for his administration.
Senator Feinstein. Okay. Let me ask you a question on
employment discrimination involving the LGBT community, and
this is a while back. On July 11, 2001, you received an email
from your White House colleague, Brad Berenson, who wrote that
you were a walking point on faith-based issues. You replied to
him that you had, and I quote, ``mapped out a preliminary
strategy to respond to concerns raised about the Bush
administration's policies allowing Federal funding to go to
religious organizations that discriminate against LGBT
individuals.'' Could you describe your involvement in Bush
administration's efforts to exempt charities from State and
local laws prohibiting employment discrimination against LGBT
individuals?
Judge Kavanaugh. Senator, thank you. I do not recall the
specifics, but I do know that one of President Bush's
initiatives when he came into office in 2001 was an Office of
Faith-Based Initiatives. He was very focused on making sure
that religious organizations could participate as equals, not
as preferred, but as equals in American society, and that was
something that the Faith-Based Initiatives Office worked on and
something he was very focused on. I do not remember the details
of----
[Disturbance in the hearing room.]
Judge Kavanaugh. I do not remember the details of
particular--of that particular, but I do know that President
Bush--at the same time, I also did speak to--on occasion to the
Log Cabin Republicans, which was a group that we--that I talked
to about judicial nominations, as I recall. And President Bush
is someone who, you know, believed deeply, as he said
repeatedly, in quality for all Americans.
Senator Feinstein. Were you involved in the discussion of
any other action to permit employment discrimination against
LGBT persons?
Judge Kavanaugh. Employment discrimination? I do not recall
anything specific on that, Senator.
Senator Feinstein. Okay. That is all I have.
Chairman Grassley. Okay. Senator Coons will have another 1
minute and 22 seconds before I call on you. Any Republican want
the floor? Senator Kennedy, then I will--I am going to----
Senator Kennedy. Now, Mr. Chairman? Okay. Nothing. Thank
you.
[Laughter.]
Senator Kennedy. My office is now going to be moved to
Arlington.
[Laughter.]
Senator Kennedy. Judge, real quickly, yesterday you--we
talked about originalism, and you defined that as
constitutional textualism. And what counts according to the
Supreme Court in interpreting the United States Constitution
and the Bill of Rights is the public understanding of the
document--what the words meant at the time they were drafted
and approved. And you pointed--if I get this wrong, stop me.
And you pointed out that intent--the intent of the delegates
was not something that should be focused on.
There were 55 delegates, I think about 55 delegates to the
Convention.
Judge Kavanaugh. Originally.
Senator Kennedy. Originally. They obviously did not move in
lock step. Delegates, Senators, Congressmen, Congresswomen have
a multitude of reasons for voting as they do. That is why we
focus on the public understanding, which is sort of an
objective, reasonable person standard, right? Am I in the
ballpark?
Judge Kavanaugh. That is correct.
Senator Kennedy. Okay. So, here is my question. Why then--I
am not suggesting we should not. I am just curious. Why then do
we put so much emphasis on the Federalist Papers, or for that
matter, the Anti-Federalist Papers when you are only getting
the point of view of one person?
Judge Kavanaugh. That is a great question, and we should be
careful when we look at the Federalist Papers. It is a great
document. Those papers describe the structure of government in
magnificent ways, but they were an advocacy piece to try to
convince people in the ratifying Convention and a ratifying
convention to vote ``yes'' on the draft Constitution. So,
sometimes the--as with everything else that is an advocacy
piece, we have to be careful to make sure that the words
control and not necessarily an advocacy piece about the--about
the document. And there were lots of statements in ratifying
conventions as well.
This was a compromise, and not everyone, in fact, probably
no one was a hundred percent with the final product, yet they
came together. Ben Franklin performed a critical role at the
Convention in bringing about the spirit of compromise that
ultimately allowed them to get over the finish line, with
George Washington as the presider at the Convention. And that
compromise is contained in the words of the document.
Of course, precedent is part of the system we have now, and
I always like to add that, that precedent is critical to how we
today decide cases. But the original meaning, the words control
over any intent of any one person or group of people.
Senator Kennedy. Briefly, do you put much stock in Theron's
treatise, compilation, discussion of the Convention record?
Judge Kavanaugh. So, I find them fascinating, the notes of
the Convention, and to see the day-by-day debate on the
Convention and how things changed, how close we were to so many
different things, things such as proportional representation in
the Senate. That was close. A one-term President, that was
close. The various compromises that were reached, the debate
over the Necessary and Proper Clause. Some of those things that
caused Gary, and Randolph, and Mason not to sign the final
Constitution because they had such profound disagreements with
the structure and were concerned in some respects with having a
Bill of Rights which was not part of the original Constitution.
So, I enjoy the notes. I put--you learn from them. But,
again, those don't necessary control--those help you
understand, but they do not control over the actual words of
the document. So, to the Federalist Papers, they help you
understand what is going on and how to read it all together as
a whole, and they help you understand the Government. But you
have to be focused on the words.
Senator Kennedy. Thank you, Judge. Thank you, Mr. Chairman.
Chairman Grassley. Since Senator Leahy gave his 8 minutes
to Senator Hirono, I am going to give Senator Leahy what time
he needs off of my time.
Senator Leahy. Thank you, Mr. Chairman. I will be very
brief. Judge, how are you doing?
Judge Kavanaugh. I am doing great. It is an honor to be
here, Senator.
Senator Leahy. I will leave that one alone.
[Laughter.]
Senator Leahy. In your concurrence in Klayman v. Obama, you
went out of your way to say that not only is the dragnet
collection of America's telephone records by the National
Security Agency okay because it is not a search, you also said,
and I did not see any support in this, that even if it is a
search, it is justified in order to prevent terrorism. I
believe Senator Lee is still here. This was months after
Senator Lee and I worked to pass the USA Freedom Act, which
prohibited such collection.
Now, the year before you issued your opinion, the Privacy
and Civil Liberties Oversight Board had stated it could not
identify a single instance involving a threat to the United
States in which the program made a concrete difference in the
outcome of an counterterrorist investigation. Now, it also
found the NSA phone records program was not essential to
thwarting terrorist attacks. Why did you--I am just curious why
you went out of your way to write an opinion stating that the
program met a critical national security need when it already
had been found by the national security people, it made no
concrete difference in fighting terrorism.
Judge Kavanaugh. Senator, I appreciate that question. The
important point, I would say, as I was trying to articulate
what I thought based on the precedent at the time. At the time,
when your information went to a third party and the Government
obtained the information from the third party, the existing
Supreme Court precedent was that your privacy interest was
essentially zero.
The opinion for the Supreme Court by Chief Justice Roberts
this past spring in the Carpenter case is a game changer, and
that is important. I talked repeatedly in this hearing about
how technology will be one of the huge issues with the Fourth
Amendment going forward, and you see Chief Justice Roberts'
majority opinion in Carpenter. That alters and really is a game
changer from the precedent on which I was writing at that time,
so I would----
Senator Leahy. Do you think if Carpenter had been decided,
you would have written the concurrence you did in Klayman?
Judge Kavanaugh. I think--I do not see how I could have.
Senator Leahy. Thank you. I agree with that. And you joined
the dissent in U.S. v. Jones. You claimed that there was zero
expectation of privacy in a person's movement outside their
home. You said, ``Infinite number, zero value part is also
zero.'' Given the ever-greater data available to all of us and
the ever-greater computing power to analyze everything, there
is more computing power here than there was in our first
moonshot. This sounds more like an analysis we get from the
Chinese government than we would from James Madison had he
known about what we can do. So, because of Carpenter, do you
believe that there comes a point in which collection of data
about a person becomes so pervasive that a warrant would be
required even if the collection of one bit of the same data
would not?
Judge Kavanaugh. Two points on that, Senator. I also went
on in that opinion to say the attachment of the GPS device on
the car was an invasion of the property right, and that
independently would be a Fourth Amendment problem. When the
case went to the Supreme Court, the majority opinion for the
Supreme Court followed that approach that I had articulated in
saying that it was a violation of the Fourth Amendment. So, the
approach I had articulated there formed the basis of saying it
was actually unconstitutional in that case to install the
device. I relied on that in the Silverman decision from 1961
and Justice Brennan's concurring opinion in the Knotts case in
the 1970s.
On your other point on technology and the phone that you
held up, I do think the Supreme Court case law in the Riley
case written by Chief Justice Roberts and the Carpenter case
written by Chief Justice Roberts, both majority opinions, show
his and the Court's recognition of the issue that you are
describing in that technology, it has made things different,
and we need to understand those differences for purposes of
applying Fourth Amendment law now.
And I do think those two decisions are quite important as
we move forward. And I think this will be one of--someone
sitting in this chair 10 years from now, I think the question
of technology on Fourth Amendment, First Amendment, war powers,
is going to be of central importance. So, I appreciate the
question, but I think the Supreme Court case law is developing
in a way consistent with your concern.
Senator Leahy. Do you think it is consistent with the fact
that there will be areas so pervasive that you will need
warrants?
Judge Kavanaugh. Well, that--the Supreme Court case law is
certainly suggesting as much in the Riley and Carpenter cases,
and the Jones GPS case, which I had written an opinion on.
Senator Leahy. Yes. I mentioned this, and I thank you, Mr.
Chairman, because Senator Lee and I spent a great deal of time
talking to our colleagues, both Republicans and Democrats,
because of our concern that privacy is disappearing, and,
frankly, privacy is important. Thank you, Mr. Chairman.
Senator Sasse. Mr. Chairman? Mr. Chairman, could I make a
30-second comment?
Chairman Grassley. Yes.
Senator Sasse. I am not aligned with the Leahy-Lee bill on
USA Freedom, but I just want to say I thought that was a great
line of questioning. And so much of the American people's, you
know, absorption of events like this through cable news is
right versus left, and I think that was past versus future. And
I just think there is a lot there, Senator Leahy, that is
really useful for us to think about. Thank you.
Chairman Grassley. Senator Whitehouse.
Senator Whitehouse. Thank you very much, Judge. When we met
in my office, I was trying to get a sense of the intimacy of
your relationship with Mr. Leo of the Federalist Society. And I
asked you if he was in your phone. Do you remember that?
Judge Kavanaugh. I do.
Senator Whitehouse. And you answered as to whether he was
in the contacts or saved calls or whatever. Just could you let
me know for the record what you said then? I do not want to put
words in your mouth.
Judge Kavanaugh. I said, ``yes.''
Senator Whitehouse. With respect to our earlier----
Judge Kavanaugh. I have known him for 25 years.
Senator Whitehouse. Yes. With respect to our earlier
question about waiving source confidentiality with respect to
reporters who you spoke to during the Starr investigation, I
just want to make sure that I understand what you said because
you kind of referred it to Judge Starr, and I do not want to be
in a situation where I am getting the two of you going opposite
ways. Do I correctly understand that you personally have no
objection to reporters disclosing their conversations with you,
you just do not want to speak for Judge Starr who you feel has
equities here to the extent that you were working at his
direction, or do you have a personal objection to the reporters
disclosing those conversations?
Judge Kavanaugh. I would want to think about that some
more, Senator.
Senator Whitehouse. Could you get back to me on that?
Judge Kavanaugh. I can.
Senator Whitehouse. Under advisement was one of the options
I offered you, and you have taken it. Fair enough.
You have had a lot of conversation with all of us about the
concern that you are basically a human torpedo being launched
at the Mueller investigation, so that when it gets to the
Supreme Court, you will knock it out. And the Law Review
article has been talked a lot about that in the context of the
President cannot be investigated, and your comment about Nixon
being wrongly decided has been talked about a lot. And how you
have pushed back on that has been to assert that United States
v. Nixon is one of the four best decisions in the Court's
history.
Judge Kavanaugh. I have said that before.
Senator Whitehouse. Yep. So, here is my concern, because
virtually every time, if not every time, that you have
mentioned United States v. Nixon, you have dropped in to your
description of the holding that it was a trial court subpoena.
Judge Kavanaugh. Yes.
Senator Whitehouse. And I do not know if you drop that in
just as a factual observation because that was, in fact, a
17(c) trial subpoena, or whether that was a loophole, an escape
hatch so that when that comes, you are in a position to say,
well, I told the Senate that because that was a trial court
subpoena, but Mueller is going to be coming with grand jury
subpoenas, and they are different, and so nothing that I said
in that hearing should interfere with my ability to stop
Mueller's subpoenas. What in that context is your view of the
trial court subpoena part of U.S. v. Nixon? Was that essential
to the holding, or were you just using that to describe one of
the facts in the holding?
Judge Kavanaugh. Senator, I appreciate that. I have been
careful to describe the holding of the case, and----
Senator Whitehouse. Does it apply to a grand jury?
Judge Kavanaugh. Well, that is--so, I figured I would get
lots of hypothetical questions about this, that, or the other
thing, and as a sitting judge I need to be careful about----
Senator Whitehouse. I know, but you are the who has been
dropping this trial court phrase in, and I think it is fair to
ask you are you simply using that as a factual observation or
is that the escape hatch to be able to discard U.S. v. Nixon in
this context and say, oh, yes, it is still a great decision,
but it has no relevance to the ongoing investigation of the
President--investigations of the President.
Judge Kavanaugh. I understand the question----
Senator Whitehouse. Okay.
Judge Kavanaugh. And appreciate the question, but what I
have done is describe the holding as I have described it in
this hearing because I think it is important not to be
answering hypotheticals----
Senator Whitehouse. Yes, but you are the one who chose to
use it as a counterpoint or as evidence against concerns that
you are going to basically, like I said, be the human torpedo
to take out anything that Mueller brings to the Supreme Court.
Judge Kavanaugh. What I was trying to do was merely
reiterate what I had said in a variety of forums over 20 years
as against one 1999 excerpt that I thought was a serious and
severe misunderstanding of my longstanding position about the
case.
Senator Whitehouse. But since you have been the one who put
your regard for United States v. Nixon into play as a data
point in the conversation about whether you are going to tank
the Mueller investigation at your first chance, I think it is
fair for us because you have opened the door by using it that
way, to ask whether you believe that the central holding of
Nixon, which is that ``a President has to answer a subpoena
applies equally to a trial court and a grand jury subpoena
alike,'' because if it does not, I am going to feel very misled
by the way you have used this.
Judge Kavanaugh. Right. So, I have tried to describe in
summary fashion exactly what the Supreme Court said in the
Nixon case, and it is a very important opinion and it is very--
but I have tried to describe just what they said and not go
beyond what they said in themselves in that opinion.
Senator Whitehouse. Yep. And so, why did you use it in the
context of a grand jury investigation if you did not mean it
that way?
Judge Kavanaugh. Well, I was--you mean when I was in the
Independent Counsel Office?
Senator Whitehouse. No, no, no, when we were in this
conversation right here. We have had a lot of questions where
we have been talking about is the President amenable to
investigation, is the President amenable to indictment, is the
President amenable to subpoena. And you have constantly
referred back to U.S. v. Nixon, and if that is not a real
assurance because in the back of your mind, which you did not
tell us, is that that is only limited to trial subpoenas and I
am still cool with taking out grand jury subpoenas, I think
that would be a very unfortunate way to have dealt with the
Senate on that question.
Judge Kavanaugh. I understand. I understand your point on
that, Senator. What I have tried to do is describe the holding
of the case, what I have said before about it, and I have been
getting a lot of questions, a real lot of questions about a
1999 excerpt that I think that was a severe distortion of what
I have said for many years.
Senator Whitehouse. Yes, but this is very different. This
is whether you in this hearing have been essentially playing a
trick on the Committee by using United States v. Nixon in this
way without telling us that while you are using it in this way,
all you intend is that its application is to a trial subpoena,
and that a subpoena from the Mueller investigation or from
anybody else to the President--``Olly, olly, in come free''--
you can knock those out to your heart's content.
Judge Kavanaugh. I appreciate the question, but if you read
the opinion, all I am doing is describing what the opinion
said.
Senator Whitehouse. I will let it go at this point because
I am obviously not going to get an answer, but I assert that
you did more than that by putting this decision in play as a
statement or as a signal to us that we should take a little
bit--have a little bit of a pause, if you will, about the--U.S.
v. Nixon should be looked at again, and the President cannot be
investigated points that we addressed.
Judge Kavanaugh. Well, Senator, I think other people have
been putting it in play repeatedly based on one excerpt that
was a distortion--I am not saying it is intentional.
Senator Whitehouse. Okay, never mind. One last question.
Judge Kavanaugh. Yes.
Senator Whitehouse. In the Bluman decision, your decision,
it would be legal for Vladimir Putin to come to the United
States and buy issue ads.
Judge Kavanaugh. Can you repeat that?
Senator Whitehouse. Under your reading of the Bluman
decision, which says that foreign nationals can buy issue ads
under election law, Vladimir Putin would be able to buy issue
ads in American elections. Does the recent activity of Russia
hacking our last election, interfering with our last election,
and helping to elect Donald Trump give you any pause about the
wisdom of a judicial construction that would allow foreign
nationals to buy issue ads in American elections?
Judge Kavanaugh. Three quick points, Senator. First, my
decision for a unanimous panel in that case, which in turn was
unanimously affirmed by the Supreme Court----
Senator Whitehouse. Not unanimous on that point, though, I
do not believe, but go ahead.
Judge Kavanaugh. It was unanimous affirmed summarily by the
Supreme Court. The upheld limits on contributions by foreign
nationals, summarizing briefly there. Justice Stevens, the
dissenter in Citizens United, has subsequently repeatedly and
explicitly praised my decision in Bluman in various speeches he
has given. Third point is, that the case did not involve
expenditures, and Congress, of course, is free to put in laws
that ban expenditures by foreign citizens and those----
Senator Whitehouse. But you did specify issue ads.
Judge Kavanaugh. I was talking about what the statute said.
Congress is free, subject to, of course, challenge, to put
some----
Senator Whitehouse. My time is up.
Judge Kavanaugh. Law in place.
Chairman Grassley. Senator Cornyn.
Senator Cornyn. So, just to reiterate, Congress writes
campaign finance laws, not the Federal courts, correct?
Judge Kavanaugh. That is correct, Senator.
Senator Cornyn. You were asked whether you were a human
torpedo. Do you even know what that means?
Judge Kavanaugh. I do not, but I understood the gist of the
question.
Senator Cornyn. Well, with all due respect to my friend,
Senator Whitehouse, he has got a very fertile imagination, it
strikes me. And what does it prove that you have somebody's
name in your phone directory? Somebody you have known for 25
years?
Judge Kavanaugh. For 25 years.
Senator Cornyn. What does that prove?
Judge Kavanaugh. It proves I have known someone for 25
years. You know, it might be more than 25 years, but in any
event, for a long time.
Senator Cornyn. That sounds about right. That is nothing
more, it strikes me. That great legal sage unfortunately is not
here, so I----
Senator Kennedy. I deny everything.
[Laughter.]
Senator Cornyn. That great legal sage, and I am not talking
about Oliver Wendell Holmes, Jr. Senator Kennedy said something
that really struck me is right on. He said the Bill of Rights
is not an a la carte menu, and I would like to know whether you
agree with that. Can you pick and choose which of the Bill of
Rights is more important than another, or whether you can
ignore some and recognize others? How do you, as a Federal
judge, address that?
Judge Kavanaugh. As a sitting judge, I try to apply all the
provisions of the Constitution and all the precedents of the
Supreme Court without picking or choosing which precedents or
which pieces of precedents that I might favor, which pieces of
the Constitution or the laws passed by Congress, apply them
all.
Senator Cornyn. So, are any one of the Bill of Rights more
important than another?
Judge Kavanaugh. Senator, I think they are all important,
all the provisions of the Constitution, and the structural
provisions, of course, are essential, or the Bill of the Rights
would not be nearly as meaningful because we would not have the
structural protections to ensure an independent judiciary to
protect them.
Senator Cornyn. Our friend, Senator Durbin, asked you to
apply common sense when interpreting the Second Amendment. I am
tempted to say common sense is not all that common, but is that
a basis upon which to construe the provisions of the Second
Amendment, just to apply your common sense?
Judge Kavanaugh. The rules--you apply the precedent of the
Supreme Court interpreting the Second Amendment, which in turn
interpreted the words, history, structure, historical practice
of the Second Amendment, and as a lower court judge, it was
incumbent on me to apply that precedent as faithfully as I
could. And I explained in very painstaking detail, and I really
encourage anyone who is interested and has some time because it
is long, to read that dissent. I am--the analysis in there is
carefully laid out, and then at the end I describe that I
understand the real-world consequences of this and the real-
world issues, and where I have grown up and what I have
experienced. But I explained it in great detail.
Senator Cornyn. Thank you. Thanks, Mr. Chairman.
Chairman Grassley. Senator Coons, you have about 9\1/2\
minutes.
Senator Coons. Great. Thank you, Mr. Chairman. I ask
unanimous consent that letters from eight different groups,
organizations, individuals be entered into the record.
Chairman Grassley. Without objection, so ordered.
[The information appears as submissions for the record.]
Senator Coons. Thank you. Judge Kavanaugh, we are at the
end of a long day, and I would like to take a few minutes and
just explore with you a speech you gave last year, a speech at
the American Enterprise Institute entitled, ``The
Constitutional Statesmanship of Chief Justice Rehnquist.''
There you called Rehnquist your first judicial hero, and you
went on to discuss at length the 1997 case, Washington v.
Glucksberg, in which the Supreme Court rejected a fundamental
right to physician-assisted suicide.
In Glucksberg, as you know, Rehnquist explained his belief
that the only liberties protected by the Due Process Clause are
those that are ``deeply rooted in the Nation's history, legal
tradition, and practice.'' You praised Rehnquist's opinion. You
said, and I am quoting your speech here now, ``The Glucksberg
case stands to this day as an important precedent limiting the
Court's role in the realm of social policy and helping ensure
the Court operates more as a court of law and less as an
institution of social policy.'' Further, ``Rehnquist is a
Justice who''--I think I am quoting here--``was successful in
stemming the general tide of freewheeling judicial creation,
enumerated rights that were not rooted in the Nation's history
and tradition.''
The only conclusion I can draw from your praise in this
speech last year of Rehnquist substantive due process
jurisprudence in his Glucksberg opinion is that you endorse
this so-called Glucksberg test, which asserts the only due
process rights protected by the Due Process Clause--excuse me--
are those objectively rooted in American legal history and
tradition. You even said yesterday in a similar exchange here
that ``all roads''--all roads--``lead to the Glucksberg test.''
So, let me in the few I have left, ask a few quick
questions about the implications of applying the Glucksberg
test in a principled fashion----
Judge Kavanaugh. Can I say one thing first?
Senator Coons. I want to get a couple of questions quick,
and then depending on the grace of the Chairman, we may have an
exchange----
Judge Kavanaugh. I said the same thing that Justice Kagan
said when she was in this chair, about Glucksberg.
Senator Coons. And here is the most important thing about
Justice Kagan's jurisprudence. She did not apply the Glucksberg
test in U.S. v. Windsor, in Obergefell, or Whole Women's
Health. So, the question I want to get to is what would it mean
to go and apply this test in a range of settings? So, first, is
judicial protection of the fundamental right to access and use
contraception consistent with the Glucksberg test? It is a
simple ``yes'' or ``no'' question, Judge.
Judge Kavanaugh. I disagree that it is a simple ``yes'' or
``no'' question. What I have said here is, that the precedent
of the Supreme Court on that question, what Justice Alito and
Chief Justice Roberts said about those precedents, Justice
White's concurrence in Griswold, is persuasive application of
precedent. What is important to know about Glucksberg is it is
cited in Planned Parenthood v. Casey as authority----
Senator Coons. Yes.
Judge Kavanaugh. As authority----
Senator Coons. But on the specific issue of--and I
appreciate your having said those were correctly decided. I am
just trying to get clarity about if it were the Glucksberg
test, well rooted in our history, legal tradition, and
practices, would the Court have ever reached those results on a
fundamental right to access and use contraception, given the
long history of States having statutes that prohibited access
to contraception? I think it is a simple ``yes'' or ``no.''
Judge Kavanaugh. Well, as Justice White explained in his
concurrence in Griswold actually, those laws had not been
enforced for decades. But put that aside, the test in
Glucksberg, as Justice Kagan explained when she was sitting in
this chair, is a test that is guiding the Supreme Court going
forward and has been cited in the precedent. It did not disturb
any preexisting precedent, indeed cited Casey as authority.
Senator Coons. It did. So, let us move on then to abortion,
which was really centrally at issue in Casey. Is judicial
protection of abortion rights consistent with the Glucksberg
test, something deeply rooted in our history, legal tradition,
and practices?
Judge Kavanaugh. Again, I think it is important to
underscore that the Glucksberg decision written by Chief
Justice Rehnquist cited Planned Parenthood v. Casey as
authority, which in turn reaffirmed Casey, reaffirmed Roe v.
Wade.
Senator Coons. But had it been the test at the time, the
Court would not have reached that result. In fact, you said at
the AEI lecture ``Even a first-year law student could tell you
the Glucksberg Court's approach to unenumerated rights was not
consistent with the approach of the cases, Roe v. Wade, Planned
Parenthood v. Casey.'' So, we know the Glucksberg test, had it
been applied, would not have reached that same result.
Let us move, if we could, from contraception, abortion, to
intimacy. Is the Glucksberg test consistent with the Court's
historic decision--Justice Kennedy's decision in 2003, Lawrence
v. Texas, which the Court held the Constitution protects
intimacy, including same-sex intimacy, between consenting
adults?
Judge Kavanaugh. Well, as the Supreme Court said last year
in a broad majority, under the precedents that now exist, the
days of treating gay and lesbian Americans as second-class
citizens--gay and lesbian couples--or as inferior in dignity
and worth, are over. That was Justice Kennedy joined by Chief
Justice Roberts, Justice Alito, Justice Gorsuch, Justice
Breyer, and Justice Kagan. Statement for the Supreme Court
summarizing, in essence, Romer, Lawrence, Windsor, and
Obergefell.
Senator Coons. But had the Glucksberg test been--the sole
test being applied during Lawrence, Justice Kennedy would not
have reached the result he did.
Judge Kavanaugh. Well----
Senator Coons. Let us move to the right to marry, if we
could, for a moment.
Judge Kavanaugh. One sentence----
Senator Coons. It is the last case we are going get
through.
Judge Kavanaugh. Windsor----
Senator Coons. The right to marry is clearly rooted in our
history of legal tradition and practices, yes, Judge? And we
both know the landmark case, Loving v. Virginia, distinguishes
marriage is clearly deeply rooted in our history, legal
tradition, and practices, but interracial marriage was not. In
fact, it was barred in many States, probably longest in
Virginia. And the Supreme Court struck an important blow in
1967 in striking down anti-misogynation statutes.
Last, what about same-sex marriage? If the Glucksberg test
were the test applied, is a right to marriage regardless of
gender deeply rooted in our history, legal tradition, and
practices?
Judge Kavanaugh. A couple things, Senator. I think Windsor
and Obergefell talk about equality as well, so there is an
equality principle. And as the Court said in Masterpiece
Cakeshop, summarizing all those decisions, a line of five
decisions all written by Justice Kennedy--Romer, Lawrence,
Windsor, Obergefell, and Masterpiece Cakeshop.
Senator Coons. Were they all correctly decided?
Judge Kavanaugh. They are all--none of the eight currently
sitting Justices have answered questions about any of those
cases. As Justice Kagan said, no thumbs up or thumbs down on
those recent cases. But they--but what the Court said in
Masterpiece Cakeshop is the most recent statement of the
Supreme Court for a broad cross-section, a broad--large number
of Justices on the Supreme Court. And I think I will leave it
by referring you to that statement from the Supreme Court.
Senator Coons. Here is my core concern. This quote--this
quote--what you chose to do in a speech last year in front of
AEI was to lift up this Glucksberg test. What you chose to say
yesterday, ``All roads lead to the Glucksberg test,'' gives me
pause and concern. If you feel I have somehow misquoted you in
the American Spectator article, if you feel I have somehow
misquoted you here, I expect we will have a chance through some
written exchanges to give you an opportunity to further clarify
that, given the limitation on my time.
But in what I have read about how the Glucksberg test has
or has not been applied, the ways most critically in which
Justice Kennedy himself rejected the Glucksberg test in his
opinions in Casey, in Lawrence, in Obergefell, I think the
Glucksberg test is better at rejecting claims of constitutional
rights than it is at accepting them, and I think it is a blunt
instrument. And I am concerned that it may reveal an enthusiasm
for a test that would permit the continued exercise of
government power in ways that, frankly, would blow up all
modern substantive due process. If applied rigidly, it would
blow up precedent in contraception, abortion, protection from
sterilization, marriage, a whole range of areas.
These are settled precedent, but those of who sit trying to
decide whether you should be the next Justice and take Justice
Kennedy's seat have to ask ourselves what your views would be.
And in this recent speech where you cite your first judicial
hero, Rehnquist, in articulating the Glucksberg test, I worry
that you reveal you do not share the view of our Framers, in
particular, the Fourteenth Amendment Framers, who understood
constitutional rights to exist in significant part to right
historical wrongs, not to ignore them or entrench them.
Our Constitution's protection for people who are vulnerable
or marginalized or just different from the majority is what
makes us a beacon to the rest of the world where there are so
many countries, where minorities or those who dare to live
their lives differently are marginalized or oppressed. And it
is exactly this Glucksberg test that worries me most because it
excludes all such people from the circle of constitutional
concern and protection.
I am troubled, Judge Kavanaugh, if you do not understand
that is the driving, animating force of our constitutional
culture. And this is a test that, in my view, is just not up to
the task of vindicating our country's greatest ideals. Thank
you.
Chairman Grassley. If you feel you want to comment, go
ahead, and then I will call on Senator Lee.
Judge Kavanaugh. Two points. Justice Kennedy joined
Glucksberg. Justice Kagan cited Glucksberg repeatedly when she
was in this chair.
Chairman Grassley. Senator Lee.
Senator Lee. So, Glucksberg is precedent, right?
Judge Kavanaugh. It is, and it is precedent that Justice
Kennedy joined.
Senator Lee. And so, it is settled law. I mean, it is
established. It is entitled to the same respect as other
precedent, including other precedent mentioned by Senator
Coons.
Judge Kavanaugh. It is an important precedent of the
Supreme Court. It has been discussed by other Justices over
time.
Senator Lee. And nothing in Glucksberg or in those other
cases suggest that Glucksberg is incompatible, suggests that it
cannot--suggests that it is somehow incompatible with those
other precedents.
Judge Kavanaugh. It cited Casey as authority.
Senator Lee. Thank you.
Mr. Chairman, I have a letter that I would like to offer
into the record. This is signed by David Levi. He is one of our
Nation's foremost legal scholars.
Chairman Grassley. Without objection, so ordered.
[The information appears as a submission for the record.]
Senator Lee. He served until about a month ago as the dean
of Duke Law School. Prior to that he served as a U.S. District
Judge in the Eastern District of California. He shares some
great personal information in here about his interaction with
Judge Kavanaugh and about the fact that Judge Kavanaugh came to
Duke Law School. And, as it is becoming a theme in this
hearing, he describes how Judge Kavanaugh was a mentor to these
students who participated in moot court competitions, answered
their questions, gave advice to the participants and all the
other students there. And I offer that into the record. Thank
you, Mr. Chairman.
Chairman Grassley. Second one?
Senator Lee. Just this one. You have already admitted it. I
am just thanking you now for doing it.
Your phone, the contents of your phone, the question you
received from Senator Whitehouse, the contents of your phone in
light of Carpenter, he cannot really ask you that, right?
[Laughter.]
Senator Lee. I want to echo something that Senator Crapo
mentioned a few minutes ago with regard to western lands. I am
not going to make you answer any questions regarding this, but
there are significant issues that frequently do not get
addressed as a result of the fact that there are just few
States where the Federal Government owns most of the land. In
every State east of the Mississippi, the Federal Government
owns less than 15 percent of the land. In many of those States,
it is in the low single digits. In every State west of
Colorado, the Federal Government owns more than 15 percent of
the land. In many States like my own, it is most of the land.
The Federal Government owns two-thirds of the land in the State
of Utah, even more in Nevada.
As a result of this, our local communities are severely
impaired in terms of their ability to manage their own affairs,
to authorize the most basic of economic activities going on on
their land. Our local communities cannot tax the land, and
property taxes are where in most States, including my own, a
lot of the money comes from to fund schools, to fund basic
services like search and rescue, police, fire suppression, and
so forth. As a result of the fact that the Federal Government
owns all that land and controls what activity can occur on it,
these States are locked out. They are thwarted in development.
Cannot do anything on that land without a mother may I. And in
States like mine, you almost cannot even access a lot of
property without crossing Federal land, and you have to get a
permit for it.
In many respects, this puts the States on equal footing,
one as compared to another. But in many respects, I think this
runs into conflict, at least potentially, with some language
put into the Enclave Clause into Section--in Clause 17 of
Article I, Section 8, that talks about how if the Federal
Government is going to be the sole sovereign lawmaking
authority on Federal land within a State, it is supposed to be
acquired by and with the consent of the host State's
legislature.
That was--that language was put in to the Enclave Clause as
a result of a concern expressed by Elbridge Gerry, who
expressed in early September of 1787 as the Convention was
drawing to a close that unless this clause was put in there,
the Federal Government might acquire a whole land in a lot of
these States and use its exclusive lawmaking power under the
Enclave Clause to compel the States to a humble undue obedience
to the general Government. And yet this has been overlooked for
a long time, since the late 1970s.
Many have improperly conflated the Enclave Clause
authority--that is, the Federal Government's sole sovereign
lawmaking capacity relative to Federal lands--its property
clause authority under Article IV, Section 3, Clause 2, which
is really a proprietary interest, authorizing Congress to sell
and otherwise dispose of territory and other property owned by
the Federal Government.
There are two different things. In order to exercise the
Article IV power, Congress just acts because it can dispose of
land. In order to exercise the Article I, Section 8, Clause 17
power, to be the exclusive sole sovereign lawmaking authority
within a State as to that Federal land, that land has to have
been acquired by and with the consent of the host State's
legislature.
The Court has not been careful to distinguish between those
two, in part because of some, what I believe, was over
generalization in the case called Kleppe v. New Mexico. This is
of concern to my State, and I felt the need to make that point
to you today. You do not have to respond to it.
I do, however, have a very important question for you. Why
do you--I notice that you take a lot of notes, and I respect
that because I can tell you are paying close attention. You use
a Sharpie, and it is not a fine-tipped Sharpie.
[Laughter.]
Senator Lee. It is a regular Sharpie that might smudge and
make--why do you prefer that pen? I am just dying of curiosity.
Judge Kavanaugh. So, I can see it.
[Laughter.]
Judge Kavanaugh. It is nothing scientific.
Senator Lee. That is the perfect mic-drop moment, and with
that, Mr. Chairman, I reserve the balance of my time. Thank
you.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. Okay. That is going to be really hard to
follow, but I will try my best. So, Judge, we talked a lot
about some big issues, Times v. Sullivan, Executive Power, and
I want to get back to where I started. You have talked over the
last few days about what matters is real things, real people,
and I want to bring it back to that and some of the issues that
are dense in terms of legal issues, but in the end mean things
to people.
And one of the things we have talked about is the net
neutrality rules, and we know that those were the protections
that were put in place by the FCC a few years back to prevent
internet service providers from blocking and slowing traffic so
that people would have equal access to the internet. And the
case came before the D.C. Circuit, and they were against you.
The rules were upheld by a panel of judges appointed by
Presidents of both parties. We talked about this yesterday. I
do not want to go over your theory again on major rules, which
I disagreed with.
But there was something we did not talk about yesterday,
and that was that you went actually beyond the bounds of what
the parties had argued to reach a constitutional issue in that
case. You found that the First Amendment protects internet
service providers' right to exercise editorial discretion, even
though neither of the principal parties had raised a First
Amendment argument at all. Why did you go out of your way to
address that constitutional issue?
Judge Kavanaugh. That issue was raised in some of the
briefs in the case, point one. Point two, I followed the Turner
Broadcasting approach that was the majority opinion of the
Supreme Court in 1994 of Justice Kennedy in the Cable Operator
context, which, as I explained in the opinion, seemed to apply
very closely in this situation. It is something I have written
prior opinions on as well about how Justice Kennedy's opinion
in Turner Broadcasting applies in other contexts. And it
seemed----
Senator Klobuchar. But were you the only judge that went
that far to take on the constitutional issues?
Judge Kavanaugh. I may have been, but I was applying Turner
Broadcasting. It is a precedent of the Supreme Court that
seemed on point, and it was raised in the case by a party, and
I thought important to explain.
Senator Klobuchar. But you have said that the canon of
constitutional avoidance, which says courts should avoid
reaching constitutional questions, that are not necessary to
decide a case, is something you would ``consider jettisoning
all together.'' I think you said that in a 2016 book review. Is
that right?
Judge Kavanaugh. Well, I would talk about--I talked about
the problem of ambiguity as a trigger for certain canons of
statutory interpretation because, at least in my practice over
the last 12 years, that has been one of the sources of
disagreement among judges that is hard to grapple with and
figure out what is the--how to bridge that divide when one
judge says I think this is ambiguous and another one says, no,
it is not. Justice Scalia--Justices Scalia and Kagan have both
talked about that as being an issue, and that is one of the
reasons I talked about it in that Harvard Law Review article.
That was a Law Review article, however, and not a case or
decision of mine where I was just identifying my experience and
talking about ideas.
One thing about the First Amendment issue I want to make
clear, I pointed out there if a company has market power under
Turner Broadcasting, then the Government does have the
authority to regulate. If a company does not have market power,
Turner Broadcasting says no, but it does not bar all regulation
by any stretch, not even close.
Senator Klobuchar. It just would seem that there is First
Amendment rights of individuals to use the internet and express
their own views, and if it gets too expensive for them to use
it, you basically said that the companies have these First
Amendment rights, not looking at the issue that I think a lot
of us as policymakers see, is that unless you have some rules
of the road in place, it is going to make it very hard for
individuals and small businesses to access.
Judge Kavanaugh. I think that is a fair point. An argument
like that was raised in the Turner Broadcasting case in 1994
when it was argued to the Supreme Court. That was the term I
clerked. And that is not the argument that the Supreme Court
accepted at that time.
Senator Klobuchar. Okay. You mentioned Justice Scalia, and
I wanted to end with when we talk about the effects of things.
And he actually was a champion of the Chevron case, which, of
course, was the Supreme Court ruling that allowed agencies'
decisions on health and safety protections to stay in the book.
It has been referenced in more than 15,000 decisions.
But you said it was a precedent to me yesterday, but your
writings--in your writings you have called it ``an atextual
invention of courts and a judicially orchestrated shift of
power.'' You have said that ``Instead of applying Chevron,
courts should simply determine the best reading of the statute
and no longer defer to agency interpretations.'' Does this not
mean you really would prefer de novo review for those that are
still watching this at home? That would mean that the courts
would act as if they are considering questions of law for the
first time so that they would not defer to the agency.
And you have--the way we have set this up here is, Congress
passes laws, agencies often do the fine work with experts of
figuring out what those rules are. So, this is what I am so
concerned about for people's drinking water, for safety
reasons. If you would then go and go to de novo review or
change this, and I think it is a very big deal when you look at
15,000 decisions and the fact that Justice Scalia supported
this and you appear to be itching toward the other side.
Judge Kavanaugh. What I have done is identify some of the
issues that arise when you are applying the doctrine, but I
also pointed out in that same article that it is--it has
overlapped with--not to get too into the weeds here--but with
the State Farm doctrine. And so, when there is a statutory term
such as ``reasonable,'' ``feasible,'' those--``appropriate,''
those kinds of statutory terms that judicial deference is
appropriate.
Senator Klobuchar. Mm-hmm. Do you think a judge that does
not have a technology background is better deciding this than,
say, experts at the FCC when you have rules--or, someone with
no scientific background better to decide some of these things
than people who are scientists.
Judge Kavanaugh. So, I have a number of cases where the
statute gives discretion to the agency to exercise those expert
scientific judgments where I have said courts should not second
guess those in the clean air context where I have upheld
emissions limited. The NACS, I have written--the air quality
standards. I have written opinions saying courts should not
second guess what EPA--where EPA sets the limit within the
NACS. So, too, in a case called American Radio Relay League, I
made clear that courts should not unduly second guess agencies.
It is all about the statute that you write. If it has
discretion built into it, I am one who does not think courts
should add requirements that you have not put in. If you have
written a really tightly confined statute, at the same time of
an agency pushes beyond those boundaries, the courts are there
to draw the line, and that is how I have tried to be even
handed in how I have applied----
Senator Klobuchar. And, again, and we went over this
yesterday, but just the finding of unconstitutionality with the
Consumer Financial Protection Bureau. And then the internet
rules where, again, you are the only one saying this, and now
you would be on the highest court of the land if you are to be
confirmed. And just for me, these rules, it is not just some
law on the books, it is personal. We are proud of our clean
water, and clean lakes and rivers in Minnesota. Those are
safety rules.
My grandpa worked 1,500 feet underground in the mines his
whole life. Went down there in a cage, and the sirens would
sound and people would run because they did not know who was
killed in the mine that day. And my dad still remembers those
coffins in the Catholic church up in Ely, Minnesota, and it was
those safety rules that came in place, many of them implemented
by agencies that got us to where we are. And it really concerns
me if we overturn all of that and just leave it in the hands of
Congress to have to mete through all these minute details when
we cannot even get through 42,000 documents, so.
Senator Cornyn [presiding]. Senator Blumenthal.
Judge Kavanaugh. Can I say two quick points?
Senator Cornyn. Oh, sure. I did not know there was a
question.
Judge Kavanaugh. One, I have a large number of cases,
particularly in the EPA context, where I have upheld EPA rules
that have done things and in other administrative agency
context. It is all about--and I understand what you are saying
about the people affected by the rules, and in each of the
cases I have written, I have tried to make that clear.
Ultimately, my approach to statutory interpretation is rooted
in respect for Congress.
Senator Cornyn. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Good evening.
Judge Kavanaugh, I would like you to tell me that I am wrong,
and I would like you to tell me that you would put aside your
Heller II dissent, and as a member of the United States Supreme
Court, if confirmed, you would uphold a ban on assault weapons.
Judge Kavanaugh. Senator, as a sitting judge, I cannot make
a commitment about a future case.
Senator Blumenthal. Well, let me put it this way. In your
view, a ban on assault weapons in your dissent you voted to
strike down because it was not longstanding, and it applied to
weapons in common use. Is that correct?
Judge Kavanaugh. I applied the precedent of the Supreme
Court, which made clear that machine guns can be banned.
Machine guns can be banned. The Supreme Court said that
explicitly, and I said it as well.
Senator Blumenthal. But assault weapons are equally
destructive, and the evidence for them is equally compelling,
that is, the evidence for a ban on assault weapons, which is
what the majority in Heller II in your court found, did it not?
In fact, the court said that it was upholding the ban on
assault weapons because, ``Our role is narrower, to determine
whether the district has presented evidence sufficient to
establish the reasonable fit we require between the law at
issue and an important or substantial governmental interest.''
Governmental interest, public safety never figured into your
test on Heller II, did it?
Judge Kavanaugh. Senator, the precedent of the Supreme
Court, which I applied, says that the Government can ban
machine guns. I encourage--I explained in detail how I
interpreted Heller. In the Staples case from 1994, which I
cited, referred to these kinds of guns as in common use, so I
would encourage you to--at least if you are thinking of me, I
have to apply precedent. Take a look at that Staples case and--
--
Senator Blumenthal. I have taken a look at the Staples
case, but more compellingly, I have taken a look at what
assault weapons can do.
Judge Kavanaugh. I understand that, but I also----
Senator Blumenthal. And I thought about bringing some
posters here today showing what happened at Sandy Hook when 20
beautiful children and six wonderful educators were gunned
down, just as has happened in countless places across the
country, including Sutherland Springs in Texas, Parkland in
Florida, Las Vegas in Nevada, Orlando in Florida, Virginia
Tech, San Bernardino, most recently in Florida, of course.
Assault weapons were designed to kill people, were they not?
Judge Kavanaugh. Senator, the end of my Heller II, opinion,
I understand and, of course, detest all school violence or gun
violence, and I said that at the end of my Heller II----
Senator Blumenthal. I am sure all of us detest school
violence.
Judge Kavanaugh. But I----
Senator Blumenthal. I am asking you to look at the real
world----
Judge Kavanaugh. And I did that----
Senator Blumenthal [continuing]. With real impacts, and I
am asking you to reconsider your dissent in Heller II, and look
at the impacts on children, young children who have their whole
lives ahead of them as did those 20 first-graders in Sandy
Hook, and a ban on assault weapons might well have saved them.
There is no knowing for sure, but they might be alive today if
there had been a ban on assault weapons, and high-capacity
magazines, and better background checks.
And now we face the specter of a new kind of weapon, 3-D
blueprint design guns that are untraceable and undetectable by
and large. They are not in common use yet, but they will be if
they are not banned. There is no traditional ban on them. They
were unimaginable in 1789. The test that you are imposing here
is out of touch with the real world and the impact on real
lives, and I would just suggest that, with all due respect, you
give us the benefit of saying here that you will reconsider a
test that is out of touch with reality.
Judge Kavanaugh. Senator, I appreciate what you are saying.
If someone came to me and argued that the test was wrong, I
will, of course--of course, I always would listen and try to
understand. What I did there at the end of my opinion, I am
from this area, and this----
Senator Blumenthal. And I know you have lived in the gun or
gun violence capital of the world. I have heard you say it a
number of times, and I----
Judge Kavanaugh. But I grew up in it. I mean, I--you know,
I do not want to overstate that, but, I mean, I grew up in an
urban/suburban environment where it was--there was a lot of
gang and gun violence in the 1980s in the District of Columbia,
and I talked about Police Chief Kathy Lanier's goals, at the
time Police Chief Kathy Lanier.
Senator Blumenthal. But all of that experience is not
reflected in the test that you are imposing here, despite your
claim that you look to the real world and impacts on real
people, nor is it reflected in the test on Presidential power
that you are going to impose, which says, in effect, a
President can strike down the Affordable Care Act. Donald Trump
can strike it down if he deems it, and he alone unilaterally
believes it to be unconstitutional, even after your court, the
D.C. Circuit, even after the United States Supreme Court, even
after President Obama, and the Congress of the United States
all deem it constitutional. That gives the President virtually
unchecked power. And in this real world, that is a dangerous
prospect for us, is it not?
Judge Kavanaugh. Senator, two things. One, on the Second
Amendment issue, I did explain as best I could why I felt the
President controlled and set forth that test. I did point out
that the test that I understood the Court to be setting forth
would allow potentially more gun regulation depending on how it
was applied than, say, strict scrutiny would depend. But I
pointed that out. And I pointed out what the Supreme Court said
about banning machine guns. On the Presidential power, I
referred you before on prosecutorial discretion, what the
limits are of that being tested in court, and I have said that
in my Marquette speech in 2015. The concept, of course, is, as
you know, well established in Supreme Court precedent of
prosecutorial discretion in the Heckler v. Chaney case.
Senator Blumenthal. Judge Kavanaugh, I was at Sandy Hook
the afternoon of that massacre. I do not know whether you have
been at these kinds of scenes. I do not whether you have seen
the pictures of what assault weapons can do. They were designed
for the sole purpose to kill and maim human beings. They are
very good at it. They were one of the most effective and
efficient weapons known to man. And I would urge you to
reconsider. I think the test that you are imposing is out of
touch with the reality of what assault weapons do, and I think
it reflects a broader shortcoming in the way you are applying
law to facts in trying to meet an ideological standard rather
than a test for the real world.
Senator Cornyn. Judge, if you care to respond, you can
respond.
Judge Kavanaugh. I just wanted to thank Senator Blumenthal
for sharing that perspective, and I thank you for sharing it,
appreciate it, and will take it into account and consider it
and remember what you said here. Thank you.
Senator Cornyn. Your Honor, would you care to take a 5-
minute break?
Judge Kavanaugh. Yes, please.
Senator Cornyn. We will be in recess for 5 minutes.
[Whereupon the Committee was recessed and reconvened.]
Senator Cornyn. I understand Senator Blumenthal will have a
unanimous consent request with regards to some documents. If he
has that when he comes back in, we will recognize him. Senator
Hirono, I believe you are next.
Senator Sasse. I think I am next.
Senator Cornyn. I am sorry. Senator Sasse----
Senator Sasse. Go ahead. Go ahead, that is fine.
Senator Cornyn. Senator Hirono and then Senator Sasse.
Thank you.
Senator Hirono. Oh, I am sorry. I thought we were going
to----
Senator Cornyn. I beg your pardon. Senator Hirono, you are
recognized. Thank you.
Senator Hirono. Thank you very much, Mr. Chairman, and
Senator Leahy. And any time that I do not use, of my 16
minutes, I would like to have that time go to Senator Booker.
Judge Kavanaugh, as you know, this June, the Court
delivered a blow to millions of public sector workers with its
decision in Janus v. AFSCME. In a 5-to-4 decision, five of the
Justices overturned decades-old precedent, a case called Abood
that workers around the country depended on for fair salaries
and basic rights. The Janus decision is important here because
it shows your nomination fits in a larger campaign that groups
like the Federalist Society and the Heritage Foundation have
been waging for decades. Decades. Their goal is to undermine
well-established Supreme Court precedent that protects workers,
women, and everyday Americans.
In Janus, five Justices overturned Abood ``because they
wanted to.'' Those were Justice Kagan's words, not mine.
Although the five Justices went through the factors that--for
overturning precedent, it identified another, what they
referred to as a very strong reason for not following
precedent, and that reason was ``fundamental free speech rights
are at stake.'' In fact, the five Justices said the rule for
following precedent, also known as stare decisis, applies with
perhaps least force--least force--to decisions that wrongly
deny First Amendment rights. So, it sounds as though the Court
is saying that First Amendment takes precedence.
So, why is this important is because of the larger
political campaign by groups like the Federalist Society and
the Heritage Foundation that I mentioned earlier. So, with the
help of these groups, the Supreme Court, as Justice Kagan put
it, has been ``weaponizing the First Amendment in a way that
unleashes judges now and in the future to intervene in economic
and regulatory policy.'' And, in fact, just this past year, the
First Amendment was used to advance the political agenda
against workers' and women's health and reproductive rights.
Judge Kavanaugh, do you agree with the five Justices in Janus?
Judge Kavanaugh. Senator, that is a precedent of the Court
that, of course, because it is one of the recent cases, I
cannot comment on whether I agree or disagree with it. But it
is a precedent that is now part of the body of the Supreme
Court case law.
Senator Hirono. And, of course, should you get on the
Supreme Court, you can either follow that precedent or overturn
it. But basically, the Court in Janus said that--they come up
with a very strong reason for overturning even decades-old
precedent if First Amendment rights are at stake. So, based on
the answer you just gave me, then that kind of rationale would
also be the precedent of the Court now.
So, the Supreme Court sets precedent, of course, and all it
takes is five votes to overturn precedent, as happened in
Janus. Five votes. And I am particularly troubled that the five
Justices in Janus claimed, ``It did not matter that public
sector unions have relied on the Abood case for decades.'' And
yesterday when you talked about the role of precedent, you
talked about--you used words such as how people rely on the
precedent, whether it creates stability, there is
predictability, but the five Justices in Janus--the fact that
public sector unions have been relying on the Abood decision
for 41 years did not matter.
So, five Justices also claimed that ``they could overturn
Abood as a well-established precedent because public sector
unions were on notice''--this is quoting the Court--``notice
for years regarding this Court's misgivings about the Abood
case.'' But as Justice Kagan explained, this so-called notice
was actually Justice Alito's 6-year campaign to reverse Abood.
So, I will not go over his 6-year campaign, but suffice it to
say that Justice Alito made it very plain to potential
litigants out there who wanted to undo the Abood decision,
basically he said, come on over because I want to be in a
position to be able to reverse Abood.
And the only reason in an earlier case, called Friedrichs,
said that Abood was not overturned was because of the death of
Justice Alito, and then after that, Justice Gorsuch was
confirmed, and Justice Gorsuch was going to provide the fifth
vote, whereas in the previous vote because of the death of
Justice Scalia, the earlier case of Friedrichs ended in a 4-to-
4 tie. But then along comes Justice Gorsuch, and the fifth vote
was there, and Abood is overturned, and Janus is now the
precedent case.
So, to the extent the Court in Janus said, well, you know,
by the way, all you litigants who are--all you people out there
who are relying on this precedent, you had notice that we were
thinking of overturning this case.
So, do you believe that a Justice should be able to make it
easier to overturn or even--overturn even well-established
Supreme Court precedent by simply giving notice that he or she
has concerns about that precedent, because that is exactly what
Justice Alito did?
Judge Kavanaugh. Senator, I think the factors that the
Court considers is whether the prior decision was grievously
wrong, whether it is deeply inconsistent with subsequent
precedent that is developed around it, the real-world
consequences, the workability of the decision, as well as
reliance interests----
Senator Hirono. Well, on the other hand, Judge Kavanaugh,
can you call a 5-to-4 decision as reflective of the prior
decision having been grievously wrong, not to mention that in
the case that came before Janus, ended in a 4-to-4 tie because
of the death of Justice Scalia? So, by one vote. The Court
looked to the notice provided by a Justice as one of the
justifications for overturning this 41-year-old precedent.
So, my next question is, do you think the prior writings of
someone before becoming a Supreme Court Justice can count as
notice, that Americans cannot rely on the protections
entrenched in well-established precedent? For example, if
someone like you did some writing that questioned a precedent,
would that suffice as notice for the Supreme Court to overturn
precedent?
Judge Kavanaugh. Senator, I think the factors that the
Supreme Court considers in applying stare decisis are
established. If you look at the prior decision, whether it was
grievously wrong, deeply inconsistent with subsequent
precedent, the real-world consequences, and the reliance
interests. And, I understand that you disagree with how those
factors were applied, and Justice Kagan, of course, in dissent
disagreed with how they were applied. But, and I understand----
Senator Hirono. It was a very strong dissent, and it was a
split decision, and suddenly we are talking about strong
reasons being the First Amendment rights, which Justice Kagan
said is now being weaponized. And you can see the trend of the
5-to-4 decisions that weaponizes First Amendment. We are
already seeing that. The Court said that where the First
Amendment rights are concerned, that stare decisis, meaning
precedent, applies with the least force. Going on. So,
basically, the concern I have about the reasoning in the Janus
Court is, that we will see many more 5-to-4 decisions where
precedent can be overturned if a Justice has given notice as
Justice Alito did, or if First Amendment rights are concerned.
Let me turn to the issue of guns. You were asked some
questions about this, about your position on basically Heller
II. The Brennan Center for Justice reported that as of August
20th, 2018, outside groups had spent almost $3.5 million to
campaign for your confirmation, and I think we have all seen
those ads. By contrast, groups opposing your nomination had
spent a less than a quarter of that amount. And one of those
groups spending hundreds of thousands of dollars to get you
confirmed to the Supreme Court is the National Rifle
Association.
And the NRA makes clear in their commercials what is at
stake with your nomination. In fact, they highlight that there
are currently four Justices who favor gun control and four
Justices who oppose gun control. They then explain, and I am
quoting their ad, ``President Trump chose Brett Kavanaugh to
break the tie.'' They urge your confirmation pointing out that
the viewers' access to guns depends on your vote, Justice
Kavanaugh.
So, you had mentioned earlier that the Supreme Court had in
the past said concealed weapons, guns in schools, machine guns
could be banned, but, you know, you can provide that fifth vote
to undo these earlier Supreme Court precedents. So, why do you
think--this is part of their ad: ``Your right to self-defense
depends on this vote.'' This is based on--it is part of the
NRA's million-dollar campaign to get you onto the Court. Why do
you think the NRA is spending so much money to ensure that you
get confirmed as a Supreme Court Justice?
Judge Kavanaugh. Senator, there are a lot of ads for and
against me, and I have seen----
Senator Hirono. Well, I am asking specifically about the
NRA ad. Why do they think you are going to provide the crucial
fifth vote to--they obviously think that you are on their page.
Judge Kavanaugh. Senator, there are a lot of ads by groups
against and for. That is the right of people to express their
views. I understand that, again stand for. And I am independent
judge, and I for 12 years have a record of being an independent
judge.
Senator Hirono. Well, obviously the NRA does not think you
are so independent when it comes to gun legislation because
they are spending a lot of money to tell everybody that you are
going to provide that crucial vote to their liking. So, you
know, I think it is--these ads speak for themselves of why they
think you are the critical person to be on that Court.
And I want to follow up one more thing, something you told
Senator Feinstein yesterday regarding your views on guns. You
seem to indicate that your view on Supreme Court precedent is
that a type of gun could not be banned, and I will quote you to
her, what you said yesterday, ``if a type of firearm is widely
owned in the United States.'' So, did you mean to say ``widely
owned'' as opposed to ``widely used'' in your response to
Senator Feinstein?
Judge Kavanaugh. I think I referred to the dangerous and
unusual test that the Supreme Court has articulated, and
referred to how I had applied that test in the Heller--my
Heller opinion.
Senator Hirono. Well, you did say that if a type of firearm
is widely owned in the United States, you would deem any
limitation on widely owned guns to be unconstitutional. So, is
it your view that a large enough number of people downloaded
designs for 3-D guns and printed them, and, therefore they own
them, that the States and the Federal Government could not ban
them because now they are widely owned.
Judge Kavanaugh. Senator, I cannot talk about a
hypothetical case.
Senator Hirono. I think that is another reason that the NRA
is so adamant that you get on the Court. I would like to cede
the rest of my time to Senator Booker.
Senator Cornyn. I understand, Senator Blumenthal, you have
a unanimous consent request to offer some documents?
Senator Blumenthal. I do. Thank you very much, Mr.
Chairman. I would like to enter several letters from outside
organizations into the record. These organizations have voiced
some of the real-world consequences of Judge Kavanaugh's
appointment, and they come from the National Council of Jewish
Women, the National Abortion Federation, various faith
organizations and communities, the National Center for
Transgender Equality, the American Public Health Association,
and the Center for Public Representation. I ask that they be
made a part of the record.
Senator Cornyn. Without objection.
[The information appears as submissions for the record.]
Senator Cornyn. The Chair recognizes Senator Sasse.
Senator Sasse. Thank you, Mr. Chairman.
Judge, you are in the home stretch. Some of us are way
beyond bed time. I just snuck out and did a goodnight call with
my kids, and my 7-year-old was so groggy, he asked what I was
up to, and I told him, and he said--he was curious if you were
scared of poisonous spiders.
[Laughter.]
Senator Sasse. I will protect you from having to answer his
question. Mike Lee already asked you about Sharpies, so we will
not ask you about your phobias related to the outdoors.
I would like to talk a little bit about the First
Amendment. I am worried about the Liberal Project in the grand
sense. I think what is happening on campuses right now is
really dangerous, and I think what happens on campus will
probably not stay on campus. We have got lots of data that
shows high school kids do not know our history, do not know
basic civics. One of the most frightening numbers is that
Americans under 35, 41 percent of them tell pollsters they
think the First Amendment is dangerous because you might be
able to use your free speech to say something that would hurt
someone else's feelings. So, I would love to explore a little
bit where we are in the First Amendment.
So, can we go to history first? What is the core purpose of
the First Amendment? Why do we have it?
Judge Kavanaugh. We have protected so individuals can
express their views in speech and in writing. The idea is that
there is no such thing as a true idea that is dictated from
above or by the Government, and that individuals can say what
they think in speech and writing and help--it is both an
individual idea that they can express their own opinions and
their own beliefs, and it is also--I think there is also an
idea that truth develops through debate, and more informed
judgment, the more perfect union develops through debate when
we have different perspectives that are shared.
And a lot of--a lot of ideas began as unpopular ideas, and
then people, they take hold over time, and it is important to
protect the ability of people to speak both for their
individual rights and for the idea of the betterment of society
over time through debate and improvement and more perfect
union.
Senator Sasse. Thanks. I am encouraged. I was hoping that
we would hear both sides of that. We need a First Amendment
because it is required for individual liberty, and we need it
structurally because society, and particularly a republic,
needs that discourse. You never really have a great idea of
what you think if it is just bouncing around inside your head.
It needs to be dialogued with others, and a free republic, a
free people need that debate to advance a structure of liberty.
Why are there five freedoms in the First Amendment? Why do
we have speech, press, religion, assembly, protest, redress of
grievances? Why would we not have a different amendment for
each one? Why is there not just free speech and maybe the two
clauses of religion, but why are they all together in an
amendment? And this is not supposed to be some grand ``gotcha''
question.
[Laughter.]
Senator Sasse. I am abusing you for private tutorial.
Judge Kavanaugh. I think the rights--when they go to New
York in 1789, James Madison, after going through the ratifying
conventions and hearing--getting a lot of heat, frankly, for
why is there not protection in a Bill of Rights, something that
George Mason and others who were concerned about, what the
original Constitution. So, when they got to New York, you know,
he was busy working on this, writing out a draft of the rights
that he thought should be protected in a Bill of Rights, and
drew on a lot of the State constitutions. I know I have talked
with Senator Kennedy about some of that. And I do not have a
clear answer for why the grouping ended up in that fashion.
Senator Sasse. Well, is it fair to say that if we did not
have a First Amendment, would people not have these right? I
mean, was the Constitution not completed without a Bill of
Rights because we do not think Government gives us rights? We
have rights by--because people are created by God with dignity,
and so the rights are--they belong to people because of the
nature of humans, and humans are created in the image of God
and they have dignity. And so, the Constitution stops before
the Bill of Rights, and then Bill of Rights sort of clarifies a
whole bunch of things that we believe about people.
And when you run through them, it is kind of amazing that
we end at the Ninth and Tenth Amendment, which in a way--well,
the Ninth Amendment--I want you to tell me what they mean. But
if I am teaching it to my kids, what I say the Ninth and Tenth
Amendment mean is, oh, you do not actually need a list that
might end because if you think that you only have the rights
that Government decrees for you, then you might think when the
Government stops talking, you do not have any more rights.
And it seems to me what the Ninth and Tenth Amendments say,
oh, by the way, if you do not--if we do not have a list of
rights that continues, you still have all the ones we did not
name. And State and local governments, if the Federal
Government has not said this is a power uniquely enumerated for
the Federal Government, States and locals, you are the only
governments that still have these remaining powers. Is that
fair? Or correct me.
Judge Kavanaugh. I think one of the ideas at the
Convention, and they did talk a bit about Bill of Rights there
or individual rights, and they do have some in Article I,
Section 9, Article I, Section 10. We forget those rights. I
hate to take an aside here, but I want to underscore the ex
post facto bill of attainder provisions are critical to
individual liberty. Ex post facto is the very definition of a
tyrannical government when what you did yesterday is made
illegal tomorrow and you are promised for what you did
yesterday when it was not illegal then. And so, those were some
of the foundational individual liberties.
But the idea I think they had, and it was maybe a bit of a
political miscalculation at the Convention, was because the
Federal Government was only given certain specified powers, we
did not need to put in a Bill of Rights because the Federal
Government would not have the power to do these kinds of things
in the first place. Well, that did not go over so great in some
of the ratifying conventions, and some of the promises that
were made were instead of amending the existing structure, let
us get to work as soon as we get to New York in 1789 on a Bill
of Rights. And there were a variety of discussions, and so that
is what Madison did when they got to--got there in 1789.
So, I think your point is correct with respect to thinking
about where rights come from, but I think in the practical
politics of the day, the initial idea was the Federal
Government will not have the power to do that, and then people
said what are talking about, there are lots of powers in this
Constitution. Even if you think that----
Senator Sasse. Clarify.
Judge Kavanaugh. Let us belt and suspenders and make sure
that the Federal Government cannot infringe these core
liberties, which are part of what we think are fundamental to
being--to being an American.
Senator Sasse. Why is there not an exception written into
the First Amendment against hate speech? What is hate speech,
and who gets to decide what it is?
Judge Kavanaugh. Senator, I think the principle of free
speech that the Framers put into the Constitution encompassed
the idea that there would be, as the Supreme Court has
subsequently said in a variety of cases, unpopular ideas that
would be expressed. And that, as we said earlier, it is
important for individual liberty to have the ability to express
your thoughts and your words, and it is important for societal
development, the development of America for the people to be
able to express their ideas so that we can improve over time.
And a lot of the ideas we hold dear were unpopular, some of
them not so long ago. And we developed those ideas over time,
and part of free speech helps us build a better America.
Senator Sasse. Yes.
If we had to unpack American political philosophy in one
word, I think it is anti-majoritarianism. You never would want
the Majority to get to define what the Minority cannot hold in
an unpopular position.
The Chairman is going to take my gavel, take my microphone,
but I would love to ask you if speech can ever be called
violent.
Judge Kavanaugh. I would just add one sentence to the anti-
majoritarianism point. We think of the individual liberty
specified in the Constitution as supporting that, but the
structure, as I made clear, the structure, the separation of
powers and federalism, is part of that same overall idea, which
is protection of individual liberty against majoritarian rule,
and the whole document tilts toward liberty.
Senator Sasse. Thanks.
Chairman Grassley. Senator Booker.
Senator Booker. Thank you, Mr. Chairman.
Judge, you do not need to answer this because we all know
your answer anyway, but will you allow me to ask you a series
of questions leading to a question that I do not know your
answer to?
A simple question. Again, we all know your heart, but just
a question so I can lead someplace. You would not fire somebody
because of the color of their skin. Obviously, no. Right? You
would not fire somebody----
Judge Kavanaugh. Right, right.
Senator Booker. I know that is a snappy answer. I just want
you to say ``no'' to that.
Judge Kavanaugh. No.
Senator Booker. Yes.
Judge Kavanaugh. I have made clear----
Senator Booker. You have made clear because you have hired
interns, you have talked to me about friends. I know that is
the case. And, forgive me, I am not even questioning that. You
would not fire somebody because of their gender, obviously.
Right?
Judge Kavanaugh. So, I have made clear my efforts to
achieve, as best I can, in the ways I can as a judge----
Senator Booker. Sir, just because of my time, I heard about
numerous of my colleagues, even on the other side of the aisle,
asked you to go through your hiring, and I just know that is
your heart. I am not challenging that. I am not asking that. I
am just trying to lead someplace, if you will allow me.
So you know it would be wrong for someone else to fire
somebody just because of the color of their skin. Right? It
would be morally wrong.
Judge Kavanaugh. Of course.
Senator Booker. It would be morally wrong. It would be
morally wrong. Right?
Judge Kavanaugh. In the civil rights laws----
Senator Booker. If I could just ask you person to person,
human being to human being, the dignity of a human being, it
would be wrong to fire somebody because of the color of their
skin.
Judge Kavanaugh. And I understand that. I think my record--
--
Senator Booker. It clearly states that, it echoes that----
Judge Kavanaugh. Yes.
Senator Booker [continuing]. As it has been stated numerous
times. I am not challenging that at all.
Would it be wrong to fire somebody if the person found out,
hey, I just found out this person is gay? Would it be wrong to
fire that person?
Judge Kavanaugh. Senator, in my workplace, I hire people
because of their talents and abilities. All Americans, all
Americans----
Senator Booker. So maybe I can shift, then. Morally, you
think it is right to hire people, it does not matter their
background. For someone to fire someone just because they are
gay, let us shift to the law now. Do they have a legal right to
fire somebody just because they are gay, in your opinion?
Judge Kavanaugh. Senator, the question, as I am sure you
are aware, of the scope of employment discrimination laws being
litigated right now, and therefore while I would like to talk
to you about this more, because that issue is in a variety of
cases right now, it would be inconsistent, as I am sure you are
going to understand----
Senator Booker. Right. And I guess Senator Harris, Senator
Coons, have all brought up these issues. Loving v. Virginia has
been mentioned, the Obergefell case has been mentioned. I think
there are a lot of folks who have real concerns if you get on
the Court, folks who are married right now really have a fear
that they will not be able to continue those marital bonds, and
we still have a country where, if you post your Facebook
pictures of your marriage to someone of the same sex, we still
have a majority of States where if that employer of yours finds
out that you had a gay marriage and that you are gay, in the
majority of American States you can fire somebody because they
are gay.
I guess you are not willing to tell me whether you
personally morally now think that that is right or wrong.
Judge Kavanaugh. Senator, I am a judge, and therefore with
the cases that you are well aware of pending in the courts
about the scope of the civil rights laws, the employment
discrimination laws--of course, Congress could always make
those clear----
Senator Booker. That is what I want to get to, the point
that you will not give me a moral answer because of the pending
cases, and I have heard that before.
Judge Kavanaugh. Right, and I do not want to in any way----
Senator Booker. So, maybe I can ask you about your concern
when you were in the Bush White House. Did you have any
involvement in Bush's effort to support a constitutional
amendment to ban same-sex marriage?
Judge Kavanaugh. So, Senator, when I was in the White
House, that was part of something that he talked about. Of
course, at that point in time----
Senator Booker. Did you express an opinion then about it
yourself?
Judge Kavanaugh. As staff secretary, things related to
that, speeches he gave went across my desk, as I have discussed
before.
Senator Booker. I am not privy to your documents at that
time.
Judge Kavanaugh. Right.
Senator Booker. Did you ever express your opinions about
same-sex marriage in those documents that I am not privy to,
that will one day come out?
Judge Kavanaugh. I do not recall. Of course, at that time,
as you are well aware of, Senator, there has been a sea change
in attitudes in the United States of America, even since 2004,
as you are well aware.
Senator Booker. But you are not willing to tell me your
attitudes then? I mean, we can change. We had President Obama
evolve on that issue.
Judge Kavanaugh. Right.
Senator Booker. So will you tell me your attitudes then
about it?
Judge Kavanaugh. I will tell you that there was debate in
the White House. Vice President Cheney came out, one of the few
times he came out and publicly disagreed----
Senator Booker. I do not need to know Cheney's opinions. I
want to know your opinions on the issue.
Judge Kavanaugh. I am sorry, Senator. I did not mean to
interrupt. But there was debate in the White House about what
President Bush was doing. Of course, as you said, President
Obama----
Senator Booker. That was his word, ``evolved'' on the
issue. But in your opinion--I do not need Obama, Cheney. Just,
will you express to me your opinion on same-sex marriage?
Judge Kavanaugh. I do not recall----
Senator Booker. I am not asking your opinion then. I am
asking your opinion now. Do you recall your opinion now on
same-sex marriage?
Judge Kavanaugh. Well, the Supreme Court in Obergefell----
Senator Booker. Your opinion. I do not know, maybe I did
not get the record. I do not know if you have conducted gay
marriages. I do not know if you have been to gay marriages.
What is your opinion?
Judge Kavanaugh. I am a judge. I apply the law. I apply the
precedent.
Senator Booker. Have you conducted a gay marriage?
Judge Kavanaugh. Have I conducted one?
Senator Booker. Have you presided over one, officiated a
gay marriage?
Judge Kavanaugh. I have not.
Senator Booker. Okay. But you do not want to tell me your
opinion on that issue.
Judge Kavanaugh. I apply the law. The law of the Supreme
Court----
Senator Booker. I want to move on as quickly as I can.
Judge Kavanaugh. The law of the land protects that right,
as dictated by the Supreme Court.
Senator Booker. Right. I just want to turn really quickly
to your views on the criminal justice system. A lot of my
colleagues heard this speech last summer at a conservative
think tank. You called Chief Justice Rehnquist, and I quote,
your ``first judicial hero.'' Rehnquist was one of the most
conservative Justices. You said about him, quote, ``Rehnquist
fervently believed that the Supreme Court had taken a wrong
turn in the sixties and seventies when the Court made a lot of
really landmark decisions.'' Gideon v. Wainwright, about access
to an attorney. You had the assurance that police officers
cannot violate your constitutional rights and then turn around
and use that improperly to gain information. The exclusionary
rule. The requirement that police officers taking you into
custody read you your Miranda rights.
You praised Rehnquist's efforts to ``limit and halt''--that
is your quote--halt these critical protections. You said that
it ``righted the ship of constitutional jurisprudence.''
So, do you think we had taken a wrong turn by establishing
those rights?
Judge Kavanaugh. No, that is not what I said, Senator, and
the fact that we have not discussed exclusionary rule and
Miranda over the last 24 hours is a sign of success of Chief
Justice Rehnquist in helping the Supreme Court achieve a middle
ground that has endured, that has endured and that is not
really controversial.
Senator Booker. Well, I think we have not discussed it, at
least I have not had a chance to ask you about it yet, and my
time is running out. So just tell me if any of these were wrong
turns. The exclusionary rule. A wrong turn or not?
Judge Kavanaugh. Supreme Court----
Senator Booker. Your opinion. The exclusionary rule. A
wrong turn or not? Is that settled?
Judge Kavanaugh. I apply the precedent----
Senator Booker. You cannot tell me it is settled.
What about the Miranda warning? Settled or not?
Judge Kavanaugh. The Court--can I get two----
Senator Booker. No, not unless you tell me your opinion. I
know what the precedent is. I know this law very well.
Senator Cornyn. Senator, I think the witness is entitled to
answer the question.
Judge Kavanaugh. In Dickerson, the Court reaffirmed that is
precedent on precedent.
Senator Booker. Sir, he has been allowed 6 minutes at the
end of my time. I know he is going to get a chance to answer my
questions. I am just trying to get them all out so when he has
his 6 or 7 minutes at the end.
You said Rehnquist made our criminal laws more workable.
But the question really is--this is a quote from you, sir.
Judge Kavanaugh. Criminal law, singular, I think.
Senator Booker. Criminal laws, but maybe criminal law in
general. I have a real question about workable for who, and you
understand the disparities in our criminal justice system.
Judge Kavanaugh. Yes.
Senator Booker. You understand that we have--all the data
show that people, based upon their financial status, based upon
the color of their skin, often have different experiences in
the law. Do you understand that?
Judge Kavanaugh. Absolutely, Senator.
Senator Booker. Yes, you know that. I know you know that.
Judge Kavanaugh. We have talked about that.
Senator Booker. Yes. Bryan Stevenson says, ``We have a
system of justice that treats you better if you're rich and
guilty than if you're poor and innocent'' We have a real issue
with that. You and I have discussed this.
Judge Kavanaugh. Yes. That was a good conversation.
Senator Booker. I appreciated that. And I have 2 minutes
left for this conversation, so let me just really quickly get
this out, because I am going to then let you respond.
And that is the challenge for a lot of Americans right now,
which is that they really believe that the scales are
different. We have a system now where we do not even really
have jury trials in criminal cases anymore, and that was
something that was really fundamental to our criminal justice
system, is the jury trial. But the scales have shifted so much
that you see now--in fact, there is a great book. I did not
know Senators were going to give me books; I would have given
you a number for them.
[Laughter.]
Judge Kavanaugh. I am happy to get them.
Senator Booker. I will. I will give you ``The New Jim
Crow'' by Michelle Alexander.
Judge Kavanaugh. Yes, I clerked with Michelle Alexander.
Senator Booker. I am grateful to give you these books. But
let's keep going on because you were doing a good job of
allowing me not to get to my question, and I have a very, very
diligent Chairman who is going to cut me off in 1 minute and 10
seconds.
So, you know right now that we have a system that seems to
be shifting away. ``Why Innocent People Plead Guilty'' is
another book that is worthy of reading, because of criminal
defendants and the power shifting. So that is what raises that
question to me about the rights of criminal defendants. And it
seems to me that you were indicating that you were in favor of
what Rehnquist said, that those rights of criminal defendants
somehow got out of control, that they are making them more
workable. And the question I have is workable for who?
It seems that when I look at a lot of these issues, as a
guy--you and I both have talked--you talked a lot about your
city of violence. I was the mayor of a big city, every single
day working to try to keep my city safer. So I know about
public safety, as you do, and I believe that these systems,
these laws are making us less safe. They are destroying
communities, because at Yale, they were not stopping and
frisking kids on the way home from parties at The Toad looking
for drugs. They were not getting the same treatment, those
kids, and there was a lot of drug use at Yale.
So I hear you saying you are praising Rehnquist, who is
making these laws more workable, and I would just ask you,
workable for who?
Senator Cornyn. Judge, do you want to answer any of those
questions?
Judge Kavanaugh. I will try to give about a 1-minute on
this.
I understand we had a great conversation about racial
disparities in the criminal justice system, and we talked about
ensuring confidence of all Americans in the fairness of the
criminal justice system and the American legal system and the
court system and the Supreme Court, and I appreciated that
conversation.
I would just note four things. The note I wrote in law
school about detecting race discrimination in Batson hearings,
my opinions on acquitted conduct that have been used to enhance
sentences, my opinions of that, that it is often unfair when
acquitted conduct is used to jack up sentences far beyond what
the offense of conviction would be. Third, my opinion on mens
rea in the Burwell case. I strongly would encourage you to take
a look at that, because that is part of the fairness and due
process case.
I understand your perspective, and I enjoyed our
conversation, and thank you for that.
Senator Booker. And if I could get the same treatment that
Senator Blumenthal got, can I just read some things?
Senator Cornyn. Absolutely.
Senator Booker. Thank you very much, sir.
Mr. Chairman, I am holding a number of letters in
opposition to the nomination of Judge Brett Kavanaugh to be
Associate Judge. They are letters from the NAACP, multiple
health care groups around the country, Voto Latino, the Women
Lawyers On Guard. There are a number of very esteemed religious
organizations, the AME Churches representations here, the
Congressional Black Caucus, and others. I would like to submit
those to the record.
And just in honor of Mr. Sasse, because I have a tremendous
respect for him, and I actually agree with a lot of what he was
saying about free thought and what is happening in this
country, I just want to ask the person a friendly question,
that I would love to read any book that he has to recommend, if
the Judge would read any book I recommend. I make that offer
just as an extension of good faith.
Senator Cornyn. Without objection, they will be made part
of the record.
[The information appears as submissions for the record.]
Senator Cornyn. For the record, Senator Durbin is one of
the most prolific book recommenders I know in the Senate.
[Laughter.]
Senator Cornyn. I have benefited greatly from his
recommendations of fiction and non-fiction alike. So I would
suggest----
Senator Booker. Is that----
Senator Cornyn [continuing]. Recommend we go back to
Senator Durbin----
Senator Booker. Senator Cornyn, I would love to do a book
exchange with you, sir, as well.
[Laughter.]
Senator Booker. Maybe that could help us this morning.
Senator Cornyn. Okay.
Senator Booker. Oh, God, please do not do that.
[Laughter.]
Senator Booker. In that case, just for the record, I
retract my comments. That is pretty thick.
[Laughter.]
Senator Cornyn. We will go to Senator Flake.
Senator Flake. Thank you, Mr. Chairman.
Thank you, Judge. Appreciate your endurance.
Judge Kavanaugh. Yes.
