[Congressional Record Volume 152, Number 68 (Friday, May 26, 2006)]
[Senate]
[Pages S5303-S5311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF BRETT M. KAVANAUGH TO BE UNITED STATES CIRCUIT JUDGE FOR 
                    THE DISTRICT OF COLUMBIA CIRCUIT

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
proceed to executive session and resume the consideration of Calendar 
No. 632, which the clerk will report.
  The legislative clerk read the nomination of Brett M. Kavanaugh, of 
Maryland, to be United States Circuit Judge for the District of 
Columbia Circuit.
  The PRESIDENT pro tempore. The distinguished minority leader is 
recognized.
  Mr. REID. Mr. President, the distinguished ranking member of the 
Judiciary Committee wishes to speak on the nomination of Brett 
Kavanaugh. I also wish to do that.
  I ask that the Senator from Vermont be recognized.
  The PRESIDENT pro tempore. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, we are concluding the debate on the 
controversial nomination of Brett Kavanaugh to a seat on the Court of 
Appeals for the District of Columbia Circuit.
  I spoke last evening, and I shall not speak longer today except to 
again express my concern that we are putting a person with no judicial 
experience on the second most powerful court in the land.
  This vote will go forward, unlike the votes for two far more 
qualified people nominated by President Clinton who were pocket-
filibustered by the Republican leadership of the Senate, along with 59 
other judges nominated by President Clinton who were pocket-
filibustered by the Republican leadership.
  What I worry about with this nomination of Mr. Kavanaugh, whose ABA 
rating has been downgraded--it is almost unprecedented to see that 
happen--is that he is a man who in all his statements spoke of making 
rulings that would make President Bush proud. This is an independent 
branch of Government. He is not supposed to make any President--
Republican or Democratic--proud. He is not supposed to be a rubberstamp 
for anybody.
  I think when you have a Republican-controlled Congress which has 
refused to be a check on the Bush-Cheney administration, whether it is 
the war in Iraq, the lack of weapons of mass destruction, the failures 
of Homeland Security with Katrina, or this latest fiasco in the 
Veterans' Administration, there is no accountability. We at least 
should be able to speak to our courts and to expect our courts to be 
accountable.
  This is an administration that has been secretly wiretapping 
Americans for years without warrants, despite the requirements of the 
law. This is an administration that refused to allow the Justice 
Department's own Office of Professional Responsibility to proceed

[[Page S5304]]

with an investigation into whether Justice Department lawyers violated 
their responsibilities or the law in establishing and justifying 
programs to spy on Americans. This is an internal government 
investigation that is being stymied by the administration.
  This is an administration that has operated behind a wall of secrecy 
and that has issued secret legal opinions justifying the use of torture 
and rendition of prisoners to other countries, ignoring the dangers 
such tactics pose to our own soldiers and Americans around the world. 
This is an administration that is talking about prosecuting reporters 
and newspapers for trying to inform the American people about their 
government. This is an administration that says the law is what the 
President decides the law should be not what Congress passes.
  What is desperately lacking throughout this administration and this 
Republican-controlled Congress is accountability. I will give you one 
example.
  Yesterday, those responsible for Enron's collapse, which caused so 
many employees and investors to lose their savings, were held 
accountable in a court of law. Precious little was done by the 
Republican-controlled Congress to look into that. It required an 
independent court of law. Of course, Enron had been very generous to 
the President and to others and to many among the Republican leadership 
in the House and Senate in their contributions.
  I compliment the President, who yesterday expressed some regrets over 
the disastrous course he charted in Iraq; he began to acknowledge the 
harm done to this country in Abu Ghraib--far different than during his 
campaign when he said he could not think of a mistake he had ever made 
except for some of his nominations.
  Well, the President's picks for important judicial nominations 
continue to fare no better than his picks to head the CIA or FEMA or 
the VA. But bad judicial nominations will continue for lifetimes, not 
just the 2 years left to the Bush-Cheney administration. In just the 
past few months, we have learned that Judge Terrence Boyle, President 
Bush's pick for the Fourth Circuit and a sitting U.S. district judge, 
has ruled on multiple cases involving corporations in which he held an 
interest. The President's nominee to the Tenth Circuit, Judge James 
Payne, was withdrawn after it was revealed that he, too, sat on many 
cases where he held stock in one of the parties. Another of President 
Bush's nominees to the Fourth Circuit, Claude Allen, who would be a 
sitting Circuit Judge now if Democrats had not opposed his nomination, 
is now the subject of a criminal prosecution for charges akin to 
stealing from retail stores. And Michael Wallace, President Bush's pick 
for the Fifth Circuit, recently received the first unanimous not 
qualified rating from the ABA for a Circuit Court nominee in nearly 25 
years.
  Now we are considering a nominee today, Brett Kavanaugh, who is a 
young and relatively inexperienced, but ambitious member of the White 
House's inner circle. He is the President's pick to put another ally 
and trusted vote on the DC Circuit. He has spent most of his legal 
career in partisan political positions. As Staff Secretary to the 
President, Mr. Kavanaugh has been involved in President Bush's use of 
750 Presidential signing statements designed to reserve for the 
President alone the power to choose whether to enforce laws passed by 
Congress. As an Associate White House Counsel, Mr. Kavanaugh worked 
with Karl Rove on the President's plan to pack the Federal bench with 
ideologues such as William Pryor, Janice Rogers Brown and others. He 
helped justify the wall of secrecy that has shrouded so many of the 
White House's activities.

  At his hearing Mr. Kavanaugh emphasized, as if a