Senator Flake. It was noted before, you have done the
Boston Marathon twice. How does this compare?
Judge Kavanaugh. I feel good, Senator.
Senator Flake. Senator Booker represented Heartbreak Hill,
I think. But you are beyond that and on the way down now.
I just wanted to make a couple of comments, and I will
yield additional time to Senator Lee.
The cameras in the courtroom, I know you addressed it a
little before. I raised it during the Gorsuch hearings. I am
very much opposed to it. Not here. I am glad there are cameras
here. They belong here. This is the Congress. This is the
Senate. They belong here, and the protests here are people's
right to free speech, and the country needs to see that. But I
fear that it would politicize and be detrimental to the
independence of the judiciary. I am glad that the cameras have
been resisted in oral arguments. I know you cannot comment or
will not comment on this, and if you want to, you can. But I
certainly do not think it is in our interest to bring the
element of politics any closer to the judiciary. So I will make
the same comments as I did with Judge Gorsuch's hearing.
I did Chair a Subcommittee hearing on the use of technology
in the courtroom last summer. I have had a long interest in the
topic, and I remain convinced, after the testimony that we
received there and what I have observed, that we are better off
having oral arguments the way they have been, and the Court has
remained and I hope will continue to remain a bastion of
independence. That is more difficult if there are cameras in
the courtroom.
So with that, I will yield my remaining time to Senator
Lee, as he might use it.
Senator Cornyn. Thank you, Senator Flake. We will go to
Senator Harris and then come back to Senator Lee.
Can I ask? Senator Booker raised some issue about the
reduction in the number of jury trials in criminal cases?
Senator Flake. Probably for plea bargaining.
Senator Cornyn. Oh, is that because of plea bargains?
Senator Booker. Yes, sir. The percentage of jury trials in
this country has gone down dramatically.
Senator Cornyn. It is because of plea bargains, not because
people are being denied their constitutional----
Senator Booker. I would say plea bargains are the result of
mandatory minimum sentences, which have changed pretty
dramatically.
Senator Cornyn. Okay. Thank you for that explanation.
Senator Harris.
Senator Harris. Thank you.
Judge, you have spoken about the President's unlimited
prosecutorial discretion. Does that discretion allow him to
target his political enemies for prosecution and spare his
friends?
Judge Kavanaugh. Senator, in the Marquette speech I gave in
2015, I pointed out that the question of the limits of
prosecutorial discretion is a question that is unsettled and
needs further study. The Supreme Court, of course, has referred
to the concept and well-settled tradition of prosecutorial
discretion in Heckler v. Turner and Nixon.
Senator Harris. And I actually recall you talking about
that during the course of this hearing. And also I am
reflecting on a conversation you had with Senator Flake
yesterday where he raised concerns with you about a recent
tweet by the President. In that tweet, the President attacked
the Justice Department for indicting two Republican Members of
Congress because it would hurt the Republican Party at the
polls.
You said you did not want to assess comments in the
political arena, so I will not ask you to condemn the tweet,
even though I believe you should. But would you recognize and
agree with the principle that a sitting President should not
politicize the Justice Department?
Judge Kavanaugh. Senator, I think that is asking me to wade
into the political arena.
Senator Harris. So it is not a self-evident----
Judge Kavanaugh. Three zip codes away from the political
arena, Senator.
Senator Harris. Okay. Following up on Senator Booker's
question from yesterday on an interview you gave in 1999 in
connection with a case you worked on, you said that it was an
inevitable conclusion within the next 10 to 20 years that the
Court would say, quote, ``We are all one race in the eyes of
the Government.'' Would you agree that your statement suggests
that the Government would no longer recognize racial
differences? That is my reading of your words. Was that in the
zone of what you intended?
Judge Kavanaugh. So, I think I talked to Senator Booker
about that yesterday.
Senator Harris. Yes.
Judge Kavanaugh. That was certainly an aspirational
suggestion, but I have said as recently as a couple of years
ago that the long march for racial equality is not finished and
racial discrimination is still a reality we see on an all-too-
frequent basis. I said that in my opinions.
Senator Harris. So the conclusion I draw from that is that
you would agree, and I certainly believe we have not arrived at
that place yet.
Judge Kavanaugh. There is still racial disparity, racial
discrimination, of course, in American society. I have said
that in my opinions.
Senator Harris. So my question is this: Why should it be up
to the Court to decide when we arrive, whenever that moment
comes? Why should it be up to the Court to decide?
Judge Kavanaugh. I think that is a question of how to
interpret the precedent of the Supreme Court, and it is not--it
is different areas, as we have discussed. There is precedent in
the higher education context. There is precedent in the
contracting context in terms----
Senator Harris. And does that precedent dictate that it
should be the Court that would make the decision that we have
arrived at that place where we are basically all one race in
the eyes of the Government?
Judge Kavanaugh. The precedent does not necessarily lead to
that conclusion. I think that is an open question going
forward. You are familiar with Justice O'Connor's statement in
the Michigan case about 25 years ago.
Senator Harris. Yes.
Judge Kavanaugh. That clock is moving fast, but we still
have, as I have said in my opinions, work to do.
Senator Harris. So I have just a few minutes left, but just
to continue this conversation, if it were up to the Court to
decide, just talking again to the natural conclusion, what you
wrote, will it be the five Justices, then, of the Court, who
will decide, or are you suggesting that it should be like Brown
v. Board of Education, where there would be a unanimous
decision that we have arrived at that point? Or could it simply
be five Justices, a majority of the Court, deciding that we
have arrived at that point?
Judge Kavanaugh. I think a one-size-fits-all answer to the
question is hard to give in this context.
Senator Harris. What do you imagine as being the ideal?
Judge Kavanaugh. Well, the ideal for every case is that
every case is unanimous. I realize that is naive, but that is
the goal. When I talk about joining a Team of Nine, that is the
goal, and I think that is the goal of every Justice, and the
Court has shown a remarkable ability on the most important
cases in its history, like Brown v. Board of Education, like
United States v. Richard Nixon, to achieve unanimity, and that
is part of the reason those cases stand as such landmarks.
Senator Harris. Sure.
Judge Kavanaugh. The decision, the independence, and the
unanimity.
Senator Harris. And you and I have discussed that before,
and you have mentioned that here. I agree with that.
But tell me, when the Court does make that decision, if
that moment arrives, that we are one race, does that mean the
Government should not provide Federal funding to Historically
Black Colleges and Universities?
Judge Kavanaugh. Senator, I think the Historically Black
Colleges and Universities have, of course, been a critical part
of the educational system in the United States.
Senator Harris. Pardon me. Because we recognize past
restrictions on African-American students being able to have
access to higher education. But do you imagine, though, that if
we reach this point that you, I think, hope that we will
achieve--I think that we all do, that we will all be equal----
Judge Kavanaugh. I think we all do.
Senator Harris [continuing]. In every way, do you believe
that that would mean, then, that we would end Federal funding
for HBCUs?
Judge Kavanaugh. Again, Senator, when we reach that point,
it is hard to foresee what that would mean. But what I know
about the Historically Black Colleges and Universities, of
course, is the origins of them, that African Americans were
denied access to higher educational institutions. What they
have accomplished and produced, and what they continue to do,
and the importance of those colleges and universities in the
United States can continue to perform that educational
function.
Senator Harris. Thank you. And how would the courts and
agencies enforce laws like the Civil Rights Act of 1964 if the
Government does not recognize racial categories? I am not clear
about what you are imagining would occur.
Judge Kavanaugh. Well, that is a question of what Congress
has as the law. So long as Congress and, of course, a landmark
civil rights law, the Voting Rights Act, those two from 1964
and 1965, two of the most consequential laws ever passed by
Congress, ban discrimination on the basis of race, and so long
as those laws are on the books, and one imagines that those
laws will always be on the books, discrimination on the basis
of race will be illegal under the civil rights laws and the
voting rights laws in what they cover.
Senator Harris. So what would come of the Civil Rights Act
of 1964 in that place that you imagined, at least in 1999,
where we would arrive in 10 to 20 years from then, where we are
all one race in the eyes of the Government? What would that
mean for the Civil Rights Act of 1964? Because I am assuming
that if you are actually confirmed, you will live a long life,
as all of us do.
Judge Kavanaugh. Thank you.
Senator Harris. So it is conceivable that during the course
of your lifetime--conceivable; I do not know if it is probable,
but conceivable that we will arrive at that place. So imagining
that, and imagining that you will be still a member of the
United States Supreme Court, what do you imagine would be your
analysis as it relates to the applicability and relevance of
the Civil Rights Act of 1964, if we arrive at that place that
you describe?
Judge Kavanaugh. Well, I am not--I think those might be two
distinct issues, which one imagines it will always be on the
books, the Civil Rights Act and the Voting Rights Act prohibit
discrimination on the basis of race in employment, housing, and
voting--so long as those are on the books, those will continue
to be enforced by the Federal courts and discrimination on the
basis of race would be something that will be unlawful and
illegal.
Senator Harris. Thank you. My time is up. I appreciate it.
Judge Kavanaugh. Thank you, Senator.
Senator Harris. And then, Mr. Chairman, I would like to
also introduce letters into the record. I have first a letter
from several of our Nation's leading civil rights organizations
signed by the leaders of the National Coalition of Black Civic
Participation, the Lawyers Committee for Civil Rights, the
NAACP, the Legal Defense and Educational Fund, the NAACP, the
National Urban League, and the National Action Network, all
critical of this nomination and expressing concerns.
Second, I have a letter from 31 reproductive rights,
health, and justice organizations, including Planned Parenthood
Federation of America, NARAL, and the National Women's Law
Center.
And finally I have letters from the Feminist Majority
Foundation, the Disability Rights Education and Defense Fund,
the American Network of Community Options and Resources, and
the National Center for Special Education, if they could be
admitted.
Senator Cornyn. They will be made part of the record,
without objection.
Senator Harris. Thank you.
[The information appears as submissions for the record.]
Senator Cornyn. Senator Tillis.
Senator Tillis. Thank you, Mr. Chair.
I am going to be real brief.
One, I thought Senator Booker did a very artful job of
going down the path of questions that you could answer ``yes''
or ``no'' to in terms of who you would hire and who you would
fire. So let me just make sure that I am also clear on
something you cannot respond to.
But quite honestly, if firing someone because of their
gender identification is immoral, it is also something that if
anybody even suggested it that has ever worked in my
organization, they would get fired before the sun set. I have
been very passionate about this issue since 1997 when I set up
a gay and lesbian recruiting practice at Price Waterhouse. That
is becoming the norm. It is on us to fix it. It is not on the
Judge to determine how we are going to get it done.
And as for HBCUs, I am also proud to have led the first
HBCU recruiting practice at Price Waterhouse. It is critically
important. Again, if it comes under threat under the law, then
let's do our job and fix it.
The last thing for you. Now you get to answer questions.
Judge Kavanaugh, there are about 350 lawyers at the
Kasowitz firm. Is that right?
Judge Kavanaugh. I do not know the number.
Senator Tillis. I think that is right based on what we
found in looking up the firm. Do you know all of them?
Judge Kavanaugh. No.
Senator Tillis. Are there any that you do know?
Judge Kavanaugh. I know Ed McNally. He used to work in the
White House Counsel's Office when I was in the White House.
Senator Tillis. Have you ever talked with him about the
Mueller investigation?
Judge Kavanaugh. No.
Senator Tillis. Do you know anyone else that works at the
firm?
Judge Kavanaugh. Not that I am aware of.
Senator Tillis. Thank you. I again appreciate it, and it
gives me one more chance to thank your family and all your
friends and all these folks here who are probably going to have
to go get back massages.
[Laughter.]
Senator Tillis. So, thank you all. God bless you. I look
forward to supporting your nomination.
Chairman Grassley. Let me close and give the Committee the
agenda for tomorrow, and then we will go to our closed session.
Judge, I am very pleased that the American people have
finally had an opportunity to listen to you and to hear
directly from you, because that is what these last 2 days have
been all about, and I hope a lot of people in this country have
formed very positive views of you, as I have.
It seemed to me that you made a powerful and convincing
case for Senate confirmation, hours and hours of questioning,
and your answers have been compelling and credible. Your 12
years of judicial experience on the most important Federal
circuit court in America, 10,000 pages of judicial writings I
think proves that unquestionably you are qualified to serve on
the Supreme Court of the United States.
We also ought to be very impressed with you as a person, a
lifetime of public service. In addition to serving as an
outstanding judge, you have been a professor, coach, volunteer
and, probably most importantly, I think you would see your
position as a husband and dad as the most important thing in
your life.
Tomorrow is the fourth and final day of this hearing. We
will have four panels. On the first panel we will hear from two
witnesses from the American Bar Association. Of course,
everybody knows that Democratic leaders have called their
judgment of somebody a ``gold standard'' of judicial
evaluations, and they have rated you unanimously ``well
qualified'' to serve on the Supreme Court.
We will then have three more panels after the ABA panel
where we will hear from 26 additional witnesses, 13 from the
Majority, 13 from the Minority, and many of these witnesses
include Judge Kavanaugh's former law clerk students, friends
and associates. I look forward to hearing about their personal
bonds with you, Judge.
Now, without objection, the Committee Members and Judge
Kavanaugh will move into closed session in Dirksen Room 226.
This session is adjourned.
[Whereupon, at 10:12 p.m., the Committee was recessed.]
[Additional material submitted for the record for Day 3
follows Day 5 of the hearing.]
CONTINUATION OF THE
CONFIRMATION HEARING ON THE
NOMINATION OF HON. BRETT M. KAVANAUGH
TO BE AN ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES
----------
FRIDAY, SEPTEMBER 7, 2018
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
Booker, and Harris.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Good morning, everybody. I welcome you
to our fourth and final day of the Kavanaugh confirmation
hearing.
Over the last 3 days, the American people heard directly
from the Judge. He sat through hours and hours, and I think my
staff calculated 32\1/2\ hours of our colleagues' statements
and, of course, our colleagues' questioning. I think he made a
very compelling case that he is one of the most qualified
nominees, if not the most qualified, that we have seen for the
Supreme Court of the United States. And I have seen, I think,
15 of them.
He demonstrated that his 12 years of exemplary judicial
service on the Nation's second-highest court uniquely qualifies
him for promotion to the Nation's highest court. In fact, on
today's first panel, we will hear from two witnesses from the
American Bar Association. The ABA, whose assessment,
particularly by Democrat leaders--I like to quote that they
refer to it as the ``gold standard'' of judicial evaluation--
has rated Judge Kavanaugh unanimously ``well qualified'' to
serve on the Supreme Court.
I am going to tell you a little bit now how today is going
to evolve. Each ABA witness will have 5 minutes to make an
opening statement. We will then have 5-minute rounds of
Senators' questioning of the panel. We will have 3 more panels
after the ABA panel, where we will hear from 26 additional
witnesses.
Many of these witnesses include the Judge's former law
clerks, students, friends, and associates. They will help make
the case that not only is Judge Kavanaugh one of the most
qualified nominees that we have, Judge Kavanaugh is also an
exceptional judge, teacher, coach, volunteer, and dad. And I am
sure we will hear that.
Now I want to point out one person that is going to come on
a later panel because he has deep Iowa roots. I am pleased and
proud to hear from Professor Adam White--grew up in Dubuque,
Iowa, graduated from Dubuque Wahlert High School, the
University of Iowa, and Harvard Law School. And Adam's parents
live in Bettendorf, Iowa. So he is probably not here yet, but I
welcome Adam. And I hope to meet his parents as well.
We will divide the time equally between the Majority's 13
and the Minority's 13 witnesses. Each witness has 5 minutes to
make an opening statement, then 5 rounds for Senators'
questioning of each of the 3 panels.
Our first panel today will feature two representatives from
the ABA Standing Committee of the Federal Judiciary: Paul
Moxley and John Tarpley. I would like to have you folks stand
now so that I can swear you.
[Witnesses are sworn in.]
Chairman Grassley. Now before you give your testimony, I
know a fine lawyer in Des Moines by the name of Mr. Brown who
does a lot of what you are doing, and I know he spends a lot of
time doing it and takes it very seriously. So let us--did you
two folks----
Senator Feinstein. Do I get to make a statement?
Chairman Grassley. I am sorry. You do get to make a
statement.
I apologize. Go ahead. You should make a statement, yes.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you. Thank you very much. Thank
you, Mr. Chairman.
I do not have any questions for the two panelists, but I
want to thank them both for all the hard work the ABA does, not
just on the evaluation of Judge Kavanaugh, but on your
evaluation of all of the district and circuit court nominees
that come before the Committee.
I, in particular, pay special attention to the
recommendation, and for me, speaking personally, it is very
important. And I want you to know that, and I believe I speak
for Members on my side as well.
For decades, the American Bar has provided an analysis of
judicial nominations to provide the Senate and the American
public with an important assessment of a nominee's
qualifications. So thank you.
The kind of rating it is, is to some extent what colleagues
know of colleagues, and I think it is important because we see
one side of a person, but the ABA sees their professional side
and hears about their professional side. And I think that is
very important.
The rating is not determinative, and by no means is it the
only consideration necessary to evaluate a nominee. It does
provide the useful insight into whether the nominee has the
legal competence, temperament, and integrity to be elevated to
the Federal bench, and I think it is critically important for
the ABA to be allowed to follow its process and finish its work
before a nominee has a hearing.
And I know I am, Mr. Chairman, speaking for our side on
that point. Because this enables the Committee to ask questions
of the nominee, especially if the ABA's evaluation suggests
areas of concern in the nominee's record. So I hope we can
return to such a process.
Once again, thank you for your hard work, and welcome
today.
Thanks, Mr. Chairman.
Chairman Grassley. Thank you.
Mr. Moxley, do you want to start for your group?
Mr. Moxley. Happy to.
Chairman Grassley. Thank you.
STATEMENT OF PAUL T. MOXLEY, CHAIR, AMERICAN BAR
ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL
JUDICIARY, SALT LAKE CITY, UTAH
Mr. Moxley. Thank you, Mr. Chair and Ranking Member
Feinstein. We are honored to be here today representing our
committee and to explain our evaluation of Judge Kavanaugh.
We gave him the highest rating possible, which is
unanimously ``well qualified.'' For over 60 years, we have
conducted thorough, nonpartisan, nonideological peer review of
nominees to the Federal courts. We assess the nominee's
integrity, professional competence, and judicial temperament.
The Standing Committee does not propose, endorse, or
recommend nominees. We only evaluate the professional
qualifications of a nominee to the courts.
I am from Salt Lake City. John Tarpley, to my left, is from
Nashville, Tennessee, and in the gallery is Bob Trout. And we
were also assisted by Pam Bresnahan, who was the chair of this
committee in July when the nomination came in.
To be a nominee to the Supreme Court, one must possess
exceptional professional qualifications. As such, our
investigation of a nominee to the Supreme Court is much more
extensive than the other Federal courts. First, all of the
Circuit members of the committee, of which there are 14,
participate in the evaluation. Every Federal Circuit in the
country is covered by these 14 people rather than just the
Circuit in which the nominee resides.
Second, while the Standing Committee independently reviews
the writings of the nominee, we also commission three reading
groups. In this instance, we had the University of Maryland,
University of Utah, and a professional group. And in this group
of people were approximately 48 law professors and
distinguished practitioners.
Members of the reading groups independently evaluated
factors such as the Judge's analytical abilities, the clarity
of writing, knowledge of the law, application of the law to the
facts, expertise in harmonizing a body of law, and the ability
to communicate effectively. We contacted and solicited input
from almost 500 people who are likely to have knowledge of his
qualifications, including Federal and State judges, lawyers,
and bar representatives. Some of these people were identified
in his Senate questionnaire, which you are also familiar with.
Also, our committee had a confidential evaluation performed
on Judge Kavanaugh in the years 2003, 2005, and 2006 when he
was nominated to the D.C. Circuit Court. We also, Mr. Tarpley
and myself and Mr. Trout, met with the Judge for about 3\1/2\
hours in early August and, since then, have talked to him
regularly on the telephone, had email exchanges, and the like.
We concluded that his integrity, judicial temperament, and
professional competence met the highest standards for
appointment to the Court. Our rating of unanimously ``well
qualified'' reflects the consensus of his peers who have
knowledge of his professional qualifications, and we reached
out to a broad range of legal professionals, including almost
500 people, and we conducted about 120 personal interviews.
And with that, I conclude my opening statement.
[The prepared statement of Mr. Moxley appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. Moxley.
Mr. Tarpley.
STATEMENT OF JOHN R. TARPLEY, PRINCIPAL EVALUATOR, AMERICAN BAR
ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL JUDICIARY,
NASHVILLE, TENNESSEE
Mr. Tarpley. Thank you, Mr. Chairman, Ranking Member
Feinstein, and Members of the Committee.
Good morning. I am John Tarpley. As my colleague Paul
Moxley reported, I am the lead evaluator of the American Bar
Association's investigation of Judge Kavanaugh's nomination to
the United States Supreme Court. It is my privilege to be here,
and it is my privilege to present this testimony on behalf of
the committee's evaluation of Judge Kavanaugh's professional
qualifications.
Let me point out at the start the Standing Committee did
not consider Judge Kavanaugh's ideology, his political views,
or his political affiliation. It did not solicit information
with regard to how Judge Kavanaugh might rule on specific
issues or cases that could come before the United States
Supreme Court.
Rather, the ABA Standing Committee's evaluation of Judge
Kavanaugh was based on a comprehensive, nonpartisan,
nonideological peer review of integrity, professional
competence, and judicial temperament. In evaluating integrity,
the Standing Committee considers the nominee's character and
general reputation in the legal community, his industry, and
his diligence.
The Standing Committee found that Judge Kavanaugh enjoys an
excellent reputation for integrity and is a person of
outstanding character. It was clear from all of our interviews
and other lengthy conversations that he learned the importance
of integrity from a very early age and throughout his life.
Importantly, many of the lawyers, judges, and others
interviewed praised his integrity. They said his integrity is
absolutely unquestioned. He is a person of the highest morality
and the highest ethics. He is what he seems, very decent,
humble, and honest.
Another said, he always seeks to be fair. He is not result-
oriented. He wants to do the right thing.
On the basis of our comprehensive evaluation process, the
Standing Committee concluded that Judge Kavanaugh possesses the
integrity for our highest rating, a unanimous ``well
qualified.''
Professional competence, this encompasses qualities such as
intellectual capacity, judgment, writing, analytical abilities,
knowledge of the law, and breadth of professional experience. A
Supreme Court--must possess all of these exceptional qualities.
Judge Kavanaugh's professional competence easily exceeds these
very high criteria.
One of the reading group members noted in reviewing his
scholarly work, their view was that Judge Kavanaugh writes and
analyzes the law and the application of the facts to law and
that--with exceptional clarity and that his opinions are well
organized, resulting in clear precedent. Another said Judge
Kavanaugh is an excellent writer with a flair for making
complicated facts very understandable.
Given the breadth, diversity, and strength of the positive
feedback we received from judges and lawyers from all parts of
the profession, the committee would have been hard-pressed to
come to any conclusion other than that Judge Kavanaugh has
demonstrated exceptional professional competence. Those with
whom he has worked and those who have been involved in cases
over which he has presided have applauded his intellectual
acumen, his thoughtful discernment, and his written clarity. As
a result, the ABA Standing Committee has determined that Judge
Kavanaugh possesses sufficiently outstanding professional
competence to be rated unanimously ``well qualified.''
In evaluating judicial temperament, the ABA Standing
Committee considers a nominee's compassion, decisiveness, open-
mindedness, courteousness, patience, and freedom from bias.
Lawyers and judges overwhelmingly praised Judge Kavanaugh's
judicial temperament. They said, among other things, he is very
straightforward. He maintains an open mind about all things.
He is an affable, nice person. He is easy to get along with
and even has a good sense of humor. Can you imagine that? A
judge with a good sense of humor? He is really a decent person.
His temperament is terrific. He is thoughtful, fair-minded,
always fair-minded in his questions to counsel. Thus, our
highest rating in this category.
In conclusion, Mr. Chairman, I note that the ABA Standing
Committee shares the goal of your Committee, to assure a
qualified and independent judiciary for the American people. On
behalf of the ABA's more than 400,000 members from one end of
the country to the other, I want to thank you for the
opportunity to present this statement explaining our
evaluation.
We are a very diverse group of lawyers and we agreed
unanimously that Judge Kavanaugh meets our highest standards
and rated him as unanimously ``well qualified'' to serve as an
Associate Justice on the United States Supreme Court.
Thank you again for this opportunity, and thank you for
your service.
Chairman Grassley. I will not have any questions of you. I
am going to start with Senator Graham. But before I do that, I
just want to thank you not only for your testimony, but you and
your colleagues that did this review, we thank you very much
for that part of your public service and your dedication to the
rule of law.
Senator Graham, and then Senator Feinstein.
Senator Graham. Well, thank you, Mr. Chairman.
That was an incredible explanation and overview of a well-
lived life. Do you agree with that?
Mr. Tarpley. Absolutely.
Senator Graham. He sounds like a great judge, but a lousy
politician. He has no chance in my business.
What I would like to do is thank you because very seldom do
we have moments like this in modern politics where you pick
people outside the rim of politics to give us some insight
about a person like you have done. Often--not often, but
sometimes, we disagree with the ABA's rating from a Republican
point of view.
I am glad you do what you do. I want it to continue. When
you reach a conclusion that I disagree with, it will not be
because I do not respect your opinion. From this Committee's
point of view, I think this is a valuable input.
Some of us think you may be more left than right at times
as an association, but that does not matter to me. What matters
to me is the quality of your work, and I think you do the
country a great service.
So just to sum up. Intellect, A-plus?
Mr. Tarpley. Absolutely.
Senator Graham. Do you agree with that, Mr. Moxley?
Mr. Moxley. Yes.
Senator Graham. Integrity, A-plus?
Mr. Moxley. A-plus-plus.
Senator Graham. Again, we have nothing in common, I do not,
with Judge Kavanaugh, so far as an A-plus-plus. I think I have
got integrity, but I am not going to--I am not going to put
myself in the category of this man in terms of his ability to
impress his peers.
Would you say he is mainstream in terms of being a judge?
Mr. Tarpley. Absolutely. He is at the top of the stream.
Senator Graham. Okay. Have you ever heard the word
``radical'' used when it came to Judge Kavanaugh?
Mr. Moxley. No.
Mr. Tarpley. Not in--not in all of the evaluations that we
have done, and we have communicated with more than 100 lawyers
and judges who work with him on a regular basis.
Senator Graham. If he is confirmed, do you think the Court
will be in good hands if he is a member of it?
Mr. Tarpley. We gave him our unanimously ``well qualified''
rating. It is our highest rating. Absolutely.
Senator Graham. Do you agree with that, Mr. Moxley?
Mr. Moxley. Absolutely.
Senator Graham. Are either one of you running for
President?
Mr. Tarpley. Oh, no.
[Laughter.]
Mr. Tarpley. I will save that job for you, Senator.
Senator Graham. Did not work out.
[Laughter.]
Chairman Grassley. Senator Feinstein.
Senator Feinstein. I have no questions, except to say that
I think the report in writing is very helpful. I think the
individuals' names that are down here who have participated in
different aspects of it is very helpful. I think we have
something that becomes part of the standing record.
Mr. Moxley. Yes.
Senator Feinstein. And there has been some controversy
about the ABA, as you probably know. And I think the way to
really solve it are reports like this, which are thorough and
contemplative and helpful.
So, thank you.
Mr. Tarpley. Thank you.
Mr. Moxley. We understood we needed to make a motion for
the admission of the statement as well?
Chairman Grassley. I just think it is automatically
accepted because we always say you have 5 minutes and a longer
written statement would be included.
Senator Cruz or--go ahead, Senator Cruz.
Senator Cruz. I do not have any questions, but I want to
briefly enter into the record----
Chairman Grassley. I should say that we do all this without
objection. I do not hear any objection so that the report is
received.
[The report appears as a submission for the record.]
Chairman Grassley. Go ahead.
Senator Cruz. I want to briefly enter into the record a
letter from the Solicitors General of 12 States, including the
State of Texas. These SGs have written in their personal
capacities ``to express our strong support for the confirmation
of Judge Brett Kavanaugh.''
They write, ``The Solicitor General serves as the State's
chief appellate litigator. Thus, we represent our States in the
U.S. Supreme Court, carefully study the work of the Court, and
have a keen appreciation for the role that the Court plays in
safeguarding the rule of law, including vital federalism and
separation of powers principles. In our view, Judge Kavanaugh
would make an outstanding addition to the Nation's highest
court. Throughout his distinguished career, Judge Kavanaugh has
demonstrated an unwavering commitment to preserving the rule of
law and advancing the legal profession.''
And so I would like to enter this into the record.
Chairman Grassley. Without objection, it will be received.
[The information appears as a submission for the record.]
Chairman Grassley. Senator Coons.
Senator Coons. Let me just ask both of you one question, if
I might? Would it concern you if we proceeded to consider a
nominee for a judicial post without taking into account the
ABA's advice? Paul.
Mr. Moxley. Yes.
Mr. Tarpley. I will just add to that--Paul knows that I am
the wordy one of this duo. But I will add to that, yes, I think
it is an integral part of the process. It is an important part.
I am a lawyer. I am really interested in the kinds of
judges that we have. All of our 410,000 members bring a unique
perspective to this process. Our individual committee members
bring a unique serious perspective to the process. It is
valuable work we believe that we do, and we think it is
important to the process.
Mr. Moxley. What I would add to that is, that the thing
that is hard to get your mind around is, that if you have
practitioners from a particular district or circuit and they
are well known to the courts, and you call the judges in your
district or the lawyers in your district, they are going to
be--because they know you, they are going to be more honest and
candid with you, and since it is confidential. And part of our
rule is, that if someone brings up negative information about a
nominee, unless we take that information back to the nominee
for them to rebut it, we do not use it. But it gives--it gives
the work that we do more authenticity, at least in our minds it
does. And obviously, we are doing this on a pro bono basis, and
we think it is important or we would not be doing it. Because
we are interested----
Senator Coons. Well, thank you.
Mr. Moxley. We are interested in having good courts, and we
represent everyday people who are dependent on the courts.
Senator Coons. I consult and rely on the ABA ratings when I
am considering district court, circuit court, and obviously
Supreme Court nominations. I appreciate your input both on
Justice Kavanaugh, but this is input that I look for every time
we are doing a confirmation hearing and I think is valuable,
and I think it ought to be part of our regular process.
I appreciate your appearing before us today.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Senator.
Senator Crapo.
Senator Crapo. Thank you, Mr. Chairman. I did not have a
question, but now I do.
I, too, appreciate deeply the work that the ABA does and
the ratings and reviews that it gives on all of our candidates.
To me, that is not the question that this Committee has been
struggling with.
The question is whether the ABA, or anybody for that
matter, should be giving a blackball and be able to prohibit or
ban a candidate from being considered by this Committee if it
does not give it its approval. What are your thoughts on that?
Mr. Moxley. Incidentally, one of your fellows from Idaho
was chair of this committee, Tim Hopkins.
Senator Crapo. A great attorney. Good friend.
Mr. Moxley. Great, great lawyer and great man. I do not
think that--we only see our part of the ball, and what we are
familiar with is the competence of nominees, their integrity,
and their judicial temperament. You may have other
considerations that are not on our minds, and I do not think we
blackball them. We just give our recommendation.
Senator Crapo. Mr. Tarpley?
Mr. Tarpley. I agree with that.
Senator Crapo. Thank you. All right, thank you very much.
And thank you for your testimony here today. I appreciate it.
Mr. Moxley. Thank you.
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
I want to join in thanking you for your excellent work and
the values that you uphold in this work, the highest traditions
of our profession, which is advocacy for people regardless of
their station in life, their status, their background, their
race or religion. And for that kind of advocacy to work, we
need judicial independence, and I want to thank you for making
that a specific criterion in your report, and you remarked that
you believe that Judge Kavanaugh would uphold judicial
independence.
I hope that you join me in the very, very strong feeling
that attacks by public officials, and I am not going to mince
words--by the President of the United States--on our
independent judiciary are a disservice to judicial independence
and the integrity of our judicial system.
Mr. Tarpley. I can respond quickly on that one, Paul. The
ABA feels very strongly that a fair and independent judiciary
is a linchpin of our society. The Founding Fathers set it up
like that. It survived all these hundreds of years, and we feel
very strongly about the fair and independent judiciary.
Mr. Moxley. What I would add to that is, that a Federal
district court can declare an act, an Executive order as
unconstitutional, enter injunctions, and that is also true for
legislative bills. And that is an integral part of our legal
system, the federalism and the fact that each branch of
Government is coequal.
Senator Blumenthal. But attacks on the courts that
undermine the faith and confidence of the public in the
credibility of our courts are a real blow to judicial
independence, are they not?
Mr. Moxley. I do not disagree with that.
Senator Blumenthal. I want to just note for the record that
both of our guests seem to be in agreement with that
proposition, and I thank you very much.
Chairman Grassley. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
Gentlemen, thank you for being here. Do you have colleagues
in the audience who worked with you on this effort?
Mr. Tarpley. Certainly. We mentioned Bob Trout, a
distinguished lawyer here in the District of Columbia, just
immediately behind us, who was our local person on the ground,
who did a tremendous amount of work.
And Denise Cardman, our staff representative from the
American Bar Association. We are proud of both of them.
Senator Kennedy. Mr. Chairman, with your permission, may I
ask them to stand?
Chairman Grassley. Yes, would you, please?
Senator Kennedy. I want to thank all of you for your hard
work and your input.
Mr. Moxley. Thank you.
Senator Kennedy. Thank you for being here.
Chairman Grassley. Senator Whitehouse, do you have a
question?
Senator Whitehouse. Sure. Gentlemen, your evaluation of the
nominee related to his qualifications and produced a conclusion
that he was ``well qualified''?
Mr. Tarpley. Unanimously ``well qualified.''
Senator Whitehouse. In the evaluation of the nominee's
qualifications, did you have a chance to look at any patterns
in his decisions on the court?
Mr. Tarpley. We looked at a number of decisions. Our
reading group examined every decision that he rendered. They
read many of his writings. To be candid, I did not see a
pattern in his decisions.
If there were a--if there is a pattern to the decision, it
is what we saw was an allegiance to the law, a dedication to
looking at the facts of each particular case and applying the
law to the facts of that case, and a faithfulness to precedent.
Senator Whitehouse. Did you make any effort to cross-
reference who the parties, or amici, were in these cases in
that review?
Mr. Moxley. Yes, I will answer that, Senator, and I am not
sure if you were here during the beginning parts of our
remarks.
Senator Whitehouse. I was not.
Mr. Moxley. Yes. But we had--we had three different reading
groups who participated in this evaluation, and there were two
different law schools that participated--University of Utah and
University of Maryland. And then we had a practitioners group.
And this consisted of 48 people who broke the law into
different areas and gave us a report on their--the opinions.
Senator Whitehouse. And in that evaluation, did it take
into account what amici, for instance, were appearing before
the court?
Mr. Tarpley. The amicus curiae that appeared before the
court?
Senator Whitehouse. Yes.
Mr. Tarpley. I mean, that was a part of the record in every
case.
Senator Whitehouse. Obviously. But was that part of your
analysis?
Mr. Tarpley. We did not look at who the parties were to the
case.
Senator Whitehouse. Or who the amici were?
Mr. Tarpley. We looked--when the cases were read, it was
considered as to who the parties were.
Senator Whitehouse. Yes.
Mr. Tarpley. As well as who all the amicus curiae were.
Senator Whitehouse. But in terms of looking for any
pattern, there was no cross-referencing between decisions and
who amici and parties were?
Mr. Moxley. Do not think so.
Senator Whitehouse. Okay. Just wanted to check. Well, the
reason I asked that question, to be totally up front about it,
is that as we showed earlier, when certain amici come before
the D.C. Circuit, amici who tend to be associated with and
funded by very powerful, very wealthy right-wing interests,
they seem to have a better than 90 percent win rate in front of
this particular judge.
And I know that he says that he makes decisions based only
on the quality of the legal work and the argument before him,
in which case it seems that these particular amici seem to have
some very superhuman lawyering going their way because a win
rate above 90 percent, to me, is a bit of a signal that there
may be something else going on to pursue. Since you never
looked at that underlying statistic, presumably you drew no
conclusions about it?
Mr. Moxley. That is correct.
Senator Whitehouse. Okay. Thank you.
Mr. Moxley. But if it would be helpful to the Senator, we
could have the reading groups look at that particular question.
Senator Whitehouse. I do not know that we have time, but I
will consider that. I will get back to you.
Mr. Moxley. Thank you, Senator.
Chairman Grassley. Let us see, I guess all of my colleagues
have asked the questions they want to ask.
So we thank you, and we will call the second panel. Thank
you very much.
Mr. Tarpley. Absolutely. Thank you so much.
Chairman Grassley. We will wait just a minute while people
get the right names up here, and then we will have the second
panel come.
[Pause.]
Chairman Grassley. I have indicated to the audience that we
have three more panels, where we will hear 26 additional
witnesses. Many of these witnesses include Judge Kavanaugh's
former law clerks, students, friends, and associates.
Our next panel includes the following 10 witnesses, 5 for
the Majority and 5 for the Minority. We have Congressman
Richmond, Mr. McCloud, Ms. Garza, Ms. Garry, Ms. Weintraub, Mr.
Olson, Ms. Baker, Ms. Sinzdak, Professor Murray, and Professor
Amar.
I would ask if you would stand. And I should have said this
before you sat down, I am sorry.
[Witnesses are sworn in.]
Chairman Grassley. Thank you for your affirmation.
Now, when the Congressman comes, this will be his
introduction. Cedric Richmond is a U.S. Representative, Second
District, Louisiana. Currently serves as Chairman of the
Congressional Black Caucus.
Luke McCloud served as law clerk for Judge Kavanaugh in
2013, 2014. He also served as law clerk for Paul V. Niemeyer,
U.S. Court of Appeals, Fourth Circuit; Justice Sotomayor,
Supreme Court; and he is an associate at Williams & Connolly.
Rochelle Garza serves as managing attorney of Garza & Garza
Law, located in Brownsville, Texas.
Louisa Garry is a teacher at Friends Academy, Locust
Valley, New York. She has known Judge Kavanaugh for 35 years.
Liz Weintraub is an advocate specialist at the Association
of University Centers on Disabilities, Silver Spring, Maryland.
She previously served as a fellow in Senator Bob Casey's
office.
Ted Olson is a partner of Gibson, Dunn & Crutcher. He
served as Solicitor General of the United States, 2001-2004,
and as Assistant Attorney General in charge of the Office of
Legal Counsel, 1981-1984. He has argued more than 60 cases
before the Supreme Court.
Alicia Baker is a pastor of the Free Methodist Church in
Indiana.
Colleen Roh Sinzdak is a senior associate, Hogan Lovells.
She previously served as a law clerk for Chief Justice Roberts
and Judge Garland on the D.C. Circuit. Ms. Sinzdak was a
student of Judge Kavanaugh's at Harvard Law School.
Professor Melissa Murray, professor of law at New York
University School of Law. She previously served as a law
professor at University of California-Berkeley.
Professor Akhil Amar is the Sterling Professor of Law and
Political Science at Yale University, where he teaches
constitutional law in both Yale College and Yale Law School.
After graduating from Yale Law School, the professor served as
a law clerk to then-Judge Breyer on the U.S. Court of Appeals,
First Circuit. The professor taught Judge Kavanaugh when he was
a student at Yale Law School.
We will start with you, Mr. McCloud.
STATEMENT OF LUKE McCLOUD, FORMER LAW CLERK, AND ASSOCIATE,
WILLIAMS & CONNOLLY LLP, WASHINGTON, DC
Mr. McCloud. Thank you, Mr. Chairman, Ranking Member
Feinstein, Members of the Committee.
I am honored to speak with you today about my former boss
and my current friend and mentor, Judge Kavanaugh.
I had the privilege of serving as one of Judge Kavanaugh's
law clerks from 2013 to 2014. During that time, I worked
closely with the Judge--day in, day out--helping him to prepare
for arguments and draft opinions. I witnessed firsthand the
Judge's approach to deciding cases large and small, and what I
saw leaves no doubt that Judge Kavanaugh would make an
outstanding Supreme Court Justice.
Judge Kavanaugh is a fair-minded and independent jurist.
Regardless of the parties to the case or the issues being
litigated, Judge Kavanaugh worked hard to understand every
argument and perspective. There was always another opinion to
read, another piece of the record to review, another angle to
explore.
That was true even when a case turned on legal issues the
Judge knew well. He never looked for an easy answer or assumed
that he had considered all of the relevant points. Judge
Kavanaugh pushed himself to master every aspect of the cases he
worked on, and he expected his clerks to do the same.
To be sure, Judge Kavanaugh and I did not always see eye to
eye on what the law required, but the Judge did not want clerks
who reflexively agreed with him or who never offered a contrary
opinion. Just the opposite, Judge Kavanaugh has made a point of
surrounding himself with a diverse group of law clerks--diverse
ideologically, diverse racially, and from diverse backgrounds--
so that he can better understand all sides of a given issue.
I can vividly recall spending hours with my fellow clerks
gathered around the Judge's desk, debating the meaning of some
statutory phrase or the best way to understand a precedent.
Invariably, the opinions that Judge Kavanaugh produced
reflected his careful consideration of and respect for views
other than his own.
Moreover, when we disagreed, I always knew that Judge
Kavanaugh had come to his position honestly, based on a
rigorous analysis of the strengths and weaknesses of the
arguments before him. There was no hidden agenda or partisan
axe to grind. Just the law, always the law.
These qualities have earned Judge Kavanaugh a sterling
reputation for his work on the bench. But Judge Kavanaugh has
also shown himself to be a leader when it comes to his work
outside of chambers. I especially admire Judge Kavanaugh's
efforts as an advocate for those who are underrepresented in
the legal profession. He regularly speaks to diverse law
student associations to encourage their members to apply for
clerkships. The Judge also actively mentors the minority
students he teaches, helping them become future leaders within
the law.
Judge Kavanaugh's commitment to promoting the careers of
minority attorneys is also apparent from his own clerk hiring.
Of his 48 law clerks, 13 are racial minorities, including 5
African Americans. These percentages are nearly unheard of
amongst his peers.
Many of the Judge's minority law clerks have gone on to
clerk for the Supreme Court, something that is still all too
uncommon in these days. I am fortunate to count myself among
them, but I would not have even applied for that position had
it not been for the support and encouragement of Judge
Kavanaugh.
Again and again during the year I worked for him, Judge
Kavanaugh showed himself to be a model of judicial excellence.
But even more than his intelligence and his diligence, it is
Judge Kavanaugh's character, his fundamental decency and
kindness, that inspired me then and continues to inspire me
now.
Despite being one of the most prominent judges of his
generation, Judge Kavanaugh remains humble and gracious. He is
unfailingly polite to everyone he interacts with at the
courthouse, from his colleagues on the bench, to litigants, to
the court's professional staff. Judge Kavanaugh also volunteers
regularly in his community and encourages all he knows to do
the same. He is, in short, a dedicated public servant, in the
truest sense of those words.
I will always be proud, incredibly proud, of the time I
spent as Judge Kavanaugh's law clerk, and I am prouder still
today to support his confirmation to the Supreme Court.
Thank you.
[The prepared statement of Mr. McCloud appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. McCloud.
Now, Ms. Garza.
STATEMENT OF ROCHELLE M. GARZA, MANAGING ATTORNEY, GARZA &
GARZA LAW, BROWNSVILLE, TEXAS
Ms. Garza. Good morning. Thank you for the opportunity to
testify in this hearing on the nomination of Judge Brett
Kavanaugh to the Supreme Court of the United States.
My name is Rochelle Garza. I am an attorney and managing
member of Garza & Garza Law, PLLC, in Brownsville, Texas, along
with my brother, and law partner, Myles R. Garza.
My practice is focused on working with children,
immigrants, and victims of violence, including unaccompanied
minor children, through the areas of immigration, family, and
criminal law.
I am proud to have been the guardian ad litem for the young
woman known as Jane Doe, an unaccompanied immigrant minor who
the Trump administration attempted to block from accessing
abortion, and I am here today to talk about what this
experience was like for Jane and the impact that Judge
Kavanaugh's ruling had on her life.
Jane was 17 when she left her home in Central America,
where she was physically abused by her parents, and traveled
thousands of miles to seek safety. In September 2017, she
arrived in the United States after a long and dangerous
journey. As she later said, ``My journey was not easy, but I
came here with hope in my heart to build a life I can be proud
of.''
She was put into the custody of the Office of Refugee
Resettlement and placed at a facility for immigrant children in
the Rio Grande Valley. There, Jane learned she was pregnant.
She immediately knew she did not wish to proceed with the
pregnancy and expressed this to the facility staff, but as we
were about to learn, Jane would face unprecedented obstruction
by the Trump administration.
I will never forget meeting Jane for the first time. She
was a petite, 17-year-old. But as I quickly learned, no one
should underestimate her. Her resolve was strong, and she was
very certain about her decision to terminate her pregnancy.
In Texas, minors seeking to terminate their pregnancies
must obtain parental consent or a judicial bypass, which is an
order from the court allowing the minor to consent to the
procedure on her own. It was in that context that I was
appointed Jane's guardian ad litem.
A State court granted her bypass, and we scheduled her
appointment and confirmed the medical costs would be covered by
a private source. It was then that the Government stepped in
and ordered the facility from going to her medical
appointments.
The way that Jane was treated was unbearable. Even after
she made her decision, she was forced to undergo biased
counseling, including a medically unnecessary sonogram at an
anti-abortion crisis pregnancy center. As Jane later said,
``People I do not even know are trying to make me change my
mind. I made my decision, and that is between me and God.''
Against Jane's objections, they told her mother she was
pregnant and wanted an abortion. And even though Jane disclosed
that when her older sister became pregnant, her parents had
beaten her until she miscarried. Jane was placed under constant
surveillance and no longer allowed to leave on outings or
exercise.
Despite all of this, Jane was strong. She was determined
not to be forced to carry the pregnancy to term against her
will. So we fought back on her behalf. We filed a lawsuit in
Texas State court to require the facility to allow Jane to be
transported. At the same time, the ACLU pursued a
constitutional lawsuit in Federal court in DC on my behalf as
Jane's guardian ad litem.
Although the ACLU represents me, to be clear, I am
testifying on my own behalf.
The ACLU obtained an emergency order from the district
court to stop the Government from blocking Jane's abortion, but
the Government appealed. Judge Kavanaugh issued an order giving
the Government 11 more days to find a sponsor for Jane,
something they had already failed to do for the previous 6
weeks.
Furthermore, at the end of those 11 days, Judge Kavanaugh's
order would not have granted Jane--that Jane could finally get
the care she needed. Rather, she would have to start her case
all over again, and the Government could appeal. This could
have taken weeks and might have forced her to carry the
pregnancy to term against her will, particularly because Texas
bans abortion at 20 weeks, and Jane was already 15 weeks
pregnant.
The pain that this caused her is impossible to describe.
Throughout her ordeal, I saw her suffer. No politician or judge
saw firsthand what she went through. As she later said, ``It
has been incredibly difficult to wait in the shelter for news
that the judges in Washington, DC, have given me permission to
proceed with my decision.''
Thankfully, the full Appeals Court overturned Judge
Kavanaugh's decision, and I was with her when she had her
abortion. I saw the relief that she experienced when she was
able to realize the decision that she knew was right for her.
But at that point, Jane had been forced to remain pregnant
against her will for an entire month and by the time--from the
time she obtained her judicial bypass.
I am and will always be in awe of Jane. She possessed a
profound strength of character. She believed that no other girl
should have to go through what she went through. And, as she
said, ``No one should be shamed for making the right decision
for themselves.''
I can think of nothing more human or more American than
what I saw in Jane. Knowing that she is now pursuing the life
she hoped for gives me great pride. She may have been petite,
but she ignited change. And just like she said, ``This is my
life, my decision.''
It was an honor to represent her and to be by her side and
to witness true perseverance and to share her story with this
Committee today.
Thank you.
[The prepared statement of Ms. Garza appears as a
submission for the record.]
Chairman Grassley. Ms. Garry.
STATEMENT OF LOUISA GARRY, TEACHER,
FRIENDS ACADEMY, LOCUST VALLEY, NEW YORK
Ms. Garry. Chairman Grassley and Ranking Member Feinstein,
my name is Louisa Garry. I am a high school teacher and coach.
So it is unusual for me to not be in the classroom with my
students on the first Friday after Labor Day, but I am honored
to be here to voice my support of my college classmate and
longtime friend.
I met Brett Kavanaugh in 1983, almost exactly 35 years ago
today. We were both incoming freshmen at Yale. Brett was
standing under a tent with his parents, waiting to depart for
the freshman outdoor orientation. I grew up in a small town in
Ohio and was accustomed to saying hello to everyone. So I
walked up and introduced myself. Brett warmly received my
greeting and thus began a friendship that continues to this
day.
Our enduring friendship might surprise some because in
certain ways, we are quite different. I have been teaching and
coaching high school students for the last 30 years while Brett
pursued a high-profile career in law. Brett comes from a
Catholic upbringing in a city and tends to have a conservative
outlook while I would describe myself as a moderate Quaker who
seeks out running trails and ocean beaches.
Our differences have allowed us to learn from each other
and see things from a different perspective. We have maintained
a close friendship based on our mutual respect, support, and
trust.
One of the things Brett and I do have in common is an
appreciation for competitive sports. We both have daughters,
and we often talk about the benefits of youth sports in raising
strong, independent girls and women with confident voices.
Brett and I not only watch a lot of sports, we also run
together.
We first started running together while Brett was in his
first year of Yale Law School and I was working at Yale and
training to compete in the 1988 U.S. Olympic trials for track.
Brett was not much of a runner, but he could keep up with me on
an easy warm-up.
After he ran his first three-mile race, Brett announced
that he wanted to run the Boston Marathon in his third year of
law school. He asked me to promise to train and to run it with
him, and I agreed. Even though I was a competitive runner, I
had never run anything close to a marathon in distance, but
Brett's faith in my ability as a runner and coach gave me
confidence to take on this challenge.
During the marathon, Brett waited for me through water
stops and bathroom breaks, just as I waited for him through leg
cramps and blisters. We ran together, step for step, for 26.2
miles and crossed the finish line at exactly the same time. We
ran the Boston Marathon together again, step for step, two more
times, in 2010 and most recently in 2015 in celebration of our
50th birthdays.
Four hours is a long time to spend with someone as you
physically and mentally struggle through the miles, but I was
lucky to go through it with Brett, whose humor, fortitude, and
idealism elevates those around him.
Brett and I share an interest in the growth and development
of young people. Many people have heard about Brett's
basketball coaching expertise, but I believe even more students
have benefited from taking a class with Brett at Harvard, Yale,
or Georgetown. Brett is a bright, articulate, and engaging
educator, and he is generous with the time and attention he
devotes to mentoring others.
In November 2016, Brett welcomed juniors from my school to
the Federal court for a field trip to learn about the judicial
system. As we prepared for the visit, my students wanted to
know, is Judge Kavanaugh conservative or liberal? I responded
they should wait and determine the answer on their own.
Brett spent over an hour with my class, explaining his role
as a judge, discussing current issues facing the Federal court
of appeals, answering the students' questions, and listening to
their voices. He spoke passionately about his belief in the
judicial system and the importance of the separation of powers
in Government. As we left the Federal court, a couple of
students immediately remarked, ``We could not tell. Is he
conservative or liberal? Can you tell us?''
I responded, that is how it is supposed to be. The
judiciary is supposed to be independent.
Brett has a wide circle of friends of diverse political
viewpoints and often shows a willingness to step into
potentially uncomfortable forums with a spirit of collegiality.
At our 30th Yale College reunion, Brett joined a panel on free
speech. The panel broadly represented the diverse perspectives
of our classmates, and each of the panel members spoke
respectfully about the challenges faced by universities in
addressing issues of free speech.
When discussing how to balance a wide range of opinions,
Brett quotes the character, Atticus Finch, from the book, ``To
Kill A Mockingbird,'' and emphasizes how important it is to
``stand in a person's shoes.'' Brett does not just speak words
of empathy and tolerance, he listens and acts upon these words.
His friends and colleagues describe him as a kind, thoughtful
person and a good listener.
I leave it to others to speak to Brett's judicial record. I
am here to speak to his outstanding qualities, personal
qualities as a lifelong friend. Brett Kavanaugh will be a voice
of fairness and integrity as a Justice of the Supreme Court.
Thank you.
[The prepared statement of Ms. Garry appears as a
submission for the record.]
Chairman Grassley. Thank you, Ms. Garry.
Now, Ms. Weintraub.
STATEMENT OF ELIZABETH ``LIZ'' WEINTRAUB, ADVOCACY
SPECIALIST, ASSOCIATION OF UNIVERSITY CENTERS ON
DISABILITIES, SILVER SPRING, MARYLAND
Ms. Weintraub. Thank you, Chairman Grassley and Ranking
Member Feinstein and the Members of the Committee for believing
that I have something important to say about Judge Kavanaugh.
Fifty-one years ago, I was born with cerebral palsy and an
intellectual disability. I entered a world that had low
expectations for me and people like me. Judge Kavanaugh has
shown that he has the same low expectations, and I am here to
tell you that he is wrong.
I have achieved more than many thought possible for someone
like me. I work full time as a professional where I host
``Tuesdays with Liz,'' a weekly YouTube series where I talk to
people about policy in a way that people with intellectual
disabilities can understand. You are all invited to be my guest
on ``Tuesdays with Liz.''
Today, I live with my husband, who also happens to have a
disability, and together, we make our own decisions. It has not
always been this way. In my twenties, some professionals and my
parents decided to put me into a private institution. My
parents love me, but instead of treating me like an adult with
opinions and preferences and asking what I wanted, they made
the decision for me like I was a child.
This was wrong. In the self-advocacy movement, there is a
saying that we hold very dear to our hearts, and that is,
``Nothing about us without us.'' This means that any decision
that affects us should include us. We expect to be part of the
conversation, even to lead the conversation. Self-determination
is a basic human right for all people with disabilities. People
with intellectual disabilities have opinions and preferences,
and they should be recognized.
Judge Kavanaugh's nomination matters to me. Reading the Doe
v. DC case made me very upset that Judge Kavanaugh's decision
did not respect people's rights and their freedom of choice.
This is wrong. The lower court in Doe told the D.C. government
that it needed to ask people with intellectual disabilities if
they wanted certain medical treatments. That requirement
respects the civil rights of people with disabilities.
Judge Kavanaugh had a chance to stand up for the rights of
the woman in the case, but he failed. He said that the D.C.
government did not even need to ask them what they wanted but
could decide for them what was going to happen to their bodies.
Would this have been too hard to ask? Ask them what they
wanted. Every adult deserves to be treated like a grown-up and
have the right to be asked what they wanted, especially when it
is about their own body. If they need support to understand and
make an informed choice, then give it to them.
Our country is founded on liberty and justice for all. And
all means all. I worry about a Supreme Court Justice who does
not believe that we, as people with intellectual disability,
can make decisions for ourselves.
If Judge Kavanaugh is confirmed, I am afraid that my right
to make decisions for myself will be taken away. I ask you, for
myself and my community, when you vote on Judge Kavanaugh,
please do not vote to turn the clock back and take the rights
that I and others have fought for.
Thank you very much.
[The prepared statement of Ms. Weintraub appears as a
submission for the record.]
Chairman Grassley. Thank you, Ms. Weintraub.
I assume that if you are like everybody in the House of
Representatives, you are always busy, and you would like to
go--that is why you were probably on first. So I think I will
go to Congressman Richmond. Welcome.
I previously had introduced you as a Congressman and Chair
of the Congressional Black Caucus.
STATEMENT OF HON. CEDRIC L. RICHMOND, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA,
AND CHAIRMAN OF THE CONGRESSIONAL BLACK CAUCUS,
WASHINGTON, DC
Representative Richmond. Thank you, Mr. Chairman, and we
did have pending votes. So I want to thank you for the courtesy
and apologize for being late. And I want to thank the Ranking
Member, Senator Feinstein, for being here.
Earlier this week, my Senator argued that--or stated that,
``It's not the U.S. Supreme Court that is supposed to fix this
country culturally, economically, socially, spiritually. Courts
should not try to fix problems that are within the province of
the U.S. Congress, even if the U.S. Congress does not have the
courage to address those problems. Our courts were not meant to
decide these kinds of issues.''
That logic would mean that African Americans would not be
able to attend integrated schools, buy a home previously owned
by a White person, or lodge at certain hotels. In many cases,
the high court has acted when Congress had neither the courage,
nor the will to act.
For nearly eight decades, African Americans have fought to
secure historic legal victories that have significantly bent
the moral arc of the universe toward justice, even at times
when progress felt incremental. Nonetheless, we know that
reversing meaningful progress for decades to come would be
profoundly devastating and an affront to all who courageously
fought on the front lines, some of whom I currently represent
as Chair of the Congressional Black Caucus.
President Trump has seized on this opportunity to pack the
courts by selecting judicial nominees who lack pragmatism and
are often strikingly unqualified and proven intolerant bigots.
We are in the midst of a fundamental shift toward nominees that
embrace ideology at the fringes of mainstream legal thought.
The current administration has nominated and, with help of
Senate Republicans, has confirmed a range of nominees whose
confirmation hearings portend a precarious legal fate for
communities of color moving forward. Mr. Kavanaugh's
confirmation would fortify a generation of destructive
conservative ideology at a time when several historically
significant legal challenges will come before the high court.
As Members of the CBC, we cannot overstate what is at stake
for African Americans and communities of color across the
Nation. Judge Kavanaugh, who relies heavily on the same
textualist reading of the Constitution employed by former
Justice Scalia, possesses a conservative judicial record that
leads us to believe that voting rights, education, criminal law
outcomes will be greatly endangered in the coming years. A
careful, in-depth evaluation of his record, which has largely
been shrouded in secrecy and withheld from public examination,
uncovers writings that illustrate sparse commitment to equal
protection under the law.
Additionally, Judge Kavanaugh's lack of deference to
precedent is staggering and inconsistent with other
conservative judges who currently preside on the D.C. Circuit
Court with him. A judge who frequently questions key legal
precedents represents a grave danger to many legal frameworks
that have advanced the African-American community.
Voting rights. From Ohio to Wisconsin to Georgia, the
vestiges of Jim Crow have resurfaced under a new cloak
unchecked and unabated. While these States are no longer
conducting literacy tests, the effects of their new policies
have been implemented with staggering precision and efficiency.
By a 5-to-4 vote more than 5 years ago, the Court struck
down Section 4 of the Voting Rights Act of 1965, making Section
5 of the law essentially unworkable. The decision has
precipitated a myriad of voter suppression efforts across the
country.
Most recently, the Randolph County Board of Elections and
Registration in Georgia inexplicably considered a proposal
calling for the closure of more than three quarters of the
polling locations in the 60 percent Black county, including one
location that is 97 percent African-American.
Despite the eventual rejection of this ill-fated proposal,
the Federal Government never bothered to intervene and fulfill
its statutorily obligated responsibilities. Simply put, there
is no longer any active Federal mechanism dedicated to
oversight and safeguarding an individual's constitutionally
protected right to vote.
As I told you in January 2017, Jeff Sessions' record on
civil rights is questionable and one that shows that he does
not care about enforcing civil rights. It is within this
context that we have grave concerns about Judge Kavanaugh's
opinion in the 2012 case of State of South Carolina v. Holder.
In 2011, under the fully viable Voting Rights Act of 1965,
the Obama administration blocked enforcement of South
Carolina's State-issued photo ID law because it affected up to
8 percent of Black South Carolinians. In his ruling to uphold
the law, Mr. Kavanaugh claimed it ``does not have the effects
that some expected and some feared.''
Not only is this statement inexplicably tone deaf, it is
also inconsistent with reality. These same real-life
consequences reverberate to other elements of everyday life for
Black families. On criminal justice, Judge Kavanaugh's record
on criminal justice is entirely unsatisfactory for a country
persistently struggling to hold law enforcement accountable for
mass incarceration and police brutality. He has expressed a
desire to overturn precedent that protects civilians from
officers engaging in activities inconsistent with the Fourth
Amendment. He suggested the probable cause standard should be
more flexible, which would expose more African Americans to
failed policies, police tactics like stop-and-frisk.
Additionally, Judge Kavanaugh's support for narrowing
individuals' Miranda rights would hurt people of color, who are
disproportionately subject to excessive law enforcement
engagement in their respective communities.
And last, affirmative action. Mr. Kavanaugh's record on
affirmative action is particularly disturbing and ripe for
intense scrutiny. Almost 20 years ago, while in private
practice he wrote that in the future, the Supreme Court would
agree that ``in the eyes of Government, we are just one race.''
Given the Department of Justice's recent investigation into
Harvard University's admissions practices, we are deeply
troubled by the increased likelihood this will come before the
Supreme Court in short order.
With that, Mr. Chairman, I will submit the rest of my
testimony for the record, but I would just conclude by saying
that with the cloud of criminality and lack of transparency,
the Congressional Black Caucus--which is 48 Members--we
represent 78 million Americans. And I just wanted to say for
the record, of those 78 million, only 17 million are African-
American.
We represent a vast variety of people. And we represent a
collective conscience of this country--Black, White--in the
spirit of Goodman, Chaney, and Schwerner, who gave their life
to make this country a more perfect union, and to fight for
civil rights, and to fight for justice. And it is within that
spirit that we have grave concerns and oppose the nomination of
Justice Kavanaugh.
And thank you for your time, and I know I went over.
[The prepared statement of Representative Richmond appears
as a submission for the record.]
Chairman Grassley. Thank you very much, Congressman.
Now, we go to Mr. Olson.
[Disturbance in the hearing room.]
STATEMENT OF HON. THEODORE B. OLSON, PARTNER,
GIBSON, DUNN & CRUTCHER, AND FORMER SOLICITOR
GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF
JUSTICE, WASHINGTON, DC
Mr. Olson. Thank you, Chairman Grassley, Ranking Member
Feinstein, and Members of the Committee.
I have had the privilege of practicing law throughout the
United States for over 50 years in State and Federal appellate
courts and 63 times before the United States Supreme Court. I
have argued to 20 different Supreme Court Justices appointed by
11 Presidents, from President Eisenhower to President Trump,
one-fifth of our Nation's Justices appointed by one-fourth of
our Presidents.
My experience has given me firsthand exposure to the
Justices numerous Presidents have selected for the Supreme
Court, the qualities that these Justices have exemplified, and
the standards they have established for themselves and for
their successors. Each of these Justices has manifested the
highest professional and jurisprudential standards, the
qualities we expect in Justices appointed by Presidents of any
political party.
I have won and lost my share of decisions from Justices
appointed by Presidents of every political background. I can
say that in every case, my clients and arguments were received
with respect, understanding, and great care. Americans are
rightly proud of the Supreme Court and its Justices, the envy
of the world.
I will elaborate on five of the characteristics that I have
seen in Supreme Court Justices. First, intelligence and
learning. A Justice on the Supreme Court must understand the
Constitution, the separation of powers, the Bill of Rights, the
role of each of the three branches of Government, and Federal
laws ranging from antitrust and patents to criminal procedure
and the environmental. And I could go on and on.
The Court decides 75 cases each year involving an awesome
range of complex subjects, demanding from each Justice an
extraordinary breadth of understanding, experience, erudition,
judgment, and insight.
Second, respect for precedent and judicial tradition. The
Justices before whom I have appeared have uniformly manifested
abiding respect for the role of the judiciary and past
decisions of the Court. Not every precedent is inviolate, of
course. As Justice Breyer has explained in his book, ``Making
Democracy Work,'' the Court has occasionally been mistaken or
wrong, but its errors have generally been corrected over time.
The Justices are mindful of the importance of stare decisis
and the public's reliance on past decisions, but within the
context of an overarching fealty to the meaning and intent of
the Constitution and the rule of law.
Third, open-mindedness and independence. Justices, of
course, have their individual histories, predilections, and
past writings. But each Justice must examine every case on the
merits, carefully review precedents, briefs and oral argument,
and the views of their colleagues, and only then come to a
decision. Any other approach----
[Disturbance in the hearing room.]
Mr. Olson. Any other approach would, as Justice Ginsburg
has explained, ``display disdain for the entire judicial
process.''
Fourth, integrity. The Justices of our Supreme Court, like
our judiciary in general, reflect rock-solid integrity. We may
strongly disagree with the Court's decisions from time to time,
but no credible critic would suggest that the Court's decisions
are corrupt or dishonest. Our citizens respect and obey even
very unpopular decisions because they believe in the integrity
of the judicial process and the honesty of our Justices.
Fifth, temperament. An open mind and respectful temperament
and collegiality are vital to the Supreme Court. And the
Justices before whom I have appeared uniformly listened to and
probed, often intensely, the arguments presented to them. But
however strongly they have disagreed in a particular case, they
have remained respectful, warm, and gracious to their
colleagues and to the advocates who appeared before them.
I have known Judge Kavanaugh for two decades. I know from
personal observations and experience that he possesses and has
consistently exemplified the qualities that I have described.
He received an outstanding education in one of the Nation's
finest law schools, clerked for extraordinary jurists,
including the Justice he is being nominated to replace, taught
constitutional law at Harvard Law School, served in the
executive branch and in private practice, and for 12 years at
the highest level of the Federal appellate judiciary. He is
thoughtful, gracious, open-minded, respected by his peers, and
widely praised by the lawyers who appear before him.
Our system contemplates that Justices will be appointed by
Presidents of either party. As lawyers who appear before the
Court and as Americans who must live with the Court's
decisions, we cannot expect that our cases will be decided by
jurists who always agree with our positions.
But we can aspire to a judiciary that will be prepared,
perceptive, competent, open-minded, honest, and respectful.
That is the jurist that is Brett Kavanaugh. He is the kind of
person and judge that we expect and deserve on the Supreme
Court. I hope you will confirm his appointment to this Court.
[The prepared statement of Mr. Olson appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. Olson.
Now, Ms. Baker.
STATEMENT OF ALICIA WILSON BAKER,
INDIANAPOLIS, INDIANA
Ms. Baker. Good morning, Mr. Chairman and Members of the
Committee.
My name is Alicia Wilson Baker. I am a pro-life Christian
and ordained minister from Indiana. I am someone who was denied
the birth control I needed because of my insurance company's
religious beliefs, and I am honored to be here today, truly
honored to speak on behalf of everyday women.
If Judge Kavanaugh is confirmed to the Supreme Court, I
fear that many woman, especially those who can least afford it,
will not get access to affordable birth control because of
their employer's religious beliefs. Birth control allows women
and people to control their lives, and without it, women's
health and their futures are at risk.
I would like to tell you about my background. I grew up in
a devout Christian family in California. My parents were
leaders in our church congregation. My childhood is filled with
happy memories of attending church, learning how to put faith
into action through mission trips and serving our community.
I decided to go to seminary and become an ordained minister
so that I can serve others. I currently work at a local
neighborhood center in urban Indianapolis, where I collaborate
with local agencies and neighbors to improve the quality of
life in our neighborhood.
In 2015, I met and fell in love with my best friend, Josh,
who is here with me today. Like me, Josh is also a Christian
who believes that faith a verb. It is about how we live our
lives. And like me, Josh had decided to wait until marriage to
have sex.
Once we got engaged, we knew we would not be ready to have
children right away. So we started researching birth control
options. Josh and I were on a tight budget as we struggled to
pay off our students loans and save for a home. We were
relieved that the Affordable Care Act requires health plans to
cover birth control at no additional cost to us.
On my doctor's advice, I decided to get an IUD, but what I
got was a nightmare and a $1,200 bill. It turned out my
insurance company had a religious objection to covering my
birth control. Nothing in our faith disapproves of birth
control. We were making prudent and responsible decisions for
our family, but our beliefs and our decisions were overridden
by the religious beliefs of an insurance company.
In the days leading up to our wedding and for several
months after, I was fighting with my insurance company, sending
appeal after appeal. In the end, Josh and I scrounged together
the money. But we had to use the money we had set aside to pay
off our student loans and buy our first home together. I still
feel a pit in my stomach when I remember the stress and anxiety
that we went through just as we were starting our new life
together.
But I know I am fortunate. I was ultimately able to pay
that bill. But what happens to those who cannot pay for their
birth control? What happens to those who face an impossible
choice between getting the healthcare they need and putting
food on the table or paying for childcare or staying in school?
If Judge Kavanaugh is confirmed to the Supreme Court,
access to affordable birth control will be in jeopardy. Just 3
years ago, Judge Kavanaugh heard a case which was about
something to what Josh and I had experienced. In that case,
Judge Kavanaugh would have allowed employers and universities
to use religion to deny birth control coverage to individuals.
If Judge Kavanaugh had his way, courts would give free rein
to those who claim their religious beliefs override the law. As
a Christian, I am against such broad interpretations of
religious freedom. It is not right that employers may be
allowed to use religion to avoid following the laws of the
land.
I fear that some will use this reasoning not to protect
religion, but as a way to discriminate. I shudder to imagine
what this means for real people, for the communities I work
with every day.
At this critical moment, when so much is on the line for
women and their families, my faith guides me. Proverbs 31:8-9
says, ``Speak out for those who cannot speak, for the rights of
all the destitute. Speak out, judge righteously, defend the
rights of the poor and needy.''
As a person of deep faith, I would never impose my
religious beliefs on anyone, and no one else should either. My
religious beliefs are separate from the law, and that is how it
should be. But Judge Kavanaugh's record shows he does not
respect this critical separation.
This Committee and the Senate must weigh the harmful impact
that Judge Kavanaugh would have on the health and well-being of
so many people. I urge this Committee to block his nomination
to the Supreme Court.
Thank you.
[The prepared statement of Ms. Baker appears as a
submission for the record.]
Chairman Grassley. Thank you, Ms. Baker.
Now, Ms. Sinzdak.
STATEMENT OF COLLEEN E. ROH SINZDAK, FORMER HARVARD LAW SCHOOL
STUDENT, AND SENIOR ASSOCIATE, HOGAN LOVELLS LLP, WASHINGTON,
DC
Ms. Sinzdak. Mr. Chairman, Ranking Member Feinstein, and
Members of the Committee, thank you for the opportunity to
address the Committee about my former Harvard Law School
professor, Judge Kavanaugh.
I took Judge Kavanaugh's Separation of Powers class in the
winter term of 2009. In the years since, he has served as a
trusted mentor to me. My experience as Judge Kavanaugh's
student and mentee has led me to offer my firm support of his
nomination to the Supreme Court of the United States.
In some ways, my support for Judge Kavanaugh is
unsurprising. A recent New York Times article catalogued the
exceptionally strong reviews that Judge Kavanaugh's students
have given to his teaching. Over the years, students' anonymous
feedback forms have consistently lauded the Judge as an
outstanding professor, one who strives to present a balanced
view of the material in class and who makes himself uniquely
accessible to students outside of the classroom. I
wholeheartedly agree with that praise.
Multiple articles have also detailed Judge Kavanaugh's role
as a mentor and sponsor for young lawyers, many of them females
and minorities. You have heard about Judge Kavanaugh's
impressive record of hiring women and diverse law clerks, but
Judge Kavanaugh's efforts as a mentor are not limited to his
clerks. He also works to maintain connections with countless
law students and young lawyers across the country.
Judge Kavanaugh is an invaluable resource and advocate for
those starting out in the profession and a champion of
diversity in the legal world. Ever since I took his class, he
has been a mentor and a sponsor, offering friendly advice,
helpful support, and a listening ear as I have navigated the
stages of my legal career.
When I was considering applying for a Supreme Court
clerkship, Judge Kavanaugh generously offered his advice and
support, helping me to obtain a clerkship with Chief Justice
Roberts. And when I went back to work after having my first
child, a lunch with Judge Kavanaugh helped bolster my
enthusiasm for my legal career.
In other ways, however, my support for Judge Kavanaugh may
strike some as surprising. I am a registered Democrat, and from
2010 to 2011, I had the great honor of serving as a law clerk
for then-Judge, now Chief Judge Merrick Garland on the D.C.
Circuit. In that role, I experienced firsthand what a
brilliant, fair, and kind jurist he is. I believe the
judiciary, and the country as a whole, has suffered greatly
from the failure to confirm Chief Judge Garland to the Supreme
Court.
I nonetheless support Judge Kavanaugh's confirmation. In my
view, preserving and protecting the integrity of the judiciary
means supporting and confirming highly qualified judicial
nominees, regardless of whether one agrees with the politics of
the party that nominated them.
In my experience, Judge Kavanaugh has the traits that make
him eminently qualified to serve as a Justice on the United
States Supreme Court. His impressive intellect is obvious. But
the Judge is also open-minded, he is principled, and he is
evenhanded. I would like to speak a little more about each of
those qualities.
First, in my interactions with Judge Kavanaugh, he has
always demonstrated open-mindedness and intellectual integrity.
When I think back on the Judge's Separation of Powers class, it
is not his lectures I remember. It is his insightful questions
and the classroom debates they sparked.
The course touched on some of the most important issues in
our constitutional democracy, but rather than telling us what
to think about them, the Judge asked questions that enabled us
to develop our own views and share them with the class. More
than that, he seemed genuinely interested in hearing our
varying perspectives.
One of my favorite law school memories is engaging in a
fierce debate with a Separation of Powers classmate over
whether INS v. Chadha was correctly decided. Judge Kavanaugh
seemed delighted to hear both sides, and he encouraged us to
develop our conflicting views. With Judge Kavanaugh, I was
confident that if I could make the right argument, he would
accept my position.
My belief in Judge Kavanaugh's open-mindedness has deepened
over the years through my one-on-one conversations with him. I
often cannot resist sharing my views on separation of powers
issues, and he is invariably an engaged listener and an
insightful questioner, despite the fact that we come from
different sides of the political aisle.
Second, in my experience, Judge Kavanaugh is highly
principled. By that, I mean something very specific. He
carefully delineates the difference between policy preferences
and what the law demands.
In the Separation of Powers class, we often discussed
current events and the way they implicated various
constitutional concerns. Policy considerations inevitably came
up, and we certainly discussed those, but the Judge would
repeatedly remind us that those policy concerns are beside the
point if the Constitution dictates a different outcome. More
generally, the Judge taught us that the way to discern the
legal principles that undergird our democratic system is to
look to the text, history, and precedents regarding the
Constitution, not our policy preferences.
Third, Judge Kavanaugh is evenhanded and treats people
fairly and with respect. In class, he gave the same
consideration to the views of all students. I consistently felt
he was judging our answers based on our ability to reason
clearly and support our points, not based on any political or
ideological standard.
Judge Kavanaugh's evenhandedness goes beyond respect for
varying ideologies. In my experience, he treats everyone
equitably regardless of their gender, race, or background. One
would think, or at least hope that, in 2018, that should not be
remarkable. But as a woman, I know that explicit and implicit
bias continue to plague the legal profession, just as they
plague the rest of society.
Far too often in my career, I have felt that I was being
treated as a female lawyer, rather than just as a lawyer. But
with Judge Kavanaugh, I have never felt that way. In my
interactions with him, I know that I am being judged on the
merits of what I say, nothing less and nothing more.
I believe that a person with such sterling credentials and
experience as a judge who so clearly values integrity,
principle, and fairness is eminently qualified to serve on the
Supreme Court. I, therefore, enthusiastically support Judge
Kavanaugh's nomination.
Thank you for your time.
[The prepared statement of Ms. Sinzdak appears as a
submission for the record.]
Chairman Grassley. Thank you very much.
Now, Professor Murray.
STATEMENT OF MELISSA MURRAY, PROFESSOR OF LAW, NEW YORK
UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK
Professor Murray. Chairman Grassley, Ranking Member
Feinstein, thank you so much for the opportunity to appear at
these hearings on the confirmation of Judge Brett Kavanaugh to
the United States Supreme Court.
My name is Melissa Murray, and I am a professor of law at
New York University School of Law, where I teach constitutional
law, family law, and reproductive rights and justice, and serve
as a faculty co-director of the Birnbaum Women's Leadership
Network.
Prior to my appointment at New York University, I was the
Alexander F. and May T. Morrison Professor of Law at the
University of California, Berkeley, where I taught for 12
years, served as faculty director of the Berkeley Center on
Reproductive Rights and Justice, and served as interim dean of
the law school. Like Judge Kavanaugh, I, too, am a graduate of
Yale Law School.
Over the course of these hearings, much has been made of
Judge Kavanaugh's warmth and kindness toward his clerks and
those in his community. These accounts resonate with me, as
Judge Kavanaugh and I have traveled in similar professional
circles over the years. In fact, I, too, have had lunch with
him, and I can attest to his friendliness and charming
demeanor.
But this nomination is not about whom I would befriend or
with whom I would have lunch. It is not about how Brett
Kavanaugh treats a handful of women from elite institutions. It
is about real people on the ground, people like the women to my
right and the people they represent who will not have lunch
with Judge Kavanaugh, who will not meet with Judge Kavanaugh,
but who will nonetheless depend on Judge Kavanaugh to protect
their constitutional rights to make decisions about their
lives.
As you have heard from women like Alicia Baker and Liz
Weintraub, confirming Judge Kavanaugh to the Supreme Court
would threaten people's ability to make fundamental personal
decisions, including deciding whether to have an abortion.
Reproductive rights are under serious threat in this
country. What we have seen over the last two decades is a
concerted strategy that would dismantle Roe v. Wade piecemeal,
not in one fell swoop, but rather through a death by 1,000
cuts. This nomination is the culmination of that decades-long
effort to destroy Roe v. Wade incrementally without necessarily
formally overruling it.
The Supreme Court stands as a bulwark against this assault
on reproductive freedom. Just 2 years ago in Whole Woman's
Health v. Hellerstedt, Justice Kennedy joined a majority to
reaffirm the undue burden standard first articulated in Planned
Parenthood v. Casey, thereby reaffirming the Court's commitment
to protecting reproductive rights.
But Judge Kavanaugh's nomination to replace Justice Kennedy
imperils the Court's ability to continue to hold the line on
reproductive freedom. In Garza v. Hargan, the only abortion
case to come before him, Judge Kavanaugh voted to block a young
immigrant woman from receiving abortion care and insisted that
she remain pregnant against her wishes weeks after she had made
her decision and after she had completed all of the State-
imposed requirements.
Although he claimed to follow Supreme Court precedent in
Garza, Judge Kavanaugh's opinion evinced a crabbed and
skeptical view of these precedents, a view that is completely
out of the step with the high court's own view of those cases.
Despite his claims during these confirmation hearings that
he was respecting Supreme Court precedent on minors and
abortion, in fact his dissent shows the opposite. He ignored
the Supreme Court's holding in 1979's Bellotti v. Baird that
allows minors to complete a confidential judicial bypass in
lieu of parental or guardian consent.
Jane Doe had already met the Texas requirement of a
judicial bypass by the time her case before Judge Kavanaugh. So
further delay to seek a sponsor was wholly unwarranted.
Further, Judge Kavanaugh did not explain how the
Government's flat prohibition wholly preventing Jane Doe from
accessing abortion failed to constitute an undue burden under
Casey or a pre-viability ban under Roe. Nor did he weigh the
potential harms to Jane Doe stemming from a further delay
against the purported benefits of that delay, as is required by
Whole Woman's Health.
Judge Kavanaugh's record in Garza suggests that rather than
respecting precedent, he will undermine or ignore it. And in so
doing, he will provide the necessary fifth vote that would
utterly eviscerate the right to abortion.
During these hearings, when asked by you, Senator
Feinstein, whether he agreed with the statement that a woman's
right to control her reproductive life impacts her ability to
participate equally in the economic and social life of the
Nation, Judge Kavanaugh's reply was not, ``I agree.'' Instead,
he said, ``I understand the importance of the precedent set
forth in Roe v. Wade.''
We have seen this before. In 2005, then-Judge Roberts came
before this Committee and stated that Roe is the settled law of
the land during his own confirmation process. Despite this
earnest declaration, as a Justice, he voted to uphold a
statutory scheme that would have shuttered 75 percent of the
clinics in Texas.
If this is what it looks like to respect precedent and
treat Roe as settled law, then these are empty promises. Since
2011, politicians have passed over 400 new laws in 33 States
across the Nation that shame, pressure, and punish women who
decide to have an abortion. Some of these laws would ban
abortion as early as 6 weeks, before a woman may even know that
she is pregnant. Others would require doctors to convey a
falsehood to patients, telling them that abortion leads to
breast cancer.
The point of these restrictions is to make it difficult,
costly, and in some cases impossible for women to obtain an
abortion. And as such, these restrictions impede women's
ability to participate equally in the social and economic life
of the Nation. And these restrictions are especially
detrimental to young women, women struggling to make ends meet,
women of color, immigrant women, rural women, and women who
have already had children.
In practice, these restrictions mean that Roe is merely a
hollow promise and not a reality for many women. To be clear,
Roe v. Wade is not a decision invented by activist judges. It
is part of a century's worth of jurisprudence that protects an
entire constellation of rights, rights relating to family,
marriage, parenthood, contraception, and personal autonomy in
intimate life.
A vote against Roe, whether to overrule as a formal matter
or gut it through incremental cuts, puts all of those rights in
jeopardy. And make no mistake about it, a vote for Judge
Kavanaugh is a vote against Roe.
Thank you for having me.
[The prepared statement of Professor Murray appears as a
submission for the record.]
Chairman Grassley. Thank you, Professor Murray.
Now, Professor Amar.
STATEMENT OF AKHIL REED AMAR, STERLING PROFESSOR OF LAW AND
POLITICAL SCIENCE, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT
Professor Amar. Thank you, Chairman Grassley, Ranking
Member Feinstein, distinguished Senators.
My name is Akhil Amar. I am the Sterling Professor of Law
and Political Science at Yale University, where I specialize in
constitutional law. I have previously testified before this
Committee on seven occasions, and it is always a solemn
responsibility to appear here.
Here are my top ten points.
Point 1. Brett Kavanaugh is the best candidate on the
horizon.
The Supreme Court's biggest job is to interpret and apply
the Constitution. Kavanaugh has studied the Constitution with
more care, consistency, range, scholarliness, and
thoughtfulness than any other sitting Republican Federal judge
under age 60.
He is the best choice from the long list of 25 potential
nominees publicly circulated by President Trump. I say this as
a constitutional scholar who voted for Hillary Clinton and
strongly supported every Supreme Court nomination by Democratic
Presidents in my adult lifetime.
Point 2. Originalism is wise and nonpartisan.
Studying the Constitution requires diligence and
intelligence, especially for those, like Kavanaugh, who are
``originalists,'' paying special heed to what the
Constitution's words originally meant when adopted. I, too, am
an originalist. In prioritizing the Constitution's text,
history, and structure to discern its principles and distill
its wisdom, we originalists are following in the footsteps of
George Washington, Alexander Hamilton, James Madison, John
Marshall, Joseph Story, and Abraham Lincoln, among others.
Originalism is neither partisan nor outlandish. The most
important originalist of the last century was a towering
liberal Democratic Senator-turned-Justice, Hugo Black, the
driving intellectual force of the Warren Court, who insisted on
taking seriously the Constitution's words and spirit
guaranteeing free speech, racial equality, religious equality,
the right to vote, the right to counsel, and much more.
Among today's scholars, the originalist cited most often by
the Supreme Court is also a self-described liberal and a
registered Democrat, yours truly. The best originalists heed
not just the Founders' vision, but also the vision underlying
its amendments, especially the transformative reconstruction
amendments and women's suffrage amendment.
I believe that Justice Kavanaugh will be in this tradition.
On various vital issues--voting rights, governmental
immunities, congressional power to enforce the reconstruction
amendments--Justice Kavanaugh's constitutional views may well
be better for liberals than were Justice Kennedy's.
Point 3. Kavanaugh's writings reflect proper respect for
tradition and precedent.
Originalists start with the Constitution's text and
structure, but almost always need to consult other
constitutional sources, such as tradition and precedent.
Harmonizing these different constitutional sources requires
great legal acumen. Kavanaugh's record shows that he is adept
at harmonization.
Point 4. Kavanaugh's views on Executive power have strong
constitutional foundations.
Many of Kavanaugh's views about the executive branch are
quite standard. On several other executive branch topics,
Kavanaugh's views are not yet conventional wisdom but are
nevertheless sound and, indeed, align well with the testimony I
offered this Committee in 1998 and 2017.
Point 5. The best basis for assessing would-be Justice
Kavanaugh is the track record of Judge Kavanaugh.
The judicial track record is more proximate and relevant
than Kavanaugh's pre-judicial life.
Point 6. Kavanaugh would work well with his new colleagues.
I predict that Kavanaugh, a studious and open-minded
conservative who likes listening to and engaging with moderates
and liberals, will be a pro-intellectual and anti-polarizing
force on the Court.
Point 7. Judicial nominees should not make substantive
promises about how they would rule on specific legal issues,
nor should they make recusal promises that closely approximate
substantive promises.
Point 8. Senators may properly oppose a judicial nominee
simply because they disagree with a nominee's general
constitutional philosophy or likely constitutional votes on the
bench.
Point 9. The current Senate confirmation process is badly
flawed and should be changed for future vacancies.
Point 10. Back to Point 1. Responsible naysayers must
become yeasayers of a sort. They must specifically name better
nominees realistically on the horizon. If not Brett, who?
Distinguished Republicans, Kavanaugh is your team's
brightest judicial star. Rejoice.
Distinguished Democrats, do not be mad. Be smart. Be
careful what you wish for. Our party controls neither the White
House nor the Senate. If you torpedo Kavanaugh, you will likely
end up with someone worse, someone less brilliant, less
constitutionally knowledgeable, less studious, less open-
minded, less good for America.
Thank you.
[The prepared statement of Professor Amar appears as a
submission for the record.]
Chairman Grassley. Thank you all very much.
Before I ask my questions and take 5 minutes to do that,
Senator Tillis is going to Chair this Committee after I get
done asking questions for this panel, I should say. I will be
back, but because I will be gone when you separate, I want to
thank all of you for your participation in this process.
And then I think after this panel, it is scheduled that we
would have a lunch break.
I am going to start with Mr. McCloud because it seems to me
you clerked for different people of different views on
interpreting the law and the Constitution--Judge Sotomayor, I
believe, and then also Judge Kavanaugh. So I will let you
define yourself what the most important characteristics of a
Supreme Court Justice is and if you see Judge Kavanaugh meeting
these.
Mr. McCloud. Well, I think the most important
characteristics are, first of all, intelligence and
faithfulness to the law. I think Judge Kavanaugh, as his
reputation shows from his years on the D.C. Circuit, has those
characteristics in spades.
I think something that is maybe underappreciated in terms
of the work the Supreme Court does is, how closely the Justices
work together, and I share Professor Amar's view that Judge
Kavanaugh would work well as a colleague on the Supreme Court.
He has talked during these hearings about the idea of a Team of
Nine, working together with his colleagues on the Court, to
achieve a goal of justice and interpreting the law fairly, and
I think that he would live that model if he were appointed to
the Supreme Court.
Chairman Grassley. Yes, thank you.
I am going to ask Ms. Garry this, but it is based upon a
very strong point that Professor Murray made that we hear a lot
about what Professor--or I mean Kavanaugh has done for people
that have worked close with him. She fears that he may not take
the average American's point of view into mind in his work as a
judge.
So what would you want the average American to know about
Judge Kavanaugh as a person and how he might see their
problems, not the people he has associated with all of his
life?
Push the button, will you?
Ms. Garry. In my experience, Judge Kavanaugh listens and
hears everyone he speaks with. I do think he considers people
from a variety of backgrounds. I do not think he has lived only
in one sphere. I think he has exposed himself to a wide range
of people, and I think that he would listen empathetically and
hear their voices.
Chairman Grassley. And probably a point he has made and how
he serves at--for low-income people at congregate meal programs
as an example would be one way I would see from what he has
said.
Ted Olson, you are famous in the legal community in this
town and around the country as well. So you ought to interact
with a lot of people that, in turn, have interacted with Judge
Kavanaugh. What do other members of the legal profession say
about the experiences that they have had with Judge Kavanaugh?
Mr. Olson. Thank you, Mr. Chairman. That is a very good
question.
The fact is that throughout his legal career, I have heard
nothing but the highest praise for Judge Kavanaugh as a human
being, as a lawyer, and as a judge. As far as I can tell and as
far as I have heard, he is uniformly respected by his peers on
the D.C. Circuit with whom he has worked in many cases for 12
years or more, including also the most recent appointees to the
Court.
Every lawyer that I have spoken to who has appeared before
Judge Kavanaugh has respected the experience and has related to
me the fact that he has listened, he pays attention. It is
impossible to tell exactly how he is going to decide until you
read the decisions that he makes.
So, in summary, the answer to your question is I do not
know of a lawyer or a judge who is more uniformly respected in
terms of his personality, his character, his integrity, his
fairness, and his competence.
Chairman Grassley. Ms. Sinzdak, you obviously remember him
as a good teacher. What are those qualities, if you can
transfer them to being a good judge and eventually a Supreme
Court Justice, what would you say about what you learned of him
in class versus his being a judge?
Ms. Sinzdak. I think the qualities are directly
transferrable. I think he was a great professor because he not
only listened and engaged more than he talked, but he knew how
to get people explaining their arguments in the best possible
way.
And I think that as a judge, too, he needs to listen to
everyone before him. He needs to be able to engage with
different viewpoints. And then also he needs to be able to
treat those viewpoints equally.
And in our class, I think that he was open-minded and
wanted to listen to all, to people of all ideologies equally,
wanted to hear the different sides of a discussion. And
similarly, I think that as a Justice, he will listen to both
sides of an argument. He will consider those.
And then, third, he knows what is important in the law. He
was not just a teacher. He was a law professor. And what he
told us was that what matters in the law is what the law says,
not what your policy preferences dictate. And I think that in
many ways, that is the most important quality for a Justice,
and I think that he exhibited that.
Chairman Grassley. Senator Feinstein.
Senator Feinstein. Thank you very much.
I want to just pick up on the last sentence that you said.
The issue of qualities really should not matter. It should be
the fairness, the likeability, the qualifications only. And
that might be fine if some of the critical things that many of
us--and I am going to speak for myself as a woman who has been
a mayor. I represent 41 million people.
And Ms. Baker, America is like you out there today in the
young woman. I see it over and over and over again.
And Ms. Weintraub, I am so proud of you. Stand tall. Be
strong. You are quite wonderful to be here today.
Professor Murray, I think you were very cogent. I thank you
for your remarks. I have never, in all my years here, been with
a panel the majority of whom are women, and each one of you
brought a different point of view, and it is very, very
welcome.
For me, Ms. Garza, I wanted to ask you a couple of
questions, if I could, because the Jane Doe case is really a
problem for me because what it showed was, there were so many
things in her treatment I did not like. The way she was treated
by the Office of Refugee Resettlement. She was subjected to
unnecessary sonograms, you know, forced to go to a crisis
center, subjected to harassment, as I understand it, had been
physically abused by her parents, and went to a Texas Judge and
received an order of approval.
I do not have that order of approval. What did that order
of approval say?
Ms. Garza. Well, in Texas, you have to get a judicial
bypass to bypass the consent from your parents and to consent
to your own abortion care. And that order is typically based on
a best interest assessment, whether or not it is in Jane's best
interest to go ahead and proceed with making that decision on
her own or whether or not she is sufficiently mature enough.
So in this case, she was--it was in her best interest to go
ahead and proceed with that. A Texas Court decided that, and
that is how the case moved forward.
Senator Feinstein. Now the panel that the nominee in
question was on, were questions asked? Were you there?
Ms. Garza. No--no, I was----
Senator Feinstein. It was in appellate court. I understand
that.
Ms. Garza. No, I was not there. However, I did listen to
it. The question was not in--the order was not in question. A
Texas court made that decision. Jane went through every single
hoop she needed to go through in Texas, including complying
with the Texas law of the 2 days, and she was just being
blocked. She was not being allowed to be--to go to her medical
appointment, and she was not allowed to be released to her ad
litems, to myself as her guardian ad litem or her attorney ad
litems, that were appointed by State courts.
Senator Feinstein. And why was that?
Ms. Garza. Just to obstruct her ability to enact her
decision. It was a policy enacted under ORR, and they directed
the facility not to allow her to be released.
Senator Feinstein. So, Professor Murray, I think the
arguments have been made here, and my great query is, women
have never historically been treated equal, and finally, you
know, we got the vote. It began to change. We were able to go
to higher education. The United States began to accept women,
and now the world seems to be changing in favor of women.
What I am most worried about this is, that Roe goes down,
and for what this meant in my generations, which were the 1950s
and 1960s, when the death toll was estimated to be between
200,000 and 1.2 million of women that went to illegal
abortionists and died. I do not want to see us go back to that
day. And so that is inherent in this vote.
Weapons in this country are inherent in this vote, and if
you look at where America is going, also the quality of the
individual who is going to sit in that deciding seat I think
overwhelms most else. Your analysis, and you spoke very
cogently, how would you analyze this judge affecting those
issues?
Professor Murray. Thank you, Senator.
It is clear to me reading Judge Kavanaugh's opinions on
these reproductive rights cases, that he says he is following
Supreme Court precedent, but that is not the case. In the Garza
case, which is the only abortion case to come before him, Judge
Kavanaugh said he was following the Federal precedent. Yet he
did not even engage the question in Whole Woman's Health v.
Hellerstedt, which would have required him to weigh the
benefits of a delay against the burdens it would have imposed
against Jane Doe.
That is required by the Supreme Court under its most recent
decision in Whole Woman's Health v. Hellerstedt. He did not
engage that at all.
In requiring that Jane Doe take an additional 11 days for
the Government to seek a sponsor, his decision defied Bellotti
v. Baird, a 1979 case where the Supreme Court held that a State
cannot require a minor to obtain parental consent or even to
notify a parent unless it provides an alternative judicial
bypass option for determining whether an abortion is in the
best interest of that minor.
And as Ms. Garza has said, Jane Doe went through that
State-required procedure to have a judicial bypass. She
obtained that bypass. A Texas State judge determined that an
abortion was in her best interest. The Government then still
prevented her from obtaining the abortion care she needed, and
Judge Kavanaugh's decision, which would have required the
Government to continue looking unsuccessfully for a sponsor for
an additional 11 days, would have further delayed her care,
making it almost 6 weeks from the time she decided to have an
abortion until when she could actually receive it.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Senator Tillis [presiding]. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
Thank you to each of the witnesses who are here.
Professor Amar, let us start with you. You are widely
acknowledged to be one of the most respected constitutional law
professors in the country. In your opinion, is Judge Kavanaugh
qualified to serve as a Supreme Court Justice?
Professor Amar. Unquestionably.
Senator Cruz. How would you compare his level of
qualifications to other Supreme Court nominees, without
specifically disparaging any other nominee?
Professor Amar. I have great respect for all the Justices,
but I would actually say, without naming names, that, you know,
I might rank him--I might predict that end of--well, were he to
be confirmed by this body, at the end of his service, he would
rank well above the average. In the--I would say in the top
tier of modern Justices, and the modern Justices are quite
impressive.
Senator Cruz. Ms. Sinzdak, you were a student of Judge
Kavanaugh's?
Ms. Sinzdak. That is correct.
Senator Cruz. What was he like as a professor?
Ms. Sinzdak. Well, again, he was open-minded, principled.
He was very fair. I mean, he was also a really nice guy. I take
the point of my colleagues that likeability is not necessarily
a criteria. So I did not gear my comments in that direction,
but he was wonderfully warm. He took students out to dinner and
was very friendly.
Senator Cruz. So am I right that you were part of the legal
team that brought a challenge to President Trump's so-called
travel ban? Is that right?
Ms. Sinzdak. That is correct.
Senator Cruz. And in your experience at Harvard with Judge
Kavanaugh as a professor, you found him fair, open-minded,
willing to listen to views from multiple perspectives?
Ms. Sinzdak. I did. I like to hope that I used a lot of the
things I learned in Judge Kavanaugh's class to bring that
challenge against what I still consider an unconstitutional
order.
Senator Cruz. Mr. Olson, you served with Judge Kavanaugh in
the George W. Bush administration. You were Solicitor General
while he was in the White House. What was your experience in
terms of any professional interactions you had with him at that
time?
Mr. Olson. We did not have a great deal of professional
interactions because his position in the White House did not
directly relate to what the Solicitor General was doing. We
worked often with the Counsel to the President, the White House
Counsel. But from time to time, there were opportunities to see
the kind of input that he was providing to the people in the
White House, the senior officials in the White House, including
the President.
He was scrupulous, far as I could tell, scrupulously
balanced in making sure that the President and other senior
officials in the Department were receiving even-handed
presentations. So that he would assure that if one side was
being advanced to the President, that the other side was also
being demonstrated.
His thoughtfulness impressed, I think, everyone around him
that was dealing with him, both from the standpoint of the
White House and the Justice Department.
Senator Cruz. Now you have argued in courts of appeals all
over the country. Have you had the opportunity to present oral
argument before Judge Kavanaugh in the D.C. Circuit?
Mr. Olson. I have. I have presented argument in one of the
cases involving separation of powers, the constitutionality of
the Consumer Finance Protection Board, and the court heard that
case en banc in the D.C. Circuit. All of the judges were
engaged in that case. It was the kind of case that the D.C.
Circuit is very good at because it involves separation of
powers and involves the structure of government.
All of the judges on that case were engaged. The argument
must have gone on for a couple of hours. Judge Kavanaugh was as
engaged, if not more so than the other judges. He--at the end
of the day, he did not agree completely with the arguments that
we were making, but he wrote a very thoughtful, reasoned
concurring dissenting opinion with respect to the
constitutionality of the Consumer Finance Protection Board.
He very carefully parsed what the Supreme Court had said in
the Free Enterprise Fund case and came to a conclusion that
was, I thought, very persuasive, although I did not completely
agree with it. Very persuasive and reasonable.
Senator Cruz. But let me thank each of the witnesses for
being here on this panel, and I want to echo what Senator
Feinstein said in particular, Ms. Weintraub. Thank you for your
powerful and inspirational testimony. Thank you for being here
and being part of this panel.
Ms. Weintraub. Thank you.
Senator Tillis. Senator Klobuchar.
Senator Klobuchar. Thank you.
Congressman Richmond, thank you so much for being here and
for your leadership.
I asked some questions yesterday of the Judge about voting
rights, and I referenced data from the Brennan Center for
Justice showing that 23 States, as you know, have now have more
restrictive voting laws than they did in 2010. Can you
elaborate on the consequences of Shelby County?
And as you know, yesterday Judge Kavanaugh noted that
Section 2 of the law remains in effect, and is, in your view,
Section 2 sufficient to protect voting rights?
Representative Richmond. Thank you for the question.
Section 2 is absolutely not sufficient. And for States like
the State I come from and some of the other Southern States
that were Section 5 States which had to preclear their actions
that affect voting rights, they were not chosen by random, they
were chosen because of their past history of affirmatively
trying to disenfranchise minority voters.
And so, because of Shelby, you do not have that anymore,
and you saw the race to the legislature. As soon as Shelby was
decided, where the courts held, that the disenfranchisement and
the discrimination basically was done with laser-like
precision.
Senator Klobuchar. Word from the circuit court.
Representative Richmond. Yes. So you see the voter ID laws.
You just saw in Georgia where they--there was an attempt to
close polling locations right before a gubernatorial race with
the opportunity to elect the first African-American Governor in
this country. So it is a big concern for us.
Senator Klobuchar. Right. And gerrymandering, as you know,
this past term in Abbott v. Perez, 5-to-4, Supreme Court upheld
a number of Texas electoral maps that the dissent said burdens
the rights of minority voters. Again, 5-to-4 decision.
Based on Judge Kavanaugh's record, his testimony before the
Committee, what do you think the future holds there when it
comes to gerrymandering with him on the Court?
Representative Richmond. We are very concerned. And if you
look at the effect that it has in terms of representation,
especially for minorities, and I am not just saying that. What
is important is the ability to elect a minority candidate of
your choice. In many instances, minorities choose to elect non-
minorities like Steve Cohen who represents Memphis, Tennessee,
and does an amazing job.
But the ability to elect a minority is important. And so if
the Court shifts toward--makes a drastic shift in terms of
gerrymandering, then we face the ability of rolling back the
clock in terms of African-American and minority representation
in this country.
Senator Klobuchar. Thank you very much.
Ms. Baker, thank you so much. I do not think we focused
enough on that case, and you really brought it to light here.
Can you tell us quickly why it is important that women are able
to access affordable contraception, as well as the impact that
you think Judge Kavanaugh's confirmation could have on the laws
in this area?
Ms. Baker. Absolutely. For me, as a Christian, I definitely
believe that--well, one of my favorite Bible verses is John
10:10, in which Jesus says, ``I have come that you might have
life and have it to the fullest.'' And I definitely believe
that birth control helps us to live our best lives as women. It
helps us to go after, you know, education or our careers, helps
us to better plan our families and when we are ready to have
children. And so--if and when.
And so I really think that is critical to helping empower
women and continue the advance forward for women in society.
Senator Klobuchar. Thank you very much.
And I think the idea here is that you were someone that is
pro-life. Is that correct?
Ms. Baker. That is correct.
Senator Klobuchar. And you are someone that just simply
wanted to be able to afford contraception after you got
married. Is that right?
Ms. Baker. That is correct. Yes.
Senator Klobuchar. And so the Affordable Care Act, there
you were hoping to use those provisions and to be able to--
there is other things in there that is helpful as well, not
getting kicked off of insurance because of pre-existing
conditions, an issue that came up here a number of times in our
questions and concerns.
But one of them was that you were hopeful about getting
contraception that you could afford, is that right, when you
got married?
Ms. Baker. That is correct. Yes.
Senator Klobuchar. And so then what happened here is you go
and you get an IUD, and then you find out that the employer is
somehow able to exercise their religious rights. Could you
explain that just a little more for people?
Ms. Baker. Yes, absolutely. So I had even gone and done my
due diligence and checked with my personal insurance company
about the benefits and everything and made sure that it was all
clear, not just my knowledge of the ACA, and it said it would
be covered. And so when I went to get my IUD, they give a
pregnancy test as well, you know, it is being used as
contraception.
And so I went and got it put in, and then a few weeks
later, we got the EOB for $1,200. And that was about a month
before our wedding and----
Senator Klobuchar. Right.
Ms. Baker. As you can imagine, the stress that already
comes with planning a wedding and then putting that on top of
it. We are trying to start our new life together, and so it was
just a very difficult thing.
Senator Klobuchar. Thank you.
And Professor Amar, I would ask you questions, but I am out
of time. And also, you would have to recuse yourself since you
are my daughter's college adviser.
[Laughter.]
Senator Klobuchar. But I would like to note that your
comments about the Judge having standard conventional opinions,
maybe we can talk about it after, but it just is not my opinion
based on looking at his rulings on net neutrality, or some of
the things he has said about Chevron, or what he said about the
Consumer Financial Protection Bureau. And so I am looking
forward to debating that with you at a break.
Thank you.
Senator Tillis. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
I would like to thank all of you for coming today. I know a
lot of work went into your statements. I find this kind of
testimony very helpful.
Number two, I want to especially thank my colleague
Congressman Richmond. I have known him a long time. Before he
became a distinguished Congressman, he was a distinguished
member of the Louisiana House of Representatives, and he is a
smart guy and a fine American. And a good guy, too.
Number three, Ms. Baker, you are a Methodist?
Ms. Baker. Free Methodist, that is correct.
Senator Kennedy. Right. I am a Methodist, too. When Becky
and I got married, I was raised in the Presbyterian Church. My
parents founded two Presbyterian churches. So I was a
Presbyterian, and my wife, Becky, was a Methodist. So we
compromised, and I became a Methodist.
[Laughter.]
Senator Kennedy. Ms. ``Sinzdak,'' did I say that right?
Ms. Sinzdak. ``Sinzdak.''
Senator Kennedy. Ms. Sinzdak, I appreciated your testimony,
too, as I did the testimony of all of you, and I apologize
again for hitting you in the head when I was going down to
shake Congressman Richmond's hand.
Ms. Sinzdak. That is okay. No harm.
Senator Kennedy. Mr. McCloud, what year did you clerk for
Judge Kavanaugh?
Mr. McCloud. I clerked for him from 2013 to 2014.
Senator Kennedy. Okay. And then you went on to clerk for
the Supreme Court after that?
Mr. McCloud. I did, Senator. For Justice Sotomayor.
Senator Kennedy. Okay. And now you are with Williams &
Connolly?
Mr. McCloud. Yes, Senator.
Senator Kennedy. You are an associate there?
Mr. McCloud. Yes, Senator.
Senator Kennedy. Have a lot of free time, do you?
Mr. McCloud. Not much, Senator.
Senator Kennedy. I agree with my colleague Senator
Feinstein that our world is getting better for women. I am
biased, of course, but I think our world is getting better for
many Americans. I am proud of that.
In the last 20 months, the U.S. Congress and President
Trump have cut taxes, increased wages, helped create 4 million
jobs, delivered 4.1 percent growth in our domestic product,
deregulated the economy, improved healthcare, I believe, for
our veterans, strengthened our military, stood up to China and
Iran and North Korea and Russia. And last, but not least, we
have confirmed some, I think, very accomplished men and women
to join the Federal judiciary, including, but not limited to,
one Supreme Court Justice and I think soon to be a second
Supreme Court Justice.
And I am proud of that record, and I thank you all again
for sharing your thoughts with us today.
Senator Tillis. Senator Whitehouse.
Senator Whitehouse. Thanks very much.
Professor Amar, you mentioned recusal. So, let me follow up
with you a little bit on the recusal question.
When you have a judicial nominee whose name has been put
forward by the subject of an ongoing criminal investigation and
by someone who has been named in open court as directing other
criminal activity, in the event that those criminal
investigations should ultimately come before the Court and the
nominee of that subject and that named co-conspirator is then
on the Court, it is fair to say, is it not, that the question
of recusal is a very live and legitimate issue?
Professor Amar. Senator, it is. And I think back to the
Nixon tapes case where one Justice who had been appointed by
Richard Nixon and who had worked in the Justice Department, and
Watergate involved questions about the head of the Justice
Department, John Mitchell, one Justice, then-Justice Rehnquist
did recuse himself from the Nixon tapes case, and three did
not.
My thought is that that has to be decided when the case
arises, and there should never be a promise of any sort to any
nominator or to this body in the confirmation process about how
you will vote or even how you will recuse. You decide that when
the case comes before you. And Rehnquist decided one way, and
three other Justices appointed by President Nixon decided it
the other way.
Senator Whitehouse. Now since that episode, there has--the
Nixon episode, there has been some case law at the Supreme
Court developed in the area of judicial recusal, has there not?
Professor Amar. There has. One thinks, for example, of
Justice Scalia's decision not to recuse himself in a case
involving then-Vice President Cheney in his official capacity.
Senator Whitehouse. I mean actually legal precedent, as
opposed to behavioral precedent at the Court. And I am
specifically referring to the Caperton decision.
Professor Amar. Oh, sure. Sure.
Senator Whitehouse. What is your summary of the Caperton
decision?
Professor Amar. Thank you, Senator.
So one important thing to understand about that case, which
arose out of West Virginia, is it involved a State judiciary, a
State-elected judiciary, and one problem with State-elected
judiciaries--I know a lot of States have them, I am not a fan
of them, nor is Justice O'Connor, retired Justice O'Connor, who
has actually made a crusade of this issue--is, you have to
raise money to run, and then you do not have life tenure, and
you have to raise money to run again.
And that makes it very different, it seems to me, than a
Federal judge. One of the great glories of the Federal system
is once you are confirmed to the Supreme Court, it is a life
tenured position, and you should not make any promises getting
it. But even if you did, they are not really, as a practical
matter, easily enforceable because you never have to run again.
So I see that case as quite distinguishable in important
ways. It also involved a financial----
Senator Whitehouse. Although look at the standard. What is
the standard that the Court used to apply to the judge in
question to determine that he was constitutionally required to
recuse himself? Was it not that the funder, by virtue of the
amount of funding that he put into the race, had a significant
and disproportionate influence on that judge occupying that
seat?
Professor Amar. That was part of the standard, if memory
serves. It is an opinion of Justice Kennedy, for whom Brett
Kavanaugh clerked. And there were about 40 different factors,
actually, that in the dissent by Chief Justice Roberts were
sort of identified as possible limiting considerations in that
case.
But you are absolutely right, Senator----
Senator Whitehouse. The standard was significant and
disproportionate influence in putting the judge into that seat.
Correct?
Professor Amar. It did involve a huge financial
contribution by a private person----
Senator Whitehouse. Correct.
Professor Amar. In a case that was already pending when--
when the person was running for the State Supreme Court, a
pending case.
Senator Whitehouse. Correct.
Professor Amar. A huge financial contribution by a private
individual.
Senator Whitehouse. And in this case, you have a pending
criminal investigation, and you have somebody who has done a
good deal more than put $3 million toward getting that judge in
the seat. He has actually 100 percent put that judge in the
seat. Do you not see that there is any potential relevance
between the Caperton decision and the decision that Judge
Kavanaugh would face, if confirmed?
Professor Amar. May I answer? Thank you, Mr. Chair.
So it is not 100 percent. That is what this body actually
is about. Presidents do not put people on the Supreme Court.
And if you have any concern whatsoever that any promise of any
sort was made to the President or anyone in the White House
about this litigation, I would say you should vote no because
promises are improper.
There is another relevant precedent on judicial recusal,
and to repeat, when that case comes before the Supreme Court,
were Justice Kavanaugh to be on it, he is going to have to make
that decision, as is everyone else. I just do not want him to
promise anything, one way or another as part of the process of
becoming Justice Kavanaugh.
That I start Con Law every year teaching Marbury v.
Madison, which, as you know, actually has a really interesting
recusal question, arguably, in it, because John Adams, at the
very end of his administration, is putting his Secretary of
State, John Marshall, on the Court. And then the case comes
before the now-Chief Justice John Marshall, and there is a real
question whether he should have recused himself.
I believe he should have, but that is because he had
firsthand knowledge of adjudicative facts of the case, but not
merely because he happened to have been picked by one
President. Because all Justices are picked by one President or
another one and confirmed by a Senate.
So it is actually the first question we do, in Marbury v.
Madison, is the judicial ethics recusal question, and I do not
think it is a sufficient basis for recusal just that you happen
to have been nominated by a President who happens to be
implicated in a litigation. That might not be enough.
Senator Tillis. Senator Feinstein will be recognized for a
correction of the record.
Senator Feinstein. Thank you. I appreciate this, Mr.
Chairman, because I apparently misspoke.
It is the estimates of the number of illegal abortions in
the 1950s and 1960s that range from 200,000 to 1.2 million per
year. I said deaths. That is not correct.
Senator Tillis. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Mr. Olson, you have been at the center of the DC legal
community for decades. What is Judge Kavanaugh's reputation
among the lawyers you know? How is he--how is he thought of and
regarded?
Mr. Olson. I do not know of anyone in the judiciary or in
the legal profession in Washington, DC, or anywhere around that
who is respected more than Judge Kavanaugh. Now there are other
judges, of course, who have a reputation which is very, very
high. The D.C. Circuit on which Judge Kavanaugh sits is
populated by very, very talented, very fair judges, many of
whom could be perfectly well qualified to be on the Supreme
Court.
But my experience with respect to Judge Kavanaugh, it would
be hard to describe someone with a greater reputation.
Senator Hatch. Well, thank you. You have appeared before
Judge Kavanaugh in court many times. What kind of a judge is
he? What type of a judge is he during oral argument?
Mr. Olson. He is very attentive, like other colleagues on
that court. As I said, this is a very, very fine court. But my
experience has been that he has not only read the briefs, but
he understands the history that brings the case to the court.
He is very, very thoughtful. He asks very hard questions of
the litigants, no matter which side you are on, very
perceptive. The sort of thing that you experience in the United
States Supreme Court, where the Justices are probing the
strengths and weaknesses of your case and an advocate has to be
ready to answer those hard questions.
Judge Kavanaugh asks those hard questions, and you cannot
tell from his questions where he is going to come out in a
case. He is looking for information and analysis and input from
the advocate. That is what a good advocate hopes for in a good
judge.
Senator Hatch. Well, thank you.
Professor Amar, what are the most important qualities you
think Senators should look for in a potential Supreme Court
Justice, and why should people from both sides of the political
aisle, Republicans and Democrats, support Judge Kavanaugh's
nomination?
Professor Amar. Senator, I did--I do believe that the most
important job of the Supreme Court is constitutional
interpretation and implementation. It does other things, but
that is the most important. And Constitution does not define
itself. It requires a lot of careful study, and I just thought
that Judge Kavanaugh, more than any other sitting Federal
judge, Republican Federal judge under age 60, has studied it
with more care and scholarliness and consistency and range.
He is read very widely. I refer you to the very interesting
exchanges he had with Senator Lee, for example, about the
Federalist Papers. How many people would know Federalist 37 and
39? Maybe 10, maybe 78.
So, but in answer to--Senator Cruz asked me a question, and
I should have said one other thing. It is not just that I think
he will be good on his own on the Court. It is that I think he
will actually help bring out the best in others. I think it is
a small group, and when I think about the one-on-one
interactions and the collegial interactions, I see him as
exceptional.
And the final thing that I really do want my fellow
liberals and Democrats to hear is I believe he actually is
likely to be better than many are saying, even on this panel,
on things like voting rights, on congressional power to
implement the reconstruction amendments. Many originalists do
not pay enough attention to the amendments, to the women's
suffrage amendment, to the reconstruction amendments.
And when I read what Judge Kavanaugh has written, both on
the bench, including a voting rights case that I actually think
was an impressive opinion, and I contrast that to Shelby
County, for example, which I think was the worst decision of
the last 20 years, in fact, 15 years, I actually am optimistic
about Judge Kavanaugh as someone who will very seriously take
the vision of the reconstruction generation and the women's
suffrage generation alongside the founding generation.
Senator Hatch. Well, I want to compliment this whole panel.
It has been an excellent panel. You folks are really helping us
here on the Committee with your testimony from every one of you
on the panel. So I am proud of you, appreciate you, and it is
one reason why this system does work better.
Thanks, Mr. Chairman.
Senator Tillis. Senator Coons.
Senator Coons. Thank you, Chairman Tillis.
Congressman Richmond, welcome. I just wanted to follow up
on the line of conversation with Professor Amar. Do you think
Judge Kavanaugh is the right nominee to replace Justice
Kennedy, particularly given Kennedy's critical voice and vote
in Fisher v. University of Texas, where the Supreme Court
upheld UT's race conscious admission policies and given Judge
Kavanaugh's decisional record?
Representative Richmond. No, and that is a very real
concern. Look, the question has been asked now very
consistently about affirmative action, whether it is in the
Bakke case or other cases about whether it is still necessary,
and I will just say this. And we will take it out of legalese
for a minute and just take it to plain, old physics.
If a ball is rolling down the hill, the only way to stop it
is to apply equal and opposite force. And the ball of racism
and discrimination in this country rolled down hills for
centuries, and the only way to stop it is an opposite, but
equal force. And that is what affirmative action and that is
what those cases mean.
And if you look at some of the decisions and if you look at
Scalia's comments in the last case, he actually questioned the
intellect of African Americans and their ability to succeed at
a prestigious university. So, when you couple the other
Justices and their opinions with Kavanaugh's record, that is
what leads to the real concern about where we are going to go
with affirmative action, race-based factors in admissions, and
others.
Senator Coons. Thank you, Congressman.
Ms. Baker, thank you for both your testimony and your
witness today. And thank you for bringing forward what is a
challenging and very personal fact pattern.
I just want to make sure I heard right. In some ways, I
think for you the most shocking thing and the most upsetting
thing was a decision that chooses the religious liberty
interest of your employer, a company really--nonprofit, but a
company--their views on what contraception you should be able
to access versus your views about what you ought to be able to
do in preparing for marriage and preparing for parenthood.
Is that what sort of stuck most? As I understood your
testimony today, that really in particular struck you as just
baffling, that the religious liberty interest of a company
ended up trumping yours?
Ms. Baker. Yes, absolutely. That is something that has
stuck with me throughout the whole process.
Senator Coons. Thank you.
Professor Murray, I thought you did a particularly powerful
job of explicating the range of ways in which Judge Kavanaugh's
writing and opinions caused some hesitation or concern. It is
in Priests for Life, in his dissent, that he was particularly
clear about his view that the complicity of a corporation in
being forced to check a box should outweigh the liberty
interest of a real, live, breathing person.
Can you just comment on why that tension might strike you
as novel or why, given Hobby Lobby, you might see this as a
very difficult, long-term trend line in this Court, should
Judge Kavanaugh be confirmed?
Professor Murray. Thank you, Senator.
There are a number of troubling messages that Judge
Kavanaugh evinces in that dissent in Priests for Life. The
first that strikes me is exactly the concern that Ms. Baker
related. The Supreme Court has said in Eisenstadt v. Baird,
decided in 1972, the year before Roe v. Wade, that the right of
privacy, if it means anything, it is the right of the
individual, whether married or unmarried, to make a decision so
fundamentally affecting the person as whether to bear or beget
a child. The decision about what kind of contraception a person
uses is certainly wrapped up in that, and the Supreme Court has
acknowledged it.
In the Hobby Lobby case, five Justices of the Court said
that ensuring access to contraception was a compelling
governmental interest. What we saw in Priests for Life is that
Judge Kavanaugh would defer substantially to the wishes of an
employer to--based on the employer's religious beliefs and the
employer's faulty understanding of the accommodations process,
to deny an individual like Ms. Baker, who has made a reasonable
contemplative choice about what is best for her and her family,
and instead defer to the wishes of the employer. And that is
deeply concerning.
Senator Coons. Chairman, one last question, if I might?
Professor, just to continue, I do not know if you got to
see my line of questioning of Judge Kavanaugh I think fairly
late last night about the Glucksberg test. He said all roads
lead through Glucksberg, and I went through a line of
examination with him about whether or not if that test, deeply
rooted in this Nation's legal history and tradition, if that
had been applied, whether the outcome would have been the same
in a whole range of cases relating to marriage, to intimacy, to
access to contraception.
And as Justice Kennedy wrote, I think importantly, in
Obergefell, if rights were defined by who exercised them in the
past, then received practices could serve as their own
continued justification and new groups could not invoke rights
once denied. Are you concerned that Judge Kavanaugh might
depart from Justice Kennedy's vital jurisprudence in
substantive due process and that that might have a real impact
on how justice is dispensed in these areas going forward?
Professor Murray. I think it is clear from Judge
Kavanaugh's judicial record, Senators, that he is not a jurist
in the mold of Justice Kennedy, who frequently upheld these
precedents like Whole Woman's Health, like Planned Parenthood
v. Casey, in his writings. Judge Kavanaugh, in these decisions,
has evinced a crabbed and narrow understanding of the right to
liberty.
The right to liberty that is enumerated in the Constitution
is not fossilized in amber. It has changed over time to admit
individuals who would not have been contemplated within the
body of the people at the time of the founding or even just as
the reconstruction amendments were being ratified.
So decisions like the right to marry have evolved. We did
not have a situation where individuals who wished to marry a
person of the same sex could do so until just 2015. These
decisions are all imperiled by a Justice who would follow
history and tradition unfailingly toward his outcome.
Senator Coons. Thank you. I have many more questions, but I
am out of time.
Thank you, Mr. Chairman.
Senator Tillis. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thanks to all of you
for being with us today.
Mr. Olson, I would like to start with you. Your name has
been used a lot this week in our proceedings, not necessarily
with your whole name, but your last name has made many
appearances with a lot of references to Morrison v. Olson. I
was wondering if you could just tell us briefly a little bit
about your experience with that case?
Mr. Olson. Well, the Morrison v. Olson case, as everybody
on this Committee knows, involved the constitutionality of the
independent counsel statute under a statute that required the
appointment of an independent counsel by members of the
judiciary, prevented the removal of the independent counsel
except under very narrow circumstances.
The constitutionality was challenged in the United States
Supreme Court in a case that I think of as the Morrison case,
but other people refer to as Morrison v. Olson. And the Supreme
Court upheld the constitutionality of that case on a 7-to-1
vote, with, in my judgment, a very, very persuasive dissenting
opinion by Justice Scalia.
Over time, I have heard from a number of people in the
academic world, the legal academic world, that Justice Scalia's
opinion dissenting in that case, which was--he has described
as--he did describe as one of his most important contributions
to jurisprudence, has received much more favorable attention
over the years.
The importance of it is separation of powers and the extent
to which power vested by Article II of the Constitution in the
President shall be reserved to execution by the President or
whether it shall be taken from the President and given to other
individuals who are not accountable to the electorate through
the electoral process. And, of course, I could go on and on,
but I do not think you want me to do that. It is an important
case, and it may be revisited someday.
Senator Lee. And you raise a great point. In that respect,
judicial independence, somebody's willingness to stand out,
stand alone, at times dissenting or perhaps concurring in the
absence of additional support, can end up having a big
influence, as Justice Scalia's dissent in Morrison v. Olson
made clear. Or in the case of, for example, Justice Jackson's
concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer.
Over time, they acquired more meaning.
Ms. Sinzdak, I wanted to talk to you a little about your
class with Judge Kavanaugh. What was that like, and I noticed
that you mentioned INS v. Chadha as something that he got you
excited about. How did he get the class excited about Chadha?
Ms. Sinzdak. Well, I think it is naturally an exciting
case.
Senator Lee. I tend to agree, but I have met exactly five
people on planet Earth who agree with me there.
Ms. Sinzdak. Well, I mean, I think part of it was that he
would, as I mentioned briefly in my remarks, open class talking
about current events. So he was very much about contextualizing
separation of powers issues as they were affecting the real
world, which kind of took what is a lengthy, but scintillating
opinion and kind of put it in--so it was about putting it in a
practical context of thinking about the legislative versus the
Executive power.
Senator Lee. Great. Thank you.
Professor Amar, I cannot resist the opportunity to talk to
you about Hugo Black. You mentioned Hugo Black as someone you
admire, someone you would look to. And yet he is someone who
has offered a number of opinions I assume you would disagree
with, author of Korematsu, for example.
Tell me about your affinity for Justice Black.
Professor Amar. Justice Black always carried a copy of the
Constitution around with him, and I was charmed when Brett
Kavanaugh pulled his out, and it looked pretty well worn to me
as if he had maybe looked at it a time or two. Justice Black
reminds us that you do not have to have gone to a fancy law
school to be one of the greats. I know it has been a concern
for some.
They think, oh, it is just Professor Amar just likes the
fellow because it is an Ivy League club or something. You come
to my office and you see in my office Abe Lincoln, two pictures
of Abe Lincoln, and he is a guy who had less than a year's
formal education in his whole life. And Hugo Black did not go
to a fancy law school. He came from the South land. He was
actually underestimated, I think, in part because of that.
There is a very interesting piece about country lawyering
in The New York Times by just an op-ed yesterday about how
folks who sometimes come from the South, and/or speak a
slightly different way, are underestimated by fancy-pants,
Yankee Ivy League types.
So, Hugo Black actually--and he is a Southerner who
really--a Southern White person who really understood the
reconstruction amendments. He was there in Brown v. Board of
Education, and the people from his hometown did not like what
he did in Brown v. Board of Education. He championed
incorporation of the Bill of Rights against the States. He
championed the right of even indigents in Gideon v. Wainwright.
But long before that, in a case called Johnson v. Zerbst,
indigents to have counsel, he was the driving intellectual
force of the Warren Court, saying all sorts of things before
Warren and Brennan got on the Court. And this body might be
interested just from the fact that he was a former Senator
turned Justice, and we do not have so many of those right now,
but maybe in the future we will. And it is a reminder that you
do want all sorts of diversity on your Court. And it really is
an issue maybe if they are all coming as Federal court of
appeals judges from a few schools. That is a genuine concern to
think about.
Senator Lee. Thank you very much, Professor.
Thank you, Mr. Chairman.
Senator Tillis. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
Thank you all for being here. This panel really is
extraordinary, some really powerful advocates.
Thank you, Congressman Richmond, for your standing so
strong in a dark and dangerous time for our democracy. When the
history of this era is written, my view is that the heroes will
be our independent judiciary and our free press, and I would
like to ask you, Mr. Olson--by the way, in the interest of full
disclosure, you and I argued before the Supreme Court together.
You may not remember it because it was 1 of 63 for you, but it
was 1 of 4 for me.
Mr. Olson. I remember it very well, Senator.
Senator Blumenthal. Thank you. And we won 9-to-0 in
upholding the sex offender registry case.
Mr. Olson. Correct.
Senator Blumenthal. I am deeply troubled by the attacks on
our judiciary and most especially from the President of the
United States. You are absolutely right when you say, and I am
quoting you, ``Our courts are the envy of the world. They
depend on the faith and confidence of the public.'' Courts do
not command armies or police forces, and the President's
attacks on the courts undermine that credibility.
And so I asked yesterday, Judge Kavanaugh, about some of
those attacks, and I was disappointed in his responses. He
would not even go as far as Neil Gorsuch did, now Justice
Gorsuch, in saying that attacks on the judiciary are
disheartening and demoralizing. I also cited to him some
remarks made by President Trump about Justice Ginsburg, saying
``Her mind is shot, resign. We are all embarrassed by her.''
Do you not think that Judge Kavanaugh and members of our
judiciary and all of us have an obligation to stand strong
against these kinds of attacks?
Mr. Olson. I can only speak for myself. I have the greatest
respect for our judiciary in this country. I meant what I said.
It is the envy of the world.
It is the envy of the world in part because very, very fine
people are put on our courts, and our judges and Justices
exercise independence from the appointing authority and from
everything in their backgrounds. They make independent
decisions based upon individual cases. I deplore statements
criticizing the integrity or intelligence of members of our
judiciary across the board.
As far as Justice Ginsburg is concerned, I have to say that
she is someone that I have the hugest respect for. She is a
hero in this country, a warrior. She has stood for many, many
great things. She argued cases in the Supreme Court that broke
ground on behalf of women and on behalf of all of us, and I
respect her.
I have argued before her. I lost a very significant case
involving the Virginia Military Institute, which she decided. I
was representing the State, the Commonwealth of Virginia. She
is an extraordinarily talented, able person. She remains so to
this day.
Senator Blumenthal. Thank you.
Ms. Garza, when Judge Kavanaugh came before our Committee
and I asked him about the real world consequences of the delay,
he characterized it as simply a delay in your client being able
to terminate her pregnancy. I wonder if you could describe for
us what the consequences were and whether those consequences
were apparent in the record so that they would have been known
to a member of the Court.
And I want to thank you, by the way, for the great work
that you are doing in Brownsville. I visited Brownsville. I
know what you are doing to try to prevent separation of
children from families and passports being taken away from
American citizens and some of the other cruel and inhumane
practices going on there.
But if you could talk to us about some of those
consequences, I would appreciate it.
Ms. Garza. Thank you for your question.
Well, I had to see Jane go through all of it. Delaying her
further, she had already been delayed at that point for many
weeks. You know, the coercion tactics, the pressure, and she
never once wavered, never once. And this could have affected
her. She could have been forced to have a child against her
will. So that was----
Senator Blumenthal. She had to have a surgical procedure,
did she not, instead of having other options?
Ms. Garza. The medical abortion. Yes. She had the option to
do a medical abortion early on, but because she was delayed and
constantly week after week, she had to have a surgical
abortion.
Senator Blumenthal. And were health risks----
Ms. Garza. And the health--yes, and the health risks
increased as she was being pushed further into her pregnancy.
Senator Blumenthal. My time is expired. Thank you.
I have a lot more questions. This is a great panel, and I
want to thank all of you for being here today.
Thank you.
Senator Tillis. Senator Booker.
Senator Booker. Thank you very much.
So, first, I just want to ask a couple things because I was
confused by some of the very--I guess very pointed language.
So, Professor Murray, I would like to start with you, if I can?
You were mentioning the standards that were not applied in
the Garza case. And I pulled the two cases you mentioned,
Bellotti, which discusses striking down a parental consent
statute as unconstitutionally burdensome. So why would not a
judge that sticks to precedent stick to this case? I do not
understand that.
Professor Murray. It is also something I do not understand,
Senator. The Bellotti case is directly on point with the facts
of the Garza case. Jane Doe had completed the required judicial
bypass, which under Bellotti is an alternative to securing
parental consent. And yet, despite her having done that, Judge
Kavanaugh, in his decision before the three-judge panel and
again in his dissent, reiterated the need for a sponsor, right,
someone, a support network to aid her in making this decision,
adding additional delay, something----
Senator Booker. But I heard--can you try to put yourself in
the shoes of the Judge? What excuse could he possibly have?
There is a lot of bragging going on here that when it came to
abortion cases or anything, that he would follow precedent. I
just--I really sincerely do not understand how this was the
binding precedent of the Court about undue burden. The story we
heard was gut-wrenching about what this individual had to go
through, gut-wrenching.
And there was a clear burden, right? The more you waited,
the more of a burden was being put on this person. I just--can
you really help me understand this?
Professor Murray. Well, during his testimony before this
body, Judge Kavanaugh said that his insistence on Jane Doe
having a sponsor was because she was a minor. She was alone in
this country, and he viewed it as sort of a proxy for parental
consent.
But again, I go back to the precedent. The Supreme Court--
--
Senator Booker. Well, a proxy for parental consent. But
again, I heard in the testimony from Ms. Garza here that she
was--is it true that you were the appointed guardian?
Ms. Garza. Yes, I was her guardian ad litem.
Senator Booker. Right. And so that, to me, just does not
hold water.
Professor Murray. In addition to precedent upon precedent,
there were guardians upon guardians. She had a guardian ad
litem. She had gone through the judicial bypass process. A
judge in Texas had made the determination that an abortion was
in her best interest, that she wanted the procedure. And
nonetheless, ORR refused to let her leave Federal custody.
And then Judge Kavanaugh compounded that injury by refusing
to allow her to have the abortion, instead insisting that she
have a sponsor, adding an additional 11 days to the delay.
Senator Booker. And so just real quick, the other case you
mentioned, this Whole Woman's Health case, is again about
weighing certain standards. Correct?
Professor Murray. It is about weighing burdens and
benefits, and again, Judge Kavanaugh made no mention of that.
He made no mention of the burdens of an additional delay. And
Ms. Garza has spoken movingly about the difference between
seeking a medication abortion versus a surgical abortion, which
admits additional risk to the woman.
Senator Booker. Right. So this fiction that somehow--and
what did you think of it when he used--and maybe, Ms. Garza, I
can ask you, what did you think of it when he used this
language like ``abortion on demand.'' All the things, Ms.
Garza, that you just outlined to us does not sound like
abortion on demand. It sounds like you are signaling something
to a whole bunch of folks so you can get yourself on a list so
that you can be considered for the Supreme Court. Would you
agree with that?
Ms. Garza. Yes. Simply yes.
Senator Booker. Why use that term? Why use that term?
Ms. Garza. I do not understand what ``abortion on demand''
means because that was not the situation for Jane. I mean, she
was one of the most vulnerable people in our community, one of
the most vulnerable human beings. She was an immigrant. She did
not speak English. She was in detention, and she was being put
under extreme pressure.
And I felt it was unfortunate that Judge Kavanaugh did not
take that into consideration.
Senator Booker. So I just want to say this is like a
fiction that is being presented to us, that somehow there was
not an agenda here by this judge to try out for the Supreme
Court to a President that promised his supporters I am going to
put somebody on there that is going to overturn Roe.
Cedric, real quick, you said that equal and opposite force
rolling down when it comes to racism, you were not saying that
we should have racism against another group or bigotry toward
other people. You are talking about equal and opposite force, a
positive force for justice, force of life, right?
Representative Richmond. Yes, exactly. And it was mentioned
today all of the economic improvements in the last 2 years. But
what we have not talked about is the increased intolerance,
racial intolerance over the last couple of years.
When we grew up, Senator Booker, it was well known about
racial profiling and driving while Black and that you could be
stopped. But it has gone to another level now. Now it is just
living while Black. So whether you are studying at Yale,
whether you are sitting in Starbucks, whether you are leaving
an Airbnb that you purchased, all of a sudden, just being
African-American makes you a criminal suspect. And that has
happened since this President was sworn into office. So----
Senator Booker. And I just want to get you on the record
because we are going to use your words. But you believe you
deal with that issue by pursuing justice, not by pushing
anybody down.
Representative Richmond. No.
Senator Booker. It is just by trying to elevate folks up as
a matter of justice.
Representative Richmond. Yes.
Senator Booker. I just want to say to the Chair, I have one
more question. It is going to be mean. It is going to be a mean
question. So please do not interrupt me, though. Let me get it
out. And say ``potato, potato'' to you, but this is going to be
mean. Let me get it out.
Akhil Amar, sir, Mr. Professor, I have one question for
you. My final question: In your Con Law class, do you regret
passing me?
[Laughter.]
Professor Amar. You have a right to remain silent.
Senator Booker. You are under oath.
Professor Amar. I think the only thing that I ever did to
my Wikipedia page was add your name as one of my former notable
students because I am so proud to be associated with you, even
if we disagree on this issue, as we may very well.
Senator Booker. Thank you, sir. Thank you very much.
Senator Tillis. Senator Harris.
Senator Harris. Thank you.
A conversation has come up--Congressman Richmond, I want to
ask you a question. But a conversation has come up during this
process that leads me to believe that there have been certain
dog whistles that have been offered by this nominee, especially
in recent years. ``Abortion on demand'' being one of them.
Another being a term that he used, Congressman Richmond, in
a Wall Street Journal op-ed that I asked him about, and the
term is ``racial spoils system.'' And he referred to a racial
spoils system, it was in reference to a Hawaiian case and the
Office of Hawaiian Affairs. But I asked him about the meaning
of that term and what did he mean when he used that term twice.
And he told me, ``I am not sure what I was referring to, to
be entirely frank,'' when I asked him what did he mean by using
that term. And I explained to him that it is a loaded term, and
I would like for you to share with the Committee what you
understand that term to mean and how it has been used, based on
your experience.
Representative Richmond. Well, I will tell you that it is a
very common dog whistle, especially in the South, where you are
pitting--and I will just be as frank as I can.
Senator Harris. Please do.
Representative Richmond. You are pitting poor White people
against poor Black people, and your justification to poor White
people is that the reason why you are poor is because
minorities are scooping up all of the benefits that should be
going to you.
And this country is better than that. First of all, it is
not true. But second, those programs and those things that I
think that he refers to are righting that very wrong history in
this country. But just the use of the term is what we see far
too often today, which is the dog whistle. It is not even a dog
whistle anymore, it is just blatant pandering to a base of
people. And I believe that it is a lot more significant than
even you would address.
But think of that in the case of race-based factors in
admissions, which will come back before the Court because this
Justice Department is investigating Harvard right now. So what
does that mean for minorities that are applying to prestigious
universities or universities all around the country? And that
is why it is such a concern.
Senator Harris. And to emphasize your point, Congressman,
and I actually mentioned this earlier in this process, the
Judge has been lauded for the amount of thought that he puts
into his writings and the words that he speaks. And the fact
that he would use such a loaded term and said he did not
understand what it meant was troubling to me as well.
Professor Murray, even if a Justice Kavanaugh does not vote
outright to overrule Roe, how else could he undermine a woman's
right to make decisions about her healthcare? What other types
of scenarios might come before the Court short of overruling
Roe that could impede a woman's access to reproductive
healthcare or to an abortion?
Professor Murray. As I said in my opening statement, it is
not just the threat of overruling Roe, but incrementally
gutting its protections through a death by 1,000 cuts. And
there are at least over 10 cases currently pending at the lower
Federal courts that all concern restrictions on the methods of
abortion that may be used.
Senator Harris. So if you will, can you break down for the
American public that is watching this hearing so that you can
speak to those people who are watching the hearing about the
things that they are familiar with that could be impacted short
of a Justice Kavanaugh overruling Roe.
Professor Murray. Certainly. The restrictions that are
pending throughout the States, and as I said, there have been
over 400 laws passed since 2011. These laws would increase wait
times to obtain reproductive care like an abortion. They would
eliminate certain methods of abortion, like the dilation and
evacuation procedure, which is the safest procedure according
to doctors for safely evacuating a fetus from the womb.
They would also do things like require doctors to tell
their patients falsehoods about the abortion procedure, that it
leads to suicidal ideation or that it leads to breast cancer.
These have all been disproven by science. A number of these
laws have been passed. Many of these laws have been challenged
and those cases are pending, and certainly, there will be a
case that may percolate and make its way to the Supreme Court.
And if Justice Kavanaugh is on the Bench, he will be in a
position to decide.
Senator Harris. And to emphasize your point, all of these
things could happen short of him overruling Roe if he were the
deciding Justice on that case?
Professor Murray. Again, we can make the protections of Roe
utterly meaningless for millions of ordinary women in America
by simply making this procedure inaccessible, by putting it out
of reach, by making it impossible, by making women drive
hundreds of miles to obtain abortion care, by making them wait
hours, making them leave their jobs, leave their families in
order to access care that is their constitutional right.
Senator Harris. Thank you.
Mr. Chairman, I have a document that I would ask be added
to the record and ask for consent for that. It is from Demos
regarding this nomination. Demos is a public policy
organization working for both political and economic equality
for all Americans. And the report is in opposition to Judge
Kavanaugh's confirmation based on concerns that his
confirmation would threaten equal justice for people of color
and the future of racial equity.
Senator Tillis. Without objection.
[The information appears as a submission for the record.]
Senator Harris. Thank you.
Senator Tillis. Senator Coons.
Senator Booker. Mr. Chairman, I am sorry. I just--I forgot
to put into--or I ask unanimous consent that a letter from the
National Latina Institute for Reproductive Health in opposition
to Judge Kavanaugh's nomination also be entered into the
record.
Senator Tillis. Without objection.
[The information appears as a submission for the record.]
Senator Tillis. Senator Coons.
Senator Coons. Thank you, Chairman Tillis.
I, too, would like--would ask unanimous consent that a
letter be entered into the record from the Leadership
Conference on Civil and Human Rights. This letter expresses
strong opposition to Judge Kavanaugh's nomination on behalf of
180 different organizations involved in civil rights and human
rights.
Senator Tillis. Without objection.
[The information appears as a submission for the record.]
Senator Tillis. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman.
Ms. Weintraub, can you talk about the dangers you see for
Americans with disabilities and their civil rights if Judge
Kavanaugh is confirmed to the Supreme Court?
Ms. Weintraub. Yes, thank you, Senator.
Senator Hirono. Hirono.
Ms. Weintraub. Yes.
Senator Hirono. Even the Chairman has problems pronouncing
my name.
[Laughter.]
Ms. Weintraub. Well, anyway, I see as the issue about the
Doe case, these are three women with intellectual disability,
first in regard to myself and my friends, and we--they were not
asked what they wanted to do nor personal decisions around
their body, and we all deserve the right to make decisions.
And yes, these women, they may not understand about these
issues, but that is why we bring our friends. I would never go
into a doctor's office myself. I would take my husband. I would
take my supporters. I can tell you that, and it was in my
written testimony.
I just was diagnosed with diabetes, and I brought in my
husband. And we did not understand. As I told you, my husband
also has a disability, and both of us did not understand. So we
asked my sister to help us to understand these issues.
So what I am saying is that, ``Nothing about us without
us.'' We need to be told. We need to be involved in these
decisions. And Judge Kavanaugh took that away from us.
Thank you.
Senator Hirono. Thank you.
There have been a lot of questions raised about Garza, and
Judge Kavanaugh testified that--this is for Professor Murray
and Ms. Garza. He testified that he viewed Garza as a parental
consent case, but that was not a parental consent case. Would
you agree, both of you?
Professor Murray. It was not a parental consent case. The
judicial bypass procedure had been followed and was in lieu of
parental consent.
Senator Hirono. So why would--I would characterize that as
a very obvious misstatement of the question before the court.
And when you get the issue wrong, you are likely to come up
with the wrong answer. So I think it was so fundamental that he
mischaracterized or misstated the issue. Would you agree with
that, both of you, Professor Murray and Ms. Garza?
Ms. Garza. I would agree with that for sure.
Senator Hirono. So we could sit here--would you agree with
that?
Professor Murray. Yes, I agree.
Senator Hirono. So we could sit here and talk about whether
there should have been time for the sponsor to be found and all
of that, but that only--that is totally irrelevant----
Professor Murray. That is correct. It is irrelevant.
Senator Hirono [continuing]. To what should have been the
real issue in this case, whether or not she should have the
right to abortion. So I think that is very troubling when
somebody who is about to be seated on the Supreme Court
mischaracterizes the question before the court.
Now I did want to ask you, Professor Murray, if you can
talk about the contradiction in Judge Kavanaugh's dissents in
Garza and Priests for Life because I believe that he really
wanted to reach a result in each case. They are different
cases, but nonetheless, though, they both have to do with a
woman's reproductive rights. And in the end, he denied the
women involved their reproductive rights, and I believe he
misapplied the facts to the law to get there.
So can you talk a bit about the contradiction in the
outcomes, the dissents in Garza and Priests for Life?
Professor Murray. Sure. I have spoken at length about Garza
and the way in which Judge Kavanaugh ignored existing
precedent, such as Bellotti v. Baird, such as Casey and its
undue burden standard, and Whole Woman's Health v. Hellerstedt,
which requires judges to weigh both the burdens and benefits of
a particular restriction.
In Priests for Life--again, I have also spoken about that
case--what we saw is such incredible deference to the employer
and the employer's religious beliefs and the employer's view
that doing something as simple as filling out a form to notify
the Government of its objections to providing the necessary
contraception is an impermissible burden on religious exercise.
That is just a broad deference that would be meaningful, as Ms.
Baker had testified, to many women.
Senator Hirono. So you found undue burden in the Garza case
and----
Professor Murray. Substantial----
Senator Hirono. So very--but what do you see is the
common----
Professor Murray. The common, the common element in all of
that is there is no burden that is too great for the woman.
There is a burden in Garza on Jane Doe, and in finding a
substantial burden on the religious exercise of the employers,
there is a burden in the absence of contraceptive coverage to
women like Ms. Baker.
Senator Hirono. I think that is why there are so many
people who are very concerned about Judge Kavanaugh being on
the Court because, as you said, there are hundreds and hundreds
of cases that States have passed that limit the woman's right
to choose. So for him to say that Roe v. Wade, even were he to
say that Roe v. Wade is settled law is of little comfort to
those of us who support women's reproductive choice.
Thank you.
Senator Tillis. Professor Amar----
[Disturbance in the hearing room.]
Senator Tillis. Professor Amar, welcome back to the
Committee. My colleague here, Senator Coons, and I were talking
about how much we enjoy your insights in spite of the fact that
you hate our Special Counsel bill, and we also agreed that we
are not going to allow you to talk about it because we would
have to extend the hearing for 2 hours, mainly because of
Senator Coons' commentary.
I wanted to ask you a question about Judge Kavanaugh and
his body of work, some 307 opinions. And could you--if you have
studied them, and I assume you have, can you give me any
insights into ones that you think best reflect his thought
process in arriving at an opinion?
Professor Amar. In the appendix to my testimony, I offer a
snippet from The Washington Post that I wrote about the PHH
case. I think it is the same one that Ted Olson discussed
involving the Consumer Financial Protection Bureau and its
structure. And what--Senator Klobuchar, I think, passingly
mentioned it also before she--in her remarks.
And what is impressive particularly about that case, it is
the only case by a court of appeals that I actually assigned my
students last year. I usually just give them Supreme Court
cases. And what is so impressive about--and this is long before
the nomination, of course--is it is trying to take seriously
the founding and founding principles and the role of the
President and the bureaucracy. The First Congress agreed that
Presidents could fire Cabinet officers at will. It is called
the Decision of 1789. It was very basic.
The Supreme Court has unanimously reaffirmed that. The
Supreme Court agreed with that in a very famous case called
Myers that was written by--beginning of the 20th century by
former President, Chief Justice Taft, and today's Supreme Court
takes it very seriously. And so, Judge Kavanaugh was confronted
with the Decision of 1789 that says Cabinet officers are
basically fireable at will, and yet we have all these
independent agencies--the Securities and Exchange Commission,
the Federal Communications Commission--whose members are not
removable at will, but only for good cause.
And I note you are saying, ooh, this is perilously close
to--but I am not going to talk about it, and I will not talk
about it. But, so, how are we going to take seriously the
founding, but also take seriously the 20th century with the
rise of independent agencies that have been affirmed again and
again and again by the Supreme Court? And I thought Judge
Kavanaugh came up with a beautiful synthesis of founding first
principles and respect for modern understandings and
institutions.
And I do predict that the Supreme Court, when the case
finally goes up, will perhaps embrace something very similar to
that approach, and he will fit in very well with John Roberts
on one side, maybe Elena Kagan will be part of that. She
understands Executive power also, with someone like Clarence
Thomas or--and some of the others on the other side.
So I think he will work for a Team of Nine, but he will
respect the founding a lot, but he also takes seriously modern
precedents and modern realities.
Senator Tillis. Thank you very much.
And thank you, everybody on the Committee.
Mr. Olson, the only comment I will make. Senator
Blumenthal, talking about 9-to-0 decision, I am not a Supreme
Court expert, but that is a pretty definitive opinion. Is that
right?
Mr. Olson. Absolutely.
Senator Tillis. I want to thank all those on the panel----
Senator Coons. I take--I take complete credit for it.
[Laughter.]
Senator Tillis. I want to thank you all on the panel. I
thought your opening testimony was outstanding, and with panels
this size, it is very difficult to direct questions to
everyone, but we do appreciate you all being here.
Congressman, thank you for your time and for your attention
throughout the entire hearing.
We are going to take a 30-minute recess for lunch. That
will give us time to transition to the next panel. So we will
return at 1:03 p.m.
We are in recess.
[Whereupon, at 12:32 p.m., the Committee was recessed.]
[Whereupon, at 1:06 p.m., the Committee reconvened.]
Chairman Grassley. Before I introduce the panel, if nobody
told you, that you push the red button before you speak.
Otherwise, we will not be able to hear you. So, the next panel
is followed by eight witnesses. Four are for the Majority and
four are selected by the Minority. We have a Mr. Kramer, Ms.
Eastmond, Ms. Taibleson, Mr. Corbin, Mr. Lachance, Ms. Mahoney,
Ms. Smith, and Mr. Christmas.
I would ask you at this point if you would stand, and I
would like to have you take an oath.
[Witnesses are sworn in.]
Chairman Grassley. Thank you all very much for responding.
Now I would like to say a little bit about each of you so
the public watching on television or anybody in the audience
knows. Aalayah Eastmond is a--let us see--I am going--yes,
okay, is a student. Oh, you know why I am--I should be starting
with Mr. Kramer.
A.J. Kramer is Federal Public Defender for the District of
Columbia, very important position. He has held the position
since the creation of the Office of Federal Public Defender for
the District of Columbia in 1991. Now, I do not know, but I
would bet you would be one of the longest-serving people in
that position any place in the country.
We have Aalayah Eastmond, a student from Parkland, Florida
and survivor of the very bad school shooting at Marjory
Stoneman Douglas High School. Quite a tragedy you went through,
and we will hear about it, I am sure.
Rebecca Taibleson served as law clerk for Judge Kavanaugh
from 2010 to 2011. Later clerked for Justice Scalia on the
Supreme Court and was an associate at Kirkland & Ellis. She
currently serves as Federal prosecutor in Iowa's neighboring
State of Wisconsin.
Jackson Corbin is a student from Hanover, Pennsylvania, and
that is all the information I have about you, but if you want
to tell us any more about you, we will not take it off of your
time that you have to speak to us.
Then we have Hunter Lachance, a student from Kennebunkport,
Maine.
And then we have Maureen Mahoney serving as Deputy
Solicitor General of the United States from 1991 to 1993. She
is a retired partner of Latham & Watkins.
Melissa Smith is a teacher at U.S. Grant High School,
Oklahoma City, Oklahoma.
Kenneth Christmas is executive vice president for business
and legal affairs, Marvista Entertainment. He is a 1991
graduate of Yale Law School, and you were a classmate of Judge
Kavanaugh.
So, I welcome all of you, and I think we will proceed with
Mr. Kramer, and then we will have our questioning.
STATEMENT OF A.J. KRAMER, FEDERAL PUBLIC DEFENDER, OFFICE OF
THE FEDERAL PUBLIC DEFENDER FOR THE
DISTRICT OF COLUMBIA, WASHINGTON, DC
Mr. Kramer. Thank you, Mr. Chairman, and Ranking Senator
Whitehouse. Thank you for the opportunity to speak today on
behalf of Judge Brett Kavanaugh's nomination to be a Justice of
the Supreme Court. I have been, as Chairman Grassley said, the
Federal Public Defender in Washington, DC, since 1990. Prior to
that, and I think all you meant was that I am old when you said
I am one of the longest. And there, I have worked in the
Federal Public Defender's Offices in Sacramento and San
Francisco before I came to Washington, DC, so I have spent my
entire legal career as a Federal Public Defender.
I do want to echo two things that were said by the prior
panel that I, too, was dismayed that Chief Judge Garland was
not confirmed for the Supreme Court because I think he would
have been a great Supreme Court Justice, and also Congressman
Richmond's remarks about race in the criminal justice system,
which I think still pervades the criminal justice. And I--so I
suppose you ask what I am doing here speaking on behalf of
Judge Kavanaugh, and I will tell you why.
I have two disclaimers I have to make. I speak only on my
behalf, not on behalf of our office here in Washington, DC, or
any other Federal Public Defender Office or the Federal Public
Defender system. And also, I have read essentially none of
Judge Kavanaugh's civil opinions, but I have read almost all of
his criminal opinions, and I have argued in front of him
numerous times, probably more than 20 times, in criminal cases.
And that is what I am here to talk about, his decisions in
criminal cases. And I have to just say that he is extremely
well prepared in oral argument. He asks the pertinent
questions. He asks them in an extremely nice manner. Not all
judges are like that, but he asks the most important questions
and zeroes in on the most important issues in the case.
I think I was asked to talk about a couple of cases that I
argued. One of them was a woman who was convicted of extortion,
testified extensively at her trial about how she had been
severely beaten by her boyfriend and forced into committing the
offense. And I took over the case after the trial proceedings
and argued that her lawyer had been ineffective for failing to
present expert testimony on battered women's syndrome. It went
up and down to the court of appeals and back, and Judge
Kavanaugh wrote the opinion for the court of appeals saying
that her lawyer had been ineffective for failing to retain an
expert on battered women's syndrome. And he wrote a primer
essentially on the defense of battered women's syndrome for
lawyers, and over a dissent of one of his colleagues.
In another case that I argued and tried, actually, it was a
terrible tragedy of a person in the military who had died after
a hazing incident involving a gang, and there were major issues
about jury instructions in closing argument. And the case was
reversed again in a 2-to-1 panel opinion, and Judge Kavanaugh
wrote a concurring opinion in that case talking about how
important it was that the jury be properly instructed on the
mens rea for the crime, and that while--while my client had
committed some heinous acts, he deserved to have a fair trial,
and the trial in this case had not been fair, and he wrote a
concurring opinion to emphasize that.
I should add that there are a number of other cases I have
argued and our office has argued where Judge Kavanaugh has been
protective of making sure that mens rea has been proved in
various cases, including a case called Burwell, where I was
appointed amicus by the court of appeals for an en banc
argument. Judge Kavanaugh was one of three judges that
dissented from the en banc that adopted the views that I put
forward.
He has also been a major advocate on the court of appeals
of writing about the bizarre situation where defendants who go
to trial and are acquitted of a number of counts in a case,
including a case where everybody was acquitted of all but one
count, but then they are sentenced for the conduct of which
they were acquitted. The Judge takes that all into account and
gives them a heavier sentence, which I should add that Congress
could end very quickly in a bill with a couple of sentences
telling judges they should not take account of acquitted
conduct. He has been a very--he has been very critical of that.
I should also add that I have served on two committees with
him, so I think the bottom line is, he has been extremely fair
in criminal cases where it might be assumed that he would just
reflexively affirm criminal cases. He has been extremely fair
and thoughtful is my experience. And I have also served on a
committee--two committees with him, one of whom provides for
CJA lawyers, Criminal Justice Act lawyers. His concern has
always been to provide the most effective lawyers for
defendants and the highest quality.
And I just want to end with one thing. He sends me emails
occasionally talking about how he likes the good job that our
office does in defending criminal defendants and our clients.
And he sent me an email totally unsolicited, quoting the Chief
Justice's dissent in a forfeiture case, and he said, ``Federal
prosecutors when they rise in court represent the people of the
United States, but so do defense lawyers one at a time.'' And
Judge Kavanaugh sent that to me, that quote, and said, ``That
is a nice line that summarizes what you and your office do so
well.''
So, all of that is why I am here to support the nomination
of Judge Kavanaugh for the Supreme Court.
[The prepared statement of Mr. Kramer appears as a
submission for the record.]
Chairman Grassley. Thank you.
STATEMENT OF AALAYAH EASTMOND, PARKLAND, FLORIDA
Ms. Eastmond. Chairman Grassley, Ranking Member Feinstein,
and other Members of the Committee, thank you for the
opportunity to be here today to share my experience and
perspectives on gun violence in America. It needs to be a
critical part of your consideration for any judge, particularly
for the highest court in the land. My view is significantly
impacted by my experience as a survivor of gun violence at
Marjory Stoneman Douglas High School in Parkland, Florida just
6 months ago, and also losing my uncle, Patrick Edwards, 15
years ago in Brooklyn, New York.
My name is Aalayah Eastmond, a senior at Marjory Stoneman
Douglas High School in Parkland, Florida. I work across the
country to help amplify the voices of young people, and
particularly young people in communities of color whose day-to-
day experience with gun violence is always ignored,
mischaracterized, marginalized, and minimized by the press, the
public, and the corporate gun lobby.
1:02: February 14th, fourth period, Holocaust history. My
last period of the day. The classroom door was locked today
because of the new procedures. In the beginning of the period,
we began presenting our hate group projects that we have been
working on. Nicholas Dworet was in my group. Little did I know,
79 minutes from then he would be saving my life.
2:21: We heard a round of extremely loud pops. We had no
idea what it was or where it was coming from. The class was in
complete silence, and we all stared at each other in immediate
fear. Within seconds we heard it again. We all immediately ran.
The class split in half. Half of my class ran to the safe spot,
which was out of view from the window that was in the classroom
door. The other half was diagonally across from the window in
complete view. I was not in the safe spot. As I sat down, I
remember telling myself if I were to get shot anywhere, I
wouldn't make it. I needed to get behind something. The only
thing in front of me was Nicholas Dworet. Helena Ramsay began
passing books down so we can shield ourselves from the bullets,
but yet everyone thought it was a drill.
2:22: I clenched the book from Helena and then looked down
at my phone to call my mother. As I raised my finger to hit the
green call button, the loud pops were now in my class. I
thought to myself, what kind of senior prank is this? As I
began to see red on the floor, I assumed it was a paintball
gun. I looked up and saw Helena Ramsay slumped over with her
back against the wall. I began smelling and inhaling the smoke
and gun powder. Then Nicholas Dworet rapidly fell over in front
of me. I followed every movement of his body. When he fell
over, I fell over with him. I then placed myself underneath his
lifeless body, placing his arm across my body and my head
underneath his back.
Bullets continued flying. I kept my eyes on the ground so I
knew when to hold my breath and close my eyes when the shooter
got near. I began talking to God. I told God that I knew I was
going to die. I asked Him please make it fast. I did not want
to feel anything. I asked for the bullet to go through my head
so I would not endure any pain. I laid there for about 30
seconds still protected by his lifeless body, waiting for the
shooter to move onto the next class.
After the shooting stopped in my class, his body began to
be very heavy. I couldn't breathe anymore. I rolled him off of
me and placed his head on his arm so he would not be touching
the cold ground. I sat up and looked over. Helena was still in
the same exact position I last saw her. I froze, still in
absolute view of the window--of the window the shooter shot
into. Two of my classmates then pulled me behind a filing
cabinet. We were all crammed, some on the phone with 9-1-1,
some on the phone with their parents.
I immediately called my mom. I told her my last goodbyes. I
told her how much I loved her. I apologized for all the things
I might have done in my lifetime to upset her, and then the
phone hung up. I then called my father, I told him how much I
loved him. I told him to tell my brothers I love them, and I
said my last goodbyes. I could not hear anything they were
saying to me, but I made sure they could hear me. Not knowing
whether it was one shooter or multiple, and not knowing whether
they were coming back or not was an unimaginable amount of
fear, sitting behind the filing cabinet waiting to die. I began
hyperventilating. My classmates began breathing with me and
trying to keep me calm and quiet. It did not work. They then
covered my face. I felt like I was suffocating but it was to
keep me quiet.
2:30: Broward County Police Department was heard from
outside the shattered glass. I thought it was the shooter
playing a trick. Then a SWAT team member came to check the
pulse of Helena and Nicholas. He then looked at me with
compassion and said, ``I know.'' We all ran out passing bodies
in the hallway on the way out. When I got outside, I was
completely disoriented. The police then said, ``He is still on
the loose guys, we need you to work with us.'' I was petrified.
4:00: I finally found my friend and her mother. They
noticed the unimaginable. They called the police over, and they
began picking body matter from my hair. I completely broke
down. The police took me back on campus to gather photos of me
and collect my bloodied dress. They placed me in a chemical
suit meant for chemical and biological exposure, then recorded
my statement.
9:30: At the Marriott Hotel, I was finally allowed to
physically touch my mother. It was absolutely horrific,
surreal, and mind-numbing. I will never forget what I saw, what
I did, and what I experienced that day. I will never forget
Nicholas Dworet who, even in death, helped protect and save my
life. Days later we received news that my mother would be
having a miscarriage because of what the shock of the shooting
did to her body. The shooting did not only impact me on
February 14th, it impacts me every day of my life.
I have also lost a family member to gun violence. I lost my
uncle, Patrick Edwards, in the streets of Brooklyn New York. He
was shot in the back. The bullet then pierced his heart. He was
only 18 with his whole life ahead of him, and unfortunately
that is the same story of thousands of Black and Brown families
across the country. Gun violence disproportionately impacts
Black and Brown youth, whether that being police brutality,
homicides, or domestic violence.
As for people of color, law enforcement is the shooter in
some cases, history of bias, brutality and racism in so many
communities. Like many of brothers and sisters of color, I am
not comforted by deputies with handguns, let alone assault
rifles. I am very concerned since learning Brett Kavanaugh's
views on guns and how he would strike down any assault weapons
ban. Too many dangerous and prohibited people continue to be
able to readily access and use dangerous weapons to terrorize
Americans at home, work, church, school, concerts, and on our
streets, and anywhere we go on our day to day life.
As you consider what to do and who to appoint to make us
safer from gun violence, remember my story. Remember my
classmates who died. Remember the victims of colors who--that
face mass shootings every day. Remember all victims of gun
violence from Parkland, Brooklyn, Miami, Milwaukee, Oakland,
and all over America. As you make your final decision, think
about it as if you had to justify and defend your choice to
those who we lost to gun violence. If Kavanaugh does not even
have the decency to shake hands with a father of a victim, he
definitely will not have the decency to make life-changing
decisions that affect real people.
The youth is urging our society to recognize the depth and
seriousness of the gun violence epidemic in America. We are all
here with an urgent message for you: if the youth across the
country can fight to eradicate gun violence, why cannot judges,
lawmakers, and Donald Trump understand that young people are
dying from this senseless gun violence?
Thank you.
[The prepared statement of Ms. Eastmond appears as a
submission for the record.]
[Disturbance in the hearing room.]
Chairman Grassley. Ms. Taibleson.
STATEMENT OF REBECCA TAIBLESON, FORMER LAW CLERK, EASTERN
DISTRICT OF WISCONSIN, FOXPOINT, WISCONSIN
Ms. Taibleson. Thank you. Mr. Chairman, Ranking Senator
Whitehouse, and Members of the Committee. I am honored to be
testifying before you today. My name is Rebecca Taibleson. I am
here today from Milwaukee, Wisconsin. I clerked for Brett
Kavanaugh in 2010 and 2011, and I enthusiastically support his
nomination to be an Associate Justice of the United States
Supreme Court. I would like to talk about two things today:
first, what Brett Kavanaugh is like as a judge, and second,
what Brett Kavanaugh is like as a person.
At work in his chambers, Judge Kavanaugh has a motto of
sorts. It is, ``process protects us.'' I will admit, it is not
very catchy, but it is true to the Judge and to his core
judicial philosophy. What it means is that Judge Kavanaugh goes
through an intense, step-by-step process in order to decide
each and every case. That process starts with an open mind and
a foundational commitment to the belief that either side might
be right. Judge Kavanaugh then reads and analyzes every brief
and re-reads every relevant precedent in the case, and he
insists that his clerks find the very best version of every
argument in the case, even when the lawyers themselves have
not.
In addition to the parties' arguments, Judge Kavanaugh also
takes very seriously the views of his colleagues, the other
judges on the case, especially when they differ from his own. I
can remember all----
[Disturbance in the hearing room.]
[Audio malfunction in the hearing room.]
Chairman Grassley. There is something wrong with the
system. Okay.
Ms. Taibleson. Is this okay? Okay.
Chairman Grassley. Yes. Start over again, Rebecca.
Ms. Taibleson. Yes, sir. Mr. Chairman, Ranking Senator
Whitehouse, and Members of the Committee. I am honored to be
testifying before you today. My name is Rebecca Taibleson. I am
here today from Milwaukee, Wisconsin. I clerked for Brett
Kavanaugh in 2010 and 2011, and I enthusiastically support his
nomination to be an Associate Justice of the United States
Supreme Court. I would like to talk about two things today:
first, what Brett Kavanaugh is like as a judge, and second,
what Brett Kavanaugh is like as a person.
At work in his chambers, Judge Kavanaugh has a motto of
sorts, ``process protects us.'' I will admit it is not very
catchy, but it is true to the Judge and to his core judicial
philosophy. What it means is that Judge Kavanaugh goes through
an intense, step-by-step process in order to decide each and
every case. That process starts with an open mind and a
foundational commitment to the belief that either side might be
right. Judge Kavanaugh then reads and analyzes every brief and
re-reads every relevant precedent, and he insists that his
clerks find the very best version of every argument in the
case, even when the lawyers themselves have not.
In addition to the parties' arguments, Judge Kavanaugh also
takes very seriously the views of his colleagues, the other
judges, especially when they differ from his own. I can
remember all too clearly, being corrected by Judge Kavanaugh
once when I, fresh out of law school, spoke too dismissively
about a different judge's opinion on a case. I learned from
that. Understanding Judge Kavanaugh's humility and respect for
his colleagues is essential to understanding his identity as a
judge.
Judge Kavanaugh completes his entire process from scratch
for every issue in every case. It is no coincidence he is often
the last person at work in the courthouse each night, but it is
worth it. This process, as he says, protects us. It protects
against snap decisions, shortcuts, and pre-judgments. By never
skipping a step, never giving short shrift to an argument or
ignoring a precedent, Judge Kavanaugh ensures that his
decisions are based on the law and the facts of each case and
only those things. That process also protects us, American
citizens, from having unelected judges ruling based on their
own predispositions or preferences.
Only after completing that process does the Judge decide
once and for all what he thinks, and once he is decided, he is
difficult to budge. He is independent and stubbornly so. He
cannot be pressured by his law clerks or his colleagues, and he
cannot be intimidated by other actors in Government. It is
simply not part of his process.
Politics also have no place in Judge Kavanaugh's process.
Having known the Judge for almost 10 years, and having worked
with him very closely, I myself do not know what his views are
on the political issues of the day. And as a law clerk, it
would have been unthinkable to even mention the political
implications of a case. In fact, had we known in advance how to
decide a case based on the parties, or the amici, or some
policy goal, we might have skipped a few steps in the process
and gone home a bit earlier at night, but he never did, and so
we never did. For those reasons, if you want to know what Judge
Kavanaugh is like as a person, his cases are not the best place
to look because he keeps his preferences out of them. His
process reflects his fairness, work ethic, and judicial
temperament, but the outcomes are based on the law, not his
personal views.
But I can tell you that as a person, Brett Kavanaugh stands
out. He has testified extensively this week, so I do not need
to tell you how smart, thoughtful, and unflappable he is. When
his guard is down, when he is not before this Committee or on
television, he is the same way. But in my view, those are not
his most remarkable qualities. Instead, it is his everyday,
universal, disarming kindness. I sometimes find myself saying
that Judge Kavanaugh is normal or approachable, but those
cliches are not quite right. Instead, those are compliments
designed for Federal judges, who no one expects to be normal or
approachable. In truth, Judge Kavanaugh is far, far nicer than
is normal, and far more approachable than almost anyone you
will ever approach. He has an easy laugh and a great sense of
humor. I myself am rarely funny, as Senator Booker has pointed
out, but he laughs at all of my jokes, including, especially
the jokes at his expense. Although his credentials are elite,
you would never know it to talk to him. The Judge is a regular
at his neighborhood bar, for example, where he is partial to a
Budweiser and a hamburger, and where the long-time bartender
did not even know Brett Kavanaugh was a lawyer until he saw his
nomination to the United States Supreme Court. If he is
confirmed, Judge Kavanaugh's humility, collegiality, and
kindness will stand out on the Supreme Court.
Judge Kavanaugh is going to stand out on the Supreme Court
for another reason as well, which is his support for women in
the legal profession. Elite legal circles are predominantly
male. The year I clerked on the Supreme Court, for example, 26
of the 39 law clerks were men, and that is typical. Just this
morning, The New York Times ran an article about the barriers
faced by women and people of color throughout the legal
profession. According to that article, an ABA report found that
in 2016--2016--only 35 percent of active American lawyers are
women. Judge Kavanaugh, by contrast, has hired more women than
men as law clerks. One year, all four of his clerks were women,
which was a first for the D.C. Circuit Court of Appeals. That
is something no Supreme Court Justice has ever done.
After hiring us, Judge Kavanaugh goes to bat for us. As the
Members of this Committee know, hard work and smarts are not
always enough to reach the top of your profession. Instead, it
takes guidance from people who have been there and advocates
willing to fight for you. Studies have shown that women often
are at a disadvantage on those fronts, but Judge Kavanaugh is a
force of nature. Thanks to his sponsorship, about 85 percent of
Judge Kavanaugh's female clerks have gone on to clerk on the
Supreme Court. We have clerked for Justices across the Court,
including Justices Kagan, Breyer, and Sotomayor. We have served
in all three branches of State and Federal governments. We are
professors, prosecutors, and nonprofit attorneys. One of us is
now even a judge herself. I know of no Federal judge who has
more effectively supported women in this profession than Brett
Kavanaugh.
Ten years after I first met Judge Kavanaugh, I am now
figuring out how to be lawyer and a mom to three children aged
3 and under. In fact, if you heard a baby crying outside this
chamber earlier this morning, that is my fault. She is 3 months
old, and she absolutely insisted on coming. I know firsthand
how important it is to have an advocate like Brett Kavanaugh,
and I attribute my still-vibrant legal career in large part to
him.
I am only one of many. A significant number of Judge
Kavanaugh's former clerks have been here for these hearings,
and we have uniformly recommended him for his character, his
work ethic, and his kindness. The United States and the
American people would be well served with Judge Kavanaugh on
the Supreme Court.
Thank you.
[The prepared statement of Ms. Taibleson appears as a
submission for the record.]
Chairman Grassley. Mr. Corbin.
STATEMENT OF JACKSON CORBIN, HANOVER, PENNSYLVANIA
Mr. Corbin. Chairman Grassley, Ranking Member Feinstein,
and distinguished Members of the Senate Judiciary Committee, I
am privileged to represent 130 million people with pre-existing
conditions today, and I am grateful for the invitation to
testify before you. My name is Jackson Corbin, and I am 13
years old. I am a lot like other teenagers. I love comic books,
Marvel movies, and I love to play Minecraft and Fortnite with
my friends.
Ten years ago, my brother, mother, and I were all diagnosed
with Noonan Syndrome, a genetic condition that affects various
systems of the body. As a result of my Noonan Syndrome, I have
a lot of pre-existing conditions. Noonan Syndrome affects my
growth, so I will never be as tall or as strong as other people
my age. I have stomach issues, reflux, and I get really bad
headaches. My most severe condition is my Von Willebrand
Disease, a form of hemophilia. This means that I cannot play
contact sports or do things like roughhouse, roller skate, or
jump on trampolines. I take medication to control my reflux and
to clot my blood if I get hurt. Having my clotting medicine at
home means that I do not have to go to the emergency room every
time I lose a tooth or get a bad bruise or a cut.
My brother, Henry, is my best friend. He is 10-and-a-half
years old, and he has Noonan Syndrome, too. We do everything
together, including going to our specialist visits. My mom
always says the greatest thing she ever did was to give the two
of us to each other. Noonan Syndrome affects everyone
differently, so in addition to having all the same conditions
as me, including Von Willebrand Disease, Henry has even more
special healthcare needs than I do. When Henry was a baby, he
had to have lifesaving stomach surgery and a blood transfusion.
Now he has what is called gastroparesis, which means he vomits
almost every day, sometimes even in his sleep. The medicine he
takes helps, but not all the time. We share a room, and at
first it was scary to see him vomit in his sleep, but now I am
used to it. When I hear him gagging, I roll him over so he does
not choke and run to get my parents. Henry also has heart
problems and asthma. I worry about Henry, a lot.
I have heard my mom and dad say that they are grateful for
our insurance because the cost of our care is more than my
family makes in a year. That means if the Affordable Care Act
is repealed and Henry and I lose our insurance, my parents will
not be able to afford to pay for our care.
I have been fighting for healthcare for nearly 2 years.
Last year, in the first speech I ever gave on the lawn of the
Capitol, I compared myself to Dr. Seuss' ``The Lorax.'' The
Lorax says, ``I am the Lorax and I speak for the trees,'' and
so I said, ``I am Jackson, and I speak for the children.'' I
said that because I have met so many children with special
healthcare needs who are unable to speak for themselves. I
wanted to be their voice. But as my journey continued and I met
even more children and adults who have pre-existing conditions,
and who, like me and Henry, are scared for their future, I
realized that I don't only speak for the children anymore.
Today, especially, I speak for everyone.
I speak for myself, Henry, and all the other children
across the country with special healthcare needs. I speak for
the parents who struggle with their own health issues while
caring--while caring for their children, including my own mom,
who has Noonan Syndrome, too. I speak for every person with a
disability who high fives me in the Senate hallways as they
fight for our care. I speak for every person with a disability
who will never be able to live independently. I even speak for
the man who has Lupus who altered the suit that I am wearing
today. Most importantly, I speak for every American whose life
could change tomorrow with a new diagnosis.
My Noonan Syndrome is a part of who I am. It has been a
part of me since the day I was born, and will be a part of me
for the rest of my life. If you destroy protections for pre-
existing conditions, you will leave me and all the kids and
adults like me without care or without the ability to afford
our care, all because of who we are. We deserve better than
that.
I might be a kid, but I am still an American. The decisions
you are making today will affect my generation's ability to
have access to affordable healthcare. We must have Justices on
the Supreme Court who will save the Affordable Care Act--save
the Affordable Care Act, safeguard pre-existing conditions, and
protect our care. Please give us the chance to be healthy, to
grow up, and to lead this country one day. I know I want that
chance.
Thank you.
[The prepared statement of Mr. Corbin appears as a
submission for the record.]
Chairman Grassley. Thank you, Jackson.
[Applause.]
[Disturbance in the hearing room.]
Chairman Grassley. Mr. Lachance, go ahead.
STATEMENT OF HUNTER LACHANCE,
KENNEBUNKPORT, MAINE
Mr. Lachance. Senator Grassley, Ranking Member Feinstein,
and Members of the Senate Judiciary Committee, my name is
Hunter Lachance. I live in Kennebunkport, Maine, and I am a
sophomore at Kennebunk High School. I am 15 years old, and I
suffer from asthma.
I live in a State that has some of the highest rates of
asthma in the country. According to the Maine Center for
Disease Control, nearly 12 percent of the adults in our State
have asthma compared with 9 percent nationally. Maine children
also suffer from a higher rate of asthma than the national
average. I am one of those statistics. Despite Maine's many
beauties, it has worse air quality than most people realize.
Because Maine sits at the end of America's tailpipe, air
pollution from upwind States is carried into Maine by
prevailing winds.
Air pollution makes life extremely difficult for those of
us with asthma, and it makes it harder for me to breathe. For
me to live a healthy life, air pollution needs to decrease, not
increase. I am concerned that the Supreme Court could make
major decisions in the next few years that will cause air
pollution in Maine to increase if Brett Kavanaugh is confirmed.
Many people in this room may have asthma, or know someone
who does, so what I am about to describe may be familiar. Here
is a coffee stirrer. If you have one, I encourage you to put it
to your mouth and try breathing through it. Now, imagine only
being able to breathe through this sized-hole this size for an
hour, or a day, or even a week. That is what it has been like
during an asthmatic attack. Unfortunately, I am not alone in
having asthma impact my life. Asthma affects nearly 25 million
Americans, including over 6 million children. Two million
people go to an emergency room each year because of asthma. I
am here today because my future, and my health, may depend on
it.
I am just your everyday kid from Maine. I play sports, like
to swim, and love playing in the snow. But my active life
changed when I was diagnosed with asthma at the age of 10.
Suddenly, everything became more difficult. I was sidelined
from sports, began missing school, and my parents constantly
worried about my health. The year after I was diagnosed, I
missed close to a quarter of the school year. I can vividly
remember times when my asthma attacks were so strong and scary
that I was removed from class by my teachers and sent to the
nurse's office. Most of the time, the nurse sent me home or
asked my parents to get medical attention. I remember one
really bad attack when I was home sick for 3 straight weeks.
Asthma is a leading reason why kids miss school, and it has
directly impacted my ability to learn from my teachers and
spend time with my friends.
Although air pollution does not cause asthma, it triggers
attacks. On ozone alert days, people across the country have
trouble breathing, and this should worry everyone. It worries
me. In Maine, we need strong Federal regulations on air
pollution because pollution does not stop at State borders. If
States upwind from Maine are allowed to pollute more because
Federal regulations are weakened, then that is bad for me, it
is bad for Mainers, and it is bad for anyone in America with a
respiratory disease or asthma.
That is why I am here. I am deeply concerned that if Judge
Kavanaugh is on the Supreme Court, he would vote to weaken laws
that protect my health because he already has. In a 2012
ruling, he rejected the Cross-State Air Pollution Rule based on
the Clean Air Act's Good Neighbor provision, which regulates
air that crosses State lines. According to the EPA, this rule
reduces sulfur dioxide and nitrogen oxide pollutants and will
prevent 34,000 premature deaths. During his time on the D.C.
Circuit Court of Appeals, Mr. Kavanaugh has repeatedly struck
down other Clean Air Act protections. This worries me a lot
because clean air is a life or death issue for so many people
like me.
We need a Supreme Court that will protect clean air because
lives depend on it. We also need a Supreme Court that will
uphold protections to address climate change because my
generation's future depends on it. For me, climate change means
that life will be even more difficult with more ozone alert
days, more dust and soot in the air from forest fires, and more
mold due to extreme weather and flooding.
Here is my coffee stirrer again. Next time you have the
chance, pick one up and try breathing through it and see how
long you can last. This is what it is like to suffer through
asthma--through asthma. If the Supreme Court fails to protect
clean air, then it is failing to protect me and millions of
other Americans. Please do not confirm someone for the Supreme
Court with a record like Judge Kavanaugh's, a record that could
mean more air pollution, more asthma attacks, and more
premature deaths for the millions of Americans unfortunate
enough to be afflicted with asthma like me.
Thank you for letting me testify today.
[The prepared statement of Mr. Lachance appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. Lachance.
Now, Ms. Mahoney.
STATEMENT OF MAUREEN E. MAHONEY, FORMER DEPUTY
SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF
JUSTICE, WASHINGTON, DC
Ms. Mahoney. Thank you, Mr. Chairman, Senator Whitehouse,
and Members of the Committee. I am honored to add my voice in
support of Judge Kavanaugh today. I worked with him at the
Solicitor General's Office, and I appeared before him on the
D.C. Circuit, and it is hard for me to think of anyone who is
more qualified.
I would like to make two points: First, I want to share my
view that Judge Kavanaugh has much in common with my former
colleague, Chief Justice Roberts, whom the Senate voted to
confirm by a wide margin. Second, I want to explain why Judge
Kavanaugh's extraordinary record of mentoring female lawyers is
so important to my profession.
In 2005, I testified before this Committee in support of
Chief Justice Roberts' confirmation, and I am struck by the
many similarities between him and Judge Kavanaugh. Some are
obvious. Both are extraordinary lawyers, both worked in the
White House Counsel's Office and the Solicitor General's
Office, and both served as judges on the D.C. Circuit. But they
also share a civility and evenhandedness on the bench that
reflects their genuine effort to consider all sides of an
argument thoroughly before reaching any conclusions.
I have had the pleasure of arguing before both men. Like
the Chief Justice, Judge Kavanaugh asks difficult and incisive
questions of both parties, but he is polite, and he conveys his
thoughts with an open mind. As the ABA confirmed this morning,
my view is widely shared by the Bar. Don Verrilli, Solicitor
General during the Obama administration, has called Judge
Kavanaugh a ``brilliant jurist who is a gracious person, both
on the bench and off.'' And a bipartisan group of appellate
practitioners praise his unfailing courtesy to counsel and to
the other judges and his colleagues. In an era when some
appellate judges have behaved like brusque advocates for one
side during oral argument, Judge Kavanaugh has been a model of
the proper judicial disposition.
The Chief Justice and Judge Kavanaugh also understand the
proper role of a Federal judge: to be an independent, neutral
arbiter. During his confirmation hearing, the Chief Justice
famously described judges as umpires who apply the rules
without fear or favor. I think it is fair to say that the Chief
Justice has done so. At various times, both sides of the aisle
have denounced his rulings just like the same thing that
happens to umpires. And Judge Kavanaugh has similarly
demonstrated impartiality and fairness in his 12 years on the
D.C. Circuit. He repeatedly ruled against the Bush
administration, where he worked prior to becoming a judge, in
his first 3 years on the bench. He has ruled in favor of an al-
Qaeda terrorist, in favor of a pro-choice Democratic interest
group, and against the Republican Party. And to the surprise of
some, even the ACLU has recognized that Judge Kavanaugh has
been ``sympathetic'' to Title VII claims. As Judge Kavanaugh
has explained in multiple speeches over the years, a judge must
check any prior political allegiances at the door, and I am
confident he will stay true to that ideal.
Second, Judge Kavanaugh also stands out as a mentor to
women lawyers. I know you have heard the statistics a lot, but
they are worth repeating. Over half of Judge Kavanaugh's law
clerks have been women. Twenty-one of those 25 have been hired
to clerk on the Supreme Court, and this is simply astounding.
These women have gone on to serve in all three branches of
Government, in the White House in the Solicitor General's
Office, four Federal prosecutors. One is a Deputy Solicitor
General of the District of Columbia. Another, as you just
heard, serves as a judge on the Eleventh Circuit.
It is difficult to overstate how important opportunities
like these can be for a lawyer's career, especially in
appellate practice. Credentials like a Supreme Court clerkship
or a job at the Solicitor General's Office are keys that unlock
doors at the highest levels of the legal profession. Very few
women have historically held these elite positions. When I
clerked for Chief Justice Rehnquist in 1979, almost 80 percent
of the law clerks at the Court were male, and a large gender
imbalance endures today. Almost twice as many men as women have
been hired as Supreme Court clerks since 2005.
In the most recent Supreme Court term, women delivered just
12 percent of the oral arguments, and women make up only 19
percent of law firm equity partners. I was one of the lucky
few. I argued 21 cases before the Supreme Court, and this never
would have happened without the mentorship of a Federal judge,
just like Judge Kavanaugh does for his clerks. Chief Justice
Rehnquist helped launch my appellate career by hiring me as his
clerk, and in 1988 he then arranged for me to argue my first
Supreme Court case. I was the first woman to receive the honor
of being appointed by the Supreme Court to argue a case by
invitation. With that argument under my belt, Chief Justice
Roberts recruited me in 1991 to join him in the Solicitor
General's Office as one of four deputies, a position that has
rarely been held by women.
These were the opportunities that made it possible for me
to compete with the men who dominate the Supreme Court Bar. For
more than a decade, Judge Kavanaugh has been instrumental in
opening these doors for a new generation of women lawyers. He
has been a teacher, adviser, and advocate for women in ways
that unquestionably demonstrate his commitment to equality, and
that will ultimately reduce persistent gender disparities in
the legal profession. In short, Judge Kavanaugh's independence,
his civility and open-mindedness, and his generous mentorship
are just a few of the many characteristics that make him
superbly qualified to serve on the Supreme Court.
Thank you.
[The prepared statement of Ms. Mahoney appears as a
submission for the record.]
Chairman Grassley. Thank you, Ms. Mahoney.
Now, Ms. Smith.
STATEMENT OF MELISSA SMITH, SOCIAL STUDIES TEACHER, U.S. GRANT
PUBLIC HIGH SCHOOL, OKLAHOMA CITY,
OKLAHOMA
Ms. Smith. Good afternoon, Mr. Chairman and Members of the
Judiciary Committee. Thank you for this opportunity. My name is
Melissa Smith, and I am a union member and public school
teacher at U.S. Grant High School on the southwest side of
Oklahoma City. I am also the very proud daughter of a police
officer, who served his community 41 years, and who taught me
how to use my voice. He made sure that I not only knew my
rights, but that I knew how to exercise them.
Because of my father, I went into juvenile justice where I
quickly realized that most teenagers have no idea that they
have rights. So, I became a high school social studies teacher
where I can open my students' eyes to the concepts of equality,
justice, and fairness. I teach them that under the U.S.
Constitution, they do have rights. I teach them the impact of
the law and their roles and responsibilities within the
Government so that they can be engaged and active in our
democracy. Today, I am honored to be able to show my students
exactly what it means to use your voice and participate in our
Government at the highest level. As you consider your vote to
confirm Judge Kavanaugh to a lifetime appointment, please
consider our experiences.
Oklahoma City Public Schools is the State's largest
district where almost 90 percent of our families are considered
to be economically disadvantaged. I am a proud General at U.S.
Grant High School General. We have the most dedicated teachers
and incredible students. Our district has had to cut almost $40
million from its budget in the last 2 years. Our fine arts
budget was slashed by 50 percent, and our library media budget
was completely eliminated. Our school building was built for
1,200 people just 11 years ago, yet we currently have 2,200
staff members and students.
Classrooms that have almost 40 students rarely have enough
desks for all of them. It is often first come, first served to
those classrooms. Some teachers do not even have classrooms at
all. They have all of their belongings, textbooks, and supplies
on carts, and they push them from classroom to classroom, hour
to hour. I am telling you about our funding crisis in Oklahoma
for two reasons: first, because Judge Kavanaugh's stated
position on private school vouchers would exacerbate the
situation in Oklahoma City. Vouchers do nothing to help student
achievement, but do everything to undermine the public schools
that 90 percent of children in this Nation attend. Siphoning
more funding away from public education will destroy public
schools.
The second reason I am telling you about our funding crisis
is that I have seen firsthand how the collective power of
unions allows individuals to band together to bargain for
resources for students and teachers. Judge Kavanaugh has a
strong history of siding with big business over the needs,
rights, and safety of individual employees. His record shows
that he sides with employers who do not adhere to their
collective bargaining agreement, and he does not see the need
for union representation in employee meetings. I can tell you
that through my union, I have learned the power of collective
voice. I can advocate for my own working conditions, which are
the same learning conditions for my students. Unions give voice
and agency to people who cannot find it otherwise. They make it
possible for us to accomplish together what we could not do on
our own.
Five months ago, Oklahoma City Public Schools teachers
walked out of our classrooms. Our legislature passed a $6,000
pay raise in an attempt to stop that walkout, but we were
fighting for more than just a pay raise. We were fighting for
our students and their needs that often go well beyond what you
would expect a teacher to have to take care of. I have
physically picked up a teenager off the floor and carried her
to the counselor's office. She was sobbing saying that she did
not want to live anymore. Thank goodness our counselor was able
to be at school that day. I have seen the terror on a
transgender student's face when he shared that he identifies as
male, and then that terror turn to joy when I, as a trusted
adult, accepted him for who he is. Just last week a fellow
teacher wrote a reference letter for a student and his family
for their hearing to determine whether or not they can remain
in this country. She stressed about it for days because she
needed it to be perfect. Her student has never known anything
but his life in Oklahoma, and he is terrified of being sent to
a place that is not his home.
The morning after the 2016 Presidential election was a
tough one at U.S. Grant. Many of our students are undocumented
or have undocumented family members. The U.S. Grant family
rallied around all of our students more than usual on that day.
We do not ask if they or their parents are undocumented. That
is not our purpose. And so far, the U.S. Supreme Court agrees.
Now why am I sharing these experiences with you? Because I
worry about my students and who will look out for them. I worry
that our Government is too far removed from the people it
serves, and that the consequences of that gap are far more
dangerous than we realize. If confirmed, Judge Kavanaugh's
decisions will impact not just teachers and students in schools
now, but the futures of my students and for generations to
come. The experiences of my students and fellow staff members
show that there is a real impact of Judge Kavanaugh's
jurisprudence on America's future.
Thank you for allowing me to be here today. I would like to
end my statement the same way I end every single Friday in
class with my students: ``Be the example, have a good weekend,
and please make good choices.''
[Applause.]
[Disturbance in the hearing room.]
[The prepared statement of Ms. Smith appears as a
submission for the record.]
Chairman Grassley. Thank you, Ms. Smith.
Now, Mr. Christmas.
STATEMENT OF KENNETH C. CHRISTMAS, JR., EXECUTIVE VICE
PRESIDENT, BUSINESS AND LEGAL AFFAIRS, MARVISTA ENTERTAINMENT,
LOS ANGELES, CALIFORNIA
Mr. Christmas. Chairman Grassley, Ranking Member Feinstein,
and other distinguished Members of this Committee, I am
honored, grateful, and humbled to appear before you endorse--to
endorse the nomination of Judge Brett Kavanaugh to sit as an
Associate Justice of the United States Supreme Court. I have
known this nominee for 3 decades. He is a close personal
friend. I hope my testimony today will illuminate a side of
Judge Kavanaugh that is not often seen in media accounts.
I met Judge Kavanaugh in 1988 during my first year at Yale
Law School when he was a second-year law student. In addition
to both of us pursuing our love of the law, we watched
SportsCenter, played pick-up basketball, and loved going to
Yale football games. We became fast friends. The following
year, we roomed together with six other law school students in
a house behind the Yale gym.
I have always admired Judge Kavanaugh's ability to create
deep relationships with people from all walks of life,
conservative, liberal, athlete, academic, male, female, White,
Black. I think the one reason for this is he never assumes he
is the smartest person in the room. Judge Kavanaugh deeply
believes he can learn something from everyone. A wonderful
confidant, Judge Kavanaugh has always made me feel comfortable
speaking to him about basically anything because he genuinely
cares how others feel and authentically tries to understand how
they think.
During law school, I often sought out Judge Kavanaugh's
advice. He would implore me to first understand the issues from
the points of view. Put yourself in their shoes, I recall him
advising me. How would that make you feel? Then, he would
challenge me to demand of myself that which you ask from
others. Should he be fortunate enough to be confirmed, I
believe Judge Kavanaugh will bring that same humility and
compassion to the Supreme Court. It is who Judge Kavanaugh is.
Since graduation, the same eight law school roommates have
spent a long weekend together every year with an astonishingly
minimal absentee rate, and Judge Kavanaugh has been no
exception. These 26 reunions have kept all of us close, even as
our families and careers demanded more time from each of us. I
will never forget a long drive I took to Bucks County,
Pennsylvania for one of our early annual reunions. Judge
Kavanaugh listened and asked questions for the whole ride as I
explained my bewilderment over those who deny the continuing
effects of slavery and Jim Crow laws. While I was raised in
California, I have deep family roots in Mississippi. I believed
then, as I do now, that the laws of our country must remain
responsive to historical prejudice, discrimination, oppression
and mistreatment of African Americans. There was no doubt left
in my mind following that ride that Judge Kavanaugh deeply
cared, and still cares, about truly understanding my Black
experience and point of view.
Over the years, Judge Kavanaugh and I have traveled
together many times in and outside the country. I drove with
Judge Kavanaugh to Boston to watch him run his first Boston
Marathon. Judge Kavanaugh made the trip to California for my
wedding, and I flew back to DC for his. While our age is no
longer conducive to pick-up basketball games, we have been able
to commiserate over coaching our children and learning that the
first rule of being a good youth basketball coach is
understanding you are no longer a player. Our support for one
another has been a steady and reliable force as we move through
life's ups and downs.
Earlier this year, Judge Kavanaugh and I, along with our
other law school roommates and friends, gathered over a weekend
for the funeral of the son of another roommate. I witnessed
Judge Kavanaugh's love, care, and support of our friend during
the most difficult of times. He attended dinners, participated
in fellowship well into the night, and spent the day at the
funeral service in support of the family. In a time of personal
crisis, I will not need to look far for my friend because Judge
Kavanaugh will already be there.
So, you may ask what does coaching basketball, showing up
at each other's wedding, listening to my experiences as a Black
man living in America, or attending a funeral have to do with
determining whether Judge Kavanaugh should become a Supreme
Court Justice? The answer is it speaks directly to his
humanity. Judge Kavanaugh cares. He is far from being an
ideologue. He does naturally what a good judge should do, seek
to understand before offering an opinion. Judge Kavanaugh is a
tremendous son, friend, husband, and father. He is honest,
empathetic and intellectually curious. That is the person I
know.
Over the course of my life, I have found that a true test
of a friendship is when support for a friend is inconvenient.
For me, from the perspective of a lifelong Democrat, it is
inconvenient to support Judge Kavanaugh, especially during this
time of an unprecedented partisan divide and polarization among
Americans, but I know it is the right thing to do. As an
American, I am quite concerned about the attacks on our
esteemed institutions, like the judiciary. My expectation of
any judicial nominee I support, especially when it is for the
Supreme Court, is that he or she possess a powerful sense of
fairness and impartiality. As an African American, I expect a
nominee I support to have a deep sense of obligation to protect
the interests of those disempowered, particularly those whose
voices are too often drowned out of our political discourse and
cannot be heard. Again, all this requires a judge who is
compassionate, humble, and principled. Judge Kavanaugh is such
a nominee.
Everyone here today is well aware of Judge Kavanaugh's
extraordinary qualifications, both educationally and
professionally. However, it is Judge Kavanaugh's humanity that
compelled me to come here today to testify on his behalf. For
this reason, without equivocation or reservation, I
respectfully urge this Committee and the Senate to confirm
Judge Brett Kavanaugh as an Associate Justice of the United
States Supreme Court.
Thank you.
[The prepared statement of Mr. Christmas appears as a
submission for the record.]
Chairman Grassley. Thank you. As Chairman of the Committee,
I should thank all of you for your testimony. I know you have
to work hard to do it. Some of you have traveled a long way, so
just generally thank you. And then I am going to ask my
questions, and then I will call on Senator Whitehouse, and I
would ask for maybe 10 or 15 minutes if one of my Republican
colleagues would moderate while I step out, and I will be close
by.
Senator Hatch. I would be happy to.
Chairman Grassley. Okay. I am going to start with you, Mr.
Christmas, and I am going to--I am going to say that for 4 days
now we have had a lot of people exercise their public
constitutional rights to speak, as you have heard it this day,
afraid of Judge Kavanaugh being a Justice on the Supreme Court.
We have three or four panel people right here that you have
heard their own testimony. And so, there is this fear that he
does not--might not take into consideration the needs of people
less fortunate than he is with various problems that we have
heard expressed here. So, I think you probably spoke a little
bit to this in your testimony, but emphasize for us--speak not
to me, but to the people that have these concerns.
Mr. Christmas. Well, Senator, I understand those concerns.
I do not share that fear. Brett is one of the most thoughtful,
empathetic people I know. I have spent much time with him
talking about issues that are very dear to me. He has been
generous with his insight. He cares, and I think that empathy
that he naturally exhibits will serve him well, and I would
encourage people to understand this man is thoughtful, is
humble, and thinks to understand before he makes himself
understood.
Chairman Grassley. From your point--I will follow up. From
your point as a lawyer and as--you expect a judge to look at
the facts of the case and the--what the law is, and leave their
own personal views out of it. So, can you explain, to the
people that have these concerns about him, those things that
have to be taken into consideration that maybe do not deal
exactly with a person that has special medical problems like
you have heard here today?
Mr. Christmas. Yes, and I recall Brett, when he came to my
wedding--I should say, Judge Kavanaugh--and he spent time with
my family. I recall him speaking at length with members of my
family who had no real knowledge of what it is like to be a
judge and be involved in DC and the way that Judge Kavanaugh
is. And I was just struck by how easily and comfortably he was
able to speak to everybody who he had just met during that
wedding. There was a period where my niece graduated from
Howard University and I had mentioned to Judge Kavanaugh that I
may come out, and he arranged for 20 of the members of my
family to tour the West Wing, and he showed up on a Saturday
with a couple of his aides. That is the sort of the person he
is.
So, I understand the concerns, but the man I know is
generous with his time and thought, and I love the discussion
about process. He seeks to not be influenced by people outside,
and he is one of the most prepared, thoughtful people I know.
Chairman Grassley. I will end with Mr. Kramer. Not being a
lawyer, but I can assume what public defenders do, you are
dealing mostly, defending people that do not have resources of
their own, and, in fact, that may be a hundred percent of your
clientele. You have heard, several days, that my colleague from
New Jersey has expressed concern about people that cannot
defend themselves in court, the jury system not working the way
it traditionally works, and mandatory minimums, all that.
Can you give people of low-income that you represent, maybe
other problems, that--the assurance that they are going to get
their concerns addressed the way they ought to be through
somebody that is on the Supreme Court?
Mr. Kramer. Thank you, Chairman Grassley. Yes, absolutely,
and I tried to get that out. The fact--the reason that I am
here is because of the fairness that Judge Kavanaugh has shown.
Our clients are without resources, and tend not to be a very
popular group. And Judge Kavanaugh has shown through my
experience, my numerous arguments in front of him, and the
opinions he has written a belief in the fundamental--and I
completely share Senator Booker's views on the criminal justice
system. But Judge Kavanaugh has shown through his opinions in
the criminal cases that I have argued as well as his service on
the CJ committee that I have been involved with a concern for
the fundamental fairness of the system and a--that people
should be--even though they are without resources and
represented by a public defender, that they should have the
best representation possible. And that is why I wholeheartedly
support his nomination.
And I note one more thing that is, in a sense, to me
remarkable. Usually a judge who wants to be confirmed for a
position or another court would never have a public defender in
the hearings talking in support of them. And I think that,
again, shows Judge Kavanaugh's concern for the fundamental
fairness of the system, and that is why I support him.
Chairman Grassley. Okay.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Aalayah, may I use your first name? I could call you ``Ms.
Eastmond,'' if you wanted.
Ms. Eastmond. No, it is fine.
Senator Whitehouse. Aalayah, I just wanted to tell you that
you have had to live through an experience that no child should
have to live through, and what you have brought into this
hearing room from that experience has been stunning.
Ms. Eastmond. Thank you.
Senator Whitehouse. Your testimony was incredibly well
delivered----
Ms. Eastmond. Thank you.
Senator Whitehouse [continuing]. And incredibly well
prepared, and I hope that not only you, but your friends and
family who are with here today are very, very proud of what you
have been able to draw out of that horrible experience you went
through.
Ms. Eastmond. Thank you.
Senator Whitehouse. Take care of yourself because these
things do not go away.
Ms. Eastmond. Yes.
Senator Whitehouse. But keep doing what you are doing----
Ms. Eastmond. Thank you.
Senator Whitehouse [continuing]. And do it with pride and
confidence because you really shone today.
Ms. Eastmond. Thank you.
Senator Whitehouse. And, Jackson, may I use your first name
as well? I just want to thank you, as well. It may seem a
little weird coming from an old guy across the podium, but when
I was 13 I was about your size, and I know what it is like to
be the small kid. And I just want you to know that when you
spoke today, you were the biggest person in this room.
Mr. Corbin. Thank you.
Senator Whitehouse. And you did a wonderful, wonderful job,
and you brought a really important message to us. So, to you
and to your family and friends who are here, congratulations.
Well done. Please be proud and keep your voice.
Mr. Corbin. Thank you.
Senator Whitehouse. Hunter, you and I have a--may I use
your first name also? At some point, you know, you can say,
``no, I would prefer you call me `Mr. Lachance.' ''
Mr. Lachance. No, ``Hunter'' is fine.
Senator Whitehouse. Okay, ``Hunter'' is fine. You and I
share a similar predicament. We are the inhabitants of downwind
States. Rhode Island, like Maine, is a tailpipe State, and if
it were not for the EPA, there is nothing that our State
environmental officials could do to protect us from out-of-
State pollution, very often from coal-burning plants and so
forth. And we have the same situation you do. We have a lot of
kids, and when the air gets bad, you often see them in the
emergency room. You have situations in Rhode Island where we
are--you know, you are driving into work in the morning and it
is a beautiful day, the sun is shining. You should be out
playing. You know these days. But on the radio you hear today
is a bad air day, and we want little kids, we want old people,
and we want people with breathing difficulties to stay inside
on what would otherwise be a great day for you to be out
swimming and playing sports and doing all those things. So, the
voice that you brought here was very, very important.
To each of you I would say, part of the problem that I have
in this whole nominations process is, that you are up against
enormously powerful forces on the other side. The National
Rifle Association essentially has dominion over Congress with
respect to everything that has to do with guns and the
ammunition that tore through your friends. The--I do not know
what you would call it, a ``mania,'' a ``fetish,'' an
``ideological crusade''--against providing your family with
reliable healthcare simply makes no sense to me, and yet it is
enormously powerful. And we came very, very close to a vote
here where it would have been taken away from you.
And so, and, of course, the polluters have almost as much
dominion around here in Congress as the NRA does. They bring in
phony scientists who quarrel with the real science because they
are paid to quarrel even if their science is not real. And they
do economic studies that only show the harm to the polluting
companies and totally omit what it is like to be you on a day
that you cannot breathe except, like, through that little
coffee straw.
So, this is a one-sided place, and the forces that have the
most money and that make the most money are able to use it here
in ways that keep very, very unbalanced. And my concern is that
the current Republican Majority on the Supreme Court and the
decisions of Judge Kavanaugh reflect a desire to enhance that
power to defer decisions that the Court could make into this
very unbalanced forum, to diminish the regulatory agencies
where there is the actual expertise to understand and say how
chlorophora carbons work, or what a loose guy filing should
look like for a new stock offering, or complicated things like
that.
And so, that is my biggest concern, and I am not going to
take any more time because I have burned it all already. But I
really, really was so impressed with each of the three of you,
and I just wanted to say thank you. Well done. Do not ever give
up. Those other forces may be big, but this is still our
country.
Thank you.
Senator Hatch [presiding]. Mr. Kramer, as a public
defender, you have spent your career representing defendants
who do not have the money for a fancy law firm----
Mr. Kramer. Yes.
Senator Hatch [continuing]. Or any kind of a law firm, who
may have been accused of some very serious misconduct. Now,
when appearing before Judge Kavanaugh, have you ever felt that
your client's economic status or situation or charged conducted
affected the Judge's treatment of your client?
Mr. Kramer. No, I would say just the opposite, that they
have always been treated without regard to any of those
factors.
Senator Hatch. How have you ever had a case where you felt
your client's economic situation or charged conducted affect
Judge Kavanaugh's decision in the case?
Mr. Kramer. I do not think it has ever affected his
decision in a case. He examines the facts and the law and
decides based on that without regard to those circumstances.
Senator Hatch. Well, he is a judge who is most well known
for his jurisprudence on broad structural issues, like the
separation of statutory interpretation or the--well, sometimes
his jurisprudence on individual rights gets less attention. For
example, his discussions of the importance of mens rea
requirements, which I am very concerned about, and the
problems, among many things, and the problems inherent in
sentencing based on acquitted conduct. How has the--how has
Judge Kavanaugh contributed to criminal law and the rights of
defendants?
Mr. Kramer. Well, in the acquitted conduct, he is bound by
Supreme Court precedent, but he has encouraged judges as a
matter of discretion, which they have to not use acquitted
conduct for sentence. He has in a number of cases, some of
which I have argued, on mens rea, he has reversed convictions
or noted in concurrences that--or dissents that he believes
that people should not be convicted of certain crimes without
the proper mens rea. And he has written a number of those
cases. So, I think in both of those areas, those are important
individual rights for my clients.
Senator Hatch. Well, thank you.
Ms. Mahoney, you have known Judge Kavanaugh for over 2
decades since both of you were in the Solicitor General's
Office together at the Justice Department. You have also
appeared before him in Court. Now, what kind of a jurist is he
on the bench?
Ms. Mahoney. Phenomenal. I----
Senator Hatch. Do you have an advantage because you had
served with him before?
Ms. Mahoney. No, no, I am sure it was not an advantage.
Senator Hatch. What is the matter of him?
Ms. Mahoney. Yes, right, I am sure it was not an advantage.
He is extremely careful about his work, and one of the harder--
hardest-working judges out there, and that is the way he was in
the Solicitor General's Office, too. He is kind of renowned for
his work ethic, for trying to find an answer in the case. And I
think he believes that if you look long enough and hard enough,
in most cases the answer is going to come, and it is just a
product of doing the work.
Senator Hatch. Well, that is great. How many other lawyers
have worked with Judge Kavanaugh or argued cases before him?
You know many of them----
Ms. Mahoney. I do not--I know most of the Appellate Bar in
Washington, DC. Many of them have argued before him. Many of
them know him from working with him either in the White House--
--
Senator Hatch. What are their opinions?
Ms. Mahoney. I do not know anyone who does not put Judge
Kavanaugh in just the highest category they can come up with.
He is--he is remarkable, and people really adore him. I will
tell you that, you know, around Washington, at least in my
world, when people who were debating who would be appointed to
the Supreme Court when Justice Kennedy retired, the answer from
almost everybody that I talked to was, well, it ought to be
Brett Kavanaugh. So, I mean, this was--you know, this is the
Supreme Court Bar and the Appellate Bar in the Washington, DC,
area, but there is just really deep uniform respect for him as
a jurist and as a man.
Senator Hatch. Everybody I know who knows him speaks very
glowingly of him----
Ms. Mahoney. Glowingly.
Senator Hatch [continuing]. Just like you.
Ms. Mahoney. Uniformly glowingly.
Senator Hatch. Well, it seems to me he is precisely the
type of person we want on the Bench.
Ms. Mahoney. It would be a travesty if he does not get a
hundred votes.
[Laughter.]
Senator Hatch. Well, you have put a lot of pressure----
Ms. Mahoney. There you go. Just do that.
[Laughter.]
Senator Hatch. Keep it up. I appreciate that.
Ms. Mahoney. Right.
Senator Hatch. We are happy to have all of you here. This
is very important, and your testimonies all will be paid--given
serious attention. Let us--who is next on this----
Senator Whitehouse. Senator Blumenthal.
Senator Hatch. Senator Blumenthal, you are next.
Senator Blumenthal. Thank you, Senator Hatch. I want to
join in thanking all of you for being here. This is another
great panel. I want to join my colleague, Senator Whitehouse,
who very eloquently and powerfully thanked Aalayah Eastmond,
and Jackson Corbin, and Hunter Lachance. You have really shown
us how an individual voice can make such a difference. But I
also want to thank Melissa Smith for your comments on how a
collective voice can be impactful, and a lot of young people
would not have their individual voices but for your service as
a teacher.
I have always thought that being a teacher, along with
being police, firefighter, emergency responders, you are the
unsung heroes, our public service employees. I want to thank
you for your personal testimony about the importance of the
issues that matter in real lives to real people and have real
impact.
Ms. Smith. Thank you.
Senator Blumenthal. And I want to ask Aalayah Eastmond,
since we are talking about real people and real lives, you
know, in Connecticut we had--we had a tragedy similar to the
one you experienced. And I lived through an afternoon and then
a week similar to what you did in Parkland, not the same
firsthand experience that you did, but I saw the impact on
loved ones, and children, and parents, and teachers as you did.
And I saw the impact on moms and dads like Fred Guttenberg, who
was here earlier in the week, as you know, and you commented in
your testimony about him.
If I were Judge Kavanaugh, who, as you know, said that
assault weapons should not be banned, cannot be banned, under
the Second Amendment of the Constitution, what would you say to
him?
Ms. Eastmond. That my life, along with all the other youth,
is more important than that gun.
Senator Blumenthal. And if he said to you, you know, there
is this legal principle that says unless it was a ban or one
analogous to it at the time of our Constitution or
traditionally in our law, what would you say about the real
impact of that kind of assault weapon on your life?
Ms. Eastmond. Yes, it is unimaginable. The shooter at my
school shot 34 kids in under 6 minutes, and that gun ended 17
lives on February 14th. That gun ended lives at Sandy Hook.
That gun ended lives all over the country, and there are mass
shootings that happen almost every month. And I believe that
that gun needs to be banned, any assault rifle, and he needs to
listen to us because our lives are just as important as any
American's freedom to own a gun.
Senator Blumenthal. Well, I hope that Judge Kavanaugh is
listening to you. Thank you very much.
Thank you, Mr. Chairman.
Senator Hatch. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thanks so much to all
of you for being here. My friend and colleague, Senator Kennedy
from Louisiana, had to step out for a few minutes and was not
sure whether he will back in time, but he asked me to convey to
you his gratitude to each of you for your testimony and your
willingness to provide insights.
Ms. Mahoney, I would like to start with you. I heard
mention a minute ago speculation about unfair advantage in
court. And, Senator Hatch, I can tell you, she always has an
unfair advantage in court because she is so good. You have
always been one of my favorite litigators to watch argue cases
in the Supreme Court. It is an odd little hobby of mine
watching Supreme Court litigants, and I always enjoyed you
arguing.
One of the things I have appreciated about your arguments
is that you focus on the law. You focus on what--why your
client's case is right, and you focus--you seem to have an
approach that echoes something that you said a minute ago,
which is that if you are willing to go to the hard work of
finding the right answer in a case, you can find the right
answer. The law will normally supply a correct answer, and you
seem to believe that Judge Kavanaugh shares this view.
Tell me how that can instill a sense of civility among
members of the Bar and among jurists, the belief that there is
a right answer in the law.
Ms. Mahoney. I think--I think there is a right answer in
the law. I think he believes that, and it--and it should
instill a sense of confidence in the Judiciary because there is
sort of this pervasive view that the Justices are--or it is
becoming more pervasive that the Justices are just partisans,
you know, deciding for their team. And I certainly do not
believe that is the case. I do not think that is what is going
on. There are different ideologies, but I do not think it is
partisanship. And I think that Justice--Judge Kavanaugh--
Justice Kavanaugh hopefully--will perform will his role in a
way that people will understand that he is just working to get
the answer, the way he asks questions, the way he probes
evenly, the way he shows respect for everyone, and the way he
explains his decisions, and the way he surprises people
sometimes with the way that he rules.
You will not be happy--Republicans will not be happy every
time. Democrats will not be happy every time. But it will be a
product of his reasoning and his effort and his work in the
case. And I think Americans should be grateful for that kind of
judicial approach, whether they are Republicans or Democrats,
and I would hope that we could get beyond some of this
polarization.
Senator Lee. As someone who has devoted her career to
arguing in front of the Supreme Court, you can confirm that
there is no aisle, there is no political aisle in the Supreme
Court.
Ms. Mahoney. There is no political aisle. No, there is not.
Senator Lee. And, in fact, 5-to-4 decisions are very rare.
Ms. Mahoney. They are very rare, yes, they are.
Senator Lee. Ms. Taibleson, I appreciated your comments.
Having served as a law clerk myself, I know that there is a
special bond and relationship that develops between a law clerk
and the judge or Justice for whom the law clerk is working. One
of the reasons for that is, you are able to interact with the
jurist on a day-to-day basis, not only in seeing, in your case,
how Judge Kavanaugh interacted with his law clerks, but also
how he interacted with his colleagues. What can you tell us
about what you saw and what--how that would portend for how he
would interact with colleagues regardless of their backgrounds
and regardless of what some people might identify as their
political ideologies?
Ms. Taibleson. Certainly, Senator. The D.C. Circuit Court
of Appeals is composed of many judges who have diverse views on
the law and on judicial philosophy, more generally. But at
least when I was there, their views of Judge Kavanaugh are not
diverse. Instead, they uniformly respect him. They appreciate
his collegiality, his ability, his hard work, and ultimately
the fact that he is a straight shooter. There are certainly
always going to be disagreements, but those are disagreements
that he has in good faith. There is no hidden agenda, nothing
like that. He says what he means, and he means what he says.
I think on the Supreme Court, he is going to bring those
same characteristics, and I think he is going to be sort of a
uniter for that reason. I think he is going to bring out the
best in his fellow Justices should he be fortunate enough to be
confirmed, and is going to have great relationships with
Justices across the ideological spectrum.
Senator Lee. Thank you.
Ms. Smith, I have great respect for teachers. Both my
parents worked as educators in different capacities at
different points in their careers, and they always taught me to
have great respect for my teachers, especially social studies
teachers because of the importance of the subject matter you
teach. Can you help me understand, I understand that resources
are scarce and resources--more resources often need to be
devoted to public education to make sure that you as a teacher
and your colleagues, those with whom you work, have the
capacity to do your job, to educate people. Help me understand
the connection between your concern for those resources and the
jurisprudential philosophy of this Federal judge.
Ms. Smith. One of my biggest concerns is his positions on
public school vouchers. Taking money from public education to
give a few select people some choice takes money from us to
fund someone else's education. We will be left in my district
with the majority of our--of our same students with less
funding than we have now, so----
Senator Lee. Well, when you say ``his position,'' you do
not mean his policy position because he is acting not as a
policymaker, but as a jurist deciding on whether or not
something is lawful, deciding whether or not the policymakers
are empowered to make that decision.
Ms. Smith. Right, I understand----
Senator Lee. Is there not a difference between those two
things?
Ms. Smith. Yes and no. We often believe that our--whether
they be elected officials or judges are not supposed to bring
their personal views into it and only base decisions on the
laws, but it does not always seem like that is the case. Maybe
not with Judge Kavanaugh, but there is always a concern that
personal views will influence judgment. That is a concern that
teachers have, that students have. And when he has publicly
spoken in support of public school vouchers, that is a concern
that we have.
Senator Lee. I see my time has expired.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you.
Senator Booker.
Senator Booker. I did not mind if he kept going. I did not
want--I know I am the last person, I think, sir.
Chairman Grassley. Well, we have got another panel waiting.
Senator Booker. Oh, you do have another panel. I apologize.
Chairman Grassley. Yes.
Senator Booker. Okay. First of all, I just want to thank
all the panelists for coming. I really do appreciate you
participating in this process, and it is extraordinarily
helpful.
Aalayah, your testimony was really heartbreaking and
painful to listen, but the poise with which you spoke of
something that I know is horrific and unimaginable was
extraordinary.
Ms. Eastmond. Thank you.
Senator Booker. Extraordinary.
Ms. Eastmond. Thank you.
Senator Booker. And there are specific policy things that
you all are advocating for. I know--I have met with lots of the
students from Parkland, and I am just wondering if you--just
give you another opportunity, not just because I also think you
are extraordinarily eloquent speaker.
Ms. Eastmond. Thanks.
Senator Booker. But are there any particular policy issues
that you all are advocating for, that you can maybe speak to in
a little more detail about what you would like to see and how
that relates to a Supreme Court Justice?
Ms. Eastmond. Yes. Right now we are focusing on an assault
weapons ban because they are just unnecessary. Next year I will
be 18, and I could get an assault rifle. Like, why I would need
that? And also, high-capacity magazines, we want those gone,
too. And also, my focus, I really want people from the Congress
to focus on the youth from Black and Brown communities because
that is often the elephant in the room that nobody wants to
talk about, and their live are being taken away every single
day. So, I think focusing on the entire spectrum of gun
violence and not only mass shooting, but the shootings that
happen every day in urban communities, are just as important.
Senator Booker. And I guess that is what spoke to me a lot
because I live in a community with a lot of--even though my
incredible mayor has done a lot to lower the shootings in my
city, we still have a lot of--I had one on my block just this
year where someone was murdered with an assault weapon at the
top of the hill where I live. And I appreciate your concerns
about that, and your advocacy is extraordinary. And I think
that for you and the other young people on this panel, you
should know in many ways your voices can be more powerful than
any adult. And I just really want to thank everybody, all three
of you, for being there.
Ms. Eastmond. Thank you.
Senator Booker. Mr. Kramer, you said that generally you
agree with me on criminal justice issues?
Mr. Kramer. Yes.
Senator Booker. That is all I wanted to hear.
[Laughter.]
Senator Booker. No, sir.
Mr. Kramer. That is good enough for me.
Senator Booker. Good enough for me as well. No, sir, the--
can you just give me--I tried to make a point yesterday about
the balance of power shifting in American law. I mean, we seem
to have a right to a jury, but that seems to me, and I am not
saying you should agree with me on this. I just want to hear
your real opinion on it. It is really shifting dramatically
because in a plea bargain, which is not really a fair bargain,
but now prosecutors have a lot more of a--of a threat of
jeopardy to offer--to offer that makes often people take a plea
bargain because they are too afraid of going to trial. When
they do go to trial, the chances for success are pretty low,
and I know that public defenders often will let people know
what the reality is. Is that shift in our American criminal
justice system happening?
Mr. Kramer. Senator Booker, that is a great question, and
absolutely. I think you know the statistics. Over 97 percent of
the cases in Federal court pleaded guilty last year, and
similar statistics in State court, and I would not call it a
``plea bargain.'' I would call it a ``plea imposition.'' The
terms are given. You take it. And you are absolutely right
about mandatory minimum sentences skewing the power in the
system. It is all in the prosecutor's hands.
I have been around for a long time and seen a huge power
shift as a result of sentencing guidelines, mandatory minimums,
and just draconian sentences, especially of people of color. It
has affected disproportionately. And so, yes, you are
absolutely right, there has been a huge shift.
Senator Booker. And that is the painful thing for me is, I
see young kids getting caught up for drug crimes that kids in
privileged communities. You know, I, too, went to Yale, I went
to Stanford. Lots of drugs. Lots of drugs. I will not make any
personal confessions right now, but lots of drugs.
[Laughter.]
Senator Booker. And so, here are kids getting charges for
doing things that two of the last Presidents admitted to doing,
and then they are presented with a plea. I have had young kids
sit in my office and say, hey, look, I was terrified, facing 10
years, stacked mandatory minimums. This guy told me I can get
out right now, and then I end up with a--then I end up with a
criminal conviction, but they do not realize that is a lifetime
sentence.
And so, I guess, just can you make this point for me, that
this idea of a right to a jury trial, that is kind of being
eroded in the United States of America. Would you agree with
me?
Mr. Kramer. I would call it a disappearing right, Senator
Booker. And also, I think you are absolutely right, and since
you did not make any confessions, I do not feel I have to make
any either.
[Laughter.]
Senator Booker. You are good.
Mr. Kramer. But you are right, there is--you are talking
about the neighborhoods. There are tactics in various
neighborhoods that if they were engaged in other neighborhoods
in the cities or suburbs that would just be--they would not be
tolerated by the population there, but because of a powerless
population in the neighborhoods where it does occur. And so,
you are right on both points about the tactics that occur in
various neighborhoods, and you are absolutely right about the
disappearance of the--of the jury trial.
Senator Booker. Okay, thank you. My time has expired. I
just want to say something to Mr. Christmas because I have
met--Mr. Christmas and I know--have previous--we have met each
other before. And I just want to testify to your character
because it is a tough--you said something--he said something
that was really--I think really important about the
partisanship and the tribalism often, and how friendships are
tested, that you were speaking to what you know of him as a
friend, not as a judge, but as a friend, and I want to
appreciate that.
And I want to make an open offer for you because you
stopped playing basketball because of your age. The Senate has
a basketball game, and I promise you there are age-appropriate
of us that can play, and you probably would be like Michael
Jordan if you came and played amongst us.
[Laughter.]
Mr. Christmas. I will do my best.
Senator Booker. All right. Thank you, sir.
Chairman Grassley. We have two things left for this panel.
Senator Kennedy, you want some time. And then Senator--well,
now, we are going to have Senator Hirono, too. Go ahead,
Senator Kennedy.
Senator Kennedy. I had to step out for a few minutes, but I
heard your testimony, each of you, and I just want to thank you
for it. And I know you each spent a lot of time putting the
testimony together. This stuff does not just write itself. I
was--mentioned to the earlier panel, I enjoy this immensely. I
learn a lot from listening to your different perspectives, and
I just want to thank you.
Chairman Grassley. Senator Hirono does not want to be
recognized.
Senator Hirono. Mr. Chairman, I have questions for the next
panel----
Chairman Grassley. Yes.
Senator Hirono [continuing]. But I certainly thank this
panel for being here.
Chairman Grassley. Yes. Yes. I am--for courtesy to the
Ranking Member, he wants to speak for a minute to some people
on the panel.
Senator Whitehouse. Yes, thank you very much, Chairman. I
just wanted to make one point because there is so much
discussion about mens rea, and I just wanted to provide what I
see as some context for this. I have read Judge Kavanaugh's
decisions on mens rea, which have focused so far on individual
defendants, and very often individual defendants who faced very
significant terms of incarceration. And I see no objection
whatsoever in any of the decisions that I have read of his.
I have also been at the center of the effort to try to
negotiate a sentencing and reentry reform package, along with
Senator Cornyn, Senator Grassley, and Senator Booker, and
Senator Lee, and others. And as we did that, what began to pop
up and what popped up through big industry-funded groups, was a
late-arriving desire to reform mens rea. And the obvious motive
for that is a group of offenses, a category of offenses, that
are called ``public welfare offenses.''
And those are offenses in which we say, particularly about
a dangerous instrumentality, like a pollutant, or benzi, or
dynamite, or something like that, that at some point if you are
a big corporation and something really goes wrong--you spill
your 10,000th barrel--that is a crime, and we do not care what
your mens rea, what your degree of intent is. Your job as a big
corporation that pollutes or has dangerous things is, to make
sure that does not happen. That is why we put that marker out
there. And it is a very well-established type of criminal
conduct, is it not, Mr. Kramer?
Mr. Kramer. Yes, absolutely. Public regulatory offenses
like that, they are--there are a number of them, right, that
have no mens rea requirement.
Senator Whitehouse. And my worry, and I will just put this
out, there is a marker, and this will be telling if it happens,
is, if this body of precedent that Judge Kavanaugh is building
up with respect to individual defendants who face significant
terms of incarceration all of a sudden has a very big morph and
suddenly becomes the basis for an attack on these public
welfare offenses. I have seen that maneuver begin to happen in
Congress, and if it starts to happen in the courts, to me, at
least, that would be another telling sign of the big
influencers and interests that operate so much of what happens
in our court systems coming in to seize a prize. And I hope
that we do not go there.
Mr. Kramer. Did you want me to respond? If you want me to
respond briefly, I do not want to----
Senator Whitehouse. Go ahead and respond briefly.
Mr. Kramer. The only thing I can say, and I know exactly
what you are talking about, is that, Judge Kavanaugh, the
opinions he has written are in cases that have a mens rea
requirement, knowing, willfully. And I have never seen him
write that it should be extended to public with--he is--in
other words, he is going with the will of Congress and what
Congress enacted. And I have never seen him take that step in
an opinion----
Senator Whitehouse. And I hope he never does.
Mr. Kramer. Of a case--of a crime without a mens rea
requirement.
Chairman Grassley. Okay. Once again, even though I thanked
you once, we know you go to a lot of work to do this for the
people of this country and the Senate in the consideration of
this nomination. Thank you very much, and you are dismissed.
Before I introduce the next panel and swear the next panel,
I want to take the opportunity to give appreciation from the
Chairman of the Committee for all the staff work that goes into
this. And I have been fortunate as a Senator to have an
outstanding staff over many years, and I hope they know how
much I appreciate them, both Committee staff and Personal
Office.
Before closing this hearing today, I would like to name
staffers specifically assigned to work on this nomination
hearing. Some are my permanent staff, led by Chief Counsel for
Nominations Mike Davis, and including Lauren Mehler, Steve
Kenney, Jessica Vu, and Katharine Willey.
And then others are here only temporarily because we get
additional resources when we have a Supreme Court nominee, so I
want to name them and say thank you for their extraordinary
work and commitment to public service. The special counsels
added specifically for this Supreme Court nomination were led
by Andrew Ferguson and included Tyler Badgley, Lucas Croslow,
Colleen Ernst, Megan McGlynn, and Collin White. The law clerks
were Camille Peeples, Abby Hollenstein, Tim Rodriguez, Dario
Camacho, Elizabeth Donald, Bob Minchin, Nathan Williams, Sam
Adkisson, Nick Gallagher, Michael Talent, Asher Perez, Garrett
Ventry, as did Jacob Ramer as an intern.
So I thank the legal team for their important part in the
Senate's consideration of Judge Kavanaugh.
I think before I introduce you, I would ask that you stand
so I can swear you, please.
[Witnesses are sworn in.]
Chairman Grassley. Thank you all very much. I know a lot of
you here, names I recognize, you are famous around town and
famous in history, so I probably will not do justice to your
introduction.
Monica Mastal is a real estate agent in Washington, DC. She
has known Judge Kavanaugh for 25 years.
John Dean, who I have known not as a person but I have
known since before I even got to Congress by his reputation,
served as Richard Nixon's White House Counsel from 1970 to
1973.
And then, of course, famous lawyer Paul Clement is a
partner of Kirkland & Ellis, served as Solicitor General of the
United States 2005 to 2008 and has argued over 90 cases before
the Supreme Court. Judge Kavanaugh and Mr. Clement clerked at
the same time on the Supreme Court. Judge Kavanaugh clerked for
Justice Kennedy--and the Justice's whose big shoes Judge
Kavanaugh is nominated to fill--when Mr. Clement clerked for
the late Justice Scalia.
Professor Rebecca Ingber--I hope that is right--is an
assistant professor of law, Boston University School of Law.
Professor Adam White has had me on panels with an
organization he is with, and he is also from Iowa, not right
now from Iowa but was born in Dubuque, Iowa. By the way, I
talked about you in my opening statement this morning.
Professor Adam White is assistant professor at George Mason
University Antonin Scalia Law School and is executive director
of C. Boyden Gray Center for the Study of Administrative State.
He is also a research fellow at the Hoover Institution and a
member of the Administrative Conference of the United States.
And I also had a chance to meet your parents about an hour ago,
and they came out just especially for you.
Professor Lisa Heinzerling, is that right? Is a Justice
William J. Brennan, Jr., Professor of Law at Georgetown
University Law Center.
Professor Jennifer Mascott served as a law clerk for Judge
Kavanaugh from 2006 to 2007 and went on to clerk for Justice
Clarence Thomas, Supreme Court. She is an assistant professor
of law at George Mason University Antonin Scalia Law School and
is counsel to the law firm Consovoy McCarthy Park.
Professor Peter Shane is the Jacob E. Davis and Jacob E.
Davis II Chair in Law at the Ohio State University Moritz
College of Law.
So will you proceed, Ms. Mastal?
STATEMENT OF MONICA MASTAL, REAL ESTATE AGENT, WASHINGTON, DC
Ms. Mastal. Thank you, Mr. Chairman.
Mr. Chairman Grassley, Ranking Member Whitehouse, and
Members of the Senate Judiciary Committee, I am honored to be
here today to address you in support of my friend and my
daughter's favorite coach, the Honorable Brett Kavanaugh. My
testimony today will not be from a legal perspective but from a
personal and parental perspective. Consider it more about the
person than the nominee.
I have known Judge Kavanaugh for many years, but in recent
years have seen him on a regular basis thanks to his position
as the coach of the CYO girls fifth and sixth grade basketball
team at Blessed Sacrament School. In our house, he is not known
as Judge Kavanaugh but as Coach K. He was my daughter's coach
for 2 years. Our first year, his daughter was in fourth grade
and therefore ineligible for the team. He still coached. In my
book, that alone qualifies him for sainthood.
As a high school and college player, Coach K had the job
prerequisite of basketball knowledge. More importantly,
however, he had the other necessary attributes of patience,
fairness, and diplomacy, and he had them in spades. Fairness
with young players and opposing teams, patience with boisterous
parents, and diplomacy with referees who are on their fifth
game of the day and making some questionable calls.
In the few hours a week of practices and games, Judge
Kavanaugh teaches much more than the fundamentals of
basketball. All of the other important concepts were there,
too: teamwork, hard work, commitment, setting and achieving
goals, and striving to be your best. It is an enormous task to
communicate all of that to young girls in so little time, but
his calm demeanor got the message across. No yelling or gavel
was necessary.
Of course, the Kavanaugh's contribution to our community
extends beyond basketball. School auctions, food drives, and
service projects are abundant at Blessed Sacrament, and Brett
and Ashley are always there to participate.
This leads me to another personal perspective: Brett is
relatable to everyday Americans. In the public eye, Supreme
Court Justices are strictly cerebral, ethical, humble, and
courageous. He is all of those things, but I am one of the
everyday Americans who sees him getting his children to
practice, managing four games a weekend, serving as a lector at
church, running on the high school track, and socializing with
friends.
As my final note today, I would like to read Coach
Kavanaugh's ``final note'' to my daughter, from his end-of-the-
season player evaluation. I share this with the utmost
confidence that every player on the team received the same
honest, appreciative, supportive, heartfelt, and confidence-
building message. It stated: ``Thanks, Mary Grace. You are an
excellent athlete and were a great contributor to the team. We
loved your spirit and attitude. We really enjoyed coaching you
and wish you all the best. We look forward to having you on the
team next year. Keep up your great spirit, attitude, and work
ethic and you will be a big success in all you do.'' It kind of
makes me want to go back to fifth-grade basketball.
Thank you for the opportunity to share this personal
perspective. As the great UCLA basketball coach John Wooden
said, ``Young people need models, not critics.'' I think this
final note says it all as to the model Coach Kavanaugh has been
to our children. I know the parents of his players feel as
fortunate as I do that our girls had such a wonderful mentor.
Through basketball, he taught them the skills they will need
not only for a season, but for a lifetime.
Thank you.
[The prepared statement of Ms. Mastal appears as a
submission for the record.]
Chairman Grassley. Mr. Dean.
STATEMENT OF JOHN W. DEAN, FORMER COUNSEL TO THE PRESIDENT,
PRESIDENT RICHARD M. NIXON, BEVERLY HILLS, CALIFORNIA
Mr. Dean. Mr. Chairman, Ranking Member, Members of the
Committee, thank you for the invitation. In my allotted time, I
would like to take a few points from the statement I have
submitted for the record.
I have made two overriding points in that submitted
statement. First, if Judge Kavanaugh joins the Court, it will
be the most Presidential-power-friendly court in the modern
era. Republicans and conservatives only a few years ago, I know
well, fought the expansion of Presidential power and Executive
powers. That is no longer true.
Judge Kavanaugh has a very broad view of Presidential
powers. For example, he would have the Congress immunize
sitting Presidents from both civil and criminal liability.
Under Judge Kavanaugh's recommendation, if a President shot
somebody in cold blood on Fifth Avenue, that President could
not be prosecuted while in office. Also, it is not clear to me
listening to the testimony that he really believes U.S. v.
Nixon was correctly decided.
A second general point from my submission, a very vital, I
think, process point, Ranking Member Dianne Feinstein stated on
the morning of September 4 just before the hearings opened that
after participating in nine Supreme Court confirmations, it had
never been so difficult to get access to background documents
relating to a nominee as in the current proceedings.
Unsuccessfully, the Minority sought to postpone these hearings
until all the requested documents were provided. The Chair,
however, declined to consider the motion that would make review
possible.
This Committee is deeply involved in the final phase of
vetting Supreme Court nominees. Based on personal experiences
with the confirmation, for example, of William Rehnquist and
studying the confirmation of Clarence Thomas, it is clear there
was an across-the-board failure to fully vet the nominees, and
it has haunted their careers on the Court, it has hurt the
Court and the American people. Because of the withholding of
documents, Judge Kavanaugh may be traveling the same path as
Rehnquist and Thomas.
When writing a book that I did several years ago, ``The
Rehnquist Choice,'' I explained how Rehnquist was selected by
Nixon as one of the two--for two openings that occurred in
1971. I also reported my sad discovery that Rehnquist had
dissembled during his confirmation proceedings. He did,
however, notwithstanding false statements, become an Associate
Justice.
When Ronald Reagan nominated him to be Chief Justice in
1986, again, he was not vetted, and in those hearings he was
confronted not only with his early false statements but new
material that resulted in new false statements. All the Court
historians that I have examined as well as Court scholars find
clear and convincing evidence that Mr. Rehnquist lied in his
two confirmation proceedings. This hurt him and it hurt the
Court.
Because Justice Thomas was not fully vetted, his career on
the Court has been under a cloud as well. Justice Thomas'
truthfulness vis-a-vis Professor Anita Hill's claims of sexual
harassment have never been fully resolved, nor has the
controversy ever ended. A definitive study of this controversy
was undertaken in 1994 by journalists Jane Mayer and Jill
Abramson, ``Strange Justice: The Selling of Clarence Thomas.''
They found a preponderance of evidence that supported Anita
Hill's claims. This controversy has received renewed attention
with the #MeToo movement, which is growing stronger and it is
not going to disappear. In fact, Justice Thomas' truthfulness
is an issue in this year's midterm elections. A Democratic
candidate in Massachusetts has made impeachment of Thomas for
his false claims during his confirmation one of the planks of
her campaign.
In closing, Judge Kavanaugh's nomination has raised issues
about the truthfulness of his confirmation to become a judge on
the D.C. Circuit. His answers to this Committee have not
resolved the issue. Frankly, I am surprised that Judge
Kavanaugh is not demanding that every document that he has ever
handled be reviewed by this Committee unless, of course, there
is something to hide.
Thank you.
[The prepared statement of Mr. Dean appears as a submission
for the record.]
Chairman Grassley. Thank you, Mr. Dean.
Now, Mr. Clement.
STATEMENT OF HON. PAUL D. CLEMENT, PARTNER, KIRK-LAND & ELLIS
LLP, AND FORMER SOLICITOR GENERAL
OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Clement. Thank you, Chairman Grassley, Senator
Whitehouse, and Members of the Committee. It is a great
pleasure and honor to return to the Senate Judiciary Committee
where I served as a staffer some two decades ago. It is an even
greater pleasure and honor to be here today to testify in
support of the confirmation of Judge Kavanaugh's nomination to
the Supreme Court of the United States.
Judge Kavanaugh and I first met some 25 years ago when we
clerked at the Supreme Court together during the same term for
different Justices. Although the law clerks were an impressive
bunch, Brett immediately stood out. Unlike most of the rest of
us whose legal experience consisted of a single appellate
clerkship, Brett came to his Supreme Court clerkship with two
clerkships under his belt already on the Ninth and Third
Circuits, and he had also served as a Bristow Fellow in the
Office of the Solicitor General, where he spent a year
following the Court closely and working on briefs in opposition
and other Supreme Court filings.
As a result, while the rest of us were feeling our way
rather blindly through the process of preparing our first pool
memos and sorting through our first sets of briefs, Brett was
already fully versed in the Court's certiorari criteria, rules,
and even stood ready to handicap the likely quality of upcoming
oral arguments by members of the Supreme Court bar. Brett
quickly came to be seen by his fellow law clerks as a resource
on everything from the minutia of Supreme Court practice to
matters of high constitutional doctrine.
But what really stood out about Brett was not just his
knowledge of the Court and the law, but the undeniable fact
that he was a well-rounded, likable, and unpretentious person.
You expect a Supreme Court law clerk to have a first-rate legal
mind. You do not necessarily expect a Supreme Court law clerk
to have a sweet jump shot. I can tell you from firsthand
experience that Brett had both. He was as comfortable talking
about how to break a full-court press as he was discussing the
Rooker-Feldman doctrine.
For all these reasons, Brett was admired by fellow clerks
from all chambers and across ideological lines. None of us was
the least surprised to see him become the first of our ranks to
argue a Supreme Court case and the first to become a Federal
appellate court judge, beating out Justice Gorsuch by a nose.
Judge Kavanaugh and I became friends during our clerkship
year and have remained friends ever since. But I am not here
today testifying out of friendship. Rather, I am testifying
today because of what I have seen in observing Judge Kavanaugh
in his over 12 years of service on the Federal appellate bench.
By happenstance, I was in the courtroom to witness one of
Judge Kavanaugh's first oral arguments as an appellate judge.
He was incredibly well-prepared. He demonstrated a mastery of
the record and asked penetrating questions of both sides. He
carefully listened to the arguing attorneys' answers, as well
as the questions emanating from his more seasoned colleagues.
None of this surprised me, but I was struck by the fact that he
was expressing this mastery of the record and a profound
interest in the legal arguments in the context of a petition
for review from a decision of the Federal Energy Regulatory
Commission, or ``FERC.''
Now, at least in my days as a law clerk on the D.C.
Circuit, FERC cases were not among the most coveted by the law
clerks or the judges. FERC cases were notoriously complex, with
long administrative records filled with strange acronyms and
doctrines unknown in other areas of the law. I feared for my
friend Judge Kavanaugh that he would be saddled with the
assignment of the FERC case while his more senior colleagues
authored opinions in higher-profile cases addressing more
readily accessible doctrines.
While my fears were realized, I am quite sure that Judge
Kavanaugh did not mind. As I have seen in the ensuing 12 years,
he approaches every case with the same thorough approach,
regardless to the amount in controversy, the degree of
notoriety, or the agency involved. He recognizes that each case
is the most important case for the clients and lawyers involved
and treats each case accordingly.
Let me close with just a few words about judicial
temperament. The concept has been much discussed in the course
of other judicial confirmation hearings, but the topic has
received less attention in the course of these particular
hearings because Judge Kavanaugh has so plainly demonstrated
the requisite judicial temperament over his years on the D.C.
Circuit.
That said, I believe it is a mistake to think of judicial
temperament as if it is a binary characteristic, something a
judicial candidate either has or lacks. Instead, there are
degrees of judicial temperament. And I am here to tell you,
based on my own experience arguing in front of Judge Kavanaugh
that Judge Kavanaugh has judicial temperament in spades. He is
respectful of counsel in both his demeanor and in his level of
preparation and engagement.
Nothing is more discouraging to litigants or their clients
than a cold or underprepared bench. There is no fear of that
with Judge Kavanaugh. He understands that appellate cases are
serious business for the parties involved and prepares
accordingly. So I think based on my experience knowing him not
just as a friend but also as a judicial officer, by any
conventional measure, I believe he is enormously qualified to
serve on the Nation's highest court. I am confident he will
serve with distinction, and I urge you to vote for his
confirmation.
[The prepared statement of Mr. Clement appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. Clement.
Now, Professor Ingber.
STATEMENT OF REBECCA INGBER, ASSOCIATE PROFESSOR OF LAW, BOSTON
UNIVERSITY SCHOOL OF LAW, BOSTON, MASSACHUSETTS
Professor Ingber. Thank you, Chairman Grassley, Ranking
Member Whitehouse, and distinguished Committee Members. It is
an honor to testify before you today.
My name is Rebecca Ingber. I am an associate professor at
the Boston University School of Law, and previously, I served
in the State Department Office of the Legal Advisor, where I
worked with colleagues at the Departments of Justice and
Defense, in the intelligence community, and at the White House
on matters involving international law and war and Executive
power, so my testimony today will focus on Judge Kavanaugh's
jurisprudence in these areas.
Judge Kavanaugh has clearly had an exceptional career and
has many obvious strengths, but I believe there are concerns
his jurisprudence raises that should be addressed before final
consideration of his nomination.
In particular, and as I explore in more detail in my
written remarks, Judge Kavanaugh's opinions reveal that he is
exceedingly reluctant to impose checks on the President's
powers in the national security sphere.
Now, this is not an area where Judge Kavanaugh has merely
followed precedent with his hands tied.
To take one prominent example, in a case involving the
President's authority over detainees at Guantanamo Bay, Judge
Kavanaugh wrote an 87-page separate opinion to argue that the
Court should not look to international law to inform the
President's war powers, a position that is contrary to over two
centuries of settled precedent. In fact, all three branches of
Government have long looked to international law to define war
powers over the entire course of this Nation's history. When
Congress authorizes the President to use all necessary and
appropriate force, it does so against the backdrop of that
history.
The Supreme Court has ratified this understanding
repeatedly, including in opinions that look to international
law both to read the President's powers expansively and to
interpret the outer limits on those powers. They did just that
in Hamdi v. Rumsfeld, which Justice Kennedy joined, which
looked to international law to find that the 2001 statute
authorizing the President to use military force also authorizes
detention, as well as limits on that detention.
Perhaps because these rules have always guided our
understanding, international law is one of the only tools the
courts and the political branches have for interpreting war
powers. Thus, it is often the only limiting principle for
interpreting the outer bounds of the President's wartime
authorities.
Now, I want to clarify a misconception about international
law. These are not rules imposed on us by some outside source.
The international laws of war, for example, are rules that we
have affirmatively chosen to be bound by, specifically in
wartime, and which the United States, including the U.S.
military, has always played a principal role in shaping. These
are rules that benefit our military, as well as all of us.
These rules are so built into the national ethos that we
may forget they derive from international law. For example, we
know that it is unlawful for the President to kill families of
terrorism suspects. Why? Because the international laws of war
prohibit the targeting of civilians. And we have always
interpreted the President's authority to wage war in light of
those rules.
If the Supreme Court were to adopt Judge Kavanaugh's
position on this or other areas where he has invoked national
security to dismiss the Court's role in checking the President,
the result would be that the President could wield nearly
unreviewable discretion when he invokes war or national
security.
For my time in Government, I know there is a great deal of
thoughtful decisionmaking and robust process that happens
inside the national security apparatus, but I also saw
firsthand the importance of the Court's role in checking
Presidential power, even when the President invokes war or
national security. Mistakes happen. Bad decisions may come
about through incompetence, through insufficiency of facts,
exigency, and even, yes, through the intentional abuse of
power. Even a robust process can lead to Presidential
overreach. After all, the premise of the separation of powers
is that each branch will seek to enhance its own authority and
the other branches, including the courts, are there to impose
limits.
Moreover, while Judge Kavanaugh would have the courts defer
broadly to the President in this area, the reality is that the
executive branch looks to the courts to understand the
parameters of its authority. When a judge defers broadly to the
position that the Government takes in court, a position taken
not under the best view of the law standard but rather that of
a defensive litigant trying to win its case, the court's
deference often has the result of a merits decision, and that
becomes the law for the executive branch going forward. If the
courts never----
[Disturbance in the hearing room.]
Professor Ingber. If the courts never push back on the
Government's litigation positions, the result is a one-way
ratchet of expanding Executive power.
And because so much of executive branch decisionmaking in
this realm happens in secret, accountability through public
scrutiny alone is often insufficient. Judicial review is at
times the only means of holding the President accountable.
For these reasons, and those in my written testimony, I
urge you to consider the dangers in a judicial approach that
cedes to the President unreviewable discretion in this realm.
Thank you for inviting me to testify today. I would be
pleased to answer any questions the Committee has.
[The prepared statement of Professor Ingber appears as a
submission for the record.]
Chairman Grassley. Thank you, Professor.
Now, Professor White.
STATEMENT OF ADAM J. WHITE, PROFESSOR AND EXECUTIVE DIRECTOR,
THE C. BOYDEN GRAY CENTER FOR THE STUDY OF THE ADMINISTRATIVE
STATE, GEORGE MASON UNIVERSITY ANTONIN SCALIA LAW SCHOOL,
ARLINGTON, VIRGINIA
Professor White. Thank you. Chairman Grassley, Ranking
Member Whitehouse, Members of the Committee, thank you for
inviting me to testify in support of Judge Kavanaugh's
nomination.
Chairman Grassley, as you very kindly mentioned, my first
education in civics and history came from the teachers in
Dubuque, Iowa, and the University of Iowa, so it is a real
pleasure to be here today, a great honor to discuss Judge
Kavanaugh's own deep appreciation for our Constitution and the
rule of law, as exemplified by his 12 years of service on the
D.C. Circuit, 300-plus judicial opinions, and a deep record of
legal scholarship.
His record is particularly impressive on questions of
administrative law; that is, the body of law that governs
administrative agencies and defines the agencies' relationships
with Congress, with the courts, with the President, and with
the people. In my longer written testimony, I focus on four
important aspects of Judge Kavanaugh's approach to
administrative law. Today, I would like to highlight two issues
in particular.
The first involves doctrines of judicial deference to
administrative agencies' legal interpretations. Not long ago,
skeptics of judicial deference were found primarily on the
left. Now, increasingly, judicial deference also finds critics
on the right. I would like to echo a lot of Professor Ingber's
comments toward the end of her testimony on the inherent
challenges and problems of excessive judicial deference to the
executive branch, not just in matters of foreign policy and
national security but also with respect to executive regulatory
agencies.
Throughout his time on the D.C. Circuit, Judge Kavanaugh
has faithfully applied the Supreme Court's increasingly complex
approach to judicial deference, including Chevron deference,
especially in recent cases involving agencies claiming immense
new regulatory powers under the guise of decades-old statutes.
My second point today goes to the design of administrative
agencies. From time to time, Congress has passed laws giving a
certain degree of independence to the leadership of Federal
regulatory commissions or to other officers by limiting the
President's ability to fire those officers at will. Making
officers independent from the President raises profound
constitutional questions because, as Professor Amar explained
this morning, the Constitution vests the President with
Executive power. The Constitution obligates the President to
take care that the laws are faithfully executed, and when you
break that link of accountability between officers and the
President, you undermine both of those constitutional
commitments.
So on the limited occasions where the Supreme Court has
affirmed statutes giving regulatory commissions or other
officers a measure of independence, it has done so carefully
and subject to crucial limits. Judge Kavanaugh has followed
those judicial precedents very carefully in cases where
Congress improperly attempted to vest even greater independence
in newly created regulatory agencies beyond the limits
previously allowed by the Supreme Court. And this includes the
PHH case, as Professor Amar noted this morning.
In applying those Supreme Court precedents, Judge Kavanaugh
has attracted criticism from those who would like to see
administrative agencies be made even less accountable to the
courts, the President, and the Congress. Now, in an era when
agencies are often eager to enact policies that Congress has
not legislated, some of Judge Kavanaugh's critics favor those
energetic agencies over Congress. And in a system where an
elected President might disagree with the policy preferences of
an administrative agency, some of Judge Kavanaugh's critics
favor making the agencies independent from the President rather
than accountable to the President. And in an era when
administrative agencies have been increasingly eager to impose
unprecedented and immense regulatory programs despite the lack
of clear legislative authorization, some of Judge Kavanaugh's
critics favor judges becoming more deferential to agencies, not
less.
I think Judge Kavanaugh, in applying the Supreme Court's
precedents under the Constitution, has the better of these
arguments. His approach in my opinion is administrative law at
its best, empowering agencies to administer the laws
efficiently and effectively but always subject to the deeper
fundamental commitments of our Constitution's structure and
rights. For that reason, I hope that you will give your advice
and consent to the appointment of Judge Kavanaugh to the
Supreme Court.
Thank you for this opportunity to testify.
[The prepared statement of Professor White appears as a
submission for the record.]
Chairman Grassley. Thank you, Professor White.
Now, Professor Heinzerling.
STATEMENT OF LISA HEINZERLING, JUSTICE WILLIAM J. BRENNAN, JR.,
PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON,
DC
Professor Heinzerling. Thank you, Chairman Grassley.
Chairman Grassley. Push the red button or whatever color
the button is.
Professor Heinzerling. Thank you, Chairman Grassley and
Ranking Member Whitehouse, for inviting me to testify here
today. My name is Lisa Heinzerling, and I am the Justice
William J. Brennan, Jr., Professor of Law at Georgetown
University. I will testify about Judge Kavanaugh's views on
administrative law. They are somewhat different from the views
we have just heard.
Administrative agencies are at the heart of administrative
law. These agencies are the institutions you know by their
initials: the EPA, the FDA, the FTC, the FCC, and so on. They
are the institutions that do the day-to-day work of Government,
staffed by experts, created and set in motion by Congress, and
subject to requirements of public input and reason-giving.
Administrative agencies combine expertise, politics, and
deliberation in a way other institutions do not. They are
responsible for everything from addressing air pollution to
enforcing rules against financial fraud. They are essential to
the daily business of Government.
Judge Kavanaugh would limit the ability of Congress to
structure and empower administrative agencies to do this
important work. He would eliminate Congress' power to provide
agencies with some measure of independence from the President
by protecting their top officials from being fired for
political reasons. He would also erase Congress' power to give
agencies legal authority to deal with the most important
problems we face unless Congress speaks with precise and
crystalline clarity. His opinions stating these views read as
if they are addressed to the administrative agencies
themselves, but make no mistake, Judge Kavanaugh's sights are
trained on Congress and its power to structure and empower
administrative agencies.
Judge Kavanaugh believes that the basic problem with the
structure of government today is that the President has too
little power and that Congress has too much. Judge Kavanaugh
believes that one of the constitutionally guaranteed powers of
the President is the power to fire agency officials for any
reason he deems sufficient, even where Congress has made a
different choice. Yet longstanding Supreme Court precedent
confirms Congress' constitutional power to create agencies that
are relatively independent from the President. Judge
Kavanaugh's approach to this precedent has been to treat it
grudgingly and read it narrowly. Once on the Supreme Court,
Judge Kavanaugh would be able to cast this precedent aside, and
in doing so, restructure modern government.
The result would be a super-powerful President, a
diminished Congress, and a corrosion of the checking and
balancing that the Constitution contemplates. Under Judge
Kavanaugh's constitutional theory, the President would be able
to exercise undiluted control over all of the administrative
agencies. Ironically, Judge Kavanaugh has thus taken an
instrument that is aimed at checking concentrated power--that
is, the separation of powers--and turned it into an instrument
calibrated to increase the power of the already most powerful
person in the Government.
Judge Kavanaugh also has a cramped view of Congress' power
to delegate crucial jobs to administrative agencies. He has
indicated that his preference would be to discard or
drastically pare back longstanding precedent giving agencies
deference when they interpret statutes that Congress has
charged them with implementing. The result would be uncertainty
and disruption as agencies, citizens, and courts adjusted to a
wholly new approach to statutory interpretation.
Even more damaging, however, is Judge Kavanaugh's view that
Congress may not empower an agency to issue a major rule--that
is, a rule that has great political and economic significance--
without giving the agency a precise and crystal-clear
instruction to that effect. This interpretive approach would
perversely disable agencies in the very circumstances in which
we need them the most. It would skew statutory interpretation
against agencies' power to undertake protective regulatory
programs that run counter to Judge Kavanaugh's own political
preferences. And it demands a legislative clarity that Judge
Kavanaugh himself has said is difficult to achieve.
Worst of all, it is quite clear that Judge Kavanaugh would
apply his strict new principle of interpretation only to
affirmative regulatory initiatives and not to deregulation or
failure to regulate. This is not a neutral principle.
Judge Kavanaugh often says that his motivating force is the
protection of individual liberty, but the liberty Judge
Kavanaugh embraces is badly skewed and terribly small. It is
the liberty of powerful groups to do their business unhindered
by Government rather than the liberty that comes from
meaningful Government protections against harmful human
behavior. In the name of liberty, Judge Kavanaugh has rejected
rules addressing toxic air pollution, climate change, workplace
safety, and financial fraud without acknowledging that in such
cases liberty sits on both side of the legal question. There is
on one side the liberty of regulated groups to go about their
business unimpeded by Federal law. There is on the other the
liberty of the rest of us to go about our lives at home, at
work, at school, and in our communities with the reasonable
assurance that the Government has our back in protecting us
against coming to harm at other people's hands.
Thank you.
[The prepared statement of Professor Heinzerling appears as
a submission for the record.]
Chairman Grassley. Thank you, Professor.
Now, Professor Mascott.
STATEMENT OF JENNIFER MASCOTT, FORMER LAW CLERK, AND ASSISTANT
PROFESSOR OF LAW, GEORGE MASON
UNIVERSITY ANTONIN SCALIA LAW SCHOOL, ARLINGTON, VIRGINIA
Professor Mascott. Mr. Chairman, Ranking Member Whitehouse,
and Members of the Committee, thank you for the opportunity to
testify today. I am honored to speak in support of my mentor
and former boss, Judge Kavanaugh, and to share with you why I
believe he would be an outstanding Supreme Court Justice. So my
testimony will highlight three aspects of Judge Kavanaugh's
character and judicial service: first, his commitment to
mentorship and consideration of diverse perspectives; next, his
fair-minded and careful consideration of legal questions; and
then finally, his commitment to following the law, independent
of personal policy preferences. These are qualities that I have
witnessed firsthand as Judge Kavanaugh's law clerk and then as
a student of his opinions over the years.
I served as a law clerk to Judge Kavanaugh during his first
year on the bench, and already at that time Judge Kavanaugh
demonstrated a commitment to seeking out diverse perspectives.
Our group of four clerks came from different parts of the
country, had diverse racial backgrounds, grew up among distinct
religious traditions, and graduated from ivy-league, as well as
non-ivy-league law schools.
Judge Kavanaugh's decision to hire our group of clerks
showed his value for perspectives of people from different
walks of life, and the Judge values hard work, achievement, and
determination, not any specific pedigree.
We routinely had lively discussions in the Judge's chambers
as he prepared each month for oral arguments. The Judge
encouraged us to ask tough questions of him as he prepared and
to debate legal issues with him and with each other. The Judge
wanted to hear and consider all sides of an issue, apply the
law fairly, and help train us to bring more rigor and precision
to our legal analysis, skills that have stayed with me
throughout my career so far. And now, as a law professor, I
view it as part of my job to pass along those skills to another
generation of students.
In addition to training us professionally, the Judge also
mentored us on a more personal level. We had regular lunches
with the Judge where we would discuss our families, our
professional aspirations, sports. Judge and Mrs. Kavanaugh had
us in their home for dinner during the holiday season, a
tradition that continued for many years. And Judge Kavanaugh's
devotion to training and mentoring female and male leaders in
the legal professional does not conclude at the end of a
clerkship in his chambers. He has remained a close mentor to
me, providing advice at every major point in my career since
the end of my clerkship more than 11 years ago.
And Judge Kavanaugh also branches out to assist young
lawyers far beyond the four corners of his clerk community. He
presides over student moot court proceedings. He speaks to
students associations and regularly teaches courses to students
in law school campuses.
Judge Kavanaugh's record of mentoring young lawyers and his
practice of hiring law clerks with diverse life experiences
demonstrate his commitment to giving back to the legal
profession and show that he has an open mind. Judge Kavanaugh
knows the impact that members of the judiciary can have on the
legal profession, the state of the law, and individuals in the
real world.
Judges take an oath to decide cases according to the law
and the Constitution, but care for people and the legal system
in its entirety can make a jurist a more careful, modest, and
thoughtful judge.
Judge Kavanaugh's determination to consider all relevant
issues and hear discussions from all sides also shows his
humility and his commitment to equal justice under the law.
During my clerkship, he approached each case with the same
level of care, regardless of the identity of the litigants or
the legal issues presented. He considered all relevant
statutes, precedent, and history, and he was conscientious when
writing his opinions. He would work through scores of drafts,
wanting his opinions to be precise, clearly written, and
accessible to litigants and the public.
In the years since clerking for the Judge, I have become a
professor who teaches and writes in the areas of administrative
law and the constitutional separation of powers, and serving as
a clerk for Judge Kavanaugh prepared me to analyze issues
rigorously, write carefully, consider all sides of an issue.
Judge Kavanaugh's fair application of the law, his
mentorship of young lawyers, and his commitment to
constitutional principles and an independent judiciary
demonstrate I believe that he would be an excellent Supreme
Court Justice, and I strongly support his confirmation.
Thank you.
[The prepared statement of Professor Mascott appears as a
submission for the record.]
Chairman Grassley. Professor Shane.
Thank you, Professor Mascott.
STATEMENT OF PETER M. SHANE, JACOB E. DAVIS AND JACOB E. DAVIS
II CHAIR IN LAW, OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW,
COLUMBUS, OHIO
Professor Shane. Thank you. Chairman Grassley, Senator
Whitehouse, and distinguished Committee Members, thank you for
the opportunity to address you today.
This Committee's consideration of any potential Supreme
Court Justice inevitably immerses you in profound
constitutional issues. No issue before you now is more
important than Judge Brett Kavanaugh's approach to questions of
Presidential power and accountability. One straightforward
constitutional principle frames any sound analysis of these
questions. That principle is that no one, including the
President, is above the law.
My concern is that Judge Kavanaugh, both on and off the
bench, has crusaded for an extreme interpretation of the
President's constitutional powers that could effectively
undermine a President's accountability to law and to this
Congress. It is by no means the view historically associated
with conservative constitutionalism.
In the coming years, the Supreme Court may face a host of
issues, testing the Justices' commitment to a Presidency
subject to effective checks and balances. Some issues may arise
because our President and some of his closest associates stand
at the center of an ongoing investigation of an election
campaign tainted by covert foreign involvement and multiple
potential crimes. Some issues have already emerged because this
President has refused to distance the performance of his public
duties from those commercial activities that enrich his private
fortunes. Let me list some of these questions for you.
One is, whether a President is potentially liable for
obstruction of justice if he, and I am quoting the statute,
``corruptly endeavors to influence, obstruct, or impede the due
and proper administration of the law,'' unquote, to an official
act. The President's lawyers say no, which is almost certainly
both wrong and dangerous.
Another is, whether a President may relieve himself of
criminal liability through self-pardon, a power that President
Trump has said he ``absolutely'' has.
A third is, whether an incumbent President may be indicted
while in office.
A fourth issue is, whether Congress or a court may subpoena
Presidential records and even Presidential testimony in
connection with investigations into the 2016 campaign.
A fifth is, whether a President is constitutionally
entitled to personally direct the activities of all Federal
criminal prosecutors, including Special Counsel Robert Mueller.
With regard to the President's business dealings, a case is
already underway concerning the President's attempt to exempt
himself from the reach of the Constitution's Emoluments
Clauses. The President takes the position that unless a payment
is made to him personally for services rendered, the profits he
pockets from foreign and State governments patronizing his
properties are not the business of this Congress.
I am fearful of Judge Kavanaugh refereeing these questions
for three reasons: First, he explicitly adheres to the tenets
of a theory of the Constitution called unitary executive
theory. This extreme theory could give the President total
control over the actions and decisions of any executive branch
official. If it became law, Congress would be unable, for
example, to enact statutory limits on a scope of Presidential
supervisory power over an independent prosecutor. It is a
theory subversive of effective checks and balances, which
misreads our constitutional history and which the Supreme Court
has so far wisely rejected.
Second, Judge Kavanaugh's service in the George W. Bush
White House coincided with that administration's advocacy of a
host of dangerous and unprecedented claims for the reach of
Presidential power. During his first 6 years in office,
President Bush raised nearly 1,400 constitutional reservations
regarding roughly 1,000 provisions of over 100 statutes, more
than three times the total number of objections raised by his
42 predecessors combined.
After Judge Kavanaugh left his role as staff secretary, the
pace of Bush signing statements slacked off. This fact raises
the question to what degree Judge Kavanaugh was responsible for
urging unfounded claims of Presidential power.
Finally, while on the bench, Judge Kavanaugh has approached
issues of Executive power with an advocate's agenda. His most
important opinions on the D.C. Circuit rooted in unitary
Executive theory appear in cases where the court had no need to
reach constitutional issues at all. He has shown himself
willing to craft constitutional doctrine from whole cloth in
order to advance his pre-commitment to extreme Presidentialism.
Our current President daily expresses his contempt for the
democratic institutions and the rule of law. He believes that
all three branches of Government, not to mention the press and
the private sector, should heel to his personal command. He
chafes at the Constitution's constraints on his power. Now is a
dangerous moment to elevate to the Supreme Court any Justice
who would weaken the President's accountability to law. I have
elaborated on these points in my written testimony and would be
happy to discuss them further in response to your questions.
Thank you so much.
[The prepared statement of Professor Shane appears as a
submission for the record.]
Chairman Grassley. Before I take my 5 minutes, I would like
to, since this is--I am going to turn this over to Senator
Kennedy to finish the meeting. He will moderate. But I thought
I ought to, first of all, thank the whole panel for
participating, and then I want to thank all my colleagues on
the Committee, both Republican and Democrat, for their
cooperation throughout these 4 days of hearings. And except for
the first hour and 15 minutes on Tuesday, they all went very
well.
Senator Whitehouse. Even that went well.
Chairman Grassley. In the end.
Senator Kennedy. He is looking at you, Senator Whitehouse.
[Laughter.]
Chairman Grassley. So anyway, I do appreciate the
cooperation that we have had for the last 31-and-a-half hours.
My first question is to Professor Heinzerling and Professor
Shane. This is not a question that I had my staff prepare, but
both of you spoke very highly of the fear of Presidential power
and what he thinks about that. So I am asking you more of a
process question than a substance question.
Is it because you fear having a voice like that on the
Supreme Court under any conditions, or is it because you think
that his being on the Supreme Court may make a majority,
understanding the present eight members of the committee, that
that would make a majority and make it more dangerous than just
having one voice?
Professor Heinzerling. I have been worried about
Presidential power for decades and across administrations. And
so it is not just the present moment, although the present
moment does make me more fearful of Presidential power. It is
striking, I will say--even having said that, I will say that
there will be a clear five-Justice majority for what I consider
to be quite extreme views about Presidential power.
Chairman Grassley. And would you have anything to add,
Professor Shane, to what she said?
Professor Shane. My views would be very similar, and I
would echo what Mr. Dean said, that I am worried about having
the most Executive-power-indulgent Supreme Court since the end
of World War II.
Chairman Grassley. Okay. Professor White, I think you heard
a question I asked the last panel. We have had people express
their constitutional rights in demonstrating at this hearing.
You have had my colleagues ask views about whether or not Judge
Kavanaugh has any concern about people of less means, and you
heard it specifically from people on the previous panel. So how
do you feel his experience shows or does not show that he would
take those concerns into mind?
Professor White. Sure. Well, the challenge for any judge is
to see the case at hand through the eyes of all parties to the
case and those who are affected by the case. In administrative
law, a real challenge--I teach it, and before that I practiced
it, and a real challenge is to see administrative law through
the eyes of those who are regulated as much as through the eyes
of the regulator.
It is easy to be a professor or to be a high-powered lawyer
and see yourself as someday wielding the power of an agency,
and, of course, you want to be independent, of course, you want
the courts to defer to you. But knowing that regulatory power
has significant impacts on not just big corporations but on
landowners, homeowners, farmers, that is important as well.
So when the Supreme Court in recent cases became more
critical of the EPA's impositions on landowners, claiming
authority to regulate wetlands, when Judge Kavanaugh took pause
at the impacts the EPA's unprecedented program for greenhouse
gas regulations could have on small businesses and churches
that fell within the regulatory ambit the EPA was claiming,
those too I think deserve to be part of this conversation about
the impact of Government power on people without the means to
fight back against it.
Chairman Grassley. Thank you.
And, Mr. Clement, since you appear so much before courts,
and I guess I said 90 cases you have argued before the Supreme
Court, tell me what type of a judge you see Judge Kavanaugh
being during the times of oral arguments.
Mr. Clement. Senator Grassley, I think he has been an
exemplary judge on the bench. I think I would describe him as
an active judge, but he actively questions both sides. I think
as an active questioner he is going to fit right in, were he
confirmed, to the Supreme Court. I think the Supreme Court
right now is about the hottest bench that the Supreme Court has
ever been. I think each of the last Justices that have been
confirmed by this Committee have tended to ask more questions
than the Justice they replaced.
So I think he will fit right in to what he referred to as
the Team of Nine, and I think from an advocate's perspective,
that is what you want. You want somebody who is going to push
you but is going to push your adversary in the argument and ask
the hard questions of both sides, and I think that is what you
would get--that is what you are already getting with Judge
Kavanaugh on the D.C. Circuit, and I think that is what you
would see on the Supreme Court of the United States.
Chairman Grassley. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Mr. Dean, I do not know if you have been watching the
hearings, but my take on what we have seen is that, for a
number of very good reasons, including that Minnesota Law
Review article in which Judge Kavanaugh expressed a policy
desire that the President be immunized from law enforcement
investigation, and the Kavanaugh comment that U.S. v. Nixon was
wrongly decided, and the Georgetown Law Journal episode in
which he was asked as a matter of law can a President be
indicted and put up his hand ``no,'' with those who agreed that
a President was beyond indictment, it was a very live issue
through these hearings about whether the President could
properly be the subject of an ongoing criminal investigation.
Of course, we know that this President is the subject of an
ongoing criminal investigation, and we further know a separate
criminal investigation in which this President has been
identified as a named director of the criminal activity.
So in that circumstance, what I heard over and over was
Judge Kavanaugh citing his assertion that U.S. v. Nixon was one
of his top four cases. And all other facts being equal you
would say, okay, these other things do not matter very much.
But since he said U.S. v. Nixon was one of his top four cases,
then obviously that will overwhelm all these other things and
we can count on him to do the right thing.
But a little bell kept ringing in my mind, because whenever
he said that, he seemed to just drop in very quietly that it
was a trial court subpoena in U.S. v. Nixon. He never raised
that point. He never said this would be very different and
separated the two arguments. But it strikes me that if his
famous top-four U.S. v. Nixon decision is limited to a trial
court subpoena and does not protect the ability of law
enforcement to proceed through, for instance, a grand jury
subpoena, he played a little game with us to try to have the
best of both worlds, to reserve a little escape hatch for
himself to be able to shut down, for instance, the Mueller
investigation or the Southern District of New York
investigation subpoenas while still purporting to uphold U.S.
v. Nixon as a big favorite decision of his. Would you respond
to that?
Mr. Dean. I would agree with your analysis. And as I said
in my opening statement, I was not clear at all that he had
reversed his position on U.S. v. Nixon when he said that he was
not sure it was properly decided.
He also used it in the 2016 Law Journal article, along with
Marbury v. Madison, Youngstown, and Brown v. Board of
Education, in the context of a judge needing a backbone. He did
not say it was rightly decided, and he repeated that several
times during the hearings.
So, I do not think he has informed this Committee of his
real position on that very important case.
Senator Whitehouse. Yes, and actually through a rather
clever subterfuge, which I think is a shame, if that is the
case. We will pursue the question further.
Ms. Heinzerling, you have made some powerful statements
today, perhaps the best of which was that there is liberty on
both sides of the regulatory equation. As you know, we usually
see in politics the polluter big-money side heavily engaged,
and then good luck to the individual victim, like Hunter
Lachance here earlier with his asthma, and we very often see
phony-baloney studies that are put together that look at the
cost/benefit of regulation, but only look at the cost to the
polluter, to the regulated industry, and totally omit what
happens on the other side.
Could you speak a little bit more about the liberty side of
the beneficiary of the regulation and how they stand up on the
political side in terms of the balance of political power on
this question?
Senator Kennedy [presiding]. If you could give us about 30
seconds, Professor.
Professor Heinzerling. Yes, I would be happy to.
The laws that engage the administrative agencies in
protecting against the kind of harm I mentioned range across a
very broad area, and the people who are protected by those
rules are the ones who are left unprotected when Judge
Kavanaugh says that Congress has no authority to grant that
broad a power or to give the power, for example, to an
independent agency. And we do not hear about that in his
opinions at all. We only hear about the liberty of the
regulated group.
So I wonder to what extent he thinks about the people on
the other side. And if you think about it and you think about
the witnesses who were on the panel before this one, it is
basic things like going outside, being able to go to school on
certain days and so forth. Those are basic elements of liberty
that I think weigh just as heavily in the legal equation.
Senator Whitehouse. Or ought to.
Professor Heinzerling. Yes.
Senator Kennedy. Thank you. Thank you, Professor.
Senator Coons.
My order says Coons and then Klobuchar.
Senator Whitehouse. We have Klobuchar, Coons, Hirono, and
Blumenthal as our order.
Senator Kennedy. Well, I would never argue with you,
Senator.
[Laughter.]
Senator Kennedy. Senator Klobuchar.
Senator Whitehouse. In that case, let's talk about some
things.
[Laughter.]
Senator Kennedy. Okay.
Senator Klobuchar. All right. Thank you very much.
Thank you to all of you. I think I will sort of start where
we were ending over there.
I spoke, of course, in my questions with Judge Kavanaugh at
length about the 2009 article in the Minnesota Law Review,
given it is from my State, in which he argued that a President
should not be subject to investigations while in office. Judge
Kavanaugh actually, Mr. Dean, suggested that Congress can
always impeach the President if there is evidence of
wrongdoing, because I asked similar questions that you raised
in your testimony: Well, what if she committed a murder, the
President? What if she did this? And he has a differentiating
word of a ``dastardly'' crime, which I did not get to the
bottom of, really. But then also said that, well, you can
always impeach the President.
And one of the questions that I asked was, well, in the
modern day, these investigations have been done not by Congress
but with the special counsel, the independent counsel. And
could you talk about the difficulty, if we do not actually have
an ability to have an investigation, in terms of an impeachment
proceeding?
Mr. Dean. I was one who believed very strongly in the
independent counsel law. I think that was when Congress did
express itself that indeed a sitting President could be
investigated, and that withstood several tests on its
constitutionality.
We are currently, with the expiration of the sunset clause
of the independent counsel law, putting an end to that. We now
do it through the regulations of the Department of Justice, and
there are certainly no restrictions other than a policy right
now at the Department of Justice that prohibits investigation
of a President.
The history of that policy, people seem to forget why it
was written. It happened in 1973 when a Vice President was
under investigation by a Maryland grand jury and defending
himself by saying you cannot indict me, you can only impeach
me. An opinion was requested of Office of Legal Counsel, and
they concluded, and I think it was a predetermined solution to
a problem, that indeed the Vice President could be indicted but
the President could not be indicted, and that policy has stood
since then.
Senator Klobuchar. And you have previously drawn parallels
between Watergate and where we are today. How important was the
independence of the Federal judiciary in helping our country to
weather the Watergate scandal? Just really quickly because I
have one other question.
Mr. Dean. It was vital. Let me put it that way.
Senator Klobuchar. Okay. I would assume that it was.
Professor Heinzerling, thank you for being here. I had
asked Judge Kavanaugh about how the White House noted that he
has overturned agency action 75 times. When they announced his
nomination, they said he was a leader in overturning these
agency decisions. And when I asked him about it, he responded
to me by stating that he has also ruled in favor of agencies at
times.
What did you think of his response, and how do you view his
record in this area of law overall?
Professor Heinzerling. It would be astonishing if he ruled
against the agency in every case. That would be a sign of
something seriously amiss. So if there is a handful of cases--I
think he may have mentioned about six cases, something like
that, in which he ruled in favor of environmentalists. I think
most of them were not brought by environmentalists. But if
there were a handful of cases, there would be nothing
surprising about that, and also nothing about it that would
indicate that he was evenhanded, quite frankly, about the
environment.
He has issued a number of major decisions narrowing the
environmental laws, requiring a cost/benefit balancing in the
face of either clear or arguably ambiguous language, and he has
forwarded this message from case after case in the big cases.
In the little easy cases, it is no surprise if an agency might
win some of them, or if the environmentalists might win some of
them if it is an easy case on a procedural matter. But in the
big cases, the big environmental cases, he has been all on the
other side. And I will just say, the Supreme Court only takes
big cases.
Senator Klobuchar. Thank you very much.
Senator Kennedy. Senator Crapo, you are not interested in
asking questions? Okay.
Senator Coons.
Senator Coons. Thank you, Senator Kennedy.
I would like to ask unanimous consent to enter into the
record a report on the nomination of Judge Kavanaugh by the
Lawyers Committee for Civil Rights Under Law, and by the NAACP
Legal Defense and Educational Fund.
Senator Kennedy. Without objection.
[The information appears as submissions for the record.]
Senator Coons. Mr. Dean, thank you for your written
testimony and for appearing before us today. You alone in this
panel have the unique historical experience that I think is
directly relevant to the question of what happens when
Presidential power is unchecked and the President is not
accountable.
Based on your experience, what are the dangers of a
Presidency that does not face strong checks in the Supreme
Court and Congress? And what would have happened in Watergate
if President Nixon had been able to avoid compliance with a
subpoena or if he had been able to fire the special prosecutor
without some consequential response by Congress?
Mr. Dean. Well, of course, when he fired the special
prosecutor, he reacted to the negative publicity it had
generated and the interest of Congress suddenly in impeachment.
So he thought he could possibly stem that tide by bringing a
new, he thought initially, favorable and maybe not as
aggressive investigation with the appointment of Leon Jaworski.
The second special prosecutor, however, was equally as
effective as the original one, Archibald Cox, which I do not
think the White House had anticipated.
As far as the courts and the rulings, we would have had a
very different history had the Supreme Court not dealt with the
tapes case as they did. It would have resulted in Nixon
surviving. Without the tapes, it was my word against his, and
in the polling, while I was out-polling him at times, it was
not enough to resolve the problem.
Senator Coons. So without the smoking gun, which was made
possible by the Supreme Court's decision in U.S. v. Nixon,
Presidential accountability might not have occurred. We might
not really know what role the President had played, and we
might not have avoided the constitutional crisis of confidence,
and we might not have removed a criminal President.
Professor Shane, I questioned Judge Kavanaugh fairly
aggressively on his view of the scope of Presidential
authority. Based on his writings, his speeches, his opinions as
a judge, I am concerned he has a view of Presidential power
that is dangerously unbounded.
You have had a chance to review his work. Do you share my
concerns? And what do you make of his enthusiastic and repeated
embrace of Scalia's dissent in Morrison?
Professor Shane. There is a lot to that question, Senator,
so I will try to keep it brief.
What most concerns me about Judge Kavanaugh's position is
not just that he has embraced the tenets of the unitary
executive theory but that he has gone to such lengths to try to
create a kind of legal foundation for it in the D.C. Circuit in
cases that had nothing to do with unitary executive theory.
There was much discussion during Mr. Olson's panel about
the case of Morrison v. Olson, and Judge Kavanaugh, of course,
has famously said that he would like to put the final nail in
that case. But in the PHH case that was being discussed--this
was a case that the D.C. Circuit unanimously resolved on purely
statutory grounds--Judge Kavanaugh saw fit to write an
extensive opinion for the panel on the constitutional issue
that later got overturned en banc. The opinion he issued for
the panel pulled out of thin air this completely unmoored
theory about why a single-headed independent agency was
unconstitutional. It was full of arguments that would be
perfectly fine for Congress to entertain as a matter of policy,
but they had nothing to do with the Constitution.
With regard to Morrison v. Olson, it is still good law in
the Supreme Court that independent agencies are constitutional.
Whether they are a good or a bad idea is up to Congress, which
has the power to make all laws necessary and proper not only
for carrying into execution the powers of Congress but the
powers of all officers and offices of the United States
Government.
Senator Coons. Thank you, Professor.
If I might, a last question to Professor Heinzerling. Since
we went around and around about this several times, Judge
Kavanaugh and myself, in trying to explain his reliance on or
his interest in, or I would say his fixation with Scalia's
dissent in Morrison, Judge Kavanaugh tried to describe it as a
sort of one-off case about a now-expired independent counsel
statute, and I kept coming back to this dissent in PHH which
Professor Shane was just referencing.
Do you think that dissent lays out the unitary executive
theory and displays some significant enthusiasm for it that is
a well-founded justification for my having concerns about Judge
Kavanaugh's views on Presidential power?
Professor Heinzerling. Absolutely.
Senator Kennedy. Professor, just to be fair to everybody,
if you could give us about 30 seconds?
Professor Heinzerling. Yes. Absolutely, yes. He would have
struck down a major Federal statute that was very new that set
up the Consumer Financial Protection Bureau in which Congress
had made a judgment about the degree of independence and the
structure of the agency that was necessary in order to
counterbalance the power of the financial industry, and he
wrote a dissent from an en banc denial in that case. So, yes,
absolutely, you are right to be concerned.
Senator Coons. I would like to thank the whole panel and
just conclude by pointing out that the reason I raised these
concerns in pressing Judge Kavanaugh was that it is exactly his
quotes about U.S. v. Nixon, his enthusiasm for the dissent in
Morrison, his dissent in PHH, that leads me to still have
concerns that he would not hold the President accountable to an
investigation tied to a subpoena or to testimony in a way that
we need in our current environment.
Thank you, Mr. Chairman.
Senator Kennedy. Senator Hirono.
Thank you, Senator.
Senator Hirono. Thank you, Mr. Chairman.
Welcome to the panelists.
Mr. Dean, in your written statement you explain that if
Judge Kavanaugh is confirmed, we will have the most pro-
Presidential-powers Supreme Court in the modern era. Most
recently in Trump v. Hawaii, the Court upheld the President's
basically bald assertion of national security as a way to
sustain his Muslim ban. At least one Justice, Justice
Sotomayor, said that she saw parallels to Korematsu. So that is
already pretty far down the road as far as Presidential power.
So what current controversies do you think might come
before this Court that you have serious concerns as to how
Judge Kavanaugh, if he gets on the Court, will support the
President?
Mr. Dean. In answer to your question, I must say that one
of the things I did before I came to Washington was talk to
some academic friends that I think know an awful lot about
Presidential powers, the people I turn to with whom I have
discussed these things at great length. They cited that case as
one of the examples of how things quickly are slipping out of
bounds and where we are headed.
The fact that we have a President who is unchecked right
now by other branches makes it particularly timely to be
worried afresh given the Kavanaugh positions on so many cases
that would enhance Presidential power. I could see him as the
leader of the 5-to-4 that would enhance Presidential powers.
Senator Hirono. And he did not respond affirmatively to any
questions as to whether he would recuse himself should these
kind of questions come before this Supreme Court.
Mr. Dean. Exactly.
Senator Hirono. Professor Heinzerling, I found your
testimony really interesting because in my review of Judge
Kavanaugh's decisions there are various patterns, and I do
think he creates some new, novel ways to decide agency action
cases, for example. When Judge Gorsuch came before us, there
were a lot of questions regarding what we would call, ``the
frozen trucker case,'' in which Judge Gorsuch, in my view, his
decision or dissent was just outrageous and defied common
sense. I would look at the SeaWorld of Florida case as Judge
Kavanaugh's frozen trucker case.
Are you familiar with----
Professor Heinzerling. Yes, yes.
Senator Hirono. So do you think that this is an example of
how far Judge Kavanaugh would go to protect the corporate
interest over an individual?
Professor Heinzerling. Yes, I do. Thank you for that
question. In SeaWorld, he took a clear statute, a statute that
really fit the situation like a glove, and held that it did not
fit that situation because he could imagine that the single
enforcement action based on a single day at a single amusement
park might be deployed, that theory might be deployed to rule
out tackles in football, and that cannot be what Congress
meant.
And so he took clear language about assuring a reasonable
workplace against recognized harms that were avoidable and that
the agency had held in an evidentiary hearing all of those
circumstances were met in that case, and he said no. In
dissent, he said no, I do not believe this is covered by the
statute because I cannot believe Congress meant to rule out
tackles in football.
That was not what the case was about, and it was
absolutely, in my opinion, a departure from both the language
of the statute and the interpretation by the agency, and common
sense.
Senator Hirono. I think there is a pattern of that kind of
decisionmaking by Judge Kavanaugh. Let me cite a couple of
other examples.
Standing is one of the threshold issues. If you do not have
standing, you are out of court. So, for example, in Public
Citizen v. National Highway Traffic Safety Administration,
there was a public interest group challenging the adequacy of
tire safety standards because they thought that this may
increase the risk of harm, and he found that that was way too
speculative an interest to articulate, so this public interest
group was out.
On the other hand, in Grocery Manufacturers Association v.
EPA, where the grocery manufacturers' food processing people
challenged EPA action saying what you are making us do might
increase prices for them and that would just be too much, he
said that was not just speculative. So when a business interest
comes forward and says this is going to cost us money maybe,
but when a public interest group comes out and says this is
going to harm people, he finds that too speculative.
Have you seen this kind of pattern in his decisionmaking?
Professor Heinzerling. Yes, and I will say this is a
pattern I think across standing cases, where the courts have,
in my opinion, wrongly made it very difficult for public
interest groups and particular groups like environmental groups
to come to court to complain about violations of Federal law,
and they make it very easy for business groups to do that. So
that is a very, in some ways, subtle way of loading the dice
against the public interest groups that we have been talking
about.
Senator Hirono. The Roberts Court is already heading
toward--they are much more oriented toward protecting corporate
interests over individual rights. We do not need another
Justice going in that direction.
Thank you, Mr. Chairman.
Senator Kennedy. Thank you, Senator.
Senator Blumenthal.
Senator Blumenthal. Thank you, Senator Kennedy.
Welcome to you all, and thank you for being here. I know
some of you have come from a far distance, but you recognize,
as we do, the importance of this decision for us.
I want to begin by perhaps asking Mr. Dean a couple of
questions.
Sir, when you came forward, which was before the United
States v. Nixon case, you did not write an anonymous op-ed, did
you?
Mr. Dean. No, I did not.
Senator Blumenthal. You came forward----
Mr. Dean. Actually, I did send--my only discussion with the
media was having my secretary read a quickly dictated line to
get to my superiors that they were making a mistake if they
were going to make me the scapegoat of their activities.
Senator Blumenthal. In effect, you announced to the world
what you were going to do.
Mr. Dean. I did.
Senator Blumenthal. And to your superiors.
Mr. Dean. Yes.
Senator Blumenthal. And the result was a bombshell.
Mr. Dean. Yes.
Senator Blumenthal. And the United States v. Nixon case
produced evidence that corroborated the evidence that you had
provided. Correct?
Mr. Dean. Well, I had testified that I believed I had been
recorded. That prompted the Senate staff to ask Mr. Butterfield
if that was possible. He said it is very possible and very
likely. The Special Counsel filed immediately for those tapes.
The tape cases and the fight in the Court started. The whole
dynamics of Watergate changed and it became all about obtaining
the tapes and whether they would corroborate or not my
testimony.
Senator Blumenthal. And I can remember vividly the picture
of Alexander Butterfield revealing those tapes, and it was also
a bombshell. Correct?
Mr. Dean. July 16th, 1973. It was.
Senator Blumenthal. And we could go through the history
here, but where I am going with my point is that it was not
just, or maybe even primarily, the United States Supreme Court
in United States v. Nixon. It was a number of individuals who
had the backbone and guts to come forward, whatever motives at
the time, and speak that truth to power. Correct?
Mr. Dean. Yes.
Senator Blumenthal. So we tend here to talk about the law,
about U.S. v. Nixon, about a unitary President, about all kinds
of concepts that mean little to the American people, but we are
talking about basic courage to stop a constitutional crisis.
Mr. Dean. The system is important to those who do want to
rely on it.
Senator Blumenthal. There is now arguably a cancer on the
Presidency as malignant and metastasizing as there was then.
Correct?
Mr. Dean. Yes, I would agree with that.
Senator Blumenthal. And the only way to really stop it is
not by relying on laws alone but on people respecting the laws,
taking acts of personal courage, and coming forward to speak
that truth to power. Would you agree?
Mr. Dean. Even with anonymous op-eds.
Senator Blumenthal. Even with anonymous op-eds, which could
lead others to come forward----
Mr. Dean. Yes.
Senator Blumenthal [continuing]. Non-anonymously.
Mr. Dean. Yes.
Senator Blumenthal. But cases are not built on anonymous
sources. Eventually, there have to be witnesses willing to
testify----
Mr. Dean. True.
Senator Blumenthal [continuing]. And speak that truth to
power. You have said that your belief is that President Trump
would never resign because he--I am going to paraphrase--is
shameless. I think you said something like that.
Mr. Dean. Yes.
Senator Blumenthal. Would you give us, in your view, your
analysis, knowing Richard Nixon as you did, the reasons why he
resigned? I suspect it had something to do with the fact that
he saw impeachment coming and he was told by Hugh Scott and
Everett Dirksen that he lacked the votes in the Senate to avoid
conviction. But let me ask you your----
Mr. Dean. It was very much the fact that he was going to
lose in an impeachment battle, that the House would impeach and
the Senate would find him guilty and remove. That appeared to
be the case. But I think also Richard Nixon had done something
that made it very awkward for him. He had pulled people aside
and told them a falsehood that he had had nothing to do with
the cover-up until I had told him about it, which was a flat-
out lie, and he had been caught in that by the release of the
so-called smoking-gun tape. But even more basically, I think he
left because the man at his core had a respect for the rule of
law. That is one of the differences I find today in Mr. Trump
and the reason I do not think he would resign. He could care
less about the rule of law.
Senator Kennedy. Thank you. If you could begin to wrap up.
Yes sir, Senator, one more.
Senator Blumenthal. Ultimately, also it was those
Republicans in the United States Senate who delivered the
message, ``We won't stand for it.''
Mr. Dean. That is correct.
Senator Blumenthal. Thank you.
Senator Kennedy. Okay. Thank you.
I am going to ask a few questions. I would love to be able
to ask all of you questions. I just do not know if I have time.
Let me start with Ms. Mastal. Did I say your name----
Ms. Mastal. Yes, that is correct.
Senator Kennedy. I am going to be sure I understand. Judge
Kavanaugh coached your daughter?
Ms. Mastal. Yes.
Senator Kennedy. And his daughter was not on the team at
that time?
Ms. Mastal. Correct.
Senator Kennedy. And when he finished coaching the kids, at
the end of the season he wrote them all personal notes?
Ms. Mastal. Yes, a detailed evaluation of things to work
on, things you did well, and then the final note, which is what
I read.
Senator Kennedy. Does he generally do that for his teams,
or do you know?
Ms. Mastal. I think he does it for everybody on the team
for every team he has coached.
Senator Kennedy. Okay. I want to switch gears. I think I
heard Professor White and--is it Professor ``Henserling''?
Professor Heinzerling. ``Heinzerling.''
Senator Kennedy. ``Heinzerling.'' My apologies. Talk a
little bit about a transfer of power from Congress to the
President, and thinking of it in terms of the Chevron doctrine.
I would like you to each quickly help me out on this.
Here is my problem with the Chevron deference: I just do
not understand how it is constitutional, and here is why. I
look at the APA, which, of course, Congress passed, and
Congress says this is the law. The reviewing court, not the
agency, the reviewing court shall decide all relevant questions
of the law, interpret constitutional and statutory provisions,
and determine the meaning or applicability of the terms of an
agency action. That is a statute, 5 USC Section 706, as I am
sure both of you know better than I do.
So how can the courts construe that congressional directive
as giving the power to an agency? I mean, that was clearly not
Congress' intent.
Could you each give me about 30 seconds on that?
Professor Heinzerling. This is a great question, and it is
a puzzle in administrative law a little bit. The text of the
Administrative Procedure Act says what you say it says, and it
has been sort of hidden from view, in a way, for a number of
years.
But I think the answer would be that even where a court
defers to an administrative agency on the interpretation it is
offering, it is still making the legal judgments, the relevant
legal judgments. It is deciding, in the first instance, is the
statute so clear that it should not defer at all? And in the
second instance, even if the statute is not clear, it is making
the judgment about whether that interpretation is permissible.
Senator Kennedy. Not to interrupt you, but I have to keep
us on schedule.
Professor Heinzerling. That is fine.
Senator Kennedy. So you think that Chevron deference is
unconstitutional here?
Professor Heinzerling. No, I think it is consistent with
the language of the Administrative Procedure Act. I do not
think it is unconstitutional, no.
Senator Kennedy. Okay.
Professor White.
Professor White. One of the interesting things about
Chevron and its relatively short history is that you had
critics and proponents on both sides of the aisle. The most
eloquent case for Chevron's constitutionality and propriety
came from Justice Scalia in a 1989 Duke Law Journal article.
That said, there has been an increasing awareness, I think,
on both sides that in the biggest cases, Chevron deference
illustrates either a delegation of judicial power to an agency,
or it respects a delegation of legislative power to an agency.
That is why you see, I think most recently in the King v.
Burwell case, where Chief Justice Roberts, with Justices----
Senator Kennedy. I have to stop you----
Professor White. I was going to say with Ginsburg, Breyer,
and others, set aside Chevron.
Senator Kennedy. Okay. I got it. You have helped me a lot
there.
Professor ``Mascott''--did I say it correctly?
Professor Mascott. Yes, Senator.
Senator Kennedy. Did you ever see Judge Kavanaugh take
politics into consideration in deciding a case?
Professor Mascott. No. Judge Kavanaugh spent his time
learning the record inside out, looking at the law, statutes,
and principles.
Senator Kennedy. But you were with him a year?
Professor Mascott. Yes, sir.
Senator Kennedy. You never saw him take politics----
Professor Mascott. No.
Senator Kennedy. Ever.
Professor Mascott. No.
Senator Kennedy. Not once.
Professor Mascott. No.
Senator Kennedy. Okay, fair enough.
Mr. Clement, should the Supreme Court televise oral
arguments?
Mr. Clement. Well, that is an excellent question.
Senator Kennedy. We have 42 seconds.
Mr. Clement. Sure. I think that that is an excellent
question. It is a question that the Justices are ultimately
going to have to answer at some point, unless Congress forces
their hands by passing a statute, and then there will be a very
interesting question whether that statute is constitutional.
My own view, for what it is worth, is that televising
Supreme Court arguments makes an awful lot of sense. It is one
of the odd realities that everybody seems to think that, until
they become a Supreme Court Justice, and then they tend to have
a different view.
But as I sit here as a Supreme Court advocate, I honestly
do not see a particularly compelling argument why the public
should not get to see the proceedings televised. And I think if
they did, they would have a very high opinion of the Supreme
Court of the United States.
Senator Kennedy. Well, I appreciate that. You are a hell of
a lawyer.
All right. I let Senator Hirono go over, so I am going to
go over 20 seconds.
Mr. Dean, I do not care about your politics, I really do
not. I have friends on both sides of the aisle. Like Senator
Blumenthal, I remember vividly the early 1970s as well, when
you worked in the White House. I think you and your co-
conspirators hurt my country. I believe in second chances, and
you did the right thing ultimately, but you only did it when
you were cornered like a rat.
It is hard for me to take your testimony seriously, and I
am going to give you a chance to respond. But I could not sleep
tonight if I did not tell you that. I am going to give you a
chance to respond.
Mr. Dean. The President has also called me a rat, and I do
not think you understand----
Senator Kennedy. I am not calling you a rat, though, in the
sense----
Mr. Dean. No.
Senator Kennedy [continuing]. Of what you did with the
prosecutor. That is not what I mean. But I honestly feel that
way as an American. I think you hurt our country.
Mr. Dean. I wrote a book based on all the Watergate
conversations that were secretly recorded, learned a lot that I
had not known. Out of the thousand conversations that Nixon had
on Watergate, I was involved in 39 of them. I think every
conversation I had with him I am trying to warn him, alert him,
find out how much he does know or does not know.
I tried internally to end the cover-up. I did not succeed.
That is the day I think I met Richard Nixon. I did not know the
man and had not had dealings with him. There is a great
misconception about what an early 30s White House Counsel could
do around a White House.
So maybe you want to--I will send you a copy of that book,
and it might give you some insights into what really did happen
in there.
Senator Kennedy. Okay.
All right. Well, we are done. I want to thank this panel
very much. I am going to say what I said to the earlier panels.
I know this testimony does not just write itself, and you all
spent a lot of time on it, and I really want to thank you. I
think all of us get a lot out of this part of the confirmation
process.
The record will remain open until noon on Monday, and that
is consistent with other Supreme Court nominee practices.
With that, thanks to everyone.
These hearings are adjourned.
[Whereupon, at 4:15 p.m., the Committee was recessed.]
[Additional material submitted for the record for Day 4
follows Day 5 of the hearing.]
CONTINUATION OF THE
CONFIRMATION HEARING ON THE
NOMINATION OF HON. BRETT M. KAVANAUGH
TO BE AN ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES
----------
THURSDAY, SEPTEMBER 27, 2018
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy,
Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono,
Booker, and Harris.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. This morning, we continue our hearing on
the nomination of Judge Brett Kavanaugh to serve as Associate
Justice on our Supreme Court.
We will hear from two witnesses, Dr. Christine Blasey Ford
and Judge Kavanaugh. Thanks, of course, to Dr. Ford and Judge
Kavanaugh for accepting our Committee's invitation to testify
and also thank them for their volunteering to testify before we
even invited.
Both Dr. Ford and Judge Kavanaugh have been through a
terrible couple weeks. They and their families have received
vile threats. What they have endured ought to be considered by
all of us as unacceptable and a poor reflection on the state of
civility in our democracy. So I want to apologize to you both
for the way you have been treated, and I intend, hopefully, for
today's hearing to be safe, comfortable, and dignified for both
of our witnesses. I hope my colleagues will join me in this
effort of a show of civility.
With that said, I lament that this hearing--how this
hearing has come about. On July 9, 2018, the President
announced Judge Kavanaugh's nomination to serve on the Supreme
Court. Judge Kavanaugh has served on the most important Federal
appellate court for 12 years. Before that, he held some of the
most sensitive positions in the Federal Government. The
President added Judge Kavanaugh to his short list of Supreme
Court more than 9 months ago in November 2017.
As part of Judge Kavanaugh's nomination to the Supreme
Court, the FBI conducted its sixth full-field background
investigation of Judge Kavanaugh since 1993, 25 years ago.
Nowhere in any of these six FBI reports, which Committee
investigators have reviewed on a bipartisan basis, was there a
whiff of any issue, any issue at all, related in any way to
inappropriate sexual behavior.
Dr. Ford first raised her allegations in a secret letter to
the Ranking Member nearly 2 months ago in July. This letter was
secret from July 30th, September 13th to--no, July 30th until
September 13th when I first heard about it. The Ranking Member
took no action. The letter was not shared with me, our
colleagues, or my staff. These allegations could have been
investigated in a way that maintained the confidentiality that
Dr. Ford requested.
Before his hearing, Judge Kavanaugh met privately with 65
Senators, including the Ranking Member. But the Ranking Member
did not ask Judge Kavanaugh about the allegations when she met
with him privately in August.
The Senate Judiciary Committee held its 4-day public
hearing from September 4th to September 7th. Judge Kavanaugh
testified for more than 32 hours in public. We held a closed
session for Members to ask sensitive questions on the last
evening, which the Ranking Member did not attend.
Judge Kavanaugh answered nearly 1,300 written questions
submitted by Senators after the hearing, more than all prior
Supreme Court nominees. Throughout this period, we did not know
about the Ranking Member's secret evidence.
Then, only at an eleventh hour, on the eve of Judge
Kavanaugh's confirmation vote, did the Ranking Member refer the
allegations to the FBI. And then, sadly, the allegations were
leaked to the press, and that is where Dr. Ford was mistreated.
This is a shameful way to treat our witness, who insisted on
confidentiality, and, of course, Judge Kavanaugh, who has had
to address these allegations in the midst of a media circus.
When I received Dr. Ford's letter on September the 13th, my
staff and I recognized the seriousness of these allegations and
immediately began our Committee's investigation, consistent
with the way the Committee has handled such allegations in the
past. Every step of the way, the Democratic side refused to
participate in what should have been a bipartisan
investigation. As far as I know on all of our judgeships
throughout at least the last 4 years--or 3 years, that has been
the way it has been handled.
After Dr. Ford's identity became public, my staff contacted
all the individuals she said attended the 1982 party described
in The Washington Post article. Judge Kavanaugh immediately
submitted to an interview under penalty of felony for any
knowingly false statements. He denied the allegations
categorically. Democratic staff was invited to participate and
could have asked any questions they wanted to, but they
declined, which leads me then to wonder. If they are really
concerned with going to the truth, why would you not want to
talk to the accused?
The process and procedure is what the Committee always does
when we receive allegations of wrongdoing. My staff reached out
to other individuals allegedly at the party--Mark Judge,
Patrick Smyth, Leland Keyser. All three submitted statements to
the Senate under penalty of felony denying any knowledge of the
events described by Dr. Ford. Dr. Ford's lifelong friend, Ms.
Keyser, stated she does not know Judge Kavanaugh and does not
recall ever attending a party with him.
My staff made repeated requests to interview Dr. Ford
during the past 11 days, even volunteering to fly to California
to take her testimony. But her attorneys refused to present her
allegations to Congress. I, nevertheless, honored her request
for a public hearing, so Dr. Ford today has the opportunity to
present her allegations under oath.
As you can see, the Judiciary Committee was able to conduct
thorough investigations into allegations--or thorough
investigations into allegations. Some of my colleagues,
consistent with their stated desires to obstruct Kavanaugh's
nomination by any means precisely--by any means necessary,
pushed for FBI investigations into the allegations. But I have
no authority to force the executive branch agency to conduct an
investigation into a matter it considers to be closed.
Moreover, once the allegations became public, it was easy to
identify all the alleged witnesses and conduct our own
investigations.
Contrary to what the public has been led to believe, the
FBI does not perform any credibility assessments or verify the
truth of any events in these background investigations. I will
quote then-Chairman Joe Biden during Justice Thomas'
confirmation hearing. This is what Senator Biden said: ``The
next person who refers to an FBI report as being worth anything
obviously does not understand anything. The FBI explicitly does
not, in this or any other case, reach a conclusion, period.
They say `he said, she said, they said,' period. So when people
wave an FBI report before you, understand they do not, they do
not, they do not reach conclusions. They do not make
recommendations,'' end of Senator Biden's quote.
The FBI provided us with the allegations. Now it is up to
the Senate to assess their credibility, which brings us to this
very time. I look forward to a fair and respectful hearing.
That is what we promised Dr. Ford.
Some of my colleagues have complained about the fact that
an expert on this side investigating sex crimes will be
questioning the witness. I see no basis for complaint other
than just plain politics.
The testimony we will hear today concerns allegations of
sexual assault, very serious allegations. This is an incredibly
complex and sensitive subject to discuss, and it is not an easy
one to discuss. That is why the Senators on this side of the
dais believe an expert who has deep experience and training in
interviewing victims of sexual assault and investigating sexual
assault-led allegations should be asking questions. This will
be a stark contrast to the grandstanding and chaos that we saw
from the other side during the previous 4 days in this hearing
process.
I can think of no one better equipped to question the
witnesses than Rachel Mitchell. Ms. Mitchell is a career
prosecutor, civil servant with decades of experience
investigating and prosecuting sex crimes. She has dedicated her
career to seeking justice for survivors of sex-related
felonies.
Most recently, Rachel was a Division Chief of the Special
Victims Division, Maricopa County Attorney's Office, which
prosecutes sex crimes and family violence. Then-Democratic
Governor Janet Napolitano previously recognized her as the
Outstanding Arizona Sexual Assault Prosecutor of the Year, and
she has spent years instructing prosecutors, detectives, and
child protection workers on how to properly interview victims
of sexual assault and abuse. With her aid, I look forward to a
fair and productive hearing.
I understand that there are two other public allegations.
Today's hearing was scheduled in close consultation with Dr.
Ford's attorneys, and her testimony will be the subject of this
hearing.
We have been trying to investigate other allegations. At
this time, we have not had cooperation from attorneys
representing other clients, and they have made no attempt to
substantiate their claims. My staff has tried to secure
testimony and evidence from attorneys for both Deborah Ramirez
and Julie Swetnick.
My staff made eight requests--yes, eight requests--for
evidence from attorneys for Ms. Ramirez and six requests for
evidence for attorneys for Ms. Swetnick. Neither attorney has
made their clients available for interview. The Committee
cannot do an investigation if attorneys are stonewalling. I
hope you all understand that we have attempted to seek
additional information, as we do a lot of times when there are
holes in what we call the ``BI reports.''
Additionally, all the witnesses should know--by when I say
``all the witnesses,'' I mean Dr. Ford and I mean Judge
Kavanaugh. All the witnesses should know that they have the
right under Senate Rule 26.5 to ask that the Committee to go
into closed session if a question requires an answer that is a
clear invasion of their right to privacy. If either Dr. Ford or
Judge Kavanaugh feel that Senate Rule 26.5 ought to be
involved, they should simply say so.
Senator Feinstein.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman.
I will make just a brief comment on your references to me.
Yes, I did receive a letter from Dr. Ford. It was conveyed to
me by a Member of Congress, Anna Eshoo. The next day, I called
Dr. Ford. We spoke on the phone. She reiterated that she wanted
this held confidential, and I held it confidential up to a
point where the witness was willing to come forward.
And I think as I make my remarks, perhaps you will see why.
Because how women are treated in the United States with this
kind of concern is really wanting a lot of reform, and I will
get to that for a minute.
But in the meantime, good morning, Dr. Ford. Thank you for
coming forward and being willing to share your story with us. I
know this was not easy for you.
But before you get to your testimony, and the Chairman
chose not to do this, I think it is important to make sure you
are properly introduced. And I have to----
Chairman Grassley. By the way, I was going to introduce
her. But if you want to introduce her, I will be glad to have
you do that. But I want you to know I did not forget to do it,
because I would do that just as she was about to speak.
Senator Feinstein. Thank you.
I have to say when I saw your CV, I was extremely
impressed. You have a bachelor's degree from the University of
North Carolina-Chapel Hill; two master's degrees, one from
Stanford and one Pepperdine; and a Ph.D. from the University of
Southern California, better known to Senator Harris and I as
USC. You are a professor affiliated with both Stanford
University and Palo Alto University. You have published over 65
peer-reviewed articles and have received numerous awards for
your work and research.
And as if that were not enough, you are a wife, a mother of
two sons, and a constituent from California. So I am very
grateful to you for your strength and your bravery in coming
forward. I know it is hard.
But before I turn it over, I want to say something about
what is to be discussed today and where we are as a country.
Sexual violence is a serious problem and one that largely goes
unseen. In the United States, it is estimated by the Centers
for Disease Control, one in three women and one in six men will
experience some form of sexual violence in their lifetime.
According to the Rape, Abuse, and Incest National Network,
60 percent of sexual assaults go unreported. In addition, when
survivors do report their assaults, it is often years later due
to the trauma they suffered and fearing their stories will not
be believed.
Last week, I received a letter from a 60-year-old
California constituent who told me that she survived an
attempted rape at age 17. She described as being terrified and
embarrassed. She never told a soul until much later in life.
The assault stayed with her for 43 years.
I think it is important to remember these realities as we
hear from Dr. Ford about her experience. There has been a great
deal of public discussion about the #MeToo movement today
versus the Year of the Woman almost 27 years ago. But while
young women are standing up and saying ``no more,'' our
institutions have not progressed in how they treat women who
come forward. Too often, women's memories and credibility come
under assault. In essence, they are put on trial and forced to
defend themselves and often revictimized in the process.
Twenty-seven years ago, I was walking through an airport
when I saw a large group of people gathered around the TV to
listen Anita Hill tell her story. What I saw was an attractive
woman in a blue suit before an all-male Judiciary Committee
speaking of her experience of sexual harassment. She was
treated badly, accused of lying, attacked, and her credibility
put to the test throughout the process.
Today, Dr. Christine Blasey Ford has come forward to tell
her story of being assaulted and fearing for her life when she
was a teenager. Initially, as I said, Dr. Ford did not want to
make her story public.
Then, within 36 hours of coming forward, Republicans
scheduled a hearing without talking to her or even inviting her
to testify. She was told she had to show up or the Committee
would move forward with a vote. It took a public outcry for the
Majority to back down and give her even a few days to come
before the Committee.
Republicans also scheduled this hearing with Dr. Ford
without having her allegations investigated by the FBI. In
1991, Anita Hill's allegations were reviewed by the FBI, as is
the normal process and squarely within its jurisdiction.
However, despite repeated requests, President Trump and the
Republicans have refused to take this routine step and direct
the FBI to conduct an impartial investigation. This would
clearly be the best way to ensure a fair process to both Judge
Kavanaugh and to Dr. Ford.
In 1991, the Senate heard from 22 witnesses over 3 days.
Today, while rejecting an FBI investigation, Republicans are
refusing to hear testimony from any other witness, including
Mark Judge, who Dr. Ford identified as being in the room when
the attack took place. And we believe Judge should be
subpoenaed so the Committee can hear from him directly.
Republicans have also refused to call anyone who could
speak to the evidence that would support or refute Dr. Ford's
claim, and not one witness who could address credibility and
character of either Ford or Kavanaugh has been called. What I
find most inexcusable is this rush to judgment, the
unwillingness to take these kinds of allegations at face value
and look at them for what they are, a real question of
character for someone who is asking for a lifetime appointment
on the Supreme Court.
In 1991, Republicans belittled Professor Hill's experience,
saying, and I quote, ``It will not make a bit of difference in
the outcome.'' And the burden of proof was on Professor Hill.
Today, our Republican colleagues are saying this is a hiccup.
Dr. Ford is mixed up and declaring, ``I will listen to the
lady, but we are going to bring this to a close.''
What is worse, many of our colleagues on the other side of
the aisle have also made it clear that no matter what happens
today, the Senate will plow right through and ensure Judge
Kavanaugh would be elevated within a week. In fact, on Tuesday,
the Majority went ahead and scheduled a vote on the nomination
before we heard one word of testimony regarding allegations of
sexual assault and misconduct by Brett Kavanaugh.
Republican leadership even told Senators they should plan
to be in over this weekend so the nomination can be pushed
through without delay. This is despite the fact that in the
last few days, two more women have come forward with their own
serious allegations of sexual assault involving Brett
Kavanaugh.
This past Sunday, we learned about Debbie Ramirez, who was
a student at Yale with Brett Kavanaugh. She, too, did not want
to come forward. But after being approached by reporters, she
told her story.
She was at a college party, where Kavanaugh exposed himself
to her. She recalls pushing him away and then seeing him
laughing and pulling his pants up.
Then yesterday, Julie Swetnick came forward to say that she
had experiences of being at house parties with Brett Kavanaugh
and Mark Judge. She recounted seeing Kavanaugh engage, and I
quote, ``in abusive and physically aggressive behavior toward
girls,'' including attempts to ``remove or shift girls'
clothing,'' not taking ``no for an answer,'' grabbing girls
``without their consent,'' and targeting ``particular girls so
that they could be taken advantage of.''
Each of these stories are troubling on their own, and each
of these allegations should be investigated by the FBI. All
three women have said they would like the FBI to investigate.
Please do so. All three have said they have other witnesses and
evidence to corroborate their accounts, and yet Republicans
continue to blindly push forward.
So today, we are moving forward with a hearing and being
asked to assess the credibility of Brett Kavanaugh. He has made
several statements about how his focus was on school,
basketball, service projects, and going to church. He declared
that he ``never'' drank so much he could not remember what
happened and he has ``always treated women with dignity and
respect.''
And while he has made these declarations, more and more
people have come forward challenging his characterization of
events and behaviors. James Roche, his freshman roommate at
Yale, stated Kavanaugh was, and I quote again, ``frequently
incoherently drunk,'' and that was ``when he became aggressive
and belligerent,'' when he was drunk.
Liz Swisher, a friend of his from Yale, said, and I quote,
``There is no medical way I can say that he was blacked out,
but it is not credible for him to say that he has no memory
lapses in the nights that he drank to excess.''
Lynne Brookes, a college classmate, said the picture
Kavanaugh is trying to paint does not match her memories of
him. And I quote, ``He is trying to paint himself as some kind
of choir boy. You cannot lie your way onto the Supreme Court.
And with that statement out, he has gone too far. It is about
the integrity of the institution.''
Ultimately, Members and ladies and gentlemen, I really
think that is the point. We are here to decide whether to
evaluate this nominee to the most prestigious Court in our
country. It is about the integrity of that institution and the
integrity of this institution.
The entire country is watching how we handle these
allegations. I hope the Majority changes their tactics, opens
their mind, and seriously reflects on why we are here. We are
here for one reason, to determine whether Judge Kavanaugh
should be elevated to one of the most powerful positions in our
country.
This is not a trial of Dr. Ford. It is a job interview for
Judge Kavanaugh. Is Brett Kavanaugh who we want on the most
prestigious Court in our country? Is he the best we can do?
Thank you, Mr. Chairman.
Chairman Grassley. Yes. I am sorry you brought up about the
unsubstantiated allegations of other people because we are here
for the sole purpose of listening to Dr. Ford and will consider
other issues at other times.
I would like to have you rise so I can swear you.
Now, do you swear that the testimony you are about to give
before this Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Dr. Ford. I do.
Chairman Grassley. Thank you very much. Please be seated.
And before you give your statement, I want to say to
everybody that she has asked for--any time you ask for a break,
you get a break. Anytime there is something that you need you
do not have, just ask us, and you can have as much time for
your opening statement as you want. And just generally let us
know if there is any issues.
Proceed, please.
STATEMENT OF CHRISTINE BLASEY FORD, Ph.D., PROFESSOR OF
PSYCHOLOGY, PALO ALTO UNIVERSITY, PALO ALTO, CALIFORNIA, AND
RESEARCH PSYCHOLOGIST, STANFORD
UNIVERSITY SCHOOL OF MEDICINE, STANFORD, CALIFORNIA
Dr. Ford. Thank you, Senator Grassley. I think, after I
read my opening statement, I anticipate needing some caffeine,
if that is available.
Chairman Grassley. Okay. Can you pull the microphone just a
little bit closer to you, please? Can the whole box go a little
bit closer?
Mr. Bromwich. That is what I am trying, Senator. No.
Chairman Grassley. Okay. Well, then----
Dr. Ford. I'll lean forward.
Chairman Grassley. Thank you. Thank you.
Dr. Ford. Is this good?
Chairman Grassley. Yes.
Dr. Ford. Okay. Thank you, Chairman Grassley and Ranking
Member Feinstein, Members of the Committee.
My name is Christine Blasey Ford. I am a professor of
psychology at Palo Alto University and a research psychologist
at the Stanford University School of Medicine. I won't detail
my educational background since it has already been summarized.
I have been married to Russell Ford since 2002, and we have
two children.
I am here today not because I want to be. I am terrified. I
am here because I believe it is my civic duty to tell you what
happened to me while Brett Kavanaugh and I were in high school.
I have described the events publicly before. I summarized them
in my letter to Ranking Member Feinstein and again in a letter
to Chairman Grassley. I understand and appreciate the
importance of your hearing from me directly about what happened
to me and the impact that it has had on my life and on my
family.
I grew up in the suburbs of Washington, DC. I attended the
Holton-Arms School in Bethesda, Maryland, from 1978 to 1984.
Holton-Arms is an all-girls school that opened in 1901.
During my time at the school, girls at Holton-Arms
frequently met and became friendly with boys from all-boys
schools in the area, including the Landon School, Georgetown
Prep, Gonzaga High School, as well as our country clubs and
other places where kids and families socialized. This is how I
met Brett Kavanaugh, the boy who sexually assaulted me.
During my freshman and sophomore school years, when I was
14 and 15 years old, my group of friends intersected with Brett
and his friends for a short period of time. I had been friendly
with a classmate of Brett's for a short time during my freshman
and sophomore year, and it was through that connection that I
attended a number of parties that Brett also attended. We did
not know each other well, but I knew him, and he knew me.
In the summer of 1982, like most summers, I spent most
every day at the Columbia Country Club in Chevy Chase,
Maryland, swimming and practicing diving. One evening that
summer, after a day of diving at the club, I attended a small
gathering at a house in the Bethesda area. There were four boys
I remember specifically being at the house--Brett Kavanaugh,
Mark Judge, a boy named P.J., and one other boy whose name I
cannot recall. I also remember my friend Leland attending.
I do not remember all of the details of how that gathering
came together, but like many that summer, it was almost surely
a spur of the moment gathering. I truly wish I could be more
helpful with more detailed answers to all of the questions that
have and will be asked about how I got to the party and where
it took place and so forth. I don't have all the answers, and I
don't remember as much as I would like to. But the details
that--about that night that bring me here today are the ones I
will never forget. They have been seared into my memory and
have haunted me episodically as an adult.
When I got to the small gathering, people were drinking
beer in a small living room/family room-type area on the first
floor of the house. I drank one beer. Brett and Mark were
visibly drunk.
Early in the evening, I went up a very narrow set of stairs
leading from the living room to a second floor to use the
restroom. When I got to the top of the stairs, I was pushed
from behind into a bedroom across from the bathroom. I couldn't
see who pushed me.
Brett and Mark came into the bedroom and locked the door
behind them. There was music playing in the bedroom. It was
turned up louder by either Brett or Mark once we were in the
room. I was pushed onto the bed, then Brett got on top of me.
He began running his hands over my body and grinding into
me. I yelled, hoping that someone downstairs might hear me, and
I tried to get away from him, but his weight was heavy. Brett
groped me and tried to take off my clothes. He had a hard time
because he was very inebriated and because I was wearing a one-
piece bathing suit underneath my clothing.
I believed he was going to rape me. I tried to yell for
help. When I did, Brett put his hand over my mouth to stop me
from yelling. This is what terrified me the most, and this had
the most lasting impact on my life. It was hard for me to
breathe, and I thought that Brett was accidentally going to
kill me.
Both Brett and Mark were drunkenly laughing during the
attack. They seemed to be having a very good time. Mark seemed
ambivalent, at times urging Brett on and at times telling him
to stop. A couple of times, I made eye contact with Mark and
thought he might try to help me, but he did not.
During this assault, Mark came over and jumped on the bed
twice while Brett was on top of me. Then the last time that he
did this, we toppled over, and Brett was no longer on top of
me. I was able to get up and run out of the room. Directly
across from the bedroom was a small bathroom. I ran inside the
bathroom and locked the door.
I waited until I heard Brett and Mark leave the bedroom
laughing and loudly walk down the narrow stairway, pinballing
off the walls on the way down. I waited, and when I did not
hear them come back up the stairs, I left the bathroom, went
down the same stairwell, through the living, and left the
house. I remember being on the street and feeling an enormous
sense of relief that I had escaped that house and that Brett
and Mark were not coming outside after me.
Brett's assault on me drastically altered my life. For a
very long time, I was too afraid and ashamed to tell anyone
these details. I did not want to tell my parents that I, at age
15, was in a house without any parents present, drinking beer
with boys. I convinced myself that because Brett did not rape
me, I should just move on and just pretend that it didn't
happen.
Over the years, I told very, very few friends that I had
this traumatic experience. I told my husband before we were
married that I had experienced a sexual assault. I had never
told the details to anyone, the specific details, until May
2012 during a couples counseling session.
The reason this came up in counseling is that my husband
and I had completed a very extensive, very long remodel of our
home, and I insisted on a second front door, an idea that he
and others disagreed with and could not understand. In
explaining why I wanted a second front door, I began to
describe the assault in detail.
I recall saying that the boy who assaulted me could someday
be on the U.S. Supreme Court and spoke a bit about his
background at an elitist all-boys school in Bethesda, Maryland.
My husband recalls that I named my attacker as Brett Kavanaugh.
After that May 2012 therapy session, I did my best to
ignore the memories of the assault because recounting them
caused me to relive the experience and cause panic and anxiety.
Occasionally, I would discuss the assault in an individual
therapy session, but talking about it caused more reliving of
the trauma. So I tried not to think about it or discuss it.
But over the years, I went through periods where I thought
about the attack. I had confided in some close friends that I
had had an experience with sexual assault. Occasionally, I
stated that my assailant was a prominent lawyer or judge, but I
did not use his name. I do not recall each person I spoke to
about Brett's assault, and some friends have reminded me of
these conversations since the publication of The Washington
Post story on September 16, 2018, but until July 2018, I had
never named Mr. Kavanaugh as my attacker outside of therapy.
This changed in early July 2018. I saw press reports
stating that Brett Kavanaugh was on the short list of a list of
very well-qualified Supreme Court nominees. I thought it was my
civic duty to relay the information I had about Mr. Kavanaugh's
conduct so that those considering his nomination would know
about this assault.
On July 6th, I had a sense of urgency to relay the
information to the Senate and the President as soon as possible
before a nominee was selected. I did not know how specifically
to do this. I called my congressional Representative and let
her receptionist know that someone on the President's short
list had attacked me.
I also sent a message to the encrypted Washington Post
confidential tip line. I did not use my name, but I provided
the names of Brett Kavanaugh and Mark Judge. I stated that Mr.
Kavanaugh had assaulted me in the 1980s in Maryland. This was
an extremely hard thing for me to do, but I felt that I
couldn't not do it.
Over the next 2 days, I told a couple of close friends on
the beach in Aptos, California, that Mr. Kavanaugh had sexually
assaulted me. I was very conflicted as to whether to speak out.
On July 9th, I received a return phone call from the office
of Congresswoman Anna Eshoo after Mr. Kavanaugh had become the
nominee. I met with her staff on July 18th and with her on July
20th, describing the assault and discussing my fears about
coming forward.
Later, we discussed the possibility of sending a letter to
Ranking Member Feinstein, who is one of my State Senators,
describing what occurred. My understanding is that
Representative Eshoo's office delivered a copy of my letter to
Senator Feinstein's office on July 30th. The letter included my
name, but also a request that it be kept confidential.
My hope was that providing the information confidentially
would be sufficient to allow the Senate to consider Mr.
Kavanaugh's serious misconduct without having to make myself,
my family, or anyone's family vulnerable to the personal
attacks and invasions of privacy that we have faced since my
name became public.
In a letter dated August 31st, Senator Feinstein wrote that
she would not share the letter without my explicit consent, and
I appreciated this commitment. Sexual assault victims should be
able to decide for themselves when and whether their private
experience is made public.
As the hearing date got closer, I struggled with a terrible
choice. Do I share the facts with the Senate and put myself and
my family in the public spotlight? Or do I preserve our privacy
and allow the Senate to make its decision without knowing the
full truth of his past behaviors?
I agonized daily with this decision throughout August and
September 2018. The sense of duty that originally motivated me
to reach out confidentially to The Washington Post and to Anna
Eshoo's office when there was still a list of extremely
qualified candidates and to Senator Feinstein was always there,
but my fears of the consequences of speaking out started to
exponentially increase.
During August 2018, the press reported that Mr. Kavanaugh's
confirmation was virtually certain. Persons painted him as a
champion of women's rights and empowerment, and I believed that
if I came forward, my single voice would be drowned out by a
chorus of powerful supporters. By the time of the confirmation
hearings, I had resigned myself to remaining quiet and letting
the Committee and the Senate make their decision without
knowing what Mr. Kavanaugh had done to me.
Once the press started reporting on the existence of the
letter I had sent to Senator Feinstein, I faced mounting
pressure. Reporters appeared at my home and at my workplace,
demanding information about the letter in the presence of my
graduate students. They called my bosses and coworkers and left
me many messages, making it clear that my name would inevitably
be released to the media.
I decided to speak out publicly to a journalist who had
originally responded to the tip I had sent to The Washington
Post and who had gained my trust. It was important for me to
describe the details of the assault in my own words.
Since September 16th, the date of The Washington Post
story, I have experienced an outpouring of support from people
in every State of this country. Thousands and thousands of
people who have had their lives dramatically altered by sexual
violence have reached out to share their experience and have
thanked me for coming forward.
We have received tremendous support from our friends and
our community. At the same time, my greatest fears have been
realized, and the reality has been far worse than what I
expected. My family and I have been the target of constant
harassment and death threats, and I have been called the most
vile and hateful names imaginable.
These messages, while far fewer than the expressions of
support, have been terrifying and have rocked me to my core.
People have posted my personal information and that of my
parents online on the Internet. This has resulted in additional
emails, calls, and threats. My family and I were forced to move
out of our home.
Since September 16th, my family and I have been visiting in
various secure locales, at times separated and at times
together, with the help of security guards. This past Tuesday
evening, my work email was hacked, and messages were sent out
trying to recant my description of the sexual assault.
Apart from the assault itself, these past couple of weeks
have been the hardest of my life. I've had to relive this
trauma in front of the world, and I've seen my life picked
apart by people on television, on Twitter, other social media,
other media, and in this body who have never met me or spoken
with me.
I have been accused of acting out of partisan political
motives. Those who say that do not know me. I am an independent
person, and I am no one's pawn. My motivation in coming forward
was to be helpful and to provide facts about how Mr.
Kavanaugh's actions have damaged my life so that you could take
into a serious consideration as you make your decision about
how to proceed.
It is not my responsibility to determine whether Mr.
Kavanaugh deserves to sit on the Supreme Court. My
responsibility is to tell you the truth.
I understand that a professional prosecutor has been hired
to ask me questions, and I'm committed to doing my very best to
answer them. I have never been questioned by a prosecutor, and
I will do my best.
At the same time, because the Committee Members will be
judging my credibility, I do hope to be able to engage directly
with each of you, and at this point, I will do my best to
answer your questions--and would request some caffeine.
Mr. Bromwich. A Coke or something?
Dr. Ford. That sounds good. That would be great.
Thank you.
[The prepared statement of Dr. Christine Blasey Ford
appears as a submission for the record.]
Chairman Grassley. Thank you very much.
Before I use my 5 minutes of questioning, I thought that I
would try to remind my colleagues and, in this case, Ms.
Mitchell as well, that 5 minutes, the way I traditionally have
done, if you ask a question before your time runs out and even
though you go over your time, as long as you are not
filibustering, I will let you ask your question.
And I am going to make sure that both Dr. Ford and Judge
Kavanaugh--as Chairman of the Committee, I know that they are
going to get a chance to answer the questions fully beyond that
5 minutes. But when that--when either Dr. Ford or Judge
Kavanaugh gets done, then we immediately go to the next person.
So I hope that that will be done in a--and Dr. Ford, I am told
that you want a break right now, and if you do, that is fine.
Dr. Ford. I am okay. I got the coffee. Thank you very much.
I think I can proceed and sip on the coffee.
Chairman Grassley. Nobody can mix up my coffee right. So
I----
[Laughter.]
Chairman Grassley. So you are pretty fortunate.
So now, with that, Ms. Mitchell, you have my 5 minutes to
ask questions.
[For Chairman Grassley.]
Ms. Mitchell. Thank you, Mr. Chairman.
Good morning, Dr. Ford. We have not met. My name is Rachel
Mitchell.
Dr. Ford. Nice to meet you.
Ms. Mitchell. I just wanted to tell you the first thing
that struck me from your statement this morning was that you
were terrified, and I just wanted to let you know I am very
sorry. That is not right.
I know this is stressful, and so I would like to set forth
some guidelines that maybe will alleviate that a little bit. If
I ask you a question that you do not understand, please ask me
to clarify it or ask it in a different way.
When I ask questions, sometimes I will refer back to other
information you have provided. If I do that and I get it wrong,
please correct me.
Dr. Ford. Okay.
Ms. Mitchell. I am not going to ask you to guess. I know it
was a long time ago. If you do estimate, please let me know
that you are estimating, okay?
Dr. Ford. Fair.
Ms. Mitchell. We have put before you, and I am sure you
have copies of them anyway, five pieces of information, and I
wanted to go over them. The first is a screen shot of a
WhatsApp texting between you and somebody at The Washington
Post. Do you have that in front of you?
Dr. Ford. Yes.
Ms. Mitchell. The first two texts were sent by you on July
6th. Is that correct?
Dr. Ford. Correct.
Ms. Mitchell. And then the last one sent by you was on July
10th?
Dr. Ford. Correct.
Ms. Mitchell. Okay. Are those three comments accurate?
Dr. Ford. I will read them.
Mr. Bromwich. Take your time.
Dr. Ford. Yes.
Mr. Bromwich. Take your time.
Dr. Ford. So there is one correction.
Ms. Mitchell. Okay.
Dr. Ford. I've misused the word ``bystander'' as an
adjective.
Ms. Mitchell. Okay.
Dr. Ford. Bystander means someone that is looking at an
assault, and the person named P.J. was not technically a
bystander. I was writing very quickly and with a sense of
urgency. So I would not call him a bystander. He was
downstairs, and you know, what I remember of him was he was a
tall and very nice person. I didn't know him well, but that he
was downstairs, not anywhere near the event.
Ms. Mitchell. Okay. Thank you for----
Dr. Ford. I'd like to take that word out if it's possible.
Ms. Mitchell. Okay. Thank you for clarifying that.
The second is the letter that you wrote to Senator
Feinstein dated July 30th of this year.
Dr. Ford. Yes.
Ms. Mitchell. Did you write the letter yourself?
Dr. Ford. I did.
Ms. Mitchell. And since it is dated July 30th, did you
write it on that date?
Dr. Ford. I believe so. It sounds right. I was in Rehoboth,
Delaware, at the time. I could look into my calendar and try to
figure that out.
Ms. Mitchell. Was it written on or about that date?
Dr. Ford. Yes. Yes. I traveled, I think, the 26th of July
to Rehoboth, Delaware. So that makes sense because I wrote it
from there.
Ms. Mitchell. Okay. Is the letter accurate?
Dr. Ford. I'll take a minute to read it.
Ms. Mitchell. Okay.
Dr. Ford. I can read fast.
Mr. Bromwich. Take your time.
[Witness reads the letter.]
Dr. Ford. Okay. So I have three areas that I'd like to
address.
Ms. Mitchell. Okay.
Dr. Ford. In the second paragraph, where it says, ``The
assault occurred in a suburban Maryland area home.''
Ms. Mitchell. Yes.
Dr. Ford. ``At a gathering that included me and four
others,'' I can't guarantee that there weren't a few other
people there, but they are not in my purview of my memory.
Ms. Mitchell. Would it be fair to say there were at least
four others?
Dr. Ford. Yes.
Ms. Mitchell. Okay. What's the second correction?
Dr. Ford. Oh, okay. The next sentence begins with,
``Kavanaugh physically pushed me into the bedroom.'' I would
say I can't promise that Mark Judge didn't assist with that. I
don't know. I was pushed from behind. So I don't want to put
that solely on him.
Ms. Mitchell. Okay.
Dr. Ford. Okay.
Chairman Grassley. Ms. Mitchell, I do not know whether this
is fair for me to interrupt, but I want to keep people within 5
minutes. Is that a--is that a major problem for you in the
middle of a question? Because we have got to--I have got to
treat everybody the same.
Ms. Mitchell. I understand that.
Chairman Grassley. Can I go to Senator Feinstein, or do
you----
Ms. Mitchell. Yes, sir. Sorry. I did not see the light was
red. Please do.
Chairman Grassley. Okay. Senator Feinstein.
[Pause.]
Chairman Grassley. For the benefit of Dr. Ford, I think she
will continue that after the 5 minutes here.
Dr. Ford. Okay.
Senator Feinstein. Mr. Chairman, I would like to begin by
putting some letters in the record.
Chairman Grassley. Without objection, so ordered.
[The letters appear as submissions for the record.]
Senator Feinstein. Thank you.
Chairman Grassley. Do you want to tell me what----
Senator Feinstein. One hundred forty letters from friends
and neighbors of the witness and 1,000 female physicians across
the country. Those are what the letters are.
Senator Feinstein. I want to thank you very much for your
testimony. I know how very, very hard it is.
Why--why have you held it to yourself all these years? As
you look back, can you indicate what the reasons are?
Dr. Ford. Well, I haven't held it in all these years. I did
disclose it in the confines of therapy, where I felt like it
was an appropriate place to cope with the sequelae of the
event.
Senator Feinstein. Well, can you tell us what impact the
events had on you?
Dr. Ford. Well, I think that the sequelae of sexual assault
varies by person. So, for me personally, anxiety, phobia, and
PTSD-like symptoms are the types of things that I've been
coping with. So more specifically, claustrophobia, panic, and
that type of thing.
Senator Feinstein. Is that the reason for the second door,
front door----
Dr. Ford. Correct.
Senator Feinstein [continuing]. Is claustrophobia?
Dr. Ford. Correct. It doesn't--our house does not look
aesthetically pleasing from the curb.
Senator Feinstein. I see. And do you have that second front
door?
Dr. Ford. Yes.
Senator Feinstein. It prevailed, yes?
Dr. Ford. And it now is a place to host Google interns
because we live near Google. So we get to have--and other
students can----
Senator Feinstein. Can you tell us, is there any other way
this has affected your life?
Dr. Ford. The primary impact was in the initial 4 years
after the event. I struggled academically. I struggled very
much in Chapel Hill in college. When I was 17 and went off to
college, I had a very hard time, more so than others, forming
new friendships and especially friendships with boys, and I had
academic problems.
Senator Feinstein. What were the--when we spoke and it
became very clear how deeply you felt about this and the need
that you wanted to remain confidential, can you talk a little
bit about that?
Dr. Ford. Yes. So I was watching carefully throughout the
summer. Well, my original intent, I just want to remind, was to
communicate with everyone when there was still a list of
candidates who all seemed to be, just from my perspective from
what I could read, equally qualified, and I was in a hurry to
try to get the information forward but didn't quite know how to
do that.
However, once he was selected, and it seemed like he was
popular and was a sure vote, I was calculating daily the risk-
benefit for me of coming forward and wondering whether I would
just be jumping in front of a train that was headed to where it
was headed anyway and that I would just be personally
annihilated.
Senator Feinstein. How did you decide to come forward?
Dr. Ford. Ultimately, because reporters were sitting
outside of my home and trying to talk to my dog through the
window to calm the dog down. And a reporter appeared in my
graduate classroom, and I mistook her for a student. And she
came up to ask me a question, and I thought that she was a
student, and it turned out that she was a reporter.
So at that point, I felt like enough was enough. People
were calling my colleagues at Stanford and leaving messages on
their voicemails and on their emails saying that they knew my
name. Clearly, people knew my address because they were out in
front of my house, and it just--the mounting pressure seemed
like it was time to just say what I needed to say.
Senator Feinstein. I want--I am sorry. I want to ask you
one question about the attack itself. You were very clear about
the attack. Being pushed into the room, you say you do not know
quite by whom, but that it was Brett Kavanaugh that covered
your mouth to prevent you from screaming, and then you escaped.
How are you so sure that it was he?
Dr. Ford. The same way that I'm sure that I'm talking to
you right now, just basic memory functions and also just the
level of norepinephrine and epinephrine in the brain that sort
of, as you know, encodes--that neurotransmitter encodes
memories into the hippocampus, and so the trauma-related
experience then is kind of locked there, whereas other details
kind of drift.
Senator Feinstein. So what you are telling us is this could
not be a case of mistaken identity?
Dr. Ford. Absolutely not.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Grassley. Ms. Mitchell for Senator Hatch.
[For Senator Hatch.]
Ms. Mitchell. Thank you, Mr. Chairman.
When we were stopped, you were going to tell us a third
correction that you wanted to make on that statement--or, I am
sorry, the letter to Senator Feinstein?
Dr. Ford. It's--it wasn't a correction, but I just wanted
to comment on it since we were looking at this letter, that I
did see Mark Judge once at the Potomac Village Safeway after
the time of the attack. And it would be helpful with anyone's
resources if--to figure out when he worked there, if people are
wanting more details from me about when the attack occurred. If
we could find out when he worked there, then I could provide a
more detailed timeline as to when the attack occurred.
Ms. Mitchell. Okay. And so that is not a correction in your
statement?
Dr. Ford. It's just--no.
Ms. Mitchell. Okay. You also wrote out a handwritten
statement for the polygrapher when you took your polygraph
test. Is that correct?
Dr. Ford. Yes.
Ms. Mitchell. Okay. And I see corrections on that where you
crossed out. So I will go on to The Washington Post article----
Dr. Ford. Okay.
Ms. Mitchell [continuing]. That was originally published on
September 16th of this year.
Dr. Ford. Then should I just not look at this for accuracy,
or we're just going to leave that be?
Ms. Mitchell. We may come back to it if you need to refer
to it.
Dr. Ford. Okay, okay.
Ms. Mitchell. On The Washington Post article, did you
submit to an interview by a reporter with The Washington Post
for that article to be written?
Dr. Ford. Correct.
Ms. Mitchell. Okay. And then finally was the statement that
you provided this morning. I assume that to the best of your
recollection, that that was accurate?
Dr. Ford. That this whole article is accurate?
Ms. Mitchell. No, no, no. The statement that you made this
morning.
Dr. Ford. Yes.
Ms. Mitchell. Okay. I want to talk to you about the day
that this happened leading up to the gathering.
Dr. Ford. Okay.
Ms. Mitchell. In your statement this morning, have you told
us everything that you remember about the day leading up to
that?
Dr. Ford. Yes.
Ms. Mitchell. Let me ask just a few questions to make sure
that you have thought of everything, okay? You indicated that
you were at the country club swimming that day?
Dr. Ford. That's my best estimate of how this could have
happened.
Ms. Mitchell. Okay. And when you say ``best estimate,'' is
that based on the fact that you said you went there pretty much
every day?
Dr. Ford. Mm-hmm.
Ms. Mitchell. Is that a ``yes''?
Dr. Ford. Yes.
Ms. Mitchell. Okay. Do you recall prior to getting there--
so I am only talking about up to the gathering----
Dr. Ford. Okay.
Ms. Mitchell [continuing]. Had you had anything to drink?
Dr. Ford. Not at all.
Ms. Mitchell. Were you on any sort of medication?
Dr. Ford. None.
Ms. Mitchell. Okay. Do you recall knowing before you went
who was going to be at that gathering?
Dr. Ford. I recall that expecting that Mark Judge and
Leland would be at that gathering.
Ms. Mitchell. Okay. Do you recall an expectation that Brett
Kavanaugh would be there?
Dr. Ford. I don't recall whether or not I expected that.
Ms. Mitchell. Okay. Now let us talk about the gathering up
from the time you arrived until right when you went up the
stairs, just that period of time, okay? What was the atmosphere
like at the gathering?
Dr. Ford. Mr. Kavanaugh and Mr. Judge were extremely
inebriated. They had clearly been drinking prior, and the other
people at the party were not. The living room----
Ms. Mitchell. Can I ask you, just to follow up on that,
when you said it was clear that they had been drinking prior,
do you mean prior to the time you had gotten there or prior to
the time they had arrived?
Dr. Ford. Prior to the time that they arrived. I don't
recall who arrived first, though, whether it was me or them.
Ms. Mitchell. Okay. Please continue.
Dr. Ford. Okay. So I recall that I can--I can sketch a
floor plan. I recall that it was a sparsely furnished, fairly
modest living room, and it was not really a party, like the
news has made it sound. It was not--it was just a gathering
that I assumed was going to lead to a party later on that those
boys would attend because they tended to have parties later at
night than I was allowed to stay out. So it was kind of a pre-
gathering.
Ms. Mitchell. Was it loud?
Dr. Ford. No. Not in the living room.
Ms. Mitchell. Besides the music that you have described
that was playing in the bedroom, was there any other music or
television or anything like that that was adding?
Dr. Ford. No.
Ms. Mitchell. Okay. So there was not a stereo playing
downstairs?
Dr. Ford. No.
Chairman Grassley. Senator Leahy.
Senator Leahy. Dr. Ford, thank you for being here.
Mr. Chairman, you know, the way to make this inquiry truly
credible is to do what we have always done when new information
about a nominee comes to light. To use your words this morning,
you want to reach the truth. The easy way to do that, ask the
FBI to investigate. It is what we have always done.
Let them investigate, report back to us. The same applies
to the serious allegations made by Deborah Ramirez and Julie
Swetnick. Let us have a nonpartisan, professional investigation
and then take the time to have these witnesses testify.
Chairman, you and I were both here 27 years ago. At that
time, the Senate failed Anita Hill. I said I believed her, but
I am concerned that we are doing a lot less for these three
women today. That is my personal view.
Now, Dr. Ford, no matter what happens with this hearing
today, no matter what happens to this nomination, I know and I
hear from so many in my own State of Vermont, there are
millions of victims and survivors out there who have been
inspired by your courage. I am.
Bravery is contagious. Indeed, that is the driving force
behind the #MeToo movement, and you sharing your story is going
to have a lasting positive impact on so many survivors in our
country. We owe you a debt of gratitude for that, Doctor.
Now some Senators have suggested you were simply mixed up
about who assaulted you. An ally of Judge Kavanaugh in the
White House even promoted a wild theory about a Kavanaugh look-
alike. You immediately rejected that theory. As did the
innocent man who had been called that look-alike.
In fact, he sent a letter to this Committee forcefully
rejecting this absurd theory. I ask consent to enter that in
the record.
Chairman Grassley. Without objection, so ordered.
[The information appears as a submission for the record.]
Senator Leahy. Now how did you know Brett Kavanaugh and
Mark Judge, and is it possible that you would mix them up with
somebody else?
Dr. Ford. No, it is not. And the person that was blamed for
the incident is actually the person who introduced me to them
originally. So he was a member of Columbia Country Club, and I
don't want to talk about him because I think it's unfair. But
he is the person that introduced me to them.
Senator Leahy. But you--you would not mix up somebody else
with Brett Kavanaugh. Is that correct?
Dr. Ford. Correct.
Senator Leahy. Or Mark Judge?
Dr. Ford. Correct.
Senator Leahy. Well, then let us go back to the incident.
What is the strongest memory you have? The strongest memory of
the incident, something that you cannot forget. Take whatever
time you need.
Dr. Ford. Indelible in the hippocampus is the laughter, the
uproarious laughter between the two and their having fun at my
expense.
Senator Leahy. You have never forgotten that laughter. You
have never forgotten them laughing at you?
Dr. Ford. They were laughing with each other.
Senator Leahy. And you were the object of the laughter?
Dr. Ford. I was, you know, underneath one of them while the
two laughed. Two friends having a really good time with one
another.
Senator Leahy. Let me enter into the record a statement by
the National Task Force to End Domestic Violence.
Chairman Grassley. Without objection, so ordered.
[The statement appears as a submission for the record.]
Senator Leahy. And a letter from 24 Members of the House of
Representatives urging the Committee to use the NTF's trauma-
informed approach in questioning Dr. Ford.
Chairman Grassley. Without objection, so ordered.
[The information appears as a submission for the record.]
Senator Leahy. And a letter from another 116 Members of the
House asking to delay until all this has been heard.
Chairman Grassley. Without objection, so ordered.
[The information appears as a submission for the record.]
Senator Leahy. And Dr. Ford has at times been criticized
for what she does not remember from 36 years ago, but we have
numerous experts, including a study by the U.S. Army Military
Police School of Behavior Sciences Education, that lapses of
memory are wholly consistent with severe trauma and stress of
assault. I would ask consent that be entered.
Chairman Grassley. Without objection, so ordered.
[The information appears as submissions for the record.]
Senator Leahy. And Dr. Ford, I will just conclude with
this. You do remember what happened, do you not?
Dr. Ford. Very much so.
Senator Leahy. Thank you. Thank you, Mr. Chairman.
Now Ms. Mitchell for Senator Graham, and then it is my
understanding that that is where you would like to take a
break?
Dr. Ford. If that works for you? Does that work for you as
well?
Chairman Grassley. We are here to accommodate you, not you
accommodate us.
Dr. Ford. Oh, thank you. I'm used to being collegial. So--
--
[Laughter.]
Chairman Grassley. Okay. Go ahead. Ms. Mitchell for Senator
Graham.
[For Senator Graham.]
Ms. Mitchell. Thank you, Mr. Chairman.
You told Senator Feinstein in your letter that you and four
others were present. You have corrected that today to say it
was at least four others.
When you were interviewed by The Washington Post, you said
that there were four boys present at the party, and then in
your polygraph statement, you said there were four boys and two
girls. When you say ``two girls,'' was that you and another, or
was that two other girls?
Dr. Ford. That was me and one other girl.
Ms. Mitchell. And that other girl's name?
Dr. Ford. Leland.
Ms. Mitchell. Leland Keyser now?
Dr. Ford. Correct.
Ms. Mitchell. Okay. So, then, would it be fair to say at
least P.J., Brett Kavanaugh, Mark Judge, Leland--Ingham at the
time--and yourself were present, and possibly others?
Dr. Ford. And one--one other boy. So there were four, there
were four boys. I just don't know the name of the other boy.
Ms. Mitchell. Have you been contacted by anybody saying,
``Hey, I was at that party, too''?
Dr. Ford. No, I haven't talked with anyone from that party.
Ms. Mitchell. Okay. Now you have been detailed about what
happened once you got up the stairs, and so I do not need to go
through that again. I am sorry. Go ahead.
Dr. Ford. You know, I'm sorry. I just realized that I said
something that was inaccurate. I said I hadn't spoke with
anyone from the party since that--I've spoken with Leland.
Ms. Mitchell. Thank you for correcting that. I appreciate
that.
You have gone into detail about what happened once you went
up the stairs. So I do not feel like it is necessary to go over
those things again.
Dr. Ford. Okay. Thank you.
Ms. Mitchell. Have you told us everything that you do
remember about it?
Dr. Ford. I believe so, but if there are other questions, I
will--I can attempt to answer them.
Ms. Mitchell. Okay. You said that the music was solely
coming from that room. Is that correct?
Dr. Ford. Correct.
Ms. Mitchell. And it was turned up once the three of you
were inside that room. Is that correct?
Dr. Ford. Yes.
Ms. Mitchell. Okay. At some point, do you recall it being
turned down?
Dr. Ford. I don't remember if it was turned down once I was
leaving the house. I don't remember.
Ms. Mitchell. Okay.
Dr. Ford. Likely, since I could hear them walking down the
stairs very clearly from the bathroom.
Ms. Mitchell. Okay. And the bathroom was--door was closed
when you heard this. Is that correct?
Dr. Ford. I could hear them very clearly hitting the walls
going down the stairwell.
Ms. Mitchell. In fact, in your letter, you said that they
went down the stairs, and they were talking with other people
in the house.
Dr. Ford. Mm-hmm. Correct.
Ms. Mitchell. Were you able to hear that conversation?
Dr. Ford. I was not able to hear that conversation, but I
was aware that they were downstairs and that I would have to
walk past them to get out of the house.
Ms. Mitchell. Now let me make sure we are on the same page.
Were you not able to hear the conversation or not able to
understand the conversation?
Dr. Ford. I couldn't hear the conversation. I was upstairs.
Ms. Mitchell. Okay. How do you know there was a
conversation?
Dr. Ford. I'm just assuming since it was a social
gathering, people were talking. I don't know.
Ms. Mitchell. Okay. In your letter, you----
Dr. Ford. I could hear them talking as they went down the
stairwell. They were laughing and----
Ms. Mitchell. Okay. In your letter, you wrote, ``Both
loudly stumbled down the stairwell, at which point other
persons at the house were talking with them.'' Does that ring a
bell?
Dr. Ford. Yes, I had to walk past everyone to leave the
house.
Ms. Mitchell. Your letter----
Dr. Ford. Maybe I'm not understanding, I'm sorry.
Ms. Mitchell. Okay. Your next sentence, let me try to
clarify this. After you said other persons at the house were
talking with them, the letter goes on with the very next
sentence, ``I exited the bathroom, ran outside of the house,
and went home.''
Dr. Ford. Correct.
Ms. Mitchell. Okay. You said that you do not remember how
you got home. Is that correct?
Dr. Ford. I do not remember.
Ms. Mitchell. Okay.
Dr. Ford. Other than I did not drive home.
Ms. Mitchell. Okay. I am going to show you, if somebody
could provide to you, a map of the various people's houses at
the time, and if you could verify that this is where you were
living at the time?
Dr. Ford. Where I was living at the time?
Ms. Mitchell. Yes.
Dr. Ford. Okay.
Senator Harris. Mr. Chairman, do we have a copy of these
documents?
Chairman Grassley. You do not have a copy, but I suppose if
you want one, we can get you one.
Senator Harris. Yes. Before the questions begin. So we can
follow the testimony.
Chairman Grassley. Okay. My staff says that we should not
provide the copy.
[Voice off microphone.] No, we will provide the copy. We
will provide the copy.
Chairman Grassley. Oh. Well, speak plainly with me, please.
Senator Harris. Oh, sure. I would like to see what she is
looking at.
Chairman Grassley. Not you.
[Laughter.]
Chairman Grassley. You have another 30 seconds now because
I was rudely interrupted.
Ms. Mitchell. Okay. Mr. Chairman, Senator Harris, we do
have a blown-up copy of this for the Members to view, if that
is helpful?
Dr. Ford. Okay. I'm going to put checkmarks next to homes
that I can confirm are the correct locations and then an ``X''
or a ``?'' when I don't know where these people live.
Ms. Mitchell. I am only asking you to confirm if that map
accurately shows where you were living at the time.
Dr. Ford. Where I lived at the time. So I can't see the
street name, but I'm happy to refer to the address or the
neighborhood.
Ms. Mitchell. Okay. Could you tell us that?
Dr. Ford. Yes. It's River Falls.
Ms. Mitchell. Okay.
Dr. Ford. Near the--what is the place called, the Naval
Research Center on Clara Barton Parkway.
Ms. Mitchell. Okay. Was that a house or an apartment?
Dr. Ford. It was my parents' home.
Ms. Mitchell. Okay.
Chairman Grassley. Senator Durbin.
Senator Durbin. Mr. Chairman, I ask consent to enter into
the record letters of support for Dr. Ford from her classmates
at Holton-Arms School; 1,200 alumni of the school; 195 of your
colleagues, students, and mentors; 1,400 women and men who
attended DC schools; and 15 members of the Yale Law School
faculty who are calling for a full FBI investigation. I ask
consent to enter these into the record.
Chairman Grassley. Without objection, so ordered.
[The letters appear as submissions for the record.]
Senator Durbin. Dr. Ford, as difficult as this experience
must be, I want you to know that your courage in coming forward
has given countless Americans the strength to face their own
life-shattering past and begin to heal their wounds. By
example, you have brought many families into an honest and
sometimes painful dialogue that should have occurred a long
time ago.
I am sorry for what this has done to you and your family.
No one, no one should face harassment, death threats, and
disparaging comments by cheap-shot politicians simply for
telling the truth. You and your family should know that for
every scurrilous charge and every pathetic tweet, there have
been thousands of Americans, women and men, who believe you,
support you, and thank you for your courage.
Watching your experience, it is no wonder that many sexual
assault survivors hide their past and spend their lives
suffering in pained silence. You had absolutely nothing to gain
by bringing these facts to the Senate Judiciary Committee. The
fact that you are testifying here today, terrified though you
may be, the fact that you have called for an FBI investigation
of this incident, the fact that you are prepared to name both
Judge Kavanaugh and eyewitness Mark Judge stands in sharp
contrast to the obstruction we have seen on the other side.
The FBI should have investigated your charges, as they did
in the Anita Hill hearing, but they did not. Mark Judge should
be subpoenaed from his Bethany Beach hideaway and required to
testify under oath, but he has not. Judge Kavanaugh, if he
truly believes there is no evidence, no witnesses that can
prove your case, should be joining us in demanding a thorough
FBI investigation, but he has not.
Today, you come before this Committee and before this
Nation alone. I know you are joined by counsel and family. The
prosecutor on the Republican side will continue to ask
questions to test your memory and veracity. After spending
decades trying to forget that awful night, it is no wonder your
recollection is less than perfect.
A polished liar can create a seamless story, but a trauma
survivor cannot be expected to remember every painful detail.
That is what Senator Leahy has mentioned earlier.
One question is critical. In Judge Kavanaugh's opening
testimony, which we will hear after you leave, this is what he
says, ``I never had any sexual or physical encounter of any
kind with Dr. Ford. I am not questioning that Dr. Ford may have
been sexually assaulted by some person in some place at some
time.''
Last night, the Republican staff of this Committee released
to the media a timeline that shows that they have interviewed
two people who claim they were the ones who actually assaulted
you. I am asking you to address this new defense of mistaken
identity directly.
Dr. Ford, with what degree of certainty do you believe
Brett Kavanaugh assaulted you?
Dr. Ford. One hundred percent.
Senator Durbin. One hundred percent. In the letter which
you sent to Senator Feinstein, you wrote, ``I have not
knowingly seen Kavanaugh since the assault. I did see Mark
Judge once at the Potomac Village Safeway, where he was
extremely uncomfortable in seeing me.''
Would you please describe that encounter at the Safeway
with Mark Judge and what led you to believe he was
uncomfortable?
Dr. Ford. Yes. I was going to the Potomac Village Safeway.
This is the one on the corner of Falls and River Road, and I
was with my mother, and I was a teenager. So I wanted her to go
in one door and me go in the other. So I chose the wrong door
because the door I chose was the one where Mark Judge was--
looked like he was working there and arranging the shopping
carts.
And I said hello to him, and his face was white and very
uncomfortable saying hello back. And we had previously been
friendly at the times that we saw each other over the previous
2 years, albeit not very many times. We had always been
friendly with one another. I wouldn't characterize him as not
friendly. He was just nervous and not really wanting to speak
with me. And he looked a little bit ill.
Senator Durbin. How long did this occur after the incident?
Dr. Ford. I would estimate 6 to 8 weeks.
Senator Durbin. Thank you, Mr. Chairman.
Chairman Grassley. Before we take a break, I cannot let
what Durbin, Senator Durbin said--by the way, he is my friend.
We work on a lot of legislation together. But you talked about
the obstruction from the other side. I cannot let it go by what
you have heard me say so many times that between July 30th and
September 13th, there were 45 days this Committee could have
been investigating this situation, and her privacy would have
been protected.
So something happened here in between on your side that the
whole country--well, not the whole country should have known
about it--no, not know about. We should have investigated it.
We will take a break now for 15 minutes.
[Whereupon, at 11:27 a.m., the Committee was recessed.]
[Whereupon, at 11:47 a.m., the Committee reconvened.]
Chairman Grassley. Dr. Ford, let me ask you a process
question here. We were going to schedule a break for 12:05.
This last break came just a little bit later. I did not call it
at the right time. We are going to have a vote at 12:40, so
would it be possible for you to go from now until 12:40 without
a break?
Dr. Ford. Yes.
Chairman Grassley. Okay. Now it is Senator Cornyn's time,
so proceed, Ms. Mitchell.
[For Senator Cornyn.]
Ms. Mitchell. Thank you, Senator.
I have a blow-up here to my right of the map that was shown
to you. The address that's indicated on here as belonging to
your family is what all the property tax records showed as
being your address.
Dr. Ford. Okay.
Ms. Mitchell. Just to put it in perspective, I'd like to
show you a further-out, a zoomed-out picture so that we can put
it in perspective, so we can show the greater Washington area.
Of course, you can see the Beltway on that, the Beltway area.
Dr. Ford. Okay.
Ms. Mitchell. And then, number 3, if we could look at that.
We drew a 1-mile radius around the country club, and then we
calculated from the furtherest point----
Senator Harris. Mr. Chairman, again, we do not have these
documents.
Chairman Grassley. You are looking at them.
Senator Harris. No, we are not. That is why she showed
three different documents, because they depict three different
things. So we would like to see all three documents, please, so
we can follow along.
Chairman Grassley. Proceed, please.
Ms. Mitchell. Okay. Looking at the third thing here, we
calculated the distance from the closest point to your house
from a mile radius of the country club and then the fartherest
point. You can see it's 6.2 and, of course, 8.2 miles. And
you've described this as being near the country club, wherever
this house was. Is that right?
Dr. Ford. I would describe it as somewhere between my house
and the country club, in that vicinity that's shown in your
picture.
Ms. Mitchell. Okay.
Dr. Ford. And the country club is about a 20-minute drive
from my parents' home.
Ms. Mitchell. A 20-minute drive. And, of course, I've
marked as the crow flies.
Dr. Ford. Yes.
Ms. Mitchell. Would it be fair to say that somebody drove
you somewhere, either to the party or home from the party?
Dr. Ford. Correct.
Ms. Mitchell. Okay. Has anyone come forward to say to you,
``Hey, remember, I was the one that drove you home''?
Dr. Ford. No.
Ms. Mitchell. Okay. In your July 6th text to The Washington
Post that you looked at earlier, you said that this happened in
the mid-'80s. In your letter to Senator Feinstein, you said it
occurred in the early '80s.
In your polygraph statement, you said it was high school
summer in '80s, and you actually had written in--and this is
one of the corrections I referred to--``early,'' and then you
crossed that out.
Later in your interview with The Washington Post, you were
more specific. You believed it occurred in the summer of 1982,
and you said the end of your sophomore year.
Dr. Ford. Yes.
Ms. Mitchell. You said the same thing, I believe, in your
prepared statement. How were you able to narrow down the
timeframe?
Dr. Ford. I can't give the exact date, and I would like to
be more helpful about the date. And if I knew when Mark Judge
worked at the Potomac Safeway, then I would be able to be more
helpful in that way. So I'm just using memories of when I got
my driver's license. I was 15 at the time, and I did not drive
home from that party or to that party. And once I did have my
driver's license, I liked to drive myself, so----
Ms. Mitchell. I assume the legal driving age was 16?
Dr. Ford. Yes.
Ms. Mitchell. Okay. Now, you've talked about attending
therapy. In your text to The Washington Post dated 7/6--so
that's the very first statement we have from you--you put in
there, ``Have therapy records, talking about it.'' I want to
make sure I understand that. Did you already have your therapy
records at that time?
Dr. Ford. I had looked at them online to see if they
existed, yes.
Ms. Mitchell. Okay. So this was something that was
available to you via a computer, like a patient portal?
Dr. Ford. Actually, no. It was in the office of a provider.
Ms. Mitchell. Okay.
Dr. Ford. She helped me go through the record to locate
whether I had had a record of this conversation that I had
remembered.
Ms. Mitchell. Did you show a full or partial set of those
marriage therapy records to The Washington Post?
Dr. Ford. I don't remember. I remember summarizing for her
what they said, so I'm not quite sure if I actually gave her
the record.
Ms. Mitchell. Okay. So it's possible that the reporter did
not see these notes?
Dr. Ford. I don't know if she--I can't recall whether she
saw them directly or if I just told her what they said.
Ms. Mitchell. Okay. Have you shown them to anyone else
besides your counsel?
Dr. Ford. Just the counsel.
Ms. Mitchell. Okay. Would it be fair to say that Brett
Kavanaugh's name is not listed in those notes?
Dr. Ford. His name is not listed in those notes.
Ms. Mitchell. Would it also be fair to say that the
therapist notes that we've been talking about, say that there
were four boys in the room?
Dr. Ford. It describes the sexual assault, and it says
``erroneously by four boys,'' so the therapist got the content
of it wrong.
Ms. Mitchell. And you corrected that to The Washington Post
reporter, correct?
Dr. Ford. Correct.
Chairman Grassley. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman. Thank you, Dr.
Blasey Ford. A lot of people are proud of you today.
From a prosecutor's view, one of the hardest things that we
have to do is to speak to somebody who has come forward with an
allegation of sexual assault and let them know that we cannot
provide the evidence to go forward to trial. It is a hard day
for the prosecutor to do that. And so, both because making a
sincere and thorough investigative effort is such an important
consolation to the victim in that circumstance, and because it
is what you are obliged to do professionally. Sincere and
thorough investigation is critical to these claims in a
prosecutor's world. It may be the most basic thing that we owe
a victim or a witness coming forward, is to make sure that we
give them a full, thorough, and sincere investigation.
You have met all of the standards of what I might call
``preliminary credibility'' with your initial statement. You
have vivid, specific, and detailed recollections, something
prosecutors look for. Your recollections are consistent with
known facts. You made prior consistent statements, something
else prosecutors and lawyers look for. You were willing to and
did take a lie detector test. And you were willing to testify
here--here you are--subject to professional cross-examination
by a prosecutor.
So you have met any condition any prosecutor could expect
to go forward, and yet there has been no sincere or thorough
investigation of your claims.
You specifically asked for an FBI investigation, did you
not?
Dr. Ford. Yes.
Senator Whitehouse. And are you aware that when the FBI
begins investigating, they might find corroborative evidence
and they might find exculpatory evidence?
Dr. Ford. I don't know what exculpatory evidence is.
Senator Whitehouse. Not helpful to your recollection and
version of events, helpful to the accused.
Dr. Ford. Understood, yes.
Senator Whitehouse. So it could go either way?
Dr. Ford. Yes.
Senator Whitehouse. And you were still not just willing but
insistent that the FBI should investigate your recollection and
your claim?
Dr. Ford. Yes, I feel like it would--I could be more
helpful if that was the case in providing some of the details
that maybe people are wanting to know about.
Senator Whitehouse. And as we know, they did not. And I
submit that never, never in the history of background
investigations, has an investigation not been pursued when new,
credible derogatory information was brought forward about the
nominee or the candidate. I do not think this has ever happened
in the history of FBI background investigations. Maybe somebody
can prove me wrong, but it is wildly unusual and out of
character. And in my view, it is a grave disservice to you, and
I want to take this moment to apologize to you for that and to
report to anybody who might be listening that, when somebody is
willing to come forward, even under those circumstances, even
having been not given the modicum of courtesy and support of a
proper investigation, you have shown yourself particularly
proud in doing that. And the responsibility for the decision to
have this be, I think, the only background investigation in
history to be stopped as derogatory information came forward
belongs with 13 men: the President, Director Wray of the FBI,
and the 11 Members of the Majority of this Committee.
As to the Committee's investigation, the fact that Mr.
Kavanaugh's alleged accomplice has not been subpoenaed, has not
been examined and cross-examined under oath, has not been
interviewed by the FBI, tells you all you need to know about
how credible this performance is.
The very bare minimum that a person who comes from is owed
is sincere and thorough investigation--and you have been denied
that. And I will make a personal pledge to you here that,
however long it takes, in whatever forum I can do it, whenever
it is possible, I will do whatever is in my power to make sure
that your claims get a full and proper investigation and not
just this.
Thank you for being here.
Dr. Ford. Thank you.
Chairman Grassley. Since this issue has come up so many
times, I would like to comment. The New Yorker published an
anonymous account of allegations September the 14th. Two days
later Dr. Ford identified herself as the victim in The Post
article detailing her allegations. I immediately directed my
staff to investigate. September the 17th, Dr. Ford's counsel
went on several television shows requesting that her client
have an opportunity to tell her story. The same day I scheduled
a hearing for Monday, September the 24th, giving Dr. Ford a
week to prepare her testimony and come to Washington, DC.
On September the 17th, Committee investigative staff
reached out to Dr. Ford and Judge Kavanaugh to schedule follow-
up interviews with Republican and Democrat investigators. Judge
Kavanaugh accepted the opportunity to speak to the
investigators under criminal penalty. Dr. Ford declined. In his
interview on September the 17th, Judge Kavanaugh denied the
allegations and requested a hearing as soon as possible.
Democratic staff refused to participate in that interview.
The next day, September the 18th, Committee investigative
staff contacted Mark Judge requesting an interview. Committee
staff also learned the identity of two other alleged party-
goers and requested interviews. Mark Judge submitted a
statement under penalty of felony, denying knowledge of the
party described by Dr. Ford, and states that he never saw Brett
in the manner described by Dr. Ford. And I can go on and on
about that, but we have got to realize that what we have done
in this case, all the time you go through a background
investigation by the FBI, then it comes to us, and there are
always some holes in it that we have to follow up on. And,
besides----
Senator Klobuchar. Mr. Chairman?
Chairman Grassley [continuing]. We are responding to Dr.
Ford's request to tell her story. That is why we are here.
Senator Klobuchar. Mr. Chairman? Mr. Chairman?
Chairman Grassley. Ms. Mitchell, go for Senator----
Senator Klobuchar. Mr. Chairman, I just want to point out
that, to support what Senator Whitehouse said, in the Anita
Hill case----
Senator Cornyn. Could we hear from Dr. Ford?
Senator Klobuchar [continuing]. George Bush ordered that
the investigation be opened again.
Chairman Grassley. Ms. Mitchell, will you proceed for
Senator Lee.
[For Senator Lee.]
Ms. Mitchell. Thank you, Mr. Chairman.
Dr. Ford, The Washington Post reported in their September
16th article that you did show them therapist notes. Is that
incorrect?
Dr. Ford. I don't remember physically showing her a note.
Ms. Mitchell. Okay.
Dr. Ford. Perhaps my counsel did. I don't remember
physically showing her my copy of the note.
Ms. Mitchell. Okay.
Dr. Ford. But I just don't remember. I'm sorry. I have
retrieved a physical copy of those medical records.
Ms. Mitchell. Okay. Thank you.
You also attended individual therapy. Did you show any of
those notes to the reporter from The Washington Post?
Dr. Ford. Again, I don't remember if I showed her like
something that I summarized or if I just spoke about it or if
she saw it in my counsel's office. I can't--I don't know for
sure. But I certainly spoke with her about the 2013 record with
the individual therapist.
Ms. Mitchell. And Brett Kavanaugh's name is not in those
notes. Is that correct?
Dr. Ford. Correct.
Ms. Mitchell. Okay. In reading The Washington Post article,
it mentions that this incident that we're here about
contributed to anxiety and PTSD problems with which you have
struggled. The word ``contributed,'' does that mean that there
are other things that have happened that have also contributed
to anxiety and PTSD?
Dr. Ford. I think that's a great question. I think the
etiology of anxiety and PTSD is multifactorial, so that was
certainly a critical risk that--we would call it a ``risk
factor'' in science, so that would be a predictor of the
symptoms that I now have. It doesn't mean that other things
that have happened in my life would have--would make it worse
or better if there are other risk factors as well.
Ms. Mitchell. So have there been other things then that
have contributed to the anxiety and PTSD that you suffered?
Dr. Ford. Well, I think there's sort of biological
predispositions that everyone in here has for particular
disorders, so I can't rule out that I would have some
biological predisposition to be an anxious-type person.
Ms. Mitchell. What about environmental?
Dr. Ford. Environmentally, not that I can think of.
Ms. Mitchell. Okay.
Dr. Ford. Certainly nothing as striking as that event.
Ms. Mitchell. Okay. In your interview with The Washington
Post, you said that you told your husband early in your
marriage that you had been a victim of, and I quote, ``physical
abuse.'' In your statement you said that before you were
married, you told him that you had experienced ``a sexual
assault.'' Do these two things refer to the same incident?
Dr. Ford. Yes.
Ms. Mitchell. And at either point on these two times, did
you use any names?
Dr. Ford. No.
Ms. Mitchell. Okay. May I ask, Dr. Ford, how did you get to
Washington?
Dr. Ford. In an airplane.
Ms. Mitchell. Okay. I ask that because it's been reported
by the press that you would not submit to an interview with the
Committee because of your fear of flying. Is that true?
Dr. Ford. Well, I was willing--I was hoping that they would
come to me, but then realized that was an unrealistic request.
Ms. Mitchell. It would have been a quicker trip for me.
[Laughter.]
Dr. Ford. Yes. So that was certainly what I was hoping, was
to avoid having to get on an airplane. But I eventually was
able to get up the gumption with the help of some friends and
get on the plane.
Ms. Mitchell. When you were here in the Mid-Atlantic area
back in August--end of July, August, how did you get here?
Dr. Ford. Also by airplane. I come here once a year during
the summer to visit my family.
Ms. Mitchell. Okay.
Dr. Ford. I'm sorry. Not here. I go to Delaware.
Ms. Mitchell. Okay. In fact, you fly fairly frequently for
your hobbies and you've had to fly for your work. Is that true?
Dr. Ford. Correct, unfortunately.
Ms. Mitchell. You were a consulting biostatistician in
Sidney, Australia. Is that right?
Dr. Ford. I've never been to Australia, but the company
that I worked for is based in Australia, and they have an
office in San Francisco, California.
Ms. Mitchell. Okay.
Dr. Ford. I don't think I'll make it to Australia.
Ms. Mitchell. It is long. I also saw in your C.V. that you
list the following interests of surf travel and you, in
parentheses, put Hawaii, Costa Rica, South Pacific Islands, and
French Polynesia. Have you been all to those places?
Dr. Ford. Correct.
Ms. Mitchell. By airplane?
Dr. Ford. Yes.
Ms. Mitchell. And your interests also include oceanography,
Hawaiian and Tahitian culture. Did you travel by air as a part
of those interests?
Dr. Ford. Correct.
Ms. Mitchell. Okay. Thank you very much.
Dr. Ford. Easier for me to travel going that direction when
it is a vacation.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. Thank you, Mr. Chairman. Thank you for
being here, Dr. Ford.
You know, in my old job as a prosecutor, we investigated
reports like this, so it gave me a window on the types of cases
that hurt women and hurt all of us. And I would always tell the
women that came before us that they were going to have to tell
their story before a jury box of strangers. And you have had to
tell your story before the entire Nation.
For so many years, people swept cases like yours under the
rug. They would say what happens inside a house did not belong
in the courthouse. Well, the times have changed, so I just want
to thank you for coming forward today and for sharing your
report with us.
Now, I understand that you have taken a polygraph test, Dr.
Ford, that found that you were being truthful when you
described what happened to you. Can you tell us why you decided
to take that test?
Dr. Ford. I was meeting with attorneys, I was interviewing
various attorneys, and the attorneys asked if I was willing to
take it, and I said absolutely. That said, it was almost as
anxiety-provoking as an airplane flight.
Senator Klobuchar. Okay. And you have talked about your
recollections and seeing Mark Judge at that Safeway. If there
had been an appropriate reopening of this background check and
FBI interviews, would that have helped you find the time period
if you knew when he worked at that Safeway?
Dr. Ford. I feel like I could be much more helpful if I
could be provided with that date through employment records or
the IRS or something, anything that would help.
Senator Klobuchar. Thank you. I would assume that is true.
Dr. Ford, under Federal law--and I do not expect you to
know this, but statements made to medical professionals are
considered to be more reliable. There is a Federal Rule of
Evidence about this. You told your counselor about this back in
2012. Is that right?
Dr. Ford. My therapist?
Senator Klobuchar. Yes.
Dr. Ford. My individual therapist, correct.
Senator Klobuchar. Right. And I understand that your
husband was also present when you spoke about this incident in
front of a counselor, and he recalls you using Judge
Kavanaugh's name. Is that right?
Dr. Ford. Yes. I just have to slow down a minute because I
might have been confusing. So there were two separate incidents
where it's reflected in my medical record. I had talked about
it more than those two times. But therapists don't typically
write down content as much as they write down process. They
usually are tracking your symptoms and not your story and the
facts. I just happened to have it in my record twice. So the
first time is in 2012 with my husband in couples therapy with
the quibbling over the remodel, and then in 2013 with my
individual therapist.
Senator Klobuchar. Okay. So if someone had actually done an
investigation, your husband would have been able to say that
you named his name at that time?
Dr. Ford. Correct.
Senator Klobuchar. Okay. I know you have been concerned----
Dr. Ford. 2012.
Senator Klobuchar [continuing]. With your privacy
throughout the process, and you first requested that your
account be kept confidential. Can you briefly tell us why?
Dr. Ford. Yes. So as I stated before, once I was
unsuccessful in getting my information to you before the
candidate was chosen, my original intent was to get the
information when there was still a list of other candidates
available. And once that was not successful and I saw that
persons were very supportive of the nominee, I tracked it----
Senator Klobuchar. Okay.
Dr. Ford [continuing]. All summer and realized that when I
was calculating that risk/benefit ratio, that it looked like I
was going to just, you know, suffer only for no reason.
Senator Klobuchar. Okay. You know, from my experience with
memory, I remember distinctly things that happened to me in
high school or happened to me in college, but I do not exactly
remember the date. I do not exactly remember the time. I
sometimes may not even remember the exact place where it
occurred, but I remember the interaction. And many people are
focused today on what you are not able to remember about that
night. I actually think you remember a lot. I am going to
phrase it a little differently. Can you tell us what you do not
forget about that night?
Dr. Ford. The stairwell; the living room; the bedroom, the
bed on the right side of the room--as you walk into the room,
there was a bed to the right; the bathroom in close proximity;
the laughter, the uproarious laughter; and the multiple
attempts to escape, and the final ability to do so.
Senator Klobuchar. Thank you very much, Dr. Ford.
Chairman Grassley. Dr. Ford, I want to correct the record,
but it is not something that I am saying that you stated
wrongly, because you may not know the fact that when you said
that you did not think it was possible for us to go to
California as a Committee or our investigators to go to
California to talk to you, we did, in fact, offer that to you,
and we had the capability of doing it, and we would have done
it anywhere or anytime.
Dr. Ford. Thank you.
Senator Klobuchar. And, Mr. Chairman, could I put the
polygraph results on the record, please? The polygraph results
in the record. Is there any objection?
Chairman Grassley. Well, let us see the chart.
Senator Klobuchar. The polygraph? You want to all see it?
Chairman Grassley. Would you hold just a minute, please?
Senator Klobuchar. I think you may have it.
Chairman Grassley. Can we have the underlying charts, too?
Senator Klobuchar. The underlying charts? I have the
polygraph results that I would just like to put in the record.
I will deal with the charts after that. Could I put the
polygraph test in the record?
Mr. Bromwich. Mr. Chairman, we were----
Chairman Grassley. Go ahead.
Mr. Bromwich. We had proposed having the polygraph examiner
testify, as you know. If that had happened, the full panoply of
materials that he had supporting his examination would have
been provided. You rejected that request, so what we did
provide was the polygraph report, which is what Members of the
Committee currently have.
Senator Klobuchar. And on September 26th, Mr. Chairman,
this was actually sent to your Chief Counsel, and I just want
to share it with America so that they have this report as well.
Chairman Grassley. Okay. We will accept, without objection,
what you have asked us to include, but we are also requesting
and expect the other materials that I have just stated.
[The polygraph report appears as a submission for the
record.]
Senator Klobuchar. But, Mr. Chairman, you would not allow
the underlying witness who performed the polygraph test to
testify, nor would you allow Mark Judge to testify. And so I
would just like to point out--thank you for allowing this
report in the record, but that is the reason that we do not
have the underlying information for you.
Chairman Grassley. You got what you wanted. I think you
would be satisfied.
Senator Klobuchar. I am satisfied with that. Thank you.
Senator Graham. Mr. Chairman?
Chairman Grassley. Senator, go ahead.
Senator Graham. When was the polygraph administered?
Senator Klobuchar. It was administered on August 7, 2018--
--
Senator Graham. When was it----
Senator Klobuchar [continuing]. And it was--the date of the
report is August 10, 2018.
Senator Graham. When was it provided to the Committee?
Chairman Grassley. Let us just see if we cannot do this in
a more orderly way.
Senator Klobuchar. Well, he was asking, and I have it right
here, and you have it as well. It was----
Chairman Grassley. We have accepted----
Senator Klobuchar [continuing]. September 26th.
Chairman Grassley. We have accepted it.
Senator Klobuchar. All right.
Chairman Grassley. Ms. Mitchell for Senator Cruz.
[For Senator Cruz.]
Ms. Mitchell. Thank you.
Dr. Ford, we have talked about the day and the night that
you have described in the summer of 1982, and thank you for
being willing to do that. I know it is difficult. I would like
to shift gears and discuss the last several months.
Dr. Ford. Okay.
Ms. Mitchell. In your statement you said that on July 6th,
you had a ``sense of urgency'' to relay the information to the
Senate and the President. Did you contact either the Senate or
the President on or before July 6th?
Dr. Ford. No, I did not. I did not know how to do that.
Ms. Mitchell. Okay. Prior to July 6th, had you spoken to
any Member of Congress--and when I say Congress, I mean the
Senate or the House of Representatives--or any congressional
staff members about your allegations?
Dr. Ford. No.
Ms. Mitchell. Why did you contact The Washington Post then
on July 6th?
Dr. Ford. So I was panicking because I knew the timeline
was short for the decision, and people were giving me advice on
the beach, people who don't know about the processes but they
were giving me advice, and many people told me, ``You need to
hire a lawyer.'' And I didn't do that. I didn't understand why
I would need a lawyer. As somebody said, ``Call The New York
Times.'' ``Call The Washington Post.'' ``Put in an anonymous
tip.'' ``Go to your Congressperson.'' And when I weighed those
options, I felt like the best option was to try to do the civic
route, which is to go to my Congressperson, who happens to be
Anna Eshoo. So I called her office, and I also put in the
anonymous tip to The Washington Post. And neither--
unfortunately, neither got back to me before the selection of
the nominee.
Ms. Mitchell. You testified that Congresswoman Eshoo's
office contacted you on July 9th. Is that right?
Dr. Ford. They contacted me the date that the nominee was
announced, so that seems likely.
Ms. Mitchell. Had you talked about your allegations with
anyone in her office before the date of July 9th?
Dr. Ford. I told the receptionist on the phone.
Ms. Mitchell. Okay. On July 10th, you texted The Washington
Post again--which was really the third time. Is that right?
Second date, third time.
Dr. Ford. Let's see. Correct.
Ms. Mitchell. And you texted, ``Been advised to contact
Senators or New York Times. Haven't heard back from Washington
Post.'' Who advised you to contact Senators or The New York
Times?
Dr. Ford. Beach friends, coming up with ideas of how I
could try to get to people, because people weren't responding
to me very quickly. So very quickly, they responded to that
text for what unknown reason, that once I sent that encrypted
text, they responded very quickly.
Ms. Mitchell. Did you contact The New York Times?
Dr. Ford. No.
Ms. Mitchell. Why not?
Dr. Ford. I wasn't interested in pursuing the media route
particularly, so I felt like one was enough, The Washington
Post, and I was nervous about doing that. My preference was to
talk with my Congressperson.
Ms. Mitchell. Okay. The Washington Post texted back that
someone would get in touch--get you in touch with a reporter.
Did you subsequently talk to a reporter with The Washington
Post?
Dr. Ford. Yes, under the encrypted app and off the record.
Ms. Mitchell. Okay. Who was that reporter?
Dr. Ford. Emma Brown.
Ms. Mitchell. Okay. The person who ultimately wrote the
story on September 16th?
Dr. Ford. Correct.
Ms. Mitchell. Okay. Did you talk to any Member of
Congress--and, again, remember, Congress includes the Senate or
the House of Representatives--or any congressional staff
members about your allegations between July 10th and July 30th,
which was the date of your letter to Senator Feinstein?
Dr. Ford. Yes. I met with Congresswoman Eshoo's staff, and
I think that's July 18th, the Wednesday, and then on the Friday
I met with the Congresswoman herself.
Ms. Mitchell. Okay. When you met with her, did you meet
with her alone or did someone come with you?
Dr. Ford. I was alone. She had a staff person.
Ms. Mitchell. Okay. What did you talk about with
Congresswoman Eshoo and her staff on July 18th and the 20th?
Dr. Ford. I described the night of the incident, and we
spent time speaking about that. And I asked her how to--what my
options were in terms of going forward and how to get that
information relayed forward, and also talked to her about fears
of whether this was confidential information, and she discussed
the constituent confidentiality principle.
Ms. Mitchell. Thank you.
Chairman Grassley. Senator Coons.
Senator Coons. Thank you, Chairman Grassley.
I would like to ask unanimous consent to submit for the
record five articles, including one titled, ``Why Sexual
Assault Memories Stick,'' and one entitled, ``Why didn't
Kavanaugh accuser come forward earlier? Police often ignore
sexual assault allegations.''
Chairman Grassley. Without objection, so ordered.
[The information appears as submissions for the record.]
Senator Coons. Dr. Ford, I want to begin by thanking you
for coming to testify in front of us today. You came forward
with very serious and relevant information about a nominee for
a lifetime position on our Supreme Court. You did not have to,
and I know you have done it at great personal cost. This is a
public service, and I want you to know that I am grateful to
have the opportunity to hear from you directly today.
I would like to just first follow up on that line of
questioning Ms. Mitchell was following, because I think a lot
of people do not realize that you chose to come forward with
your concerns about Judge Kavanaugh before he was nominated to
the Supreme Court.
Do I understand correctly that when you first reached out
to Congresswoman Eshoo and to The Washington Post tipline, that
was when he was on the short list but before he was nominated
to the Supreme Court. Is that correct?
Dr. Ford. Correct.
Senator Coons. And if I understood your testimony earlier,
it is that you were motivated by a sense of civic duty and,
frankly, a hope that some other highly qualified nominee might
be picked, not out of a motivation at a late stage to have an
impact on the final decision?
Dr. Ford. Correct. I felt it was very important to get the
information to you, but I did not know how to do it while there
was still a short list of candidates.
Senator Coons. Thank you, Doctor.
According to Justice Department data, about two-thirds of
sexual assault survivors do not report their assaults. Based on
your experience, I would be interested in hearing from you
about this because you bore this alone. You bore this alone for
a very long time, and it would be helpful for us to better
understand the ways that that has impacted your whole life.
Dr. Ford. Well, it's impacted me at different stages of the
development of my life, so the immediate impact was probably
the worst, so the first 4 years--I think I described earlier a
fairly disastrous first 2 years of undergraduate studies at
University of North Carolina where I was finally able to pull
myself together. And then once coping with the immediate
impacts, the short-term impacts, I experienced like longer-term
impacts of anxiety and relationship challenges.
Senator Coons. Thank you for sharing that. And yet you went
on to get a Ph.D. from USC. Is that correct?
Dr. Ford. Correct.
Senator Coons. As you predicted, there was a wide range of
responses to your coming forward. Some thousands of survivors
have been motivated and inspired by your courage. Others have
been critical, and as I have reviewed the wide range of
reactions, I have been really troubled by the excuse offered by
too many that this was a high school incident and boys will be
boys. To me that is just far too low a standard for the conduct
of boys and men in our country.
If you would, I would appreciate your reaction to the
excuse that boys will be boys.
Dr. Ford. I can only speak for how it has impacted me
greatly for the last 36 years even though I was 15 years old at
the time, and I think the younger you are when these things
happen, it can possibly have worse impact than when you are a
full--than when your brain is fully developed and you have
better coping skills that you have developed.
Senator Coons. You know, experts have written about how it
is common for sexual assault survivors to remember some facts
about the experience very sharply and very clearly but not
others, and that has to do with the survival mode that we go
into in experiencing trauma. Is that your experience and is
that something you can help the lay person understand?
Dr. Ford. Yes, I was definitely experiencing the fight or
flight mode. Is that what you're referring to? Yes, so I was
definitely experienced the surge of adrenaline and cortisol and
norepinephrine and credit that a little bit for my ability to
get out of the situation, but also some other lucky events that
occurred that allowed me to get out of the event.
Senator Coons. Dr. Ford, we are grateful that you came
through it and that you shared your account with us and the
American people, and I think you have provided important
information, and I would like to thank you for meeting your
civic duty. I wish we could have provided for you a more
thorough hearing today. I think asking for the FBI to
investigate this matter thoroughly was not asking too much. I
think asking to have the other individual involved in your
assault, Mark Judge, appear before us today was not asking too
much.
I am grateful you came forward, and I am thankful for your
courage, which set an important example. Thank you, Dr. Ford.
Chairman Grassley. Ms. Mitchell for Senator Sasse.
[For Senator Sasse.]
Ms. Mitchell. Dr. Ford, we were talking about you meeting
in July with Congresswoman Eshoo. Did you talk about your
allegations with any Republican Member of Congress or
congressional staff?
Dr. Ford. I did not. Where I live, the Congressman is a
Democrat.
Ms. Mitchell. Okay. Was it communicated to you by your
counsel or someone else that the Committee had asked to
interview you and that they offered to come out to California
to do so?
Mr. Bromwich. We are going to object, Mr. Chairman, to any
call for privileged conversations between counsel and Dr. Ford.
It was a privileged conversation we had.
Senator Graham. Could you validate the fact that the offer
was made without her saying a word?
Senator Leahy. Wait a minute.
Chairman Grassley. Is it possible for that question to be
answered without violating any counsel relationships?
Dr. Ford. Can I say something to you--do you mind if I say
something to you directly?
Chairman Grassley. Yes.
Dr. Ford. I just appreciate that you did offer that. I
wasn't clear on what the offer was. If you were going to come
out to see me, I would have happily hosted you and had you--
been happy to speak with you out there. I just did not--it
wasn't clear to me that that was the case.
Chairman Grassley. Okay. Does that take care of your
question?
Ms. Mitchell. Yes. Thank you, Mr. Chairman.
Chairman Grassley. Proceed then.
Ms. Mitchell. Before July 30th, the date on your letter to
Senator Feinstein, had you retained counsel with regard to
these allegations?
Dr. Ford. No. I didn't think--I didn't understand why I
would need lawyers, actually. I just didn't know.
Ms. Mitchell. A lot of people have that feeling.
Let's talk about the letter that you wrote on July 30th.
You asked Senator Feinstein to maintain confidentiality, quote,
``until''----
Mr. Bromwich. Wait until she retrieves it.
Ms. Mitchell. Oh, I'm sorry.
Dr. Ford. I'm just trying to look for it.
Chairman Grassley. Stop the clock, will you?
Dr. Ford. Oh, I found it. Sorry.
Ms. Mitchell. Okay. You asked Senator Feinstein to maintain
confidentiality, ``until we have had further opportunity to
speak,'' and then said you were available to speak further,
vacationing in the Mid-Atlantic until August 7th. Is that
correct?
Dr. Ford. The last line, is that what you're--I'm now just
catching up with you. Sorry. I'm a little slower. My mind is
getting a little tired. ``I am available to speak further
should you wish to discuss''--yes, I was in Delaware until
August 7th.
Ms. Mitchell. Okay.
Dr. Ford. And after that I went to New Hampshire and then
back to California.
Ms. Mitchell. Did you talk with anybody about this letter
before you sent it?
Dr. Ford. I talked with Anna Eshoo's office.
Ms. Mitchell. Okay. And why did you talk to Congresswoman
Eshoo's office about that letter?
Dr. Ford. Because they were willing to hand-deliver it to
Senator Feinstein.
Ms. Mitchell. Okay. Did anyone help you write the letter?
Dr. Ford. No.
Ms. Mitchell. Okay. After you sent your letter, did you, or
anyone on your behalf, speak to Senator Feinstein personally or
with any Senate staffer?
Dr. Ford. Yes. I had a phone call with Senator Feinstein.
Ms. Mitchell. Okay. And when was that?
Dr. Ford. That was while I was still in Delaware, so before
August 7th.
Ms. Mitchell. Okay. And how many times did you speak with
Senator Feinstein?
Dr. Ford. Once.
Ms. Mitchell. Okay. What did you talk about?
Dr. Ford. She asked me some questions about the incident,
and I answered those questions.
Ms. Mitchell. Okay. Was that the extent of the gist of the
conversation?
Dr. Ford. Yes. It was a fairly brief phone call.
Ms. Mitchell. Okay. Did you ever give Senator Feinstein or
anyone else the permission to release that letter?
Dr. Ford. Not that I know of, no.
Ms. Mitchell. Okay. Between the letter date, July 30th, and
August the 7th, did you speak with any other person about your
allegations?
Dr. Ford. Could you say the dates again?
Ms. Mitchell. Between the letter date of July 30th and
August 7th, so while you were still in Delaware, did you speak
with any other person about your allegations?
Dr. Ford. I'm just trying to remember what dates that . . .
Chairman Grassley. Stop the----
Mr. Bromwich. You're asking her, with the exclusion of any
lawyers that she may have----
Chairman Grassley. Stop the clock.
Mr. Bromwich. Spoken with. Correct?
Ms. Mitchell. Correct.
Dr. Ford. Correct. I think correct then. I was interviewing
lawyers, but I was not----
Chairman Grassley. Start the clock.
Ms. Mitchell. Okay.
Dr. Ford [continuing]. Speaking personally about it.
Ms. Mitchell. Aside from lawyers that you were seeking to
possibly hire to represent you, did you speak to anybody else
about it during that period of time?
Dr. Ford. No.
Ms. Mitchell. Okay.
Dr. Ford. I was staying with my parents at the time.
Ms. Mitchell. Did you talk to them about it?
Dr. Ford. Definitely not.
Ms. Mitchell. Okay. So would it be fair to say that you
retained counsel during that time period of July 30th to August
7th?
Dr. Ford. I can't remember the exact date, but it was--I
was interviewing lawyers during that period of time sitting in
the car in the driveway and in the Walgreens parking lot in
Rehoboth, Delaware, and trying to figure out how the whole
system works of interviewing lawyers and how to pick one, et
cetera.
Ms. Mitchell. You testified earlier that you had--you
didn't see the need for lawyers, and now you're trying to hire
them. What made you change your mind?
Dr. Ford. It seemed like most of the individuals that I had
told, which didn't--the total number, the total was not very
high, but those persons advised me to at this point get a
lawyer for advice about whether to push forward or to stay
back.
Ms. Mitchell. Did that include Congresswoman Eshoo and
Senator Feinstein?
Dr. Ford. No.
Ms. Mitchell. Okay.
Chairman Grassley. I want to thank Dr. Ford for what you
said about acknowledging that we had said we would come to
California.
Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
I want to join in thanking you for being here today and
just tell you I have found your testimony powerful and
credible, and I believe you. You are a teacher, correct?
Dr. Ford. Correct.
Senator Blumenthal. Well, you have given America an amazing
teaching moment, and you may have other moments in the
classroom, but you have inspired and you have enlightened
America. You have inspired and given courage to women to come
forward, as they have done to every one of our offices and many
other public places. You have inspired and you have enlightened
men in America to listen respectfully to women survivors, and
men, who have survived sexual attack. And that is a profound
public service, regardless of what happens with this
nomination. And so the teachers of America, people of America,
should be really proud of what you have done.
Let me tell you why I believe you, not only because of the
prior consistent statements and the polygraph test and your
request for an FBI investigation and your urging that this
Committee hear from other witnesses who could corroborate, or
dispute, your story; but also you have been very honest about
what you cannot remember. And someone composing a story can
make it all come together in a seamless way, but someone who is
honest--I speak from my experience as a prosecutor as well--is
also candid about what she or he cannot remember.
The Senators on the other side of the aisle have been
silent. This procedure is unprecedented in a confirmation
hearing. But I want to quote one of my colleagues, Senator
Lindsey Graham, in a book that he wrote in 2015 when he was
describing his own service and very distinguished and able
service as a trial lawyer----
Senator Graham. Air Force.
Senator Blumenthal. I am not under oath.
[Laughter.]
Senator Blumenthal. He said, of his prosecutions of rape
cases, ``I learned how much unexpected courage from a deep and
hidden place it takes for a rape victim or sexually abused
child to testify against their assailant.''
``I learned how much . . . courage from a deep and hidden
place it takes for a rape victim or sexually abused child to
testify against their assailant.''
If we agree on nothing else today, I hope on a bipartisan
basis we can agree on how much courage it has taken for you to
come forward. And I think you have earned America's gratitude.
Now, there has been some talk about your requesting an FBI
investigation, and you mentioned a point just a few minutes ago
that you could better estimate the time that you ran into Mark
Judge if you knew the time that he was working at that
supermarket. That is a fact that could be uncovered by an FBI
investigation that would help further elucidate your account.
Would you like Mark Judge to be interviewed in connection with
the background investigation and the serious credible
allegations that you have made?
Dr. Ford. That would be my preference. I'm not sure it's
really up to me, but I certainly would feel like I could be
more helpful to everyone if I knew the date that he worked at
the Safeway so that I could give a better--a more specific date
of the assault.
Senator Blumenthal. Well, it is not up to you. It is up to
the President of the United States, and his failure to ask for
an FBI investigation, in my view, is tantamount to a cover-up.
Thank you, Mr. Chairman.
Chairman Grassley. Now it is time for Senator Flake. Ms.
Mitchell for Senator Flake.
[For Senator Flake.]
Ms. Mitchell. Thank you.
We've heard this morning several times that you did take a
polygraph, and that was on August the 7th. Is that right?
Dr. Ford. I believe so. It was the day I was flying from
BWI to Manchester, New Hampshire.
Ms. Mitchell. Okay. Why did you decide to take a polygraph?
Dr. Ford. I didn't see any reason not to do it.
Ms. Mitchell. Were you advised to do that?
Mr. Bromwich. Again, you are seeming to call for
communications between counsel and client. I do not think you
mean to do that. If you do, she should not have to answer that.
Chairman Grassley. Counsel, could you let her answer the
extent to which it does not violate the relationship between
you and Dr. Ford?
[Counsel confers with the witness.]
Dr. Ford. Based on the advice of the counsel, I was happy
to undergo the polygraph test, although I found it extremely
stressful, much longer than I anticipated. I told my whole life
story, I felt like, but I endured it. It was fine.
Ms. Mitchell. I understand they can be that way.
Have you ever taken any other polygraphs in your life?
Dr. Ford. Never.
Ms. Mitchell. Okay. You went to see a gentleman by the name
of Jeremiah Hannifin to serve as the polygrapher. Did anyone
advise you on that choice?
Dr. Ford. Yes. I believe his name was Jerry.
Ms. Mitchell. Jerry Hannifin.
Dr. Ford. Yes.
Ms. Mitchell. Okay. Did anyone advise you on that choice?
Dr. Ford. I didn't choose him myself. He was the person
that came to do the polygraph test.
Ms. Mitchell. Okay. He actually conducted the polygraph not
in his office in Virginia but actually at the hotel next to
Baltimore-Washington Airport. Is that right?
Dr. Ford. Correct.
Ms. Mitchell. Why was that location chosen for the
polygraph?
Dr. Ford. I had left my grandmother's funeral at Fort
Lincoln Cemetery that day and was on a tight schedule to get a
plane to Manchester, New Hampshire, so he was willing to come
to me, which was appreciated.
Ms. Mitchell. So he administered a polygraph on the day
that you attended your grandmother's funeral?
Dr. Ford. Correct. Or it might have been the next day. I
spent the night in a hotel. I don't remember the exact day.
Ms. Mitchell. Have you ever had discussions with anyone
besides your attorneys on how to take a polygraph?
Dr. Ford. Never.
Ms. Mitchell. And I don't just mean counter-measures, but I
mean just any sort of tips or anything like that.
Dr. Ford. No. I was scared of the test itself, but was
comfortable that I could tell the information and the test
would reveal whatever it was going to reveal. I didn't expect
it to be as long as it was going to be, so it was a little bit
stressful.
Ms. Mitchell. Have you ever given tips or advice to
somebody who was looking to take a polygraph test?
Dr. Ford. Never.
Ms. Mitchell. Did you pay for the polygraph yourself?
Dr. Ford. I don't--I don't think so.
Ms. Mitchell. Okay. Do you know who did pay for the
polygraph?
Dr. Ford. Not yet, no.
Ms. Mitchell. You have the handwritten statement that you
wrote out. Did anyone assist you in writing that statement?
Dr. Ford. No, but you can tell how anxious I was by the
terrible handwriting.
Ms. Mitchell. Did you--we touched on it earlier. Did you
know that the Committee has requested not only the charts from
the polygraph test but also any audio or video recording of the
polygraph test?
Dr. Ford. No.
Ms. Mitchell. Were you audio and video recorded when you
were taking that test?
Dr. Ford. Okay, so I remember being hooked up to a machine,
like, being placed onto my body and being asked a lot of
questions and crying a lot. That's my primary memory of that
test. I don't know--I know he took laborious detail into
explaining what he was going to be doing, but I was just
focused on kind of what I was going to say and my fear about
that. I wasn't listening to every detail about whether it was
audio or video recorded.
Ms. Mitchell. Well, you were in a hotel room, right?
Dr. Ford. Correct.
Ms. Mitchell. Regular hotel room with a bed and bathroom?
Dr. Ford. No, no, no. It was a conference room, so I was
sitting in a chair and he was behind me.
Ms. Mitchell. Did you note any cameras in the room?
Dr. Ford. Well, he had a computer set up, so I guess I
assumed that he was somehow taping and recording me.
Ms. Mitchell. Okay. So you assumed you were being video and
audio recorded?
Dr. Ford. Correct.
Ms. Mitchell. But you don't know for sure?
Dr. Ford. I don't know for sure.
Ms. Mitchell. Okay. Thank you.
Chairman Grassley. We're going to recess now for a half-
hour for lunch. Thank you, Dr. Ford.
[Whereupon, at 12:42 p.m., the Committee was recessed.]
[Whereupon, at 1:12 p.m., the Committee reconvened.]
Chairman Grassley. Dr. Ford, you tell me when you're ready.
Dr. Ford. I'm just organizing my papers. I'll be ready in
20 seconds.
Chairman Grassley. Take as long as you need.
Dr. Ford. Thank you.
[Brief pause.]
Dr. Ford. I'm ready.
Chairman Grassley. Okay. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. Mr. Chairman, is
it your intent to cede all Republican Senators' time to your
prosecutor rather than they themselves ceding their time to
her?
Chairman Grassley. Yes.
Senator Hirono. We all know that the prosecutor, even
though this clearly is not a criminal proceeding, is asking Dr.
Ford all kinds of questions about what happened before and
after, but basically not during the attack. The prosecutor
should know that sexual assault survivors often do not remember
peripheral information, such as what happened before or after
the traumatic event. And yet she will persist in asking these
questions, all to undermine the memory and basically the
credibility of Dr. Ford. But we all know Dr. Ford's memory of
the assault is very clear.
Dr. Ford, the Republican's prosecutor has asked you all
kinds of questions about who you called and when, asking
details that would be asked in a cross-examination of a witness
in a criminal trial, but this is not a criminal proceeding.
This is a confirmation proceeding. I think I know what she's
trying to get at, so I'll just ask you very plainly. Dr. Ford,
is there a political motivation for your coming forward with
your account of the assault by Brett Kavanaugh?
Dr. Ford. No, and I'd like to reiterate that, again, I was
trying to get the information to you while there was still a
list of other--thank you--what looked like equally qualified
candidates.
Senator Hirono. And yet they're not here to testify. Dr.
Ford, I'd like to join my colleagues who have thanked you for
coming forward today, and I--and we all admire you for what
you're doing. And I understand why you have come forward. You
wanted us and the American people to know what you knew about
the character, the character of the man we are considering for
a lifetime appointment to the Supreme Court.
I want to take a moment also to note the significant
personal sacrifices you've made to come forward to share your
traumatic experience with us and the American people. You've
had to move. You've had death threats. All manner of basically
re-victimization experiences have come your way. But by coming
forward, you have inserted the question of character into this
nomination and hopefully back into American life, and rightly
so. We should be made to face the question of who it is we are
putting in positions of power and decisionmaking in this
country.
We should look the question square in the face: Does
character matter? Do our values, our real values about what is
right and what is wrong and about whether we treat our fellow
human beings with dignity and respect, do they matter anymore?
I believe they do, and I believe the reaction we have seen to
this coverage right now and your courage all over this country
shows us that we're not alone, you're not alone, that women and
men all across America are disgusted and sick and tired of the
way basic human decency has been driven from our public life.
The President admits on tape to assaulting women. He
separates children from their parents. He takes basic
healthcare protections from those who need them most. He
nominates and stands behind a man who stands credibly accused
of a horrible act. I again, want to thank you for coming
forward.
Mr. Chairman, I ask unanimous consent that six items,
consisting of various statements, letters, fax sheet posts, are
inserted into the record.
Chairman Grassley. Is that one request, or do you want me
to wait for six?
Senator Hirono. Well, I have six separate items.
Chairman Grassley. Okay.
Senator Hirono. Because I can go over them for you.
Chairman Grassley. Well, okay, no.
Senator Hirono. I would like to----
Chairman Grassley. Let me not interrupt you. Your request
is requested without objection.
Senator Hirono. Thank you.
[The information appears as submissions for the record.]
Senator Hirono. And I would like to read from an item that
has already been entered into the record, but this is from a
letter from the National Task Force to End Sexual and Domestic
Violence. The letter states, and I quote this letter: ``This
moment has become a crucible. It's a test of our progress. Do
we start by believing victims of sexual assault and treating
them with dignity or don't we? So far, Senate leaders are
failing that test: pre-judging the outcome of a hearing,
sympathizing with her perpetrator, attacking her credibility.
They send a message to every victim of sexual violence that
their pain doesn't matter, that they do not deserve justice,
and that for them fair treatment is out of reach. This will
only serve to drive victims into the shadows and further
embolden abusers.''
Once again, Dr. Ford, thank you very much. This is a moment
for our country. Mahalo.
Chairman Grassley. Ms. Mitchell for Senator Crapo.
[For Senator Crapo.]
Ms. Mitchell. Good afternoon.
Dr. Ford. Hi.
Ms. Mitchell. When we left off, we were still talking about
the polygraph, and I believe you said it hasn't been paid for
yet. Is that correct?
Ms. Katz. Let me put an end to this mystery. Her lawyers
have paid for her polygraph.
Mr. Bromwich. As is routine.
Ms. Katz. As is routine.
Ms. Mitchell. Dr. Ford, do you expect the price of that
polygraph to be passed on to you?
Dr. Ford. I'm not sure yet. I haven't taken a look at all
of the costs involved in this. We've relocated now twice, so I
haven't kept track of all of all that paperwork, but I'm sure I
have a lot of work to do to catch up on all of that later.
Ms. Mitchell. I get you have a lot going on and you've had
that for several months. But is it your understanding that
someone else is going to assist you with some of these fees,
including the cost for your polygraph?
Dr. Ford. I'm aware that there's been several GoFundMe
sites, but I haven't had a chance to figure out how to manage
those because I've never had one.
Ms. Mitchell. And I'm sorry, several what?
Dr. Ford. Go----
Mr. Bromwich. GoFundMe.
Dr. Ford. GoFundMe sites that have raised money, primarily
for our security detail. So, I'm not even quite sure how to
collect that money or how to distribute it yet. I haven't been
able to focus on that.
Ms. Mitchell. Okay. In your testimony this morning, you
stated that Senator Feinstein sent you a letter on August 31st
of this year. Is that right?
Dr. Ford. Let me see.
Chairman Grassley. Stop the clock.
Dr. Ford. I sent her a letter on July 30th, and I don't
have the date. I'd have to pull up my email to find out the
date of her email to me saying that--it was right before the
hearings that she was going to maintain the confidentiality of
the--of the letter.
Ms. Mitchell. Say that again. It was until right before the
hearing that what?
Dr. Ford. That's my memory, but I can look it up for you.
If you would like the exact date, I could pull it up on my
email.
Ms. Mitchell. Oh, yes, I just--I want to make sure----
Mr. Bromwich. Do you have the date, Counsel?
Ms. Mitchell. I want to make sure I understood what she--
you said.
Ms. Katz. That document has been turned over to--in
response to request for documents. You have it.
Ms. Mitchell. Thank you, Counsel. I want to make sure I
understood what you said. Was it your understanding it was
going to be kept confidential up until right before the
hearing?
Dr. Ford. It was my understanding that it was going to be
kept confidential, period.
Ms. Mitchell. Period? Okay. Between your polygraph on
August the 7th and your receipt of the letter from Senator
Feinstein, did you or anyone on your behalf speak to any Member
of Congress or congressional staff about these allegations?
Dr. Ford. I personally did not.
Ms. Mitchell. So, my question was did you or anybody on
your behalf?
Dr. Ford. I don't--what do you mean? Did someone speak for
me?
Ms. Mitchell. Somebody that worked--is working with your or
helping you. Did somebody at your behest, on your behalf speak
to somebody in Congress or staff?
Dr. Ford. I'm not sure.
Ms. Mitchell. Okay.
Dr. Ford. I'm not sure how those exchanges went, but I
didn't speak to anyone.
Ms. Mitchell. Okay. Is it possible that somebody did?
Dr. Ford. I think so. It would be possible. I'm guessing it
would be possible, but I don't know.
Ms. Katz. Excuse me. You've asked her not to guess, and now
you're asking her what's possible. So, I think if you want to
ask her what she knows, you should ask her what she knows.
Ms. Mitchell. Is that an objection, Counsel?
Ms. Katz. It is an objection.
Ms. Mitchell. I'll have the Chair rule on that.
Dr. Ford. I don't know--I don't understand.
Chairman Grassley. You should--you should answer the
question unless there's a legal reason for not answering it on
advice of your counsel.
Dr. Ford. So, I don't totally understand the question, but
I didn't speak with anyone during that timeframe other than my
counsel.
Ms. Mitchell. Okay. You've said repeatedly that you did not
think that that letter that you wrote on July 30th was going to
be released to the public. Is that correct?
Dr. Ford. Correct.
Ms. Mitchell. Okay. And is it true that you did not
authorize it to be released at any time?
Dr. Ford. Correct.
Ms. Mitchell. Okay. Besides your attorneys, did you
provide--you provided that letter to Senator Feinstein. Is that
correct?
Dr. Ford. I provided her a letter on July 30th.
Ms. Mitchell. We're talking about the July 30th letter.
Dr. Ford. Okay. Okay.
Ms. Mitchell. Did you--and you provided that letter to
Senator Feinstein, correct?
Dr. Ford. Mm-hmm.
Ms. Mitchell. Is that a ``yes''?
Dr. Ford. Yes.
Ms. Mitchell. And you provided the letter to Representative
Eshoo to deliver it to Senator Feinstein.
Dr. Ford. Yes.
Ms. Mitchell. Besides those two individuals, Representative
Eshoo, and Senator Feinstein, and your attorneys, did you
provide that letter to anyone else?
Dr. Ford. No.
Ms. Mitchell. Okay. Do you know how that letter became
public?
Dr. Ford. No.
Ms. Mitchell. Okay. After that letter was made public or
leaked, did you reach back out to The Washington Post?
Dr. Ford. I reached out to the Washington--well, they were
continuously reaching out to me, and I was not responding. But
the time that I did respond and agreed to do the sit down was
once the reporters started showing up at my home and at my
workplace.
Ms. Mitchell. Okay.
Chairman Grassley. Senator Booker.
Senator Booker. Thank you, Mr. Chairman. Dr. Ford, thank
you for being here. I just want to remind everyone that this is
not a courtroom. This is not a legal proceeding. You are here
under your volition. And though a prosecutor has been engaged
here to represent my colleagues, you're here, as you said, out
of a civic duty. And I want to join my colleagues that it's
really more than that, you know.
Our founding documents talk about civic duty or the
Declaration of Independence talks about for this country,
pledging your lives, your fortunes, and your sacred honor. And
anybody who's read your testimony knows what you've had to
sacrifice by coming forward. Your life has been upended. You
have received vicious, hateful threats, death threats. You've
had to move out of your family home to some expense, I imagine,
to you and your family. You've had to engage security to some
expense. You've had to deal with incredible challenges.
And what's amazing, and I want to join my colleagues in
thanking you for your courage and bravery in coming forward,
all to help us deal with one of the most important obligations
a Senator has, to advise and consent on one of the branches of
our Government, the highest courts in the land, an individual
going before a lifetime appointment. And you even said that the
President had a lot of folks on that list, and your fear was
that this individual, who assaulted you, would ascend to that
seat. That's correct, right?
Dr. Ford. Correct.
Senator Booker. Yes, and it is correct that you have given
a lot of resources, taken a lot of threats to come forward,
correct?
Dr. Ford. Correct.
Senator Booker. Assaults on your dignity and your humanity?
Dr. Ford. Absolutely.
Senator Booker. How has it affected your children?
Dr. Ford. They're doing fairly well considering. Thank you
for asking.
Senator Booker. And your husband?
Dr. Ford. Doing fairly well, considering. Yes. Thank you.
We have a very supportive community.
Senator Booker. That's good to hear. I want to use a
different word for your courage because this is more--as much
as this hearing is about a Supreme Court Justice, the reality
is by you coming forward, your courage, you are affecting the
culture of our country. We have a wonderful Nation, an
incredible culture, but there are dark elements that allow
unconscionable levels of--unacceptable levels of sexual assault
and harassment that are affecting girls and boys and affecting
men and women, from big media outlets, to corporations, to
factory floors, to servers in restaurants, to our intimate
spaces in homes and apartments all around this country.
I stepped out during the break and was deluged with notes
from friends all around the country, social media posts, that
there are literally hundreds of thousands of people watching
your testimony right now. And note after note that I got,
people in tears, feeling pain and anguish, not just feeling
your pain, but feeling their own, who have not come forward.
You are opening up to open air hurt and pain that goes on
across this country.
And for that, the word I would use, it's nothing short of
``heroic.'' Because what you're doing for our Nation right now,
besides giving testimony germane to one of the most sacred
obligations of our offices, is, you are speaking truth that
this country needs to understand. And how we deal with
survivors who come forward right now is unacceptable, and the
way we deal with this unfortunately allows for the continued
darkness of this culture to exist. And your brilliance in
shining a light under this, speaking your truth, is nothing
short of heroic.
But to the matter at hand, one of my colleagues who I have
a lot of respect for, and I do consider him a friend, went to
the Senate floor and spoke truth to both sides of the political
aisle. Senator Flake said yesterday, ``This is a lifetime
appointment, and this is said to be a deliberative body. In the
interest of due diligence and fairness, her claims must be
fully aired and considered.'' I agree with him. But you've
asked for things that would give a full airing from
corroborating witnesses to be called. You've submitted to an
intrusive polygraph test.
Can you answer for me how do you feel that all the things
that could have been done thoroughly to help this deliberative
body have not been honored in this so-called investigation?
Dr. Ford. I wish that I could be more helpful and that
others could be more helpful, and that we could collaborate in
a way that would get at more information.
Senator Booker. Thank you very much. Mr. Chairman, I'd just
like to introduce for the record seven letters by--from Lambda
Legal, from Mormon Women for Ethical Government, youth-led
organizations around this country, the international unions,
bricklayers, allied craft workers, a letter from 295 survivors
of sexual violence in support of Dr. Ford, and a letter from
1,600 men--it's a campaign in support of Dr. Ford--and those
who want to assert, men and women, that survivors of sexual
violence are not opportunists, do not have political axes to
grind, but are coming forward with courage and with heart to
speak their truth and try to end the scourge of sexual assault
and violence in our country.
Chairman Grassley. Without objection, so ordered.
[The letters appear as submissions for the record.]
Chairman Grassley. Ms. Mitchell for Senator Tillis.
[For Senator Tillis.]
Ms. Mitchell. Dr. Ford, in choosing attorneys, did anyone
help you with the choice on who to choose?
Dr. Ford. Various people referred me to lawyers that they
knew in the Washington, DC, area. So, as you know, I grew up in
this area, so I asked some family members and friends, and they
would--they referred me to, like, divorce attorneys that might
know somebody, that might know somebody. And I ended up
interviewing several law firms from the DC area.
Ms. Mitchell. And did anybody besides friends and family
refer you to any attorneys?
Dr. Ford. I think that the staff of Diane Feinstein's
office suggested the possibility of some attorneys.
Ms. Mitchell. Okay. Including the two that are sitting on
either side of you?
Dr. Ford. Not both of them, no.
Ms. Mitchell. Okay. We've heard a lot of about FBI
investigations.
Dr. Ford. Mm-hmm.
Ms. Mitchell. When did you personally first request an FBI
investigation?
Dr. Ford. How many weeks ago? I guess when we first started
talking about the possibility of a hearing. I was hoping that
there would be a more thorough investigation.
Ms. Mitchell. Would that investigation have been something
that you would've submitted to an interview?
Dr. Ford. I would be happy to cooperate with the FBI, yes.
Ms. Mitchell. Would you have been happy to submit to an
interview by staff members from this Committee?
Dr. Ford. Absolutely.
Ms. Mitchell. Okay. Besides--you mentioned some GoFundMe
accounts. Besides those, are there any other efforts outside of
your own personal finances to pay for your legal fees or any of
the costs occurred--incurred?
Dr. Ford. It's my understanding that some of my team is
working on a pro bono basis, but I don't know the exact
details, and there are members of the community in Palo Alto
that have the means to contribute to help me with the security
detail, et cetera.
Ms. Mitchell. Okay. Have you been provided----
Mr. Bromwich. I think I can help you with that. Both her
counsel are doing this pro bono. We are not being paid, and we
have no expectation of being paid.
Ms. Mitchell. Thank you, Counsel. Have you seen any of the
questions that I was going to ask you today?
Dr. Ford. No.
Ms. Mitchell. Have you--you've been asked a few questions
by other people as well. Have you seen any of those questions
in advance?
Dr. Ford. No.
Ms. Mitchell. Have you been told them in advance?
Dr. Ford. No.
Ms. Mitchell. And likewise with my questions, have you been
told my questions in advance?
Dr. Ford. Definitely not.
Ms. Mitchell. Okay. You mentioned about some possible
information, such as when Mark Judge worked at the supermarket.
I want to ask you about someone else. You mentioned that there
was a classmate who was really sort of the connection between
you and Brett Kavanaugh. Who was this person?
Dr. Ford. I think that that case with Mr. Whalen, who was
looking at my LinkedIn page and then trying to blame the
person, I just don't feel like it's right for us to be talking
about that.
Ms. Mitchell. I'm not trying to blame anybody. I just want
to know who the common friend that you and----
Dr. Ford. The person that Mr. Whalen was trying to say
looked like Mr. Kavanaugh.
Ms. Mitchell. Okay. How long did you know this person?
Dr. Ford. Mm-hmm, maybe for a couple of months we
socialized, but he also was a member of the same country club,
and I knew his younger brother as well.
Ms. Mitchell. Okay. So, a couple of months before this took
place?
Dr. Ford. Yes.
Ms. Mitchell. Okay. How would you characterize your
relationship with him both before and after this took place,
this person?
Dr. Ford. He was somebody that, we used the phrase, ``I
went out with''--I wouldn't say ``date''--I went out with for a
few months. That was how we termed it at the time. And after
that, we were distant friends and ran into each other
periodically at Columbia Country Club. But I didn't see him
often.
Ms. Mitchell. Okay.
Dr. Ford. But I saw his brother and him several times.
Ms. Mitchell. Was this person the only common link between
you and Mr.--Judge Kavanaugh?
Dr. Ford. He's the only one that I would be able to name
right now that I would like to not name, but you know who I
mean, and--but there are certainly other members of Columbia
Country Club that were common friends, or they were more
acquaintances of mine and friends of Mr. Kavanaugh.
Ms. Mitchell. Okay. Can you describe all of the other
social interactions that you had with Mr. Kavanaugh?
Dr. Ford. Briefly, yes, I can. There were--during freshman
and sophomore, particularly my sophomore year, which would've
been his junior year of high school, four to five parties that
my friends and I attended that were attended also by him.
Ms. Mitchell. Okay. Did anything happen at these events
like we're talking about, besides the time we're talking about?
Chairman Grassley. You can answer that question, then I'll
go to Senator Harris. Go ahead and answer that question.
Dr. Ford. There was no sexual assault at any of those
events. Is that what you're asking?
Ms. Mitchell. Yes, I am.
Dr. Ford. Yes, those were just parties.
Ms. Mitchell. Or anything inappropriate is what I'm asking.
Dr. Ford. Yes. Well, maybe we can go into more detail when
there's more time. I feel time pressure on that question.
Ms. Mitchell. Okay.
Dr. Ford. Yes.
Chairman Grassley. Senator Harris.
Dr. Ford. I'm happy to answer in further detail if you want
me to.
Chairman Grassley. I'm sorry. Go ahead and finish answering
your question.
Dr. Ford. Oh, okay. Did you want me to describe those
parties or----
Ms. Mitchell. One----
Mr. Bromwich. Should we leave this to the next round, Mr.
Chairman?
Chairman Grassley. Answer the question.
Dr. Ford. I'm just happy to describe them if you wanted me
to, and I'm happy to not. Just whatever you want.
Ms. Mitchell. Maybe this will----
Dr. Ford. Whatever is your preference.
Ms. Mitchell [continuing]. Cut to the chase. My question
is, Was there anything else that was sexually inappropriate,
any inappropriate sexual behavior on the part of Mr. Kavanaugh
toward you at any of these other functions.
Dr. Ford. No.
Ms. Mitchell. Okay.
Chairman Grassley. Okay. Senator Harris.
Senator Harris. Dr. Ford, first of all, just so we can
level set, you know you are not on trial. You are not on trial.
You are sitting here before Members of the United States
Senate's Judiciary Committee because you have the courage to
come forward because, as you have said, you believe it was your
civic duty. I was struck in your testimony by what you
indicated as your intention when you first let anyone
associated with these hearings know about it.
And what you basically said is you reached out to your
Representative in the United States Congress hoping that person
would inform the White House before Judge Kavanaugh had been
named. That's extremely persuasive about your motivation for
coming forward, and so, I want to thank you. I want to thank
you for your courage, and I want to tell you I believe you. I
believe you, and I believe many Americans across this country
believe you.
And what I find striking about your testimony is you
remember key, searing details of what happened to you. You told
your husband and therapist, two of the most personal of your
confidants, and you told them years ago about this assault. You
have shared your experience with multiple friends years after
that and before these hearings ever started.
I know having personally prosecuted sexual assault cases
and child sexual assault cases that study after study shows
trauma, shame, and the fear of consequences almost always cause
survivors to, at the very least, delay reporting if they ever
report at all. Police recognize that. Prosecutors recognize
that. Medical and mental health professionals recognize that.
The notes from your therapy sessions were created long
before this nomination and corroborate what you have said
today. You have passed a polygraph and submitted the results to
this Committee. Judge Kavanaugh has not. You have called for
outside witnesses to testify and for expert witnesses to
testify. Judge Kavanaugh has not. But most importantly, you
have called for an independent FBI investigation into the
facts. Judge Kavanaugh has not. And we owe you that. We owe the
American people that.
And let's talk about why this is so important. Contrary to
what has been said today, the FBI does not reach conclusions.
The FBI investigates. It interviews witnesses, gathers facts,
and then presents that information to the United States Senate
for our consideration and judgment. This Committee knows that,
in spite of what you have been told.
In 1991 during a similar hearing, one of my Republican
colleagues in this committee stated, ``These claims were taken
seriously by having the Federal Bureau of Investigation launch
an inquiry to determine their validity. The FBI fulfilled its
duty and issued a confidential report.'' Well, that could have
and should have been done here.
This morning it was said that this could have been
investigated confidentially back in July, but this also could
have been investigated in the last 11 days since you came
forward, yet that has not happened. The FBI could've
interviewed Mark Judge, Patrick Smyth, Leland Keyser, you, and
Judge Kavanaugh on these issues. The FBI could've examined
various maps that have been presented by the prosecutor who
stands in for the United States Senators on this Committee. The
FBI could have gathered facts about the music, or the
conversation, or any other details about the gathering that
occurred that evening. That is standard procedure in a sexual
assault case.
In fact, the manual that is--was signed off by Ms.
Mitchell, the manual that is posted on the Maricopa County
Attorney's website as a guiding principle and best practices
for what should happen with sexual assault cases, highlights
the details of what should happen in terms of the need for an
objective investigation into any sexual assault case. It says,
``Effective investigation requires cooperation with a
multidisciplinary team that includes medical professionals,
victim advocates, dedicated forensic interviewers,
criminalists, and other law enforcement members.'' The manual
also stresses the importance of obtaining outside witness
information.
You have bravely come forward. You have bravely come
forward, and I want to thank you because you clearly have
nothing to gain for what you have done. You have been a true
patriot in fighting for the best of who we are as a country. I
believe you are doing that because you love this country, and I
believe history will show that you are a true profile in
courage at this moment in time in the history of our country,
and I thank you.
Chairman Grassley. Senator Kennedy now. So, proceed, Ms.
Mitchell.
[For Senator Kennedy.]
Ms. Mitchell. Dr. Ford, we're almost done.
Dr. Ford. Thank you.
Ms. Mitchell. Just a couple of clean-up questions first of
all. Which of your two lawyers did Senator Feinstein's office
recommend?
Dr. Ford. The Katz----
Ms. Mitchell. I'm sorry?
Dr. Ford. The Katz Firm.
Ms. Mitchell. Okay. And when you--when you did leave that
night, did Leland Keyser--now Keyser--ever follow up with you
and say, hey, what happened to you?
Dr. Ford. I've had communications with her recently.
Ms. Mitchell. Mm-hmm. I'm talking about, like, the next day
or----
Dr. Ford. Oh no, she didn't know about the event. She was
downstairs during the event, and I did not share it with her.
Ms. Mitchell. Have you been--are you aware that the three
people at the party besides yourself and Brett Kavanaugh have
given statements under penalty of felony to the Committee?
Dr. Ford. Yes.
Ms. Mitchell. And are you aware of what those statements
say?
Dr. Ford. Yes.
Ms. Mitchell. Are you aware that they say that they have no
memory or knowledge of such a party?
Dr. Ford. Yes.
Ms. Mitchell. Do you have any particular motives to ascribe
to Leland?
Dr. Ford. I guess we could take those one at a time. Leland
has significant health challenges, and I'm happy that she's
focusing on herself and getting the health treatment that she
needs. And she let me know that she needed her lawyer to take
care of this for her, and she texted me right afterward with an
apology and good wishes, and et cetera. So, I'm glad that she's
taking care of herself.
I don't expect that P.J. and Leland would remember this
evening. It was a very unremarkable party. It was not one of
their more notorious parties because nothing remarkable
happened to them that evening. They were downstairs. And Mr.
Judge is a different story. I would expect that he would
remember that this happened.
Ms. Mitchell. Understood. Senator Harris just questioned
you from the ``Maricopa County Protocol on Sexual Assault.''
That's the paper she was holding out. Are you aware that--and,
you know, I've been really impressed today because you've
talked about norepinephrine, and cortisol, and what we call in
the profession basically the neurobiological effects of trauma.
Have you also educated yourself on the best way to get to
memory and truth in terms of interviewing victims of trauma?
Dr. Ford. For me interviewing victims of trauma?
Ms. Mitchell. No.
Dr. Ford. Oh.
Ms. Mitchell. The best way to do it, the best practices for
interviewing victims of trauma.
Dr. Ford. No.
Ms. Mitchell. Okay. Would you believe me if I told you that
there is no study that says that this setting in 5-minute
increments is the best way to do that?
[Laughter.]
Mr. Bromwich. We'll stipulate to that.
Ms. Katz. We could stipulate to that.
[Laughter.]
Ms. Mitchell. Thank you, Counsel.
Ms. Katz. Agreed.
Ms. Mitchell. Did you know that the best way to do it is to
have a trained interviewer talk to you one-on-one in a private
setting and to let you do the talking, just let you do a
narrative? Did you know that?
Dr. Ford. That makes a lot of sense.
Ms. Mitchell. It does make a lot of sense, doesn't it?
Dr. Ford. Yes.
Ms. Mitchell. And then to follow up, obviously to fill in
the details and ask for clarification. Does that make sense as
well?
Dr. Ford. Yes.
Ms. Mitchell. And the research is done by a lot of people
in the child abuse field. Two of the more prominent ones in the
sexual assault field are Geisel and Fisher who've talked about
it, and it's called a cognitive interview. This is not a
cognitive interview. Did anybody ever advise you from Senator
Feinstein's office or from Representative Eshoo's office to go
get a forensic interview?
Dr. Ford. No.
Ms. Mitchell. Instead you were advised to get an attorney
and take a polygraph. Is that right?
Dr. Ford. Many people advised me to get an attorney. Once I
had an attorney, my attorney and I discussed using the
polygraph.
Ms. Mitchell. And instead of submitting to an interview in
California, we're having a hearing here today in 5-minute
increments. Is that right?
Dr. Ford. I agree that's what was agreed upon by the
collegial group here.
Ms. Mitchell. Thank you. I have no further questions.
Chairman Grassley. Okay. I have something to submit for the
record. We received three statements under penalty of felony
from three witnesses identified by Dr. Ford: Mark Judge, Leland
Keyser, and Patrick Smyth. All three denied any knowledge of
the incident or gathering described by Dr. Ford. Without
objection, I'll enter in the record.
[The information appears as submissions for the record.]
Senator Blumenthal. Mr. Chairman, I have something for the
record as well, a number of letters from the witness' family,
friends, including her husband.
Chairman Grassley. Okay. I'll get to you just as soon as
the Ranking Member.
Senator Feinstein. Mr. Chairman, I have three letters
addressed to both you and the Ranking Member, and I'd ask that
they be entered into the record.
Chairman Grassley. Without objection.
[The information appears as submissions for the record.]
Senator Feinstein. And it's also my understanding that Mr.
Judge is not willing to come forward to answer our questions.
As a result, we can't test his memory or make any assessment of
his thoughtfulness or character, and I think that's why the
failure to call him to testify is so very critical. And I hope
the Majority would reconsider that.
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Mr. Chairman, I ask if you have sworn
statements that you're submitting for the record that we have
those individuals come before us so that we can ask them
questions about those statements. I think that the nature of
this proceeding would be compromised if we lack an opportunity
to ask them questions about sworn statements that will be part
of the record. So, frankly, Mr. Chairman, I would object to
entering them in the record.
Senator Kennedy. Mr. Chairman?
Chairman Grassley. Okay. Senator Whitehouse.
Senator Whitehouse. I have a number of letters that I would
ask to be submitted into the record that relate to the
importance of proper investigation by trained professionals in
pulling these kind of investigations together, from the
Leadership Conference on Civil and Human Rights, the National
Women's Law Center, the National Organization for Women, and so
forth.
Chairman Grassley. Without objection, so ordered.
[The letters appear as submissions for the record.]
Chairman Grassley. Senator Kennedy.
Senator Kennedy. Mr. Chairman, I have a question for our
Chairman. The statements that Senator Blumenthal talked about,
those were statements taken by our Majority staff? Is that----
Chairman Grassley. They're already in the record.
Senator Kennedy. Yes, sir, but those statements were taken
by Majority staff?
Chairman Grassley. Yes.
Senator Kennedy. Did Minority staff participate?
Chairman Grassley. No.
Senator Kennedy. Why not?
Chairman Grassley. You'll have to ask them.
Senator Kennedy. Well, were they instructed not to
participate?
Chairman Grassley. No.
Senator Kennedy. They chose not to?
Chairman Grassley. That's right.
Senator Feinstein. If I may, Mr. Chairman, I was told the
Minority staff was not notified.
Senator Kennedy. If I could, I still think I have the
floor, Mr. Chairman.
Chairman Grassley. Let's listen to Senator Feinstein.
Mr. Bromwich. Can we be excused?
Senator Feinstein. I am told by staff----
Mr. Bromwich. The witness is quite tired, and she'd like to
be excused.
Chairman Grassley. I'd like to--if you'd wait just a
minute, I'd like to thank Dr. Ford.
Mr. Bromwich. All right.
Chairman Grassley. In fact, we're going to continue this
meeting, and we can--so let's just be nice to her.
[Laughter.]
Chairman Grassley. Dr. Ford. Dr. Ford, I can only speak as
one of 21 Senators here, but I thank you very much for your
testimony, more importantly, for your bravery coming out and
trying to answer our questions as best you could remember.
Thank you very much.
We will recess for 45 minutes.
[Whereupon, at 2:14 p.m., the Committee was recessed.]
[Whereupon, at 3:08 p.m., the Committee reconvened.]
Chairman Grassley. Judge Kavanaugh, we welcome you. Are you
ready?
Judge Kavanaugh. I am.
Chairman Grassley. I have something I want to clear up from
the last meeting that doesn't affect you. So before I swear
you, I would like to explain my response to Senator Kennedy
right after the break.
At that time, I entered into the record the statements of
three witnesses Dr. Ford said were also at the party. These
statements were provided to us under penalty of felony by lying
to--if you lie to Congress. As soon as my team learned the
names of these three potential witnesses, we immediately
reached out to them requesting an interview. In response, all
three submitted statements to us denying any knowledge of the
gathering Dr. Ford described.
If we had calls with them, we would have invited the
Minority to join. Every time that we've received any
information regarding Judge Kavanaugh, we've sought to
immediately follow through and investigate. The Minority staff
sat on Dr. Ford's letter for weeks, and staff told us that they
believed it is ``highly inappropriate to have these follow-up
calls before the FBI finishes its investigation,'' even though
the FBI had completed its background information.
When we followed up with Judge Kavanaugh after we received
Dr. Ford's allegations, the Ranking Member staff didn't join us
even though these calls are usually done on a bipartisan basis.
They joined other calls with the Judge, but they didn't
participate or ask any question.
Would you please rise, sir?
Judge Kavanaugh. Yes.
Chairman Grassley. Do you affirm that the testimony you're
about to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Judge Kavanaugh. I do.
Chairman Grassley. Like we offered to Dr. Ford, you can
take whatever time you want now for your opening statement.
Then we'll go to questions. So, proceed.
STATEMENT OF HON. BRETT M. KAVANAUGH, NOMINEE TO SERVE AS AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Judge Kavanaugh. Mr. Chairman, Ranking Member Feinstein,
Members of the Committee, thank you for allowing me to make my
statement. I wrote it myself yesterday afternoon and evening.
No one has seen a draft, or it, except for one of my former law
clerks. This is my statement.
Less than 2 weeks ago, Dr. Ford publicly accused me of
committing wrongdoing at an event more than 36 years ago, when
we were both in high school. I denied the allegation
immediately, categorically, and unequivocally. All four people
allegedly at the event, including Dr. Ford's longtime friend,
Ms. Keyser, have said they recall no such event. Her longtime
friend, Ms. Keyser, said under penalty of felony that she does
not know me and does not believe she ever saw me at a party,
ever.
Here's the quote from Ms. Keyser's attorney's letter.
Quote, ``Simply put, Ms. Keyser does not know Mr. Kavanaugh,
and she has no recollection of ever being at a party or
gathering where he was present, with or without Dr. Ford.''
Think about that fact.
The day after the allegation appeared, I told this
Committee that I wanted a hearing as soon as possible to clear
my name. I demanded a hearing for the very next day.
Unfortunately, it took the Committee 10 days to get to this
hearing, and those 10 long days, as was predictable and as I
predicted, my family and my name have been totally and
permanently destroyed by vicious and false additional
accusations. The 10-day delay has been harmful to me and my
family, to the Supreme Court, and to the country.
When this allegation first arose, I welcomed any kind of
investigation--Senate, FBI, or otherwise. The Committee now has
conducted a thorough investigation, and I have cooperated
fully. I know that any kind of investigation--Senate, FBI,
Montgomery County Police, whatever--will clear me.
Listen to the people I know. Listen to the people who have
known me my whole life. Listen to the people I've grown up
with, and worked with, and played with, and coached with, and
dated, and taught, and gone to games with, and had beers with.
Listen to the witnesses who allegedly were at this event 36
years ago. Listen to Ms. Keyser. She does not know me. I was
not at the party described by Dr. Ford.
This confirmation process has become a national disgrace.
The Constitution gives the Senate an important role in the
confirmation process. But you have replaced advice and consent
with search and destroy.
Since my nomination in July, there's been a frenzy on the
left to come up with something, anything, to block my
confirmation. Shortly after I was nominated, the Democratic
Senate Leader said he would, quote, ``oppose me with everything
he's got.'' A Democratic Senator on this Committee publicly
referred to me as evil, evil--think about that word--and said
that those who supported me were, quote, ``complicit in evil.''
Another Democratic Senator on this Committee said, quote,
``Judge Kavanaugh is your worst nightmare.'' A former head of
the Democratic National Committee said, quote, ``Judge
Kavanaugh will threaten the lives of millions of Americans for
decades to come.''
I understand the passions of the moment, but I would say to
those Senators, your words have meaning. Millions of Americans
listen carefully to you. Given comments like those, is it any
surprise that people have been willing to do anything, to make
any physical threat against my family, to send any violent
email to my wife, to make any kind of allegation against me and
against my friends, to blow me up and take me down? You sowed
the wind for decades to come. I fear that the whole country
will reap the whirlwind.
The behavior of several of the Democratic Members of this
Committee in my hearing a few weeks ago was an embarrassment.
But at least it was just a good, old-fashioned attempt at
Borking. Those efforts didn't work. When I did at least okay
enough at the hearings that it looked like I might actually get
confirmed, a new tactic was needed. Some of you were lying in
wait and had it ready.
This first allegation was held in secret for weeks by a
Democratic Member of this Committee and by staff. It would be
needed only if you couldn't take me out on the merits. When it
was needed, this allegation was unleashed and publicly deployed
over Dr. Ford's wishes.
And then, and then, as no doubt was expected, if not
planned, came a long series of false, last-minute smears
designed to scare me and drive me out of the process before any
hearing occurred. Crazy stuff--gangs, illegitimate children,
fights on boats in Rhode Island--all nonsense, reported
breathlessly and often uncritically by the media. This has
destroyed my family and my good name, a good name built up
through decades of very hard work in public service at the
highest levels of the American Government.
This whole 2-week effort has been a calculated and
orchestrated political hit fueled with apparent pent-up anger
about President Trump and the 2016 election, fear that has been
unfairly stoked about my judicial record, revenge on behalf of
the Clintons, and millions of dollars in money from outside
left-wing opposition groups.
This is a circus. The consequences will extend long past my
nomination. The consequences will be with us for decades. This
grotesque and coordinated character assassination will dissuade
competent and good people of all political persuasions from
serving our country. And as we all know, in the United States
political system of the early 2000s, what goes around comes
around.
I am an optimistic guy. I always try to be on the sunrise
side of the mountain, to be optimistic about the day that is
coming. But today I have to say that I fear for the future.
Last time I was here, I told this Committee that a Federal
judge must be independent, not swayed by public or political
pressure. I said I was such a judge, and I am. I will not be
intimidated into withdrawing from this process. You've tried
hard. You've given it your all. No one can question your
effort. But your coordinated and well-funded effort to destroy
my good name and destroy my family will not drive me out. The
vile threats of violence against my family will not drive me
out. You may defeat me in the final vote, but you'll never get
me to quit. Never.
I'm here today to tell the truth. I've never sexually
assaulted anyone, not in high school, not in college, not ever.
Sexual assault is horrific. One of my closest friends to this
day is a woman who was sexually abused and who in the 1990s,
when we were in our thirties, confided in me about the abuse
and sought my advice. I was one of the only people she
consulted. Allegations of sexual assault must always be taken
seriously, always. Those who make allegations always deserve to
be heard.
At the same time, the person who is the subject of the
allegations also deserves to be heard. Due process is the
foundation of the American rule of law. Due process means
listening to both sides.
As I told you in my hearing 3 weeks ago, I'm the only child
of Martha and Ed Kavanaugh. They are here today. When I was 10,
my mom went to law school, and as a lawyer she worked hard and
overcame barriers, including the workplace sexual harassment
that so many women faced at the time and still face today. She
became a trailblazer, one of Maryland's earliest women
prosecutors and trial judges. She and my dad taught me the
importance of equality and respect for all people, and she
inspired me to be a lawyer and a judge.
Last time I was here I told you that when my mom was a
prosecutor and I was in high school, she used to practice her
closing arguments at the dining room table on my dad and me. As
I told you, her trademark line was ``Use your common sense,
what rings true, what rings false.'' Her trademark line is a
good reminder as we sit here today, some 36 years after the
alleged event occurred, when there is no corroboration, and
indeed it is refuted by the people allegedly there.
After I have been in the public arena for 26 years without
even a hint, a whiff of an allegation like this, and when my
nomination to the Supreme Court was just about to be voted on,
at a time when I'm called evil by a Democratic Member of this
Committee, while Democratic opponents of my nomination say
people will die if I am confirmed, this onslaught of last-
minute allegations does not ring true.
I'm not questioning that Dr. Ford may have been sexually
assaulted by some person in some place at some time, but I have
never done this to her or to anyone. That's not who I am. It is
not who I was. I am innocent of this charge.
I intend no ill will to Dr. Ford and her family. The other
night Ashley and my daughter, Liza, said their prayers, and
little Liza, all of 10 years old, said to Ashley, ``We should
pray for the woman.'' That's a lot of wisdom from a 10-year-
old. We mean no ill will.
First, let's start with my career. For the last 26 years,
since 1992, I have served in many high-profile and several
sensitive Government positions for which the FBI has
investigated my background six separate times, six separate FBI
background investigations over 26 years, all of them after the
event alleged here. I have been in the public arena and under
extreme public scrutiny for decades. In 1992, I worked for the
Office of Solicitor General and the Department of Justice. In
1993, I clerked on the Supreme Court for Justice Anthony
Kennedy. I spent 4 years at the Independent Counsel's Office
during the 1990s. That office was the subject of enormous
scrutiny from the media and the public.
During 1998, the year of the impeachment of President
Clinton, our office generally and I personally were in the
middle of an intense national media and political spotlight. I
and other leading members of Ken Starr's office were opposition
researched from head to toe, from birth through the present
day. Recall all the people who were exposed that year of 1998
as having engaged in some sexual wrongdoing or indiscretions in
their past. One person on the left even paid $1 million for
people to report evidence of sexual wrongdoing, and it worked.
It exposed some prominent people. Nothing about me.
From 2001 to 2006, I worked for President George W. Bush in
the White House. As staff secretary, I was by President Bush's
side for 3 years and was entrusted with the Nation's most
sensitive secrets. I traveled on Air Force One all over the
country and the world with President Bush. I went everywhere
with him, from Texas to Pakistan, from Alaska to Australia,
from Buckingham Palace to the Vatican, 3 years in the West
Wing, five-and-a-half years in the White House.
I was then nominated to be a judge on the D.C. Circuit. I
was thoroughly vetted by the White House, the FBI, the American
Bar Association, and this Committee. I sat before this
Committee for two thorough confirmation hearings in 2004 and
2006. For the past 12 years, leading up to my nomination for
this job, I've served in a very public arena as a Federal judge
on what is often referred to as the second most important court
in the country. I've handled some of the most significant and
sensitive cases affecting the lives and liberties of the
American people. I have been a good judge.
And for this nomination, another FBI background
investigation, another American Bar Association investigation,
31 hours of hearings, 65 Senator meetings, 1,200 written
questions, more than all previous Supreme Court nominees
combined. Throughout that entire time, throughout my 53 years
and 7 months on this earth, until last week, no one ever
accused me of any kind of sexual misconduct. No one, ever, a
lifetime, a lifetime of public service and a lifetime of high-
profile public service, at the highest levels of American
Government, and never a hint of anything of this kind. And
that's because nothing of this kind ever happened.
Second, let's turn to specifics. I categorically and
unequivocally deny the allegation against me by Dr. Ford. I
never had any sexual or physical encounter of any kind with Dr.
Ford. I never attended a gathering like the one Dr. Ford
describes in her allegation. I've never sexually assaulted Dr.
Ford or anyone. Again, I'm not questioning that Dr. Ford may
have been sexually assaulted by some person in some place at
some time, but I've never done that to her or to anyone.
Dr. Ford's allegation stems from a party that she alleges
occurred during the summer of 1982, 36 years ago. I was 17
years old, between my junior and senior years of high school at
Georgetown Prep, a rigorous, all-boys Catholic Jesuit high
school in Rockville, Maryland. When my friends and I spent time
together at parties on weekends, it was usually with friends
from nearby Catholic all-girls high schools--Stone Ridge, Holy
Child, Visitation, Immaculata, Holy Cross. Dr. Ford did not
attend one of those schools. She attended an independent
private school named Holton Arms, and she was a year behind me.
She and I did not travel in the same social circles. It is
possible that we met at some point at some events, although I
do not recall that.
To repeat, all of the people identified by Dr. Ford as
being present at the party have said they do not remember any
such party ever happening. Importantly, her friend, Ms. Keyser,
has not only denied knowledge of the party. Ms. Keyser said,
under penalty of felony, she does not know me, does not recall
ever being at a party with me, ever.
And my two male friends who were allegedly there, who knew
me well, have told this Committee under penalty of felony that
they do not recall any such party, and that I never did or
would do anything like this.
Dr. Ford's allegation is not merely uncorroborated, it is
refuted by the very people she says were there, including by a
long-time friend of hers, refuted.
Third, Dr. Ford has said that this event occurred in a
house near Columbia Country Club, which is at the corner of
Connecticut Avenue and East-West Highway in Chevy Chase,
Maryland. In her letter to Senator Feinstein, she said that
there were four other people at the house, but none of those
people nor I lived near Columbia Country Club.
As of the summer of 1982, Dr. Ford was 15 and could not
drive yet, and she did not live near Columbia Country Club. She
says confidently that she had one beer at the party, but she
does not say how she got to the house in question, or how she
got home, or whose house it was.
Fourth, I've submitted to this Committee detailed calendars
recording my activities in the summer of 1982. Why did I keep
calendars? My dad started keeping detailed calendars of his
life in 1978. He did so as both a calendar and a diary. He was
a very organized guy, to put it mildly. Christmas time, we sit
around and he regales us with old stories, old milestones, old
weddings, old events from his calendars.
In ninth grade in 1980, I started keeping calendars of my
own. For me also, it's both a calendar and a diary. I've kept
such calendars/diaries for the last 38 years. Mine are not as
good as my dad's in some years. And when I was a kid, the
calendars are about what you would expect from a kid, some
goofy parts, some embarrassing parts.
But I did have the summer of 1982 documented pretty well.
The event described by Dr. Ford presumably happened on a
weekend, because I believe everyone worked and had jobs in the
summers. In any event, a drunken early evening event of the
kind she describes presumably happened on a weekend. If it was
a weekend, my calendars show that I was out of town almost
every weekend night before football training camp started in
late August. The only weekend nights that I was in DC were
Friday, June 4, when I was with my dad at a pro golf tournament
and had my high school achievement test at 8:30 the next
morning.
I also was in DC on Saturday night, August 7th, but I was
at a small gathering at Becky's house in Rockville with Matt,
Denise, Laurie, and Jenny. Their names are all listed on my
calendar. I won't use their last names here.
And then on the weekend of August 20th to 22nd, I was
staying at the Garrets with Pat and Chris as we did final
preparations for football training camp that began on Sunday
the 22nd. As the calendars confirm, that weekend before a
brutal football training camp schedule was no time for parties.
So let me emphasize this point: If the party described by
Dr. Ford happened in the summer of 1982 on a weekend night, my
calendar shows all but definitively that I was not there.
During the weekdays in the summer of 1982, as you can see,
I was out of town for 2 weeks of the summer for a trip to the
beach with friends and at the legendary five-star basketball
camp in Honesdale, Pennsylvania. When I was in town, I spent
much of my time working, working out, lifting weights, playing
basketball, or hanging out and having some beers with friends
as we talked about life and football and school and girls.
Some have noticed that I didn't have church on Sundays on
my calendars. I also didn't list brushing my teeth. And for me,
going to church on Sundays was like brushing my teeth,
automatic. Still is.
In the summer of 1981, I had worked construction. In the
summer of 1982, my job was cutting lawns. I had my own business
of sorts. You see some specifics about the lawn cutting listed
on the August calendar page. When I had the time, the last lawn
cuttings of the summer of various lawns before football
training camp. I played in a lot of summer league basketball
games for the Georgetown Prep team at night at Blair High
School in Silver Spring. Many nights I worked out with other
guys at Tobin's house. He was the great quarterback on our
football team, and his dad ran workouts or lifted weights at
Georgetown Prep in preparation for the football season.
I attended and watched many sporting events, as is my habit
to this day. The calendars show a few weekday gatherings at
friends' houses after a workout or just to meet up and have
some beers. But none of those gatherings included the group of
people that Dr. Ford has identified. As my calendars show, I
was very precise about listing who was there, very precise. And
keep in mind, my calendars also were diaries of sorts, forward-
looking and backward-looking, just like my dad's. You can see,
for example, that I crossed out missed workouts and the
canceled doctors' appointments, and that I listed the precise
people who had shown up for certain events.
The calendars are obviously not dispositive on their own.
But they are another piece of evidence in the mix for you to
consider.
Fifth, Dr. Ford's allegation is radically inconsistent with
my record and my character from my youth to the present day. As
students at an all-boys Catholic Jesuit school, many of us
became friends, and remain friends to this day, with students
at local Catholic all-girls schools. One feature of my life
that has remained true to the present day is that I've always
had a lot of close female friends. I'm not talking about
girlfriends. I'm talking about friends who are women. That
started in high school. Maybe it was because I'm an only child
and had no sisters.
But anyway, we had no social media or text or email and we
talked on the phone. I remember talking almost every night, it
seemed, to my friends Amy or Julie or Kristin or Karen or
Suzanne or Maura or Megan or Nikki. The list goes on, friends
for a lifetime, built on a foundation of talking through school
and life, starting at age 14. Several of those great women are
on the seats right behind me today.
My friends and I sometimes got together and had parties on
weekends. The drinking age was 18 in Maryland for most of my
time in high school, was 18 in DC for all of my time in high
school. I drank beer with my friends. Almost everyone did.
Sometimes I had too many beers. Sometimes others did. I liked
beer. I still like beer. But I do not drink beer to the point
of blacking out, and I never sexually assaulted anyone.
There is a bright line between drinking beer, which I
gladly do, and which I fully embrace, and sexually assaulting
someone, which is a violent crime. If every American who drinks
beer or every American who drank beer in high school is
suddenly presumed guilty of sexual assault, we will be in an
ugly new place in this country. I never committed sexual
assault.
As high school students, we sometimes did goofy or stupid
things. I doubt we are alone in looking back at high school and
cringing at some things. For one thing, our yearbook was a
disaster. I think some editors and students wanted the yearbook
to be some combination of ``Animal House,'' ``Caddy Shack,''
and ``Fast Times at Ridgemont High,'' which were all recent
movies at that time. Many of us went along in the yearbook to
the point of absurdity. This past week, my friends and I have
cringed when we read about it and talked to each other.
One thing in particular we're sad about, one of our good
female friends who we admired and went to dances with had her
name used on a yearbook page with the term ``alumnus.'' That
yearbook reference was clumsily intended to show affection and
that she was one of us. But in this circus, the media is
interpreting the term as related to sex. It was not related to
sex. As the woman herself noted in the media, on the record,
she and I never had any sexual interaction at all. I'm so sorry
to her for that yearbook reference.
This may sound a bit trivial given all that we are here
for, but one thing I want to try to make sure of in the future
is my friendship with her. She was and is a great person.
As to sex, this is not a topic I ever imagined would come
up in a judicial confirmation hearing, but I want to give you a
full picture of who I was. I never had sexual intercourse or
anything close to it during high school or for many years after
that. In some crowds I was probably a little outwardly shy
about my inexperience, tried to hide that. At the same time, I
was also inwardly proud of it. For me and the girls who I was
friends with, that lack of major rampant sexual activity in
high school was a matter of faith and respect and caution.
The Committee has a letter from 65 women who knew me in
high school. They said that I always treated them with dignity
and respect. That letter came together in one night, 35 years
after graduation, while a sexual assault allegation was pending
against me in a very fraught and public situation where they
knew, they knew they'd be vilified if they defended me. Think
about that. They put themselves on the line for me. Those are
some awesome women, and I love all of them.
You also have a letter from women who knew me in college.
Most were varsity athletes. They described that I treated them
as friends and equals and supported them in their sports at a
time when women sports was emerging in the wake of Title IX. I
thank all them for all their texts and their emails and their
support.
One of those women friends from college, a self-described
liberal and feminist, sent me a text last night that said,
quote, ``Deep breaths. You're a good man, a good man, a good
man.''
A text yesterday from another of those women friends from
college said, quote, ``Brett, be strong, pulling for you to my
core.''
A third text yesterday from yet another of those women I'm
friends with from college said, ``I'm holding you in the light
of God.''
As I said in my opening statement the last time I was with
you, cherish your friends, look out for your friends, lift up
your friends, love your friends. I felt that love more over the
last 2 weeks than I ever have in my life. I thank all my
friends. I love all my friends.
Throughout my life I've devoted huge efforts to encouraging
and promoting the careers of women. I will put my record up
against anyone's, male or female. I am proud of the letter from
84 women, 84 women who worked with me at the Bush White House
from 2001 to 2006 and described me as, quote, ``a man of the
highest integrity.''
Read the op-ed from Sarah Day from Yarmouth, Maine. She
worked in the Oval Office operations outside of President
Bush's office. Here's what she recently wrote in
centralmaine.com. And today she stands by her comments. Quote,
``Brett was an advocate for young women like me. He encouraged
me to take on more responsibility and to feel confident in my
role. In fact, during the 2004 Republican National Convention,
Brett gave me the opportunity to help with the preparation and
review of the President's remarks, something I never would have
had the chance to do if he had not included me. And he didn't
just include me in the work. He made sure I was at Madison
Square Garden to watch the President's speech instead of back
at the hotel watching on TV.''
As a judge since 2006, I've had the privilege of hiring
four recent law school graduates to serve as my law clerks each
year. The law clerks for Federal judges are the best and
brightest graduates of American law schools. They work for 1-
year terms for judges after law school, and then they move on
in their careers. For judges, training these young lawyers is
an important responsibility. The clerks will become the next
generation of American lawyers and leaders, judges, and
senators.
Just after I took the bench in 2006, there was a major New
York Times story about the low numbers of women law clerks at
the Supreme Court and Federal Appeals Courts. I took notice,
and I took action. A majority of my 48 law clerks over the last
12 years have been women. In a letter to this Committee, my
women law clerks said that I was one of the strongest advocates
in the Federal judiciary for women lawyers. And they wrote that
the legal profession is fairer and more equal because of me. In
my time on the bench, no Federal judge, not a single one in the
country, has sent more women law clerks to clerk on the Supreme
Court than I have.
Before this allegation arose 2 weeks ago, I was required to
start making certain administrative preparations for my
possible transfer to the Supreme Court, just in case I was
confirmed. As part of that I had to, in essence, contingently
hire a first group of four law clerks who could be available to
clerk at the Supreme Court for me on a moment's notice. I did
so, and contingently hired four law clerks. All four are women.
If confirmed, I will be the first Justice in the history of the
Supreme Court to have a group of all women law clerks. That is
who I am. That is who I was.
Over the past 12 years I have taught constitutional law to
hundreds of students, primarily at Harvard Law School, where I
was hired by then Dean and now Justice Elena Kagan. One of my
former women students, a Democrat, testified to this committee
that I was an even-handed professor who treats people fairly
and with respect.
In a letter to this Committee, my former students, male and
female alike, wrote that I ``displayed a character that
impressed us all.''
I love teaching law. But thanks to what some of you on this
side of the Committee have unleashed, I may never be able to
teach again.
For the past 7 years I've coached my two daughters'
basketball teams. You saw many of those girls when they came to
my hearing for a couple of hours. You have a letter from the
parents of the girls I coach that describes my dedication,
commitment, and character. I coach because I know that a girl's
confidence on the basketball court translates into confidence
in other aspects of life.
I love coaching more than anything I've ever done in my
whole life. But thanks to what some of you on this side of the
Committee have unleashed, I may never be able to coach again.
I've been a judge for 12 years. I have a long record of
service to America and to the Constitution. I revere the
Constitution. I am deeply grateful to President Trump for
nominating me. He was so gracious to my family and me on the
July night he announced my nomination at the White House. I
thank him for his steadfast support.
When I accepted the President's nomination, Ashley and I
knew this process would be challenging. We never expected that
it would devolve into this. Explaining this to our daughters
has been about the worst experience of our lives. Ashley has
been a rock. I thank God every day for Ashley and my family.
We live in a country devoted to due process and the rule of
law. That means taking allegations seriously. But if the mere
allegation, the mere assertion of an allegation, a refuted
allegation from 36 years ago, is enough to destroy a person's
life and career, we will have abandoned the basic principles of
fairness and due process that define our legal system and our
country.
I ask you to judge me by the standard that you would want
applied to your father, your husband, your brother, or your
son.
My family and I intend no ill will toward Dr. Ford or her
family. But I swear today under oath, before the Senate and the
Nation, before my family and God, I am innocent of this charge.
[The prepared statement of Judge Brett M. Kavanaugh appears
as a submission for the record.]
Chairman Grassley. Thank you, Judge Kavanaugh.
Before we start questions, I won't repeat what I said this
morning, but we'll do it the same way as we did for Dr. Ford,
5-minute rounds. So we will start with Ms. Mitchell.
[For Chairman Grassley.]
Ms. Mitchell. Good afternoon, Judge Kavanaugh. We have not
met. My name is Rachel Mitchell. I'd like to go over a couple
of guidelines for our question-and-answer session today.
If I ask a question----
Judge Kavanaugh. Yes, I'm ready.
Ms. Mitchell. Okay. If I ask a question----
Judge Kavanaugh. Thank you.
Ms. Mitchell. If I ask a question that you do not
understand, please ask me to clarify it or ask it in a
different way.
I may ask a question where I incorporate some information
you've already provided. If I get it wrong, please correct me.
I'm not going to ask you to guess. If you do estimate,
please let me know you're estimating.
Now, I want to make sure that all of the Committee Members
have gotten a copy of the definition of ``sexual behavior.''
Chairman Grassley. Yes, at least I have one.
Ms. Mitchell. Okay. And you have that as well, Judge
Kavanaugh?
Judge Kavanaugh. Yes.
Ms. Mitchell. First of all, have you been given or reviewed
a copy of the questions that I will be asking you?
Judge Kavanaugh. No.
Ms. Mitchell. Has anyone told you the questions that I will
be asking you?
Judge Kavanaugh. No.
Ms. Mitchell. I want you to take a moment to review the
definition that's before you of ``sexual behavior.''
[Pause.]
Ms. Mitchell. Have you had a chance to review it?
Judge Kavanaugh. I have. I may refer back to it, if I can?
Ms. Mitchell. Yes, please. I'd like to point out two
specific parts. Among the examples of sexual behavior, it
includes rubbing or grinding your genitals against somebody,
clothed or unclothed. And I would also point out that the
definition applies whether or not the acts were sexually
motivated or, for example, horseplay.
Do you understand the definition I've given you?
Judge Kavanaugh. I do.
Ms. Mitchell. And again, if at any time you need to review
that, please let me know.
Dr. Ford has stated that somewhere between five or six
people were present at the gathering on this date: you, Mark
Judge, Leland Ingham at the time, or Leland Keyser now, Patrick
P.J. Smith, Dr. Ford, and an unnamed boy.
Do you know Mark Judge?
Judge Kavanaugh. I do.
Ms. Mitchell. How do you know him?
Judge Kavanaugh. He was a friend at Georgetown Prep
starting in ninth grade. He's a--someone in our group of
friends. We were a very friendly group in class. You saw the
letter that's been sent by my friends from Georgetown Prep. A
funny guy, great writer, popular, developed a serious addiction
problem that lasted decades, near death a couple of times from
his addiction, suffered tremendously from----
Ms. Mitchell. What is your relationship with him like now?
Judge Kavanaugh. Haven't talked to him in a couple of
years. We probably have been on mass emails or group emails
that can go around among my high school friends.
Ms. Mitchell. Okay. And how did you know Patrick Smith?
Judge Kavanaugh. Also ninth grade, Georgetown Prep. He went
by ``P.J.'' then. He and I lived close to one another, played
football together. He was defensive tackle. I was a
quarterback, wide receiver. We carpooled to school along with
Dee Davis every year, the three of us for 2 years. I didn't
have a car, so one of the two of them would drive every day,
and I'd be in the--you know, they'd pick me up.
Ms. Mitchell. What's your relationship like with him now?
Judge Kavanaugh. He lives in the area. I see him once in a
while. I haven't seen him since this, this thing.
Ms. Mitchell. Do you know Leland Ingham or Leland Keyser?
Judge Kavanaugh. I know of her. It's possible I saw her,
met her in high school at some point at some event. Yes, I know
her, I know of her. And again, I don't want to rule out having
crossed paths with her in high school.
Ms. Mitchell. Similar to your statements about knowing Dr.
Ford?
Judge Kavanaugh. Correct.
Chairman Grassley. Senator Feinstein.
Senator Feinstein. Judge Kavanaugh, it's my understanding
that you have denied the allegations by Dr. Ford, Ms. Ramirez,
and Ms. Swetnick. Is that correct?
Judge Kavanaugh. Yes.
Senator Feinstein. All three of these women have asked the
FBI to investigate their claims. I listened carefully to what
you said. Your concern is evident and clear, and if you're very
confident of your position, and you appear to be, why aren't
you also asking the FBI to investigate these claims?
Judge Kavanaugh. Senator, I'll do whatever the Committee
wants. I wanted a hearing the day after the allegation came up.
I wanted to be here that day. Instead, 10 days passed where all
this nonsense is coming out, you know, that I'm in gangs, I'm
on boats in Rhode Island, I'm in Colorado. You know, I'm
sighted all over the place. And these things are printed and
run breathlessly by cable news. You know, I wanted a hearing
the next day.
My family has been destroyed by this, Senator, destroyed.
Senator Feinstein. And I----
Judge Kavanaugh. And whoever wants--you know, whatever the
Committee decides, I'm all in, immediately.
Senator Feinstein. The question is----
Judge Kavanaugh. I'm all in immediately.
Senator Feinstein. And the terrible and hard part of this
is when we get an allegation, we're not in a position to prove
it or disprove it. Therefore, we have to depend on some outside
authority for it. And it would just seem to me, then, when
these allegations came forward, that you would want the FBI to
investigate those claims and clear it up once and for all.
Judge Kavanaugh. Senator, the Committee investigates. It's
not for me to say how to do it. But just so you know, the FBI
doesn't reach a conclusion. They would give you a couple of
302s that just tell you what we said. So, I'm here. I wanted to
be here, I wanted to be here the next day. It's an outrage that
I was not allowed to come and immediately defend my name and
say I didn't do this and give you all this evidence. I'm not
even in DC on the weekends in the summer of 1982. This happened
on a weekday? I'm not at Blair High School for a summer league
game? I'm not at Tobin's house working out? I'm not at a movie
with Suzanne? You know, I wanted to be here right away.
Senator Feinstein. Well, the difficult thing is that these
hearings are set, and set by the Majority. But I'm talking
about getting the evidence and having the evidence looked at,
and I don't understand. You know, we hear from the witnesses,
but the FBI isn't interviewing them and isn't giving us any
facts, so all we have is what they say.
Judge Kavanaugh. You're interviewing me. You're
interviewing me. You're doing it, Senator. I'm sorry to
interrupt, but you're doing it. That's the--there's no
conclusions reached.
Senator Feinstein. And what you're saying, if I understand
it, is that the allegations by Dr. Ford, Ms. Ramirez, and Ms.
Swetnick are wrong.
Judge Kavanaugh. That is emphatically what I'm saying,
emphatically. The Swetnick thing is a joke. That is a farce.
Senator Feinstein. Would you like to say more about it?
Judge Kavanaugh. No.
[Laughter.]
Senator Feinstein. Okay. That's it.
Thank you, Mr. Chairman.
Chairman Grassley. Ms. Mitchell.
[For Senator Hatch.]
Ms. Mitchell. Dr. Ford has described you as being
intoxicated at a party. Did you consume alcohol during your
high school years?
Judge Kavanaugh. Yes, we drank beer, my friends and I, boys
and girls. Yes, we drank beer. I liked beer, still like beer.
We drank beer.
The drinking age, as I noted, so the seniors were legal.
Senior year in high school, people were legal to drink. And
we--yes, we drank beer. And I said sometimes--sometimes
probably had too many beers, and sometimes other people had too
many beers.
We drank beer. We liked beer.
Ms. Mitchell. What do you consider to be too many beers?
Judge Kavanaugh. I don't know. You know, whatever the chart
says, blood alcohol chart.
Ms. Mitchell. When you talked to Fox News the other night,
you said that there were times in high school when people might
have had too many beers on occasion. Does that include you?
Judge Kavanaugh. Sure.
Ms. Mitchell. Okay. Have you ever passed out from drinking?
Judge Kavanaugh. Passed out would be no, but I've gone to
sleep. But I've never blacked out. That's the--that's the
allegation, and that's wrong.
Ms. Mitchell. So let us talk about your time in high
school. In high school after drinking, did you ever wake up in
a different location than you remembered passing out or going
to sleep?
Judge Kavanaugh. No, no.
Ms. Mitchell. Did you ever wake up with your clothes in a
different condition or fewer clothes on than you remembered
when you went to sleep or passed out?
Judge Kavanaugh. No. No.
Ms. Mitchell. Did you ever tell--did anyone ever tell you
about something that happened in your presence that you did not
remember during a time that you had been drinking?
Judge Kavanaugh. No. We drank beer, and you know, so did, I
think, the vast majority of people our age at the time. But in
any event, we drank beer and--and still do. So whatever--yes.
Ms. Mitchell. During the time in high school when you would
be drinking, did anyone ever tell you about something that you
did not remember?
Judge Kavanaugh. No.
Ms. Mitchell. Dr. Ford described a small gathering of
people at a suburban Maryland home in the summer of 1982. She
said that Mark Judge, P.J. Smyth, and Leland Ingham also were
present, as well as an unknown male, and that the people were
drinking to varying degrees. Were you ever at a gathering that
fits that description?
Judge Kavanaugh. No, as I've said in my opening
statements--opening statement.
Ms. Mitchell. Dr. Ford described an incident where she was
alone in a room with you and Mark Judge. Have you ever been
alone in a room with Dr. Ford and Mark Judge?
Judge Kavanaugh. No.
Ms. Mitchell. Dr. Ford described an incident where you were
grinding your genitals on her. Have you ever ground or rubbed
your genitals against Dr. Ford?
Judge Kavanaugh. No.
Ms. Mitchell. Dr. Ford described an incident where you
covered her mouth with your hand. Have you ever covered Dr.
Ford's mouth with your hand?
Judge Kavanaugh. No.
Ms. Mitchell. Dr. Ford described an incident where you
tried to remove her clothes. Have you ever tried to remove her
clothes?
Judge Kavanaugh. No.
Ms. Mitchell. Referring back to the definition of sexual
behavior that I have given you, have you ever at any time
engaged in sexual behavior with Dr. Ford?
Judge Kavanaugh. No.
Ms. Mitchell. Have you ever engaged in sexual behavior with
Dr. Ford, even if it was consensual?
Judge Kavanaugh. No.
Ms. Mitchell. I want to talk about your calendars. You
submitted to the Committee copies of the handwritten calendars
that you have talked about for the months of May, June, July,
and August 1982. Do you have them in front of you?
Judge Kavanaugh. I do.
Ms. Mitchell. Did you create these calendars in the sense
of all the handwriting that is on them?
Judge Kavanaugh. Yes.
Ms. Mitchell. Okay. Is it exclusively your handwriting?
Judge Kavanaugh. Yes.
Ms. Mitchell. When did you make these entries?
Judge Kavanaugh. In 1982.
Ms. Mitchell. Has anything been changed for those since
1982?
Judge Kavanaugh. No.
Ms. Mitchell. Do these calendars represent your plans for
each day, or do they document--in other words, prospectively,
or do they document what actually occurred, more like a diary?
Judge Kavanaugh. They're both forward-looking and backward-
looking, as you can tell by looking at them, because I cross
out certain doctor's appointments that didn't happen, or one
night where I supposed to lift weights, I crossed that out
because I obviously didn't make it that night.
So you can see things that I didn't do crossed out in
retrospect. And also when I list the specific people who I was
with, that is likely backward-looking.
Ms. Mitchell. You explained that you kept these calendars
because your father started keeping them in 1978, I believe you
said.
Judge Kavanaugh. Mm-hmm.
Ms. Mitchell. That is why you kept them. In other words,
you wrote on them, but why did you keep them up until this
time?
Judge Kavanaugh. Oh, well, he's kept them, too, since 1978.
So he's a good role model.
Chairman Grassley. Ms. Mitchell, you will have to stop.
Ms. Mitchell. Oh, I am sorry.
Chairman Grassley. Judge Kavanaugh has asked for a break.
So we will take a 15-minute break.
[Whereupon, at 4:11 p.m., the Committee was recessed.]
[Whereupon, at 4:27 p.m., the Committee reconvened.]
Chairman Grassley. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
Judge, you have said before, and again today, that Mark
Judge was a close friend of yours in high school. Now Dr. Ford,
as you know, has said that he was in the room when she was
attacked. She also says you were, too.
Unfortunately, the FBI has never interviewed him. We have
not been able to have his attendance here. The Chairman refuses
to call him. If she is saying Mark Judge was in the room then,
then he should be in the room here today. Would you want him
called as a witness?
Judge Kavanaugh. Senator, this allegation came into the
Committee----
Senator Leahy. No, no. I am just asking the question, would
you want him to be here as a witness?
Judge Kavanaugh. He's already provided sworn testimony to
the Committee. This allegation has been hidden by the
Committee, by Members of the--Members----
Senator Leahy. No, it has not been--it has not been
investigated by the FBI. The Committee has refused to allow it
to be----
Judge Kavanaugh. It was dropped on us. It was sprung.
Senator Leahy. It was not investigated by the FBI, and he
has not been called. We might be under----
Judge Kavanaugh. It should have been handled in the due
course, Senator, when it came in.
Senator Leahy. I would--I would disagree with that. I have
been on this Committee 44 years, both Republicans and
Democrats. I have never seen somebody that critical and not
allowed to be here to--called to be testifying or an FBI
background.
But let me----
Judge Kavanaugh. He's provided sworn testimony, and
Senator----
Senator Leahy. He has----
Judge Kavanaugh. Senator, let me finish. He--the allegation
came in weeks ago, and nothing was done with it by the Ranking
Member, and then it's sprung on me----
Senator Leahy. Judge Kavanaugh, I have heard your line, and
you stated it over and over again. And I have that well in
mind, but let me ask you this.
He authored a book titled, ``Wasted: Tales of a GenX
Drunk.'' He references a Bart O'Kavanaugh vomiting in someone's
car during Beach Week and then passing out. Is that you that he
is talking about?
Judge Kavanaugh. Senator, Mark Judge was----
Senator Leahy. To your knowledge, is that you that he is
talking about?
Judge Kavanaugh. I'll explain if you let me.
Chairman Grassley. Proceed, please.
Judge Kavanaugh. Mark Judge was a friend of ours in high
school who developed a very serious drinking problem and
addiction problem that lasted decades and was very difficult
for him to escape from. And he nearly died. And then he
developed--then he had leukemia as well on top of it.
Now, as part of his therapy or part of his coming to grips
with sobriety, he wrote a book that is a fictionalized book and
an account. I think he picked out names of friends of ours to
throw them in as kind of close to what--for characters in the
book. So, you know, we can sit here----
Senator Leahy. So we do not know--we do not know whether
that is you or not?
Judge Kavanaugh. We can sit here and----
Senator Leahy. Is that what you are saying?
Judge Kavanaugh [continuing]. You know, like make fun of
some guy who has an addiction.
Senator Leahy. I am not making fun of anybody, Judge
Kavanaugh.
Judge Kavanaugh. But I don't think that really makes--is
really good.
Senator Leahy. I am trying to get a straight answer from
you under oath. Are you the Bart O'Kavanaugh that he is
referring to, ``yes'' or ``no''? That is----
Judge Kavanaugh. You'd have to ask him.
Senator Leahy. Well, I agree with you there, and that is
why I wish that the Chairman had him here under oath.
Now you talked about your yearbook. In your yearbook, you
talked about drinking and sexual exploits, did you not?
Judge Kavanaugh. Senator, let me--let me take a step back
and explain high school. I was number one in the class----
Senator Leahy. And I thought only----
Judge Kavanaugh. No, no.
Senator Leahy. I thought only the Senate could filibuster.
Judge Kavanaugh. No, no, no, no. You got this up. I'm going
to talk about my high school----
Senator Leahy. I thought only the Senate could filibuster.
Judge Kavanaugh. No, no. I'm going to----
Senator Hatch. Let him answer.
Judge Kavanaugh. I'm going to talk about my high school
record, if you're going to sit here and mock me.
Chairman Grassley. We were--I think we were all very fair
to Dr. Ford. Should we not be just as fair to Judge Kavanaugh?
Senator Hatch. Just saying.
Judge Kavanaugh. I busted my butt in academics. I always
tried to do the best I could. As I recall, I finished one in
the class, first in freshman and junior year, right up at the
top with Steve Clark and Eddie Ayala. We were always kind of in
the mix.
I played sports. I was captain of the varsity basketball
team. I was wide receiver and defensive back on the football
team. I ran track in the spring of '82 to try to get faster.
I did my service projects at the school, which involved
going to the soup kitchen downtown--let me finish--and going to
tutor intellectually disabled kids at the Rockville library. I
went to church. And yes, we got together with our friends.
Senator Leahy. Does this reflect what you are? Does this
yearbook reflect your focus on academics and your respect for
women? That is easy, ``yes'' or ``no.'' You do not have to
filibuster the answer. Does it reflect your focus on----
Judge Kavanaugh. I already said the yearbook--in my opening
statement, the yearbook obviously----
Chairman Grassley. Judge? Just wait a minute. He has asked
the question. I will give you time to answer it.
Judge Kavanaugh. The yearbook, as I said in my opening
statement, was something where the students and editors made a
decision to treat some of it as farce and some of it as
exaggeration, some of it celebrating things that don't reflect
the things that were really the central part of our school.
Yes, we went to parties, though. Yes, of course, we went to
parties, and the yearbook page describes that and kind of makes
fun of it. And you know, if we want to sit here and talk about
whether a Supreme Court nomination should be based on a high
school yearbook page, I think that's taking us to a new level
of absurdity.
Chairman Grassley. Ms. Mitchell.
Senator Leahy. Well, we got a filibuster, but not a single
answer.
Chairman Grassley. Ms. Mitchell.
[For Senator Graham.]
Ms. Mitchell. Judge, do you still have your calendars
there?
Judge Kavanaugh. I do.
Ms. Mitchell. I would like you to look at the July 1st
entry.
Judge Kavanaugh. Yes.
Ms. Mitchell. The entry says, and I quote, ``Go to Timmy's
for skis with Judge, Tom, P.J., Bernie, and--Squi''?
Judge Kavanaugh. ``Squi.'' It's a nickname.
Ms. Mitchell. Okay. To what does this refer and to whom?
Judge Kavanaugh. So it first says, ``Tobin's house
workout.'' So that's one of the football workouts that we would
have that Dr. Finizio would run for guys on the football team
during the summer. So we would be there. That's usually 6 p.m.
to 8 p.m. or so, kind of until near dark.
Then it looks like we went over to Timmy's. Do you want to
know their last names, too? I'm happy to do it.
Ms. Mitchell. If you could just identify, is ``Judge'' Mark
Judge?
Judge Kavanaugh. It is.
Ms. Mitchell. And is ``P.J.'' P.J. Smyth?
Judge Kavanaugh. It is. So it's Tim Gaudette, Mark Judge,
Tom Kane, P.J. Smyth, Bernie McCarthy, Chris Garrett.
Ms. Mitchell. Chris Garrett is ``Squi''?
Judge Kavanaugh. He is.
Ms. Mitchell. Did you in your calendar routinely document
social gatherings like house parties or gatherings of friends
in your calendar?
Judge Kavanaugh. Yes. It certainly appears that way. That's
what I was doing in the summer of 1982, and you can see that
reflected on several of the--several of the entries.
Ms. Mitchell. If a gathering like Dr. Ford has described
had occurred, would you have documented that?
Judge Kavanaugh. Yes, because I documented everything of
those kinds of events, even small get-togethers. August 7th is
another good example where I documented a small get-together
that summer. So, yes.
Ms. Mitchell. August 7th. Could you read that?
Judge Kavanaugh. I think that's ``Go to Becky's. Matt,
Denise, Laurie, Jenny.''
Ms. Mitchell. Have you reviewed every entry that is in
these calendars of May, June, July, and August 1982?
Judge Kavanaugh. I have.
Ms. Mitchell. Is there anything that could even remotely
fit what we are talking about in terms of Dr. Ford's
allegations?
Judge Kavanaugh. No.
Ms. Mitchell. As a lawyer and a judge, are you--we have
talked about the FBI. Are you aware that this type of offense
would actually be investigated by local police?
Judge Kavanaugh. Yes, I mentioned Montgomery County Police
earlier. Yes.
Ms. Mitchell. Are you aware that in Maryland, there is no
statute of limitations that would prohibit you being charged,
even if this happened in 1982?
Judge Kavanaugh. That's my understanding.
Ms. Mitchell. Have you at any time been contacted by any
members of local police agencies regarding this matter?
Judge Kavanaugh. No, ma'am.
Ms. Mitchell. Prior to your nomination for Supreme Court,
you have talked about all of the female clerks you have had and
the women that you have worked with, I am not just talking
about them. I am talking about globally. Have you ever been
accused, either formally or informally, of unwanted sexual
behavior?
Judge Kavanaugh. No.
Ms. Mitchell. And when I say informally, I mean just a
female complains. It does not have to be to anybody else, but
you.
Judge Kavanaugh. No.
Ms. Mitchell. Since Dr. Ford's allegation was made public,
how many times have you been interviewed by the Committee?
Judge Kavanaugh. It's been three or four. I'm--I'm trying
to remember now. It's been several times. Each of these new
things, absurd as they are, we'd get on the phone and kind of
go through them.
Ms. Mitchell. So have you submitted to interviews
specifically about Dr. Ford's allegation?
Judge Kavanaugh. Yes.
Ms. Mitchell. And what about Deborah Ramirez's allegation--
--
Judge Kavanaugh. Yes.
Ms. Mitchell [continuing]. That you waved your penis in
front of her?
Judge Kavanaugh. Yes.
Ms. Mitchell. What about Julie Swetnick's allegation that
you repeatedly engaged in drugging and gang raping or allowing
women to be gang raped?
Judge Kavanaugh. Yes. Yes, I've been interviewed about it.
Ms. Mitchell. Okay. Were your answers to my questions today
consistent with the answers that you gave to the Committee in
these various interviews?
Judge Kavanaugh. Yes, ma'am.
Ms. Mitchell. Okay. I see I am out of time.
Chairman Grassley. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Judge Kavanaugh, earlier today, Dr. Christine Ford sat in
that same chair, and under oath, she said clearly and
unequivocally that she was the victim of sexual assault at your
hands. She answered our questions directly, and she did not
flinch at the prospect of submitting herself to an FBI
investigation of these charges. We know, and I am sure she has
been advised by her attorneys, that a person lying to the FBI
can face criminal prosecution.
You have clearly and unequivocally denied that you
assaulted Dr. Ford. With that statement, you must believe that
there is no credible evidence or any credible witness that
could prove otherwise.
You started off with an impassioned statement at the
beginning, and I can imagine--try to imagine what you have been
through or your family has been through, and I am sure I would
not get close to it. But it was an impassioned----
Judge Kavanaugh. No, you wouldn't.
Senator Durbin. I am sure I would not. It was an
impassioned statement. And in the course of it, you said, ``I
welcome any kind of investigation.'' I quote you, ``I welcome
any kind of investigation.''
I have got a suggestion for you. Right now, turn to your
left in the front row to Don McGahn, counsel to President
Donald Trump. Ask him to suspend this hearing and nomination
process until the FBI completes its investigation of the
charges made by Dr. Ford and others and goes to bring the
witnesses forward and provides that information to this
hearing.
I am sure that the Chairman at that point will understand
that that is a reasonable request to finally put to rest these
charges if they are false or to prove them if they are not. You
spent 2 years in the White House office that approved judicial
nominees. You turned to the FBI over and over and over again
for their work.
Let us bring them in, here and now. Turn to Don McGahn and
tell him it is time to get this done. An FBI investigation is
the only way to answer some of these questions.
Judge Kavanaugh. Senator----
Chairman Grassley. Stop the clock. This Committee is
running this hearing. Not the White House, not Don McGahn, not
even you as a nominee.
We are here today because Dr. Ford asked for an opportunity
to hear her. I know you did, too, as well. In fact, maybe even
before she did. We are here because people wanted to be heard
from charges that they all thought were unfair or activities,
like sexual assault, was unfair.
So I want to assure Senator Durbin, regardless of what you
say to Senator--Don McGahn, we are not suspending this hearing.
Proceed to answer the question or whatever--if the
gentleman----
Senator Durbin. I would just say this. If you, Judge
Kavanaugh, turn to Don McGahn and to this Committee and say for
the sake of my reputation, my family name, and to get to the
bottom of the truth of this, I am not going to be an obstacle
to an FBI investigation, I would hope that all the Members of
the Committee would join me in saying we are going to abide by
your wishes, and we will have that investigation.
Judge Kavanaugh. I welcome whatever the Committee wants to
do because I'm telling the truth.
Senator Durbin. I want to know what you want to do.
Judge Kavanaugh. I'm telling the truth.
Senator Durbin. I want to know what you want to do, Judge.
Judge Kavanaugh. I'm innocent. I'm innocent of this charge.
Senator Durbin. Then you are prepared for an FBI
investigation?
Judge Kavanaugh. They don't reach conclusions. You reach
the conclusion, Senator.
Senator Durbin. No, but they do investigate questions.
Judge Kavanaugh. I mean, this is----
Senator Durbin. And you cannot have it both ways, Judge.
You cannot say here at the beginning----
Judge Kavanaugh. I wanted a hearing----
Senator Durbin [continuing]. In an impassioned moment, ``I
welcome any kind of investigation''----
Judge Kavanaugh. Look, this thing was sprung on me.
Senator Durbin [continuing]. And then walk away from this.
Judge Kavanaugh. This thing was sprung at the last minute
after being held by staff, you know? And I called for----
Senator Durbin. Judge, if there is no truth----
Judge Kavanaugh. I called for a hearing immediately.
Senator Durbin. If there is no truth to her charges, the
FBI investigation will show that. Are you afraid that they
might not? Come on. Gee whiz.
Judge Kavanaugh. The FBI does not reach--you know, you know
this is--you know that's a phony question because the FBI
doesn't reach conclusions. They just provide the 302s. The 302,
so I can explain to people who don't know what that is, they
just go and do what you're doing, ask questions and then type
up a report. They don't reach the bottom-line conclusion.
Senator Durbin. This morning--this morning, I asked Dr.
Ford. I asked her about this incident where she ran into Mark
Judge at a Safeway. And she said, sure, I remember. It was 6 or
8 weeks after this occurrence.
Well, someone at The Washington Post went in and took a
look at Mr. Judge's book and has been able to--the one that he
wrote about his addiction and his alcoholism. And they have
narrowed it down to what they think was a period of time 6 or 8
weeks after the event, and he would have been working at the
Safeway at that point.
So the point I am getting to is, we at least can connect
some dots here and get some information. Why would you resist
that kind of investigation?
Judge Kavanaugh. There's the dots.
Senator Durbin. Why would you resist that kind of
investigation?
Judge Kavanaugh. Senator, I welcome--I wanted the hearing
last week.
Senator Durbin. I am asking about the FBI investigation.
Judge Kavanaugh. The Committee figures out how to ask the
questions. I'll do whatever. I've been on the phone multiple
times with Committee Counsel. I'll talk to----
Senator Durbin. Judge Kavanaugh, will you support an FBI
investigation right now?
Judge Kavanaugh. I will do whatever the Committee wants----
Senator Durbin. Personally, do you think that is the best
thing for us to do? You will not answer?
Judge Kavanaugh. Look, Senator, I've said I wanted a
hearing, and I said I would welcome anything. I'm innocent.
This thing was held, held when it could have been presented in
the ordinary way. It could have been held and handled
confidentially at first, which was what Dr. Ford's wishes were,
as I understand it, and wouldn't have caused this, like
destroyed my family like this effort has.
Senator Durbin. I think an FBI investigation will help all
of us on both sides of the issue.
Chairman Grassley. Senator Graham asked for the floor. But
before he does, it seems to me that if you want to know
something, you have got the witness right here to ask him. And
second, if you want an FBI report, you can ask for it yourself.
I have asked for FBI reports in the past, in the 38 years I
have been in the Senate.
Senator Graham.
Senator Graham. Are you aware that at 9:23 on the night of
July the 9th, the day you were nominated to the Supreme Court
by President Trump, Senator Schumer said, 23 minutes after your
nomination, ``I will oppose Judge Kavanaugh's nomination with
everything I have.'' I have a bipartisan--``and I hope a
bipartisan majority will do the same. The stakes are simply too
high for anything less.''
Well, if you were not aware of it, you are now. Did you
meet with Senator Dianne Feinstein on August 20th?
Judge Kavanaugh. I did meet with Senator Feinstein.
Senator Graham. Did you know that her staff had already
recommended a lawyer to Dr. Ford?
Judge Kavanaugh. I did not know that.
Senator Graham. Did you know that her and her staff had
these allegations for over 20 days?
Judge Kavanaugh. I did not know that at the time.
Senator Graham. If you wanted an FBI investigation, you
could have come to us. What you want to do is destroy this
guy's life, hold this seat open, and hope you win in 2020. You
have said that, not me.
You have got nothing to apologize for.
When you see Sotomayor and Kagan, tell them that Lindsey
said hello because I voted for them. I would never do to them
what you have done to this guy. This is the most unethical sham
since I have been in politics. And if you really wanted to know
the truth, you sure as hell would not have done what you have
done to this guy.
Are you a gang rapist?
Judge Kavanaugh. No.
Senator Graham. I cannot imagine what you and your family
have gone through.
Boy, you all want power. God, I hope you never get it. I
hope the American people can see through this sham that you
knew about it and you held it. You had no intention of
protecting Dr. Ford, none. She is as much of a victim as you
are.
God, I hate to say it because these have been my friends.
But let me tell you, when it comes to this, you are looking for
a fair process, you came to the wrong town at the wrong time,
my friend.
Do you consider this a job interview?
Judge Kavanaugh. The Advice and Consent role is like a job
interview.
Senator Graham. Do you consider that you have been through
a job interview?
Judge Kavanaugh. I've been through a process of advice and
consent under the Constitution, which----
Senator Graham. Would you say you have been through hell?
Judge Kavanaugh. I have been through hell and then some.
Senator Graham. This is not a job interview. This is hell.
Judge Kavanaugh. This is----
Senator Graham. This is going to destroy the ability of
good people to come forward because of this crap. Your high
school yearbook. You have interacted with professional women
all your life, not one accusation.
You are supposed to be Bill Cosby when you are a junior and
senior in high school, and all of a sudden, you got over it. It
has been my understanding that if you drugged women and raped
them for 2 years in high school, you probably do not stop.
Here is my understanding. If you lived a good life, people
will recognize it, like the American Bar Association has the
gold standard: ``His integrity is absolutely unquestioned. He
is the very circumspect in his personal conduct. Harbors no
biases or prejudices. He is entirely ethical. Is a really
decent person. He is warm, friendly, unassuming. He is the
nicest person.'' The ABA.
The one thing I can tell you, you should be proud of is--
Ashley, you should be proud of this. That you raised a daughter
who had the good character to pray for Dr. Ford.
To my Republican colleagues, if you vote no, you are
legitimizing the most despicable thing I have seen in my time
in politics. You want this seat? I hope you never get it.
I hope you are on the Supreme Court. That is exactly where
you should be. And I hope that the American people will see
through this charade, and I wish you well. And I intend to vote
for you, and I hope everybody who is fair-minded will.
Chairman Grassley. Senator Whitehouse.
Senator Whitehouse. Should we let things settle a little
bit after that?
Chairman Grassley. Do you want a--we will take a 60-second
break?
Senator Whitehouse. No, I am good. I am good.
Chairman Grassley. Okay. Go ahead.
Senator Whitehouse. One of the reasons, Mr. Kavanaugh, that
we are looking at the yearbook is that it is relatively
consistent in time with the events at issue here and because it
appears to be your words. Is it, in fact, your words on your
yearbook page?
Judge Kavanaugh. We submitted things to the editors, and I
believe they took them. I don't know if they changed things or
not, but----
Senator Whitehouse. You are not aware of any changes?
Judge Kavanaugh. I don't know. I'm not aware one way----
Senator Whitehouse. As far as you know, these are your
words?
Judge Kavanaugh. I'm not aware one way or the other, but
I'm not going to sit here and contest that. Have at it, if you
want to go through my yearbook.
Senator Whitehouse. Yes, I am actually interested. You
know, lawyers should be working off of common terms and
understand the words that we are using. I think that is a
pretty basic principle among lawyers. Would you not agree?
Judge Kavanaugh. It is. If you're worried about my
yearbook, have at it, Senator.
Senator Whitehouse. So let us look at ``Beach Week Ralph
Club Biggest Contributor.'' What does the word ``ralph'' mean
in that instance?
Judge Kavanaugh. That probably refers to throwing up. I'm
known to have a weak stomach and always have. In fact, the last
time I was here, you asked me about having ketchup on
spaghetti. I always have had a weak stomach.
Senator Whitehouse. I do not know that I asked about
ketchup on spaghetti, but----
Judge Kavanaugh. You didn't. Someone did.
Senator Whitehouse. Okay.
Judge Kavanaugh. And this is well known. Anyone who's known
me, like a lot of these people behind me have known me my whole
life, know, you know, I got a weak stomach, whether it's with
beer or with spicy food or anything.
Senator Whitehouse. So the vomiting that you reference in
the ``Ralph Club'' reference related to the consumption of
alcohol?
Judge Kavanaugh. Senator, I was at the top of my class
academically, busted my butt in school, captain of the varsity
basketball team, got into Yale College. When I got into Yale
College, got into Yale Law School. Worked my tail off.
Senator Whitehouse. And, did the word ``ralph'' you used in
your yearbook relate to alcohol?
Judge Kavanaugh. I already said--I already answered the
question. If you're----
Senator Whitehouse. Did it relate to alcohol?
Judge Kavanaugh. I like beer.
Senator Whitehouse. You have not answered that.
Judge Kavanaugh. I like beer. I don't know if you do. Do
you like beer, Senator, or not?
Senator Whitehouse. Okay.
Judge Kavanaugh. What do you like to drink?
Senator Whitehouse. The next one is----
Judge Kavanaugh. Senator, what do you like to drink?
Senator Whitehouse [continuing]. Judge, have you--I do not
know if it is ``boofed'' or ``bufed''--how do you pronounce
that?
Judge Kavanaugh. That refers to flatulence. We were 16.
[Laughter.]
Senator Whitehouse. Okay. And so, when your friend Mark
Judge said the same--put the same thing in his yearbook page
back to you, he had the same meaning, it was flatulence?
Judge Kavanaugh. I don't know what he did, but that's my
recollection. We want to talk about flatulence at age 16 on a
yearbook page, I'm game.
Senator Whitehouse. You mentioned, I think, the ``Renate''
or ``Renate,'' ``Renata''--I do not know how you pronounce
that. That is the proper name of an individual you know?
Judge Kavanaugh. ``Renate.''
Senator Whitehouse. ``Renate.'' It is spelled with an ``e''
at the end, R-e-n-a-t-e. Is that----
Judge Kavanaugh. Correct.
Senator Whitehouse. Okay. And then after that is the word
``alumnius.'' What does the word ``alumnius'' mean in that
context?
Judge Kavanaugh. I explained that in my opening statement.
We--she was a great friend of ours. A bunch of us went to
dances with her. She hung out with us as a group. The media
circus that has been generated by this thought and reported
that it referred to sex. It did not.
Never had any--as she herself said on the record, any kind
of sexual interaction with her. And I'm sorry how that's been
misinterpreted and I'm sorry about that, as I explained in my
opening statement. Because she's a good person, and to have her
name dragged through this hearing is a joke and really an
embarrassment.
Senator Whitehouse. ``Devil's triangle''?
Judge Kavanaugh. Drinking game.
Senator Whitehouse. How is it played?
Judge Kavanaugh. Three glasses in a triangle.
Senator Whitehouse. And?
Judge Kavanaugh. You ever played quarters?
Senator Whitehouse. No.
Judge Kavanaugh. Okay. It's a quarters game.
Senator Whitehouse. ``Anne Dougherty's.''
Judge Kavanaugh. As you can tell from my calendar, she had
a party on the Fourth of July in--the beach in Delaware.
Senator Whitehouse. And there are like one, two, three,
four, five, six, seven ``Fs'' in front of the Fourth of July,
what does that signify, if anything?
Judge Kavanaugh. One of our friends, Squi, when he said the
``F'' word, starting at a young age, had kind of a wind-up to
the ``F'' word, kind of a ``f-f-f-'' and then the word would
come out. And when we were 15, we thought that was funny, and
it became an inside joke for that, how he would say--and I
won't repeat it here--for the ``F'' word.
Senator Whitehouse. Referring to ``Georgetown versus
Louisville'' and----
Judge Kavanaugh. Do you want any more on the ``Fs''?
Senator Whitehouse. No. And the ``Orioles versus Red Sox,''
in both, you respond, ``Who won anyway?'' Or, ``Who won that
game anyway?'' Should we draw any conclusion that a loss of
recollection associated with alcohol was involved in you not
knowing who won the games that you attended?
Judge Kavanaugh. No. First of all, the Georgetown-
Louisville was watching it on TV, a party, and the----
Senator Whitehouse. That is not inconsistent with drinking
and not remembering what happened.
Judge Kavanaugh. I'm aware. And the point of both was, we,
in essence, were having a party and didn't pay attention to the
game, even though the game was the excuse we had for getting
together. I think that's very common.
I don't know if you've been to a Super Bowl party, for
example, Senator, and not paid attention to the game and just
hung out with your friends. I don't know if you've done that or
not. But that's what we were referring to in those--those two
occasions.
Chairman Grassley. Senator Cornyn.
Senator Cornyn. Judge, I cannot think of a more
embarrassing scandal for the United States Senate since the
McCarthy hearings when the comment was about the cruelty of the
process toward the people involved, and the question was asked,
``Have you no sense of decency?'' And, I am afraid we have lost
that, at least for the time being.
Do you understand you have been accused of multiple crimes?
Judge Kavanaugh. I'm painfully aware, for my family and me
to read about this----
Senator Cornyn. And----
Judge Kavanaugh [continuing]. Breathless reporting.
Senator Cornyn [continuing]. Of course, the sexual assault
that Dr. Ford claims that you have denied, then the claims of
Ms. Ramirez that not even The New York Times would report
because it could not corroborate it. And then Stormy Daniels'
lawyer released a bombshell accusing you of gang rape. All of
those are crimes, are they not?
Judge Kavanaugh. They are, and I'm--I'm never going to get
my reputation back. My life is totally and permanently altered.
Senator Cornyn. Well, Judge, do not give up.
Judge Kavanaugh. I'm not giving up. I will----
Senator Cornyn. The American people----
Judge Kavanaugh. I will----
Senator Cornyn. The American people are listening to this,
and they will make their decision, and I think you will come
out on the right side of that decision.
Judge Kavanaugh. Well, I always be a good person and try to
be a good judge, whatever happens. But----
Senator Cornyn. So this is not a job interview. You have
been accused of a crime. If you have lied to the Committee and
the investigators, that is a crime, in and of itself. Correct?
Judge Kavanaugh. That is correct.
Senator Cornyn. So in order to vote against your
nomination, we would have to conclude that you are a serial
liar, and you have exposed yourself to legal jeopardy in the
way in your interaction with this Committee and the
investigators. Is that not correct?
Judge Kavanaugh. That's my understanding.
Senator Cornyn. You talked in your interview on--with
Martha MacCallum the other night about a fair process. Some of
my colleagues across the aisle say, well, the burden is not on
the accuser because this is a job interview. The burden is on
you.
But you said you were not there, and it did not happen. It
is impossible for you to prove a negative. So I would just
suggest that you have been accused of a crime and that a fair
process under the United States Constitution, under our notion
of fair play, means that the people who make an accusation
against you have to come forward with some evidence. Is that
not part of a fair process?
Judge Kavanaugh. Yes, sir, Senator.
Senator Cornyn. And part of that means that if you are
going to make an allegation, there needs to be corroboration.
In other words, you are not guilty because somebody makes an
accusation against you in this country. We are not a police
state. We do not give the Government that kind of power. We
insist that those charges be proven by competent evidence.
And I know we are not in a court. I have told my colleagues
if we were in court, half of them would be in contempt of
court. But you have been accused of a crime, and I believe
fundamental notions of fair play and justice in our
constitutional system require that if somebody is going to make
that accusation against you, then they need to come forward
with some corroboration, not just allegations.
And you are right to be angry about the delays in your
ability to come here and protect your good name because, in the
interim, it just keeps getting worse. If it is not Dr. Ford, it
is this story that not even The New York Times would report,
the allegation of Ms. Ramirez. And then Stormy Daniels' lawyer
comes up with this incredible story accusing you of the most
sordid and salacious conduct.
It is outrageous, and you are right to be angry. But this
is your chance to tell your story, and I hope you have a chance
to tell us everything you want to tell us. But the burden is
not on you to disprove the allegations made. The burden under
our system, when you accuse somebody of criminal conduct, is on
the person making the accusation.
Now I understand we are not--this is not a trial, like I
said. But I just wanted to make sure that we understood. It is
hard to reconstruct what happened 36 years ago, and I
appreciate what you said about Dr. Ford, that perhaps she has
had an incident at some point in her life, and you are
sympathetic to that.
And--but your reputation is on the line, and I hope people
understand the gravity of the charges made against you and what
a fair process looks like.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. Thank you, Mr. Chairman.
Judge, we are talking here about decency, and you
understand we have this constitutional duty to advise and
consent. And for me, when this evidence came forward, I decided
that I needed to look at this, and I needed to find out about
it, and I needed to ask you questions about it, as well as
others that were involved.
So, again, I am not going to take quite the same approach
as my colleagues here and talk about Don McGahn or any of this.
Why do you not just ask the President? Mrs.--Dr. Ford cannot do
this. We clearly have not be able to do this. But just ask the
President to re-open the FBI investigation.
Judge Kavanaugh. I think the Committee is doing--you're
doing the investigation. I'm here to answer your questions. And
I should say one thing, Senator Klobuchar, which is I
appreciate our meeting together, and I appreciate how you
handled the prior hearing, and I have a lot of respect for you.
Senator Klobuchar. Well, thank you.
All of that aside, here is the thing. You could actually
just get this open so that we can talk to these witnesses, and
the FBI can do it instead of us. And you have come before us,
but we have people like Mark Judge, who Dr. Ford says was a
witness to this. We have this polygraph expert that my
colleagues were raising issues about the polygraph. We would
like to have that person come before us.
And I just think if we could open this up----
Judge Kavanaugh. I don't mean--I don't mean to interrupt,
but I guess I am, but Mark Judge has provided sworn statement
saying this didn't happen and that I never did or would do----
Senator Klobuchar. But we would like the FBI to be able to
follow up and ask him questions. You know, we talked about past
nomination processes, and you talked about those. And I note
that President George Bush in the Anita Hill Justice Thomas
case, he opened up the FBI investigation and let questions be
asked. And I think it was helpful for people. So was his
decision reasonable?
Judge Kavanaugh. I don't know the circumstances of that.
What I know, Senator, is I'm----
Senator Klobuchar. That he just--the circumstances are that
he opened up the investigation so the FBI could ask some
questions. That what he--he opened up the background check.
Judge Kavanaugh. I'm here to answer questions about my
yearbook or about, you know, what I--and my sports or, you
know, summer basketball----
Senator Klobuchar. Okay, that is--okay, I am not going to
ask--okay. I am not going to ask about the yearbook.
So most people have done some drinking in high school and
college, and many people even struggle with alcoholism and
binge drinking. My own dad struggled with alcoholism most of
his life, and he got in trouble for it, and there were
consequences. But he is still in AA at age 90, and he is sober.
And in his words, he was pursued by grace, and that is how he
got through this.
So in your case, you have said here and other places that
you never drank so much that you did not remember what
happened. But yet we have heard, not under oath, but we have
heard your college roommate say that you did drink frequently--
these are in news reports--that you would sometimes be
belligerent.
Another classmate said it is not credible for you to say
you did not have memory lapses. So drinking is one thing.
Judge Kavanaugh. I don't--I actually don't think that's--
the second quote is correct. On the first quote, if you wanted,
I provided some material that's still redacted about the
situation with the freshman year roommate, and I don't really
want to repeat that in a public hearing. But just so you know,
there were three people in a room--Dave White, Jamie Roche, and
me--and it was a contentious situation, where Jamie did not
like Dave White at all. And, I mean, this----
Senator Klobuchar. Okay. I just----
Judge Kavanaugh. So Dave White came back from home one
weekend, and Jamie Roche had moved all his furniture out into
the--out into the courtyard.
Senator Klobuchar. Okay.
Judge Kavanaugh. And so he walks in, and so that's your
source on that. So there's some old----
Senator Klobuchar. So, drinking is one thing----
Judge Kavanaugh. And there's much more. Look at the
redacted portion of what I said. I don't want to repeat that in
a public hearing, but there's----
Senator Klobuchar. I will. I will. Could I just ask one
more question?
Judge Kavanaugh [continuing]. Redacted information about
that.
Senator Klobuchar. Okay. Drinking is one thing, but the
concern is about truthfulness, and in your written testimony,
you said sometimes you had too many drinks. Was there ever a
time when you drank so much that you could not remember what
happened, or part of what happened, the night before?
Judge Kavanaugh. No. I remember what happened. And, I think
you've probably had beer, Senator, and so----
Senator Klobuchar. So, you are saying there has never been
a case where you drank so much that you did not remember what
happened the night before, or part of what happened?
Judge Kavanaugh. It's--you're asking about blackout. I
don't know, have you?
Senator Klobuchar. Could you answer the question, Judge?
So, you--that has not happened? Is that your answer?
Judge Kavanaugh. Yes. And, I'm curious if you have.
Senator Klobuchar. I have no drinking problem, Judge.
Judge Kavanaugh. Yes, nor do I.
Senator Klobuchar. Okay. Thank you.
Chairman Grassley. Before I go to Senator Hatch, since this
FBI thing keeps coming up all the time, let us get back to
basics. First of all, anybody, including any Senator, that has
brought up this issue, could ask for an FBI investigation. What
the FBI does is gather information for the White House, then
the file is sent to the Committee for us to make our own
evaluations. We are capable of making our own determination
about the accuracy of any of those allegations.
The FBI has put out a statement over, now I suppose it is a
month ago, clearly stating this matter is closed as far as the
letter being sent to them, and there is no Federal crime to
investigate. If Senate Democrats hope for the FBI to draw any
conclusions on this matter, I am going to remind you what Joe
Biden said. Now I said this in my statement, but maybe--maybe
people are not listening when I say, and maybe they will not
even hear this.
Joe Biden, quote: ``The next person who refers to an FBI
report as being worth anything obviously does not understand
anything. The FBI explicitly does not--does not, in this or any
other case, reach a conclusion, period. They say `he said, she
said, they said,' period. So when people wave an FBI report
before you''--or even bring it up now as something
prospectively, that was not in his quote--``understand they do
not, they do not, they do not reach conclusions. They do not
make recommendations.''
Senator Hatch.
Senator Whitehouse. Mr. Chairman? Mr. Chairman, may I say
for the record that actually we have asked. You said that
nobody has asked the FBI or we could ask the FBI. I actually
have. I think others have, and I think that the issue is that
part of what an FBI report does is to investigate and seek
either corroborating or exculpatory evidence. It is not so much
the conclusion that it draws as the breadth of the evidence
that is sought out through the investigation and the difference
between what somebody might say to an FBI agent when they are
being examined and, for instance, Mr. Judge's letter signed by
his lawyer sent in.
It is just a different thing, and I believe still that this
is the first background investigation in the history of
background investigations that has not been reopened when new
credible derogatory information was raised about the subject,
about the nominee.
So, you know, I just did not want to let the point you made
stand without referencing what we have tried to do.
Chairman Grassley. Well, pardon me, but I will just add to
the point you made. The letter was sent to the FBI. The FBI
sent it to the White House with a letter saying the case is
closed.
We are taking a break now. Senator, we are taking a break
now. A 15-minute break.
[Whereupon, at 5:09 p.m., the Committee was recessed.]
[Whereupon, at 5:28 p.m., the Committee reconvened.]
Chairman Grassley. Judge, are you ready?
Judge Kavanaugh. I am ready. And can I say one thing?
Chairman Grassley. Yes.
Judge Kavanaugh. I was just going to say, I started my last
colloquy by saying to Senator Klobuchar how much I respect her
and respected what she did at the last hearing, and she asked
me a question at the end that I responded by asking her a
question, and I'm sorry I did that. This is a tough process.
I'm sorry about that.
Senator Klobuchar. I appreciate that. I would like to add,
when you have a parent that is an alcoholic, you are pretty
careful about drinking. And the second thing is, I was truly
just trying to get to the bottom of the facts and the evidence,
and I, again, believe we do that by opening up the FBI
investigation, and I would call it a ``background check''
instead of ``investigation.''
Thank you.
Judge Kavanaugh. I appreciate that.
Chairman Grassley. Senator Hatch.
Senator Hatch. Well, thank you. Judge, welcome. We are
happy to have you here. I would just like to say a few words.
My friend from Arizona emphasized yesterday that we have
before us today two human beings: Dr. Ford and Judge Kavanaugh.
They deserve, each of you deserves, to be treated fairly and
respectfully. We tried to do that with Dr. Ford earlier, and I
think we succeeded. It is important that we treat Judge
Kavanaugh fairly now, and it remains to be seen how that is
going to work out.
Judge Kavanaugh has been a Federal judge for 12 years, and
he has been a great Federal judge on the second highest court
in the Nation. He has earned a reputation for fairness and
decency. His clerks love him. His students he teaches in law
school as well, his students love him. His colleagues love him.
This man is not a monster, nor is he what has been represented
here in these hearings. We are talking today about Judge
Kavanaugh's conduct in high school, and even then, and as a
freshman in college, I guess as well.
Serious allegations have been raised that if Judge
Kavanaugh committed sexual assault, he should not serve on the
Supreme Court. I think we would all agree with that. But the
circus atmosphere that has been created since my Democratic
colleagues first leaked Dr. Ford's allegations to the media 2
weeks ago, after sitting on them for 6 weeks, I might add, has
brought us the worst in our politics. It certainly has brought
us no closer to the truth. Anonymous letters with no name and
no return address are now being treated as national news. Porn
star lawyers with facially implausible claims are driving the
news cycle.
I hate to say this, but this is worse than Robert Bork, and
I did not think it could get any worse than that. This is worse
than Clarence Thomas. I did not think it could get any worse
than that. This is a national disgrace the way you are being
treated.
And in the middle of it all, we have Judge Kavanaugh, a man
who until 2 weeks ago was a pillar of the legal community, and
there has been no whisper of misconduct by him in the time he
has been a judge. What we have are uncorroborated,
unsubstantiated claims from his teenage years, claims that
every alleged eyewitness has either denied or failed to
corroborate.
I do not mean to minimize the seriousness of the claims.
Yes, they have been serious claims. But the search for truth
has to involve more than bare assertions. Like Dr. Ford, Judge
Kavanaugh deserves fair treatment. He was an immature high
schooler. So were we all. That he wrote or said stupid things
sometimes does not make him a sexual predator.
I understand the desire of my colleagues to tear down this
man at any cost. I do understand it. But let us at least be
fair and look at the facts, or the absence thereof. Guilt by
association is wrong. Immaturity does not equal criminality.
That Judge Kavanaugh drank in high school or college does not
make him guilty of every terrible thing that he has recently
been accused of. A lifetime of respect and equal treatment
ought to mean something when assessing allegations that are
flatly inconsistent with the course of a person's entire adult
life.
With those comments, Judge, I would just like to ask you a
few questions, if I can, about how--and if you can be short in
your answers, it would help me get through a bunch of them--
about how this process has unfolded. When did you first learn
of Dr. Ford's allegations against you?
Judge Kavanaugh. It was a week ago Sunday when--The
Washington Post story.
Senator Hatch. Isn't that amazing? Did the Ranking Member
raise these allegations in your one-on-one meeting with her
last month?
Judge Kavanaugh. She did not.
Senator Hatch. Did the Ranking Member raise them at your
public hearing earlier this month?
Judge Kavanaugh. No.
Senator Hatch. Did the Ranking Member raise them at the
closed session that followed the public hearing?
Judge Kavanaugh. She was not there.
Senator Hatch. Did the Ranking Member or any of her
colleagues raise them in the 1,300 written questions that were
submitted to you following the hearing?
Judge Kavanaugh. No.
Senator Hatch. When was the first time that the Ranking
Member or her staff asked you about these allegations?
Judge Kavanaugh. Today.
Senator Hatch. When did you first hear of Ms. Ramirez's
allegations against you?
Judge Kavanaugh. In the last--in the period since then, the
New Yorker story.
Senator Hatch. Did the Ranking Member or any of her
colleagues or any of their staffs ask you about Ms. Ramirez's
allegations before they were leaked to the press?
Judge Kavanaugh. No.
Senator Hatch. When was the first time that the Ranking
Member or any of her colleagues or any of their staff asked you
about Ms. Ramirez's allegations?
Judge Kavanaugh. Today.
Senator Hatch. I think it is a disgrace between----
Chairman Grassley. Senator Coons.
Senator Coons. Thank you, Mr. Chairman.
Judge Kavanaugh, today's hearing is about Dr. Ford's
serious allegations about sexual assault. You have
unequivocally denied those claims, but we are here today to
assess her credibility and yours. And in our previous vigorous
exchanges in the previous confirmation hearing rounds, I have
found that your answers at times vigorously defended, but at
other times have struck me as evasive or not credible on key
issues. And it is against that backdrop that I am seeking to
assess your credibility today.
You said in your opening that rule of law means taking
allegations seriously, and I agree with that. It brings me no
joy to question you on these topics today, but I do think they
are serious, and I think they are worthy of our attention.
So let me, if I can, return to a line of questioning that
my colleague was on before, which was about whether you have
ever gotten aggressive while drinking or forgotten an evening
after drinking.
Judge Kavanaugh. Those are two different questions. I've
already answered the second one. As to the first, I think the
answer to that is basically no. I don't know really what you
mean by that. Like, what are you talking about?
Senator Coons. Well, the reason I----
Judge Kavanaugh. I don't mean it that way, but no is the
basic answer unless you're talking about something where--that
I'm not aware of that you're going to ask about.
Senator Coons. The reason I am asking, we have had a very
brief period of time to weigh outside evidence, and I will join
my colleagues in saying I wish we had more evidence in front of
us today to weigh.
Do you remember Liz Swisher, a college classmate of yours
from Yale?
Judge Kavanaugh. First, on your point about the outside
evidence, all four witnesses said----
Senator Coons. Well, let me focus--I am trying to get this
question----
Judge Kavanaugh. I know, but you made a point, and I just
want to emphasize, all four witnesses who were allegedly at the
event have said it didn't happen, including Dr. Ford's long-
time friend, Ms. Keyser, who said she----
Senator Coons. That is right. And if Mark Judge were in
front of us today to question, we would be able to assess his
credibility.
Judge Kavanaugh. But he's----
Senator Coons. Let me just get this through, if I can, Your
Honor. Liz Swisher is a college classmate. She is now a medical
doctor. And I am quoting from a recent interview she gave. She
said, ``Brett Kavanaugh drank more than a lot of people. He'd
end up slurring his words, stumbling. It's not credible for him
to say he's had no memory lapses in the nights he drank to
excess. I know because I drank with him.''
How should we assess that?
Judge Kavanaugh. She then goes on, if you kept reading, and
says she actually can't point to any specific instance like
that.
Senator Coons. The quote that jumped out at me was, ``Brett
was a sloppy drunk, and I know because I drank with him.''
There is also----
Judge Kavanaugh. I do not think that's a fair
characterization, and Chris Dudley's quoted in that article,
and I would refer you to what Chris Dudley said. I spent more
time with Chris Dudley in college than just about anyone. And
I'd refer you to what he said.
Senator Coons. In other reporting, as I am sure you know, a
college classmate described you as relatively shy, but said
that when you drank you could be aggressive or even
belligerent. And your roommate, as I think you discussed with
Senator Klobuchar, said you were frequently drunk.
Judge Kavanaugh. And that roommate, that was freshman year
roommate.
Senator Coons. Yes.
Judge Kavanaugh. And there was contention between him and
the third person. There were three of us in a small room, and
you should look at what I said in the redacted portion of the
transcript about him. And you should assess his credibility
with that in mind.
Senator Coons. Put yourself in our shoes for a moment, if
you would, Judge, and I know that is asking a lot of you in
this setting. But suppose you had gone through a process to
select someone for an incredibly important job and a position
you had a lot of qualified candidates, and as you are finishing
the hiring process, you learn of a credible allegation that, if
true, would be disqualifying. Wouldn't you either take a step
back and conduct a thorough investigation or move to a
different candidate? And why not agree to a 1-week pause to
allow the FBI to investigate all these allegations and allow
you an opportunity a week from now to have the folks present in
front of us for us to assess their credibility and for us to
either clear your name or resolve these allegations by moving
to a different nominee?
Judge Kavanaugh. All four witnesses who were alleged to be
at the event said it didn't happen, including Dr. Ford's long-
time friend, Ms. Keyser, who said that she didn't know me and
that she does not recall ever being at a party with me with or
without Dr. Ford.
Senator Coons. What I struggle with, Judge Kavanaugh, is
the absence of a fair, Federal law enforcement-driven,
nonpartisan process to question the various people who I think
are critical to this. My concern, should you move forward, is
what it will do to the credibility of the Court and how that
may well hang over your service. I understand your concern
about this----
Judge Kavanaugh. Look, Senator, my----
Senator Coons. But I wish you would join us----
Judge Kavanaugh [continuing]. Reputation has been----
Senator Coons [continuing]. In calling for an FBI
investigation for 1 week to clear or confirm some of these
allegations.
Chairman Grassley. I will give you time to answer.
Judge Kavanaugh. When you say a week delay, do you know how
long the last 10 days have been for us?
Senator Coons. They were probably an eternity. But in the
Judge Thomas confirmation----
Judge Kavanaugh. For us, every day----
Senator Coons [continuing]. It was a 4-day delay.
Judge Kavanaugh [continuing]. Has been a lifetime, and, you
know, yes--and it's been investigated, and all four witnesses
say it didn't happen, and they've said it under penalty of
felony. And I've produced my calendars which show, you know, a
lot that's important evidence. And you act like--I mean, the
last 10 days, I asked for a hearing the day after the
allegation.
Chairman Grassley. Before I call on Senator Lee, I want to
emphasize something here. Talking about doing something without
enough time, we had 45 days between July 30th and September the
13th, I believe it is, when we could have been investigating
this. And in regard to this candidate, if you take the average
of 65 to 70 days between the time that a person is announced by
the President and the Senate votes on it, it is about 65 to 70
days. And here we are at about 85 to 90 days. So there is
plenty of time put in on this nomination.
Senator Lee--oh, no, wait a minute. I have got one other
thing I want to do. Everybody else has been putting letters in
the record. I have a letter here from 65 women who knew Judge
Kavanaugh between the years 1979 and 1983, the years he
attended Georgetown Prep High School. These women wrote to the
Committee because they know Judge Kavanaugh and they know that
the allegations raised by Dr. Ford are completely, totally
inconsistent with his character. These 65 women know him
through social events and church. Many have remained close
friends with him. Here is what they say, partly quoting the
letter: ``Through the more than 35 years we have known him,
Brett has stood out for his friendship, character, and
integrity. He has always treated women with decency and
respect. That was true in high school, and it remains true to
this day.''
``In closing,'' they wrote, Judge Kavanaugh ``has always
been a good person.''
So, without objection, I will put it in the record.
[The information appears as a submission for the record.]
Chairman Grassley. Senator Lee.
Senator Lee. Judge Kavanaugh, you have been cooperative at
every stage of this investigation, both your background
investigation and the investigation conducted by this
Committee. Is that correct?
Judge Kavanaugh. That's correct, Senator.
Senator Lee. It is also correct that you yourself do not
control the FBI or when it conducts an investigation. You are a
nominee. You are not tasked with the job of deciding who, when,
whether, or how conducts an investigation.
Judge Kavanaugh. That's correct.
Senator Lee. But at every moment when he either we or,
prior to taking the jurisdiction over it, the FBI has asked you
questions, you have been attentive and you have been
responsive. Isn't that right?
Judge Kavanaugh. That's correct, throughout my career.
Senator Lee. I have colleagues today who have repeatedly
asked for an FBI investigation, and there are some ironies in
this, ironies that ascend at least two levels.
In the first place, at least one of my colleagues, at least
one of them, had access to this information many, many weeks
before anyone else did, had the ability and I believe the moral
duty and obligation to report those facts to the FBI, at which
point they could have and would have been investigated by the
FBI. And that could have been handled in such a way that did
not turn this into a circus, one that has turned your life
upside down and that of your family and the life of Dr. Ford
and her family upside down. I consider this most unfortunate
given that this was entirely within the control of at least one
of my Democratic colleagues to do this.
The second level of irony here is that while calling
repeatedly for an investigation by the FBI, an investigation
over which you have no ability to control, by the way, an
investigation you have no authority to call for, while calling
for an investigation, we are in the middle of a conversation
that involves questions to you. And so I ask my Democratic
colleagues, if you have questions for Judge Kavanaugh, ask him.
He is right here. If that is really what you want is the truth,
ask him questions right now. If you have questions of other
witnesses, then for the love of all that is sacred and holy,
participate in the Committee investigations that have been
going on, as you have not been participating, with the
Committee staff investigating the outside witnesses.
If someone really were interested in the truth, this is
what they would do. They would participate in the
investigation, and when we have a Committee investigation, a
Committee hearing with live witnesses, they would talk about
that rather than something else they wish they were having in
front of them. If what they want is a search for the truth,
then now is their choice. If, on the other hand, what they want
to do is delay this until after the election, which at least
one of my colleagues on the Democratic side has acknowledged,
then that might be what they would do.
Finally, I want to point out that there is significant
precedent from our former Chairman of this Committee, Chairman
Joe Biden. During the Clarence Thomas hearings, nearly three
decades ago, Chairman Biden made some interesting observations
about FBI reports and their role in this process. Here is what
he said: ``The next person who refers to an FBI report as being
worth anything obviously doesn't understand anything. The FBI
explicitly does not, in this or any other case, reach a
conclusion. Period. Period.'' Those are his dual ``periods,''
not mine.
I continue the quote: ``The reason why we cannot rely on
the FBI report, you would not like it if we did because it is
inconclusive. So when people wave an FBI report before you,
understand they do not--they do not--they do not reach
conclusions. They do not make--as my friend points out more
accurately, they do not make recommendations. In other words,
the role of the FBI is to flag issues. Those issues have been
flagged.'' Sadly, in this case they were flagged not as they
should have been, not in the timing in which they should have
been. And, therefore, they couldn't have been addressed in the
manner that would have preserved a lot more dignity for you,
for your family, and for Dr. Ford and her family. They were
instead held out until the final moment. I consider that most
unfortunate. And for that, on behalf of this Committee, I
extend to you my most profound sympathies, and my most profound
sympathies to Dr. Ford and her family as well.
Chairman Grassley. Senator----
Senator Sasse. Mr. Chairman, since we do not have enough
slots for everyone, can I have the last minute of Senator Lee
so that Senator Kennedy can be recognized?
Judge, we did 38 hours in public with you. Did we have any
private hearings with you?
Judge Kavanaugh. Yes.
Senator Sasse. Was that a fun time for you when people,
when Senators could ask questions that are awkward or
uncomfortable about potential alcoholism, potential gambling
addiction, credit card debt, if your buddies floated you money
to buy baseball tickets? Did you enjoy that time we spent in
here late one night?
Judge Kavanaugh. I am always happy to cooperate with the
Committee.
Senator Sasse. That is charitable. Were you ever asked
about any sexual allegations when we had that time in here with
you alone?
Judge Kavanaugh. No.
Senator Sasse. Did the Ranking Member already have these
allegations for--I guess this would have been September 6 or 7,
and the letter was written on July 30th. A recommendation was
made by the Ranking Member or her staff to Dr. Ford--and, by
the way, I think Dr. Ford is a victim, and I think she has been
through hell, and I am very sympathetic to her. But did the
Ranking Member's staff, did we hear today, make a
recommendation to hire a lawyer and she knew all that, and yet
we had a hearing here with you and none of these things were
asked? But then once the process was closed, once the FBI
investigation was closed, once we were done meeting in public
and in private, then this was sprung on you? I just want to
make sure I have the dates correct. Right? Because we have got
35-plus days from all the time that this evidence was in the
hands, recommendations were made to an outside lawyer, you
could have handled all this, we could have had this
conversation in private in a way that did not, not only do crap
to his family but do----
Chairman Grassley. Senator----
Senator Sasse. I yield my time. I am just trying to see if
he could do math about 35 days. That was a little bit of a
question.
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Good afternoon,
Judge Kavanaugh.
As a Federal judge, you are aware of the jury instruction,
``Falsus in uno, falsus in omnibus,'' are you not? You are
aware of that jury instruction?
Judge Kavanaugh. Yes, I am.
Senator Blumenthal. You know what it means.
Judge Kavanaugh. You can translate it for me, Senator. You
can do it better than I can.
Senator Blumenthal. ``False in one thing, false in
everything,'' meaning, in jury instructions that we--some of us
as prosecutors have heard many times, has told a jury that they
can disbelieve a witness if they find him to be false in one
thing. So the core of why we are here today really is
credibility. Let me talk----
Judge Kavanaugh. The core of why we are here is an
allegation for which the four witnesses present have all said
it didn't happen.
Senator Blumenthal. Let me ask you about Renata Dolphin,
who lives in Connecticut. She thought these yearbook statements
were, quote, ``horrible, hurtful, and simply untrue,'' end
quote, because ``Renata alumni'' clearly implied some boast of
sexual conquest, and that is the reason that you apologized to
her. Correct?
Judge Kavanaugh. That's false, speaking about the yearbook,
and she said she and I never had any sexual interaction. So
your question--your question is false, and I've addressed that
in the opening statement, and so your question is based on a
false premise and really does great harm to her. I don't know
why you're bringing this up, frankly. Doing great harm to her
by even bringing her name up here is really unfortunate.
Senator Blumenthal. Well, calling someone an alumnus in
that way----
Judge Kavanaugh. Well, implying what you're implying
about----
Senator Blumenthal [continuing]. Especially interpreted by
a number of your football friends at the time as boasting of
sexual--that is the reason that I am bringing it up.
Judge Kavanaugh. Yes. No, it's false. You're implying
that--look what you're bringing up right now about her. Look
what you're doing.
Senator Blumenthal. Mr. Chairman, I ask that----
Judge Kavanaugh. Don't bring her name up.
Senator Blumenthal [continuing]. These interruptions not be
subtracted from my time.
Chairman Grassley. Ask your question, and then----
Judge Kavanaugh. She's a great person. She's always been a
great person. We never had any sexual interaction. By bringing
this up, you're just dragging her through the mud. It's just
unnecessary.
Chairman Grassley. Proceed, Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman.
You have made reference, Judge, to a sworn statement, I
believe, by Mark Judge to the Committee. Is that correct?
Judge Kavanaugh. I've made reference to what Mark Judge's
lawyer sent to the Committee.
Senator Blumenthal. Yes. It is not a sworn statement, is
it?
Judge Kavanaugh. Under penalty of felony.
Senator Blumenthal. Well, it is a statement signed by his
lawyer, Barbara VanGelder. It is six cursory and conclusory
sentences. Are you saying that that is a substitute for an
investigation by the FBI or some interview by the FBI under
oath?
Judge Kavanaugh. Under penalty of felony, he said that this
kind of event didn't happen and that I never did or would have
done something like that.
Senator Blumenthal. As a Federal judge, you always want the
best evidence, don't you?
Judge Kavanaugh. Senator, he has said and all the witnesses
present--look at Ms. Keyser's statement. She's--she's----
Senator Blumenthal. Let me move on to another topic. You
have testified to this Committee this morning--this afternoon:
``This whole 2-week effort has been a calculated and
orchestrated political hit, fueled with apparent pent-up anger
about President Trump and the 2016 election, fear that has been
unfairly stoked about my judicial record, revenge on behalf of
the Clintons, and millions of dollars in money from outside
left-wing opposition groups.''
Is it your testimony that the motivation of the courageous
woman who sat where you did just a short time ago was revenge
on behalf of a left-wing conspiracy or the Clintons?
Judge Kavanaugh. Senator, I said in my opening statement
that she preferred confidentiality, and her confidentiality was
destroyed by the actions of this Committee.
Senator Blumenthal. Let me ask you this: In a speech that
you gave at Yale, you described ``falling out of the bus onto
the front steps of the Yale Law School at 4:45 a.m.'' and
then----
Judge Kavanaugh. I wasn't--I wasn't describing me. I
organized----
Senator Blumenthal [continuing]. And trying to----
Judge Kavanaugh. Senator, Senator, let me finish here,
please. I organized a third-year, end-of-school party for 30 of
my classmates to rent a bus to go to Fenway Park in Boston,
which was about a 3-hour trip. I bought all the tickets. You
and I have discussed that before. I bought all the baseball
tickets. I rented the bus. I organized the whole trip. We went
to Fenway Park. Roger Clemens was pitching for the Red Sox. We
had a great time. George Brett was playing third base for the
Royals--actually, he was playing left field that night, and
he--and we went to the game and got back, and then we went out.
It was a great night of friendship----
Senator Blumenthal. I apologize for interrupting, Judge,
but I need to finish the quote before I ask you the question.
The quote ends----
Judge Kavanaugh. I wasn't talking about me.
Chairman Grassley. Okay. We will----
Senator Blumenthal. The quote ends that you tried to,
quote, ``piece things back together, '' end quote, to recall
what happened that night, meaning----
Judge Kavanaugh. I know what happened.
Senator Blumenthal. Well, you----
Chairman Grassley. Judge, let him--will you quickly answer
your question, then I am going to let him answer----
Judge Kavanaugh. I know what happened that night.
Senator Blumenthal. I will finish asking my question.
Chairman Grassley. Please, go ahead, but do it quickly.
Senator Blumenthal. Doesn't that imply to you that you had
to piece things back together, you had to ask others what
happened that night?
Judge Kavanaugh. No, it----
Chairman Grassley. Okay. You take your time now and answer
the question. Then, Senator Crapo.
Judge Kavanaugh. Definitely not. I know exactly what
happened that night. It was a great night of fun. I was so
happy that--there was great camaraderie. Everyone looks back
fondly on the trip to Fenway Park. And then we went out
together, a group of classmates, and I know exactly what
happened the whole night, and I'm happy----
Senator Blumenthal. Judge, do you believe Anita Hill?
Chairman Grassley. Senator Crapo.
[Voice off microphone.] Your time is up. Your time is up.
Chairman Grassley. Senator Crapo.
Senator Crapo. Thank you, Mr. Chairman.
And, Judge Kavanaugh, first I want to get into this whole
question that has been bandied back and forth here almost
endlessly today about the FBI investigation process, because I
think it--I want to follow up a little bit on what Senator Lee
and Senator Sasse have referenced. There has been a lot of talk
here about we need an FBI investigation. In these processes,
which you have been through a number of times now when the FBI
does a background check with regard to a nomination, could you
quickly describe that for us? What does the FBI do?
Judge Kavanaugh. The FBI gathers statements from people who
have information. They don't resolve credibility. They gather
the information, and the credibility determination is made by
the ultimate factfinder, which in this case is the United
States Senate. The Committee, of course, hears gathered
evidence.
Senator Crapo. And the FBI then gives that report to the
White House, if I understand it, and the White House then
transfers it to the Senate. Is that the chain of control?
Judge Kavanaugh. That's my understanding, yes.
Senator Crapo. And as you indicated, it does not do--and it
has been said many times here today; the FBI does not make
judgments. It gives the Senate Committee information.
At that point in time, if I understand the process
correctly, the Senate, the United States Senate Judiciary
Committee, has legal authorities--if it receives information in
an FBI report that it wants to further investigate, the Senate
has legal authority to conduct further investigation. Is that
correct?
Judge Kavanaugh. That's my understanding.
Senator Crapo. And that is what has been referenced here
many times about how some of these witnesses that were
identified in the very late information that we received have
made statements that are under penalty of felony. That is a
felony for lying to the Senate Judiciary Committee. And as I
understand it, what happens is the Senate Judiciary Committee,
which has authority under law to conduct those kinds of
investigations, follows up on the FBI reports to finish out the
investigation that it wants with regard to any information that
it receives that needs further investigation. Is that your
understanding of the process?
Judge Kavanaugh. That is my understanding, Senator.
Senator Crapo. Now, in this case, there has been a lot of
talk here today--and if I have time, I will get into it. It
looks like I will run out of time. But in this case, there is a
lot of concern by many that there was not so much an interest
in an FBI investigation as there was in delay. I am not going
to get to that unless I have time. I want to talk about what
happened in the Senate Committee's investigation, because as I
understand it--and this may be more of a question to the
Chairman--as soon as we received information, which was about
45 days after others on the Committee received it, we conducted
an investigation. Is that correct, Mr. Chairman? I am sorry to
turn the questioning to you, but we began that legal Senate
Judiciary Committee investigation.
Chairman Grassley. Yes.
Senator Crapo. And that investigation involved our fully,
lawfully enabled investigators to conduct an investigation. And
if I understand it correctly, the Democratic Members of the
Committee refused to participate in that investigation.
Chairman Grassley. Yes.
Senator Crapo. And so we have conducted the investigation.
The very kinds of things that my colleagues on the other side
are asking that we tell the FBI to do, this Committee has the
authority to do it, and this Committee does it, and this
Committee has done it.
Now, there may be more demands for more interviews and more
investigation. But when you, Judge Kavanaugh, have referenced
the testimony that has come from those who were supposed--who
were identified as being at this event, the testimony that has
been received from them is information that has been received
pursuant to a Senate Committee investigation. And I just think
it should be made clear. I think there has been a lot of back
and forth here about, oh, we are not getting information, we
are not looking at this, you do not want to look into the
investigation, you do not want to see what happened. The
reality is that this Committee immediately and thoroughly
investigated every witness that has been identified to us, and
we have statements under penalty of felony from them. So I just
want to conclude with that. I have got 45 seconds left, so I am
going to just ask you one quick question, again, on timing. You
had a meeting with Senator Feinstein on August 20th?
Judge Kavanaugh. It's my understanding--yes, well, I had a
meeting, and that's my understanding of the date.
Senator Crapo. Of the date, yes. What was established
earlier in testimony here today was that the Ranking Member's
staff helped Dr. Ford to retain the Katz law firm on--sometime
between July 30th and August 7th. So I just wanted you to
clarify one more time. In the meeting that you had 2 weeks or
more later, this issue was not raised with you.
Judge Kavanaugh. The issue was not raised.
Senator Crapo. All right. Thank you. My time is up.
Chairman Grassley. We will take a 5-minute break now.
[Whereupon the Committee was recessed and reconvened.]
[Voice off microphone.]
Judge Kavanaugh. I'm good.
Chairman Grassley. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. Judge Kavanaugh,
my colleagues on the other side are accusing the Democrats of
some sort of political conspiracy, but that's because they want
us to distract--they want to distract us from what happened
here this morning. And what happened here this morning was that
we heard from Dr. Christine Ford, who spoke to us with quiet,
raw emotional power about what happened to her.
She said she was 100 percent certain that it was you who
attacked her, and she explained how she came forward, how she
struggled with her decision, how she wanted the President to
know so that he could make a better choice. So, when you and my
colleagues on the other side accuse us of ambushing you with
false charges, I think we all have to remember Dr. Ford's
testimony and her courage.
Let me go back to something you just said in your opening.
You said you thought at your first hearing ``the Democrats were
an embarrassment.'' We asked you a lot of questions in those
days, and which of our questions do you think were an
embarrassment? I asked you about dissents you had written as a
judge, an amicus brief you wrote as a lawyer, and your
knowledge of sexual harassment and abuse by your close friend
and mentor, Alex Kozinski, all valid questions in this setting.
They are valid because this is a job interview for the one of
the most important positions of trust in this country. And
earlier, you agreed that this process of advice and consent is
really a job interview, certainly not a criminal trial. There's
certainly no entitlement for you to be confirmed to the Supreme
Court. Are credibility, character, and candor of a nominee
things for us to consider in your job interview?
Judge Kavanaugh. I think my whole life is subject to
consideration.
Senator Hirono. Is that ``yes''? Credibility, character,
and candor?
Judge Kavanaugh. My whole life----
Senator Hirono. Are those specific traits that would be of
interest to us as we consider putting you for life on the
highest court in the country? Credibility, character, and
candor.
Judge Kavanaugh. Of course, and as part of my whole life.
Senator Hirono. Thank you. Is temperament also an important
trait for us to consider?
Judge Kavanaugh. For 12 years, everyone who has appeared
before me on the D.C. Circuit has praised my judicial
temperament. That's why I have the unanimous well-qualified
rating from the American Bar Association. And all the people
who have appeared before me----
Senator Hirono. So, you would agree that temperament is
also an important factor for----
Judge Kavanaugh. Yes, and the Federal Public Defender, who
testified to the Committee, talked about how I was always open-
minded and how I had ruled in favor of unpopular defendants,
how I was fair-minded. I think universally, lawyers who have
appeared before the D.C. Circuit----
Senator Hirono. So, the answer is yes. I am running out of
time. You know, we only have 5 minutes, so let me get to
something else. In your Fox News interview, you said that you
``always treated women with dignity and respect,'' and that in
high school you never ``drank so much that you couldn't
remember what happened the night before.'' Would you say the
same thing about your college life?
Judge Kavanaugh. Yes.
Senator Hirono. So, I'd like to read you statements from
people who knew you in college.
Judge Kavanaugh. Can I say one thing?
Senator Hirono. And it was noted that James Roche said,
your roommate, ``Although Brett was normally reserved, he was a
notably heavy drinker even by the standards of the time, and he
became aggressive and belligerent when he was drunk.'' So, is
your former college roommate lying?
Judge Kavanaugh. I would refer you to what I said in the
sealed or redacted portion about his relationship with the
other two roommates, and I'm going to leave it at that. I will
say, Senator, you're asking about college. I got into Yale Law
School. That's the number one law school in the country. I have
no connections there. I got there by busting my tail in
college.
Senator Hirono. I feel insulted as a Georgetown graduate.
[Laughter.]
Judge Kavanaugh. Excuse me?
Senator Hirono. But go on.
Judge Kavanaugh. I'm sorry. It's ranked number one. That
doesn't mean it's number one.
[Laughter.]
Judge Kavanaugh. And, you know, in college, two things: (a)
I studied, I was in Cross Campus Library every night, and (b) I
played basketball for the junior varsity. I tried out for the
varsity. The first day I arrived on campus, we had captains
workouts. I played basketball every day all through, and then
as soon as the season was over in late February, captains
workouts started out again. I was obsessed with being the best
basketball player.
Senator Hirono. So, you were not--I only have 23 seconds.
So, you were not a sloppy drunk, and so your roommate was
lying.
Judge Kavanaugh. I refer you--I will refer you again to the
redacted portion. I'll say look at my academic record. And I
don't usually like to talk about myself this way, but in
response to you, you know, I worked very hard in college in my
studies, and I also played basketball, did sports, and I also
did socialize.
Senator Hirono. Excuse me. I know that the Chairman is
going to stop me, but I do have some other references from
other people who knew you, who say that you were not the basic
choirboy, but----
Chairman Grassley. Your time is up.
Senator Hirono. Hold on. I'm sorry. Mr. Chairman----
Chairman Grassley. Senator Tillis.
Senator Hirono. I would like--Mr. Chairman--okay, I'll wait
until we finish because I just want to enter some letters into
the record.
Chairman Grassley. Oh, yes.
Senator Hirono. Could I do that? It's not a question.
Chairman Grassley. It wasn't clear that's what you were
doing.
Senator Hirono. I could go on, but, Mr. Chairman, I'd like
to enter into the record four letters. One is dated September
18th, 2018 to you from all of the Democrats on this Committee.
Another is a letter dated September 18th to Christopher Wray,
the director of the FBI, and Don McGahn, counsel to the
President, signed by all the Democrats on this Committee. A
September 21st letter signed by Chuck Schumer and Dianne
Feinstein to the President, and a September 26th letter signed
by all the Democrats on this Committee, all requesting an FBI
investigation because you did say all we have to do is ask, and
the implication being that if we asked, an investigation will
happen, and it certainly has not happened. Thank you, Mr.
Chairman.
Chairman Grassley. Without objection, that will be
included.
[The information appears as submissions for the record.]
Chairman Grassley. Senator Tillis.
Senator Tillis. Thank you, Mr. Chairman. Judge Kavanaugh,
thank you again for being here, and I apologize for what you're
going through right now. I can't imagine. I've gone through a
campaign and had a lot of smears, but it pales in comparison to
what you've had to deal with.
I think one thing--one point that I'd like to make from the
onset, if we go back and review how this Committee processes
work, we've got a lot of work to do. We've had Members take it
on themselves to release Committee confidential documents
instead of respecting the process. We've had an allegation held
for nearly 7 weeks that would've given us plenty of time to
investigate. And then when we finally got the information, I
invite everybody, particularly the American public--there is an
investigation going on, and a lot of it has been documented.
There's a chronology on the website that says that each and
every time an allegation was made, the staff followed up on it.
And sadly, in several different instances, the Democrats
declined to participate. They listened in on at least one
interview with you and didn't ask a single question. If they
wanted to find other leads and other things to do, why not ask
if you're really trying to get to the facts, if you're really
trying to do your job to investigate. We're investigating. It's
our job.
I think in response to the Ranking Member's question that
Judge Kavanaugh said, ``I'm here, you're asking me questions.''
But you know what? When the Committee staff, I assume directed
by the Ranking Member, says, no, we're not going to ask
questions of Judge Kavanaugh, when he wanted to come in and
clear his good name, what are you really after? You may not be
after the truth. Maybe you are. Maybe you're after executing
some sort of a political agenda. Maybe it's a mix of both. But
I think you've been treated unfairly, and I'm amazed that after
32 hours of testimony, one-and-a-half hours I sat in this room,
that none of these questions came up when it was all fully
known. Lawyered up, as a matter of fact.
I also want to go back to the comments this morning. I
think I heard, and we can go back to the record if someone
disagrees with me. I think I heard Dr. Ford say that she wasn't
aware of the fact that we said we'd come to California, we'd
make it confidential, we'll completely depose and ask any
questions you want to. I think I heard her say she wasn't aware
of that. I don't know whether that came with counsel or not or
whether counsel just neglected to tell her, her counsel, but
the fact of the matter is, that offer was out there.
We were moving heaven and earth and even moving the
schedule to get to the truth. We're doing an investigation.
We're doing our level best. I hope that the American people who
are watching this will go out to the Senate Judiciary website
and take a look at this chronology. Take a look at the lack of
investigation on the part of the people who want the
investigation. It doesn't make a lot of sense. Every
opportunity you had to go and question a witness, every
opportunity that we've had to find more truth, to find more
facts, we've done it. It's documented. We've got sworn
statements. We're doing our job. We're doing the Committee
work.
Judge Kavanaugh, I also have to say I believe that you're a
part of--you're the first major target of a new strategy that's
developed here, and I think you're right. I think it's just
basically attack, attack, attack. It's not advise and consent.
It's search and destroy. And maybe one of the best evidence of
this is one of the websites--one of the groups that are out
there attacking you and trying to create fodder and all of
these red herrings has already acquired a URL for the next
judge that they're going to attack. The URL is right here.
They've already purchased it. They're ready to go. This is the
playbook. This is the way we're going to run this Committee
from this point forward? Take a look at it. I'll make sure we
get it out on our website.
We've already got a ``stop another judge who hasn't been
nominated'' URL from the same people that are trying to
mobilize people to attack you. There are some people here who
may sincerely have concerns. I would tell you to pound the
table with your Ranking Member and the leadership on your side
to say, ``Why didn't we ask questions?'', ``Why did we listen
in and defer?'', ``Why didn't we do our part of the
investigation while this leader did everything he could to
accommodate Dr. Ford and to run every single lead that's been
presented to us weeks after it was known to the Minority?''
I look forward to supporting your confirmation. I believe
that you're going to be on the Bench. You know--as Senator
Cornyn said, these are allegations that can be pursued through
the courts if they actually rise to a level to where they could
be prosecuted. And everybody on the other side of this dais
knows that that's not going to happen.
Chairman Grassley. Senator Booker.
Senator Booker. Judge Kavanaugh, you drank on weekdays as
well in high school, not just weekends.
Judge Kavanaugh. Weekdays?
Senator Booker. Yes, sir.
Judge Kavanaugh. I would say that's rare. You're talking
about during the school year?
Senator Booker. I'm talking about the calendars that you
provided during these dates in that summer.
Judge Kavanaugh. Oh, that's in the summer after a football
workout when we went over to----
Senator Booker. You drank on weekdays, ``yes'' or ``no,''
sir.
Judge Kavanaugh. In the summer when we went over to Timmy's
house on July 1st. That would indicate yes.
Senator Booker. Yes. In other words, that July 1st
reference to ``skis''--went over for ``skis,'' that's
brewskies, correct?
Judge Kavanaugh. And after Tobin----
Senator Booker. Sir. Sir, I just need a ``yes'' or ``no.''
That's ``brewskies,'' right?
Judge Kavanaugh. Well, I need to explain in context.
Senator Booker. You just said, sir, that you drank on
weekdays. That's all I was looking for.
Judge Kavanaugh. Well, no, that's not--you're----
Senator Booker. If I may--if I may ask the next question,
sir. You said clearly on the record--I just want you to restate
it--that you never in your life after drinking heavily to the
point of throwing up, and, again, you said you had a weak
stomach, you never had gaps in memory, never had any losses
whatsoever, never had foggy recollection about what happened.
Is that correct, sir? ``Yes'' or ``no''?
Judge Kavanaugh. That's what I said.
Senator Booker. Okay. Sir, you also said that this past 2--
this past 2 weeks has been a 2-week effort ``calculated and
orchestrated as a political hit.'' Are you saying that Dr.
Ford's efforts to come forward to prepare for the very
difficult testimony she gave today, to travel to Washington,
DC, and tell us about her experience, have all been part of an
orchestrated political hit? And are you basically calling her
some kind of political operative?
Judge Kavanaugh. I've said my family has no ill will toward
Dr. Ford. She wanted confidentiality. Her confidentiality was
blown by the actions of this Committee, and it's caused--it's
turned this into a circus.
Senator Booker. So, sir, let's just be clear. In other
words, you have problems with the Senators up here and how we
conducted it, but you're not saying in any way that she is a
political pawn, political operative. You have sympathy for her.
She is talking about a sexual assault. Is that correct?
Judge Kavanaugh. I said all allegations should be taken
seriously. You should listen to both sides. My family has no
ill will toward her.
Senator Booker. Thank you, sir. Do you wish that she never
came forward?
Judge Kavanaugh. Senator, I did not do this. The witness--
--
Senator Booker. That's not my question, sir. Could you try
to answer my question, sir? Do you wish she never came forward?
Judge Kavanaugh. The witnesses who were there say it didn't
happen.
Senator Booker. Okay, sir. Do you wish she had just
remained silent then?
Judge Kavanaugh. I wish--the witnesses who were there say
it didn't happen. All allegations should be taken seriously.
Senator Booker. So, even if it's in the final days, days
before a vote, if someone has a credible allegation of
experience that they held for a long time, that person should
be allowed to come forward, and, in fact, as she said, it was
her civic duty. You're not questioning her sense of civic duty,
are you?
Judge Kavanaugh. She did come forward, and then the--then
it----
Senator Booker. I know you have a lot of political animus,
you stated it very clearly, toward my colleagues and I on this
panel. What I--what I'm trying to get to the bottom of is you
do not see her specifically as part of an orchestrated--she is
not a political pawn.
Judge Kavanaugh. I don't know her, but I've also said that
we bear no ill will toward her. She wanted confidentiality.
This could've been handled----
Senator Booker. And I understand, but she came forward. She
took a great extent.
Judge Kavanaugh. Yes.
Senator Booker. Your family has gone through hell. Her
family has gone through hell. She sat here, she told her truth,
and you made the allegation that she was coordinating it. I do
not think that she was coordinating with the therapist----
Judge Kavanaugh. I did not say that. That's a----
Senator Booker. You said--I'm sorry. You said that others
were making a coordinated----
Judge Kavanaugh. A coordinated----
Senator Booker. Forgive me. You were talking about us, not
her.
Judge Kavanaugh. People in this room.
Senator Booker. So, she was not----
Judge Kavanaugh. People in this room coordinated.
Senator Booker. She was not doing this for political
efforts in 2012 when she talked to her therapist about this
attack. She was not coordinating about this painful--when she
made revela--painful experience when she made revelations to
her husband. She did not coordinate in 2013, '16, 2017, before
you were even nominated, when she revealed that it was you--
with three different people--that had sexually assaulted her.
That wasn't coordination.
Judge Kavanaugh. All the witnesses who were there say it
didn't happen. Ms. Keyser is her long-time friend, said she
never saw me at a party with or without Dr. Ford.
Senator Booker. And Ms. Keyser has said clearly, and I'll
quote what she said, she said she does not remember, and I
didn't question that. That supports what you said. But she also
says that she believes Dr. Ford. And so, my colleague, Lindsey
Graham, who I respect and have admiration to and has been a
partner of mine, he said voting no would be legitimizing the
most despicable thing in American politics. Do you think that
people who believe Dr. Ford are legitimizing despicable things?
Those of us who think she's a credible witness, the allegations
against her are credible, do you think that somehow we're
engaging in something that's despicable?
Judge Kavanaugh. Senator, I say listen to both sides before
you make a bottom-line conclusion, and look at the----
Senator Booker. That is fair. I have 10 seconds left, sir.
Judge Kavanaugh. You have my calendars.
Senator Booker. You can answer after I finish. You have 10
seconds left. That is fair. Listen to both sides. This is not
about somebody--one side being despicable, the other side not.
Listen to both sides. She was a credible--I'm going to finish
my question and you can answer. She gave credible, meaningful
testimony, a woman who had the courage to come forward and tell
her truth, sir, and that's what I'm just asking you to say. She
is not a political pawn. She is not orchestrating. She is not
part of the Clintons' efforts to get some kind or revenge. She
is a woman who came here with corroborating evidence to tell
her truth.
Chairman Grassley. Is that a question?
Senator Booker. No, sir, it was a final statement.
Chairman Grassley. Senator Cruz.
Judge Kavanaugh. Just that one thing, Mr. Chairman.
Chairman Grassley. Yes.
Judge Kavanaugh. The evidence is not corroborated at the
time. The witnesses who were there say it didn't happen.
Senator Feinstein. No, that's not what they said.
Chairman Grassley. Okay. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Judge Kavanaugh, you
and your family have been treated incredibly poorly by Senate
Democrats and by the media. And let me say also I think Dr.
Ford and her family have been treated incredibly poorly by
Senate Democrats and the media. You have both seen your good
names dragged through the mud, and this has been, sadly, one of
the most shameful chapters in the history of the United States
Senate.
Let me say to you and your family, thank you for a lifetime
of public service. I will say watching your mother's pained
face has been heart-wrenching as she's seen her son's character
dragged through the mud after not only your lifetime of public
service, but her lifetime of public service as well. And I know
as a father, there's been nothing more painful to you than
talking to your daughters and explaining these attacks that the
media is airing. I also believe, though, that the American
people are fair-minded people, that the American people can set
aside the partisan warfare of Washington and look to substance
and facts, and that is the charge of this Committee.
Now, there have been three different sets of allegations
that have dominated the media. I think it's important to note
that two of those sets of allegations had so little
corroboration that even The New York Times, which is no
conservative outlet, refused to report on them because they
could find no basis for them. And it was striking in this
entire hearing that not a single Democrat in this Committee
asked about two sets of those allegations, Ms. Ramirez's
allegations and the allegations of the client of Mr. Avenatti.
Not a single Democrat. I don't know if they were just too
embarrassed. Mr. Avenatti's allegations were so scandalous that
the Ranking Member omitted his client's most scandalous
accusations of you as a criminal mastermind essentially,
omitted those scandalous accusations from her statement.
This hearing has focused, rightly so, on the allegations
Dr. Ford presented. And let me say I think the Committee did
the right thing in giving Dr. Ford a full and fair opportunity
to tell her story. That's what we needed to do when these
allegations became public, and the Committee treated her with
respect as we should. I do not believe Senate Democrats have
treated you with respect.
What do we know? We know that her testimony and your
testimony are in conflict. A fair-minded assessor of facts
would then look to what else do we know when you have
conflicting testimony. Well, we know that Dr. Ford identified
three fact witnesses who she said observed what occurred. All
three of those fact witnesses have stated on the record under
penalty of perjury that they do not recall what she is alleging
happening. They have not only not corroborated her charges,
they have explicitly refuted her charges. That's significant to
a fair-minded fact finder.
In addition, you've walked through before this Committee
your calendars from the time. Now, I will say you were a much
more organized teenager than I was and that many of us were.
But it was a compelling recitation of night by night by night
where you were in the summer of 1982. That is yet another
contemporaneous piece of fact to assess what happened.
And we also know that the Democrats on this Committee
engaged in a profoundly unfair process. The Ranking Member had
these allegations on July 30th, and for 60 days--that was 60
days ago. The Ranking Member did not refer it to the FBI for an
investigation. The Ranking Member did not refer it to the full
Committee for an investigation. The Ranking Member--this
Committee could've investigated those claims in a confidential
way that respected Dr. Ford's privacy. And some of the most
significant testimony we heard this morning is Dr. Ford told
this Committee that the only people to whom she gave her letter
were her attorneys, the Ranking Member, and her Member of
Congress.
And she stated that she and her attorneys did not release
the letter, which means the only people that could've released
that letter were either the Ranking Member and her staff or the
Democratic Member of Congress because Dr. Ford told this
Committee those are the only people who had it. That is not a
fair process, and we should look to the facts, not anonymous
innuendo and slander.
Senator Feinstein. Mr. Chairman, I ask for a point of
personal privilege to respond.
Chairman Grassley. Proceed.
Senator Feinstein. Mr. Chairman, let me be clear. I did not
hide Dr. Ford's allegations. I did not leak her story. She
asked me to hold it confidential, and I kept it confidential as
she asked. She apparently was stalked by the press, felt that--
what happened, she was forced to come forward, and her greatest
fear were realized--was realized. She's been harassed, she's
had death threats, and she's had to flee her home. In addition,
the investigation that the Republican Majority is heralding is
really nothing that I know about other than a partisan
practice. Normally, all the witnesses would be interviewed.
However, that's not happened. While the Majority has reached
out to several people, they did not notify me or my staff that
they were doing this. And so, to argue that we would not
participate, but not tell us what they were up to, is somewhat
disingenuous.
I was given some information by a woman who was very much
afraid, who asked that it be held confidential, and I held it
confidential until she decided that she would come forward.
Senator Cornyn. Mr. Chairman, would the Ranking Member
answer a question, please?
Senator Feinstein. If I can.
Senator Cornyn. I have great respect for Senator Feinstein.
We've worked together on many topics, and I believe what you
just said. Can you tell us that your staff did not leak it?
Senator Feinstein. I don't believe my staff would leak it.
I have not asked that question directly, but I do not believe
they would do it.
Senator Cornyn. Do you know that? I mean, how in the world
did that get in the hands of the press unless----
Senator Feinstein. The answer is ``no.'' The staff said
they did not.
Senator Cornyn. Have you asked--have you asked your staff--
--
Senator Feinstein. I just did.
Senator Cornyn [continuing]. Or other staff members of the
Judiciary Committee?
Senator Feinstein. Pardon me? Jennifer reminds me I've
asked her before about it, and that's true.
Senator Cornyn. Well, somebody leaked it, if it wasn't you.
Senator Feinstein. Well, it--I'm telling you it was not--I
did not. I mean, I was asked to keep it confidential, and I'm
criticized for that, too.
Senator Cruz. Mr. Chairman, could I ask the Chairman a
question, which is, does the Committee have a process if there
is an allegation against any nominee----
Chairman Grassley. No.
Senator Cruz [continuing]. To assess that allegation in a
confidential forum rather than in the public? Since Dr. Ford
requested that it be kept confidential, is there a process for
the Committee for considering confidential allegations?
Chairman Grassley. And the answer is ``yes,'' and Senator
Tillis pointed out the document that I put out to show all of
the things that we've done along the lines of your question.
Senator Cruz. And, Mr. Chairman, what would you have done
if on July 30th the Ranking Member had raised this allegation
with you? As the Chairman of this Committee, how would you have
handled it?
Chairman Grassley. We would've done like we have done with
every background or, let's say, FBI report that comes from the
White House for a nominee. And then subsequent to that, because
maybe the FBI got done with it 3 months ago, we go through the
FBI or information comes to us. Then we have our investigators
in a bipartisan way, both Republicans and Democrats, follow up
on whatever those questions are or those problems that have to
be worked out.
Senator Cruz. So, bipartisan investigators could've
investigated this 2 months ago, and it could've been heard in a
confidential setting without Dr. Ford's name or Judge
Kavanaugh's name being dragged through the mud. Is that
correct?
Chairman Grassley. And except for one or two conversations
that we had with the Judge through our investigators, Democrats
didn't participate except in those two. But in those two, one
or two, they didn't ask any questions.
Senator Cruz. Thank you, Mr. Chairman.
Chairman Grassley. I want to----
Senator Feinstein. Mr. Chairman?
Chairman Grassley. Yes, go ahead.
Senator Feinstein. May I--may I respond? It's my
understanding that her story was leaked before the letter
became public. And she testified that she had spoken to her
friends about it, and it's most likely that that's how the
story leaked and that she had been asked by press. But, it did
not leak from us. I assure you of that.
Senator Cornyn. Well, Mr. Chairman, I'm a little confused.
I thought only the Member of the House, and Senator Feinstein,
and her lawyers had the letter. So, her friends she might've
talked to about it couldn't leak the letter if they just had a
verbal conversation, unless she gave them a copy of the letter.
Senator Feinstein. Senator, I don't think the letter was
ever leaked.
Senator Cornyn. Well, how did the press know to contact her
about her complaint?
Senator Feinstein. She apparently--she testified here this
morning that she had talked to friends about it, and that press
had talked to her.
Chairman Grassley. Senator or Judge, since there was a
reference to the problems--the legitimate problems and the--and
the change of lifestyle that Dr. Ford had, if you want some
time to say the impact on your family, I'd be glad to hear you.
If you don't want to talk about it, that's okay.
Judge Kavanaugh. I've talked about that, Mr. Chairman.
Chairman Grassley. Okay. Then Senator Harris.
Senator Harris. Thank you. Judge Kavanaugh, have you taken
a professionally administered polygraph test as it relates to
this issue?
Judge Kavanaugh. No, the--I'll do whatever the Committee
wants. Of course, those are not admissible in Federal court,
but I'll do whatever the Committee wants. They're not
admissible in Federal court because they're not reliable.
Senator Harris. Thank you.
Judge Kavanaugh. As you know.
Senator Harris. So, you have not taken one.
Judge Kavanaugh. Right.
Senator Harris. All three of the women who have made sworn
allegations against you have called for an independent FBI
investigation into the claims. You've been asked during the
course of this hearing by four different Members, by my count,
at least 8 times today and also earlier this week on national
television, whether you would call for the White House to
authorize an FBI investigation. Each time you have declined to
do so.
Now, you know--I know you do--that the FBI is an agency of
men and women who are sworn and trained law enforcement, who in
the course of conducting background investigations on nominees
for the Supreme Court of the United States and others, are
charged with conducting those background investigations because
they are sworn law enforcement, and they have the expertise and
the ability and the history of doing that. So, I'm going to ask
you one last time. Are you willing to ask the White House to
authorize the FBI to investigate the claims that have been made
against you?
Judge Kavanaugh. Well, I'll do whatever the Committee
wants. Of course----
Senator Harris. And I've heard you say that----
Judge Kavanaugh. The witness statements----
Senator Harris [continuing]. But I've not heard you answer
a very specific question that's been asked, which is, Are you
willing to ask the White House to conduct an investigation by
the FBI to get to whatever you believe is the bottom of the
allegations that have been levied against you.
Judge Kavanaugh. The FBI would gather witness statements.
You have the witness statements.
Senator Harris. Sir, it's--I'm not----
Judge Kavanaugh. They don't----
Senator Harris. I don't want to debate with you how they do
their business. I'm just asking, are you willing to ask the
White House to conduct such an investigation because as you are
aware, the FBI did conduct a background investigation into you
before we were aware of these most recent allegations. So, are
you willing to ask the White House to do that. It is a ``yes''
or ``no,'' and then we can move on.
Judge Kavanaugh. I've had six background investigations
over 26 years.
Senator Harris. Sir, as it relates to the recent
allegations, are you willing to have them do it?
Judge Kavanaugh. The witness testimony is before you. No
witness who was there supports that I was there.
Senator Harris. Okay. I'm going to take that as a ``no,''
and we can move on. You have said--in your opening statement
you characterized these allegations as a conspiracy directed
against you. I'll point out to you that Judge--Justice now--
Neil Gorsuch was nominated by this President. He was considered
by this body just last year. I did a rough kind of analysis of
similarities. You both attended Georgetown Prep. You both
attended very prestigious law schools. You both clerked for
Justice Kennedy. You were both circuit judges. You were both
nominated to the Supreme Court. You were both questioned about
your record. The only difference is that you have been accused
of sexual assault. How do you reconcile your statement about a
conspiracy against you with the treatment of someone who was
before this body not very long ago?
Judge Kavanaugh. I explained that in my opening statement,
Senator. Look at the evidence here, the calendars. Look at the
witness statements. Look at Ms. Keyser's statement.
Senator Harris. Okay. And then do you agree that it is
possible for men to both be friends with some women and treat
other women badly?
Judge Kavanaugh. Of course, but the point I've been
emphasizing, and that is, if you go back to age 14 for me, you
will find people, and not just people, lots of people who I've
been friends with, some of whom are in this room today starting
at age 14, women, and who talked about my friendships with them
through my whole life. And it's a consistent pattern all the
way through.
Sixty-five women who knew me more than 35 years ago signed
a letter to support me after the allegation was made because
they know, and they were with me, and we grew up together. We
talked on the phone together, and we went to events together.
That is who I am, what they've said, what the people who worked
with me in the Bush White House, the women there. Look at what
Sarah Day said in CentralMaine.com. Look at the--what the law
clerks. I have sent more women law clerks to the Supreme Court
than any other Federal judge in the country.
Senator Harris. I only have a few seconds left, and I'll
just ask a direct question. Did you watch Dr. Ford's testimony?
Judge Kavanaugh. I did not. I planned to.
Senator Harris. Thank you. Thanks. Thank you.
Judge Kavanaugh. I planned to, but I did not. I was
preparing mine.
Chairman Grassley. Our last 5 minutes will be Senator
Flake, 1 minute, and Senator Kennedy, 4 minutes.
Senator Flake. Thank you, Mr. Chairman. When Dr. Ford came
forward with her account, I immediately said that she should be
heard and asked the Chairman to delay the vote that we had
scheduled, and the Chairman did, and I appreciate that. She
came at great difficulty for her and offered compelling
testimony. You have come and done the same.
I am sorry for what's happened to you and your family as
I'm sorry for what has happened to hers. This is not a good
process, but it's all we've got. And I would urge my colleagues
to recognize that in the end we are 21 very imperfect Senators
trying to do our best to provide advice and consent, and in the
end there's likely to be as much doubt as certainty going out
of this room today. And as we make decisions going forward, I
hope that people will recognize that. And the rhetoric that we
use and the language that we use going forward, that we'll
recognize that, that there is doubt. We'll never move beyond
that, and just have a little humility on that front. So, thank
you.
Chairman Grassley. Thank you, Senator Flake. Now Senator
Kennedy.
Senator Kennedy. Yes, sir. I'm sorry, Judge, for what you
and your family have been through, and I'm sorry for what Dr.
Ford and her family have been through. It could've been
avoided. Do you believe in God?
Judge Kavanaugh. I do.
Senator Kennedy. I'm going to a last opportunity, right
here, right in front of God and country. I want you to look me
in the eye. Are Dr. Ford's allegations true?
Judge Kavanaugh. They're not accurate as to me. I have not
questioned that she might have been sexually assaulted at some
point in her life by someone some place, but as to me, I've
never done this. Never done this to her or to anyone else. And
I've talked to you about what I was doing that summer of 1982,
but I'm telling you I've never done this to anyone, including
her.
Senator Kennedy. Are Ms. Ramirez's allegations about you
true?
Judge Kavanaugh. Those are not. None of the witnesses in
the room support that. If that had happened, that would've been
the talk of campus, in our freshman dorm. The New York Times
reported that as recently as last week she was calling other
classmates seeking to--well, I'm not going to characterize it,
but calling classmates last week, and it just seemed very--I'll
just stop there, but it's not true. It's not true.
Senator Kennedy. Are Ms. Swetnick's allegations, made by
Mr. Avenatti, about you true?
Judge Kavanaugh. Those are not true. Never met her. Don't
know who she is. There was a letter released within 2 hours of
that breaking yesterday from, I think, 60 people who knew me in
high school, men and women, who said it was, their words,
nonsense, totally--you know, the whole thing, totally
ridiculous.
Senator Kennedy. None of these allegations are true.
Judge Kavanaugh. Correct.
Senator Kennedy. No doubt in your mind.
Judge Kavanaugh. Zero. I'm a hundred percent certain.
Senator Kennedy. Not even a scintilla.
Judge Kavanaugh. Not a scintilla. Hundred percent certain,
Senator.
Senator Kennedy. You swear to God.
Judge Kavanaugh. I swear to God.
Senator Kennedy. That's all I have, Judge.
Chairman Grassley. Judge Kavanaugh, thank you very much.
Hearing adjourned.
[Whereupon, at 6:44 p.m., the Committee was adjourned.]
[Additional material submitted for the record for Day 1,
Day 2, Day 3, Day 4, and Day 5 follows.]
A P P E N D I X
Additional Material Submitted for the Record
[Some submissions contain redactions.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Hon. Brett M. Kavanaugh Questionnaire Attachment, Appendix 13(c)
The link listed below is a Submission for the Record not printed due to
voluminous nature, previously printed by an agency of the Federal
Government, or other
criteria determined by the Committee:
Kavanaugh, Hon. Brett M., Nominee to serve as Associate Justice of
the Supreme
Court of the United States, questionnaire attachment, Appendix
13(c):
https://www.judiciary.senate.gov/imo/media/doc/Brett%20M.%20
Kavanaugh%2013(c)%20Attachments.pdf
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Monica Mastal
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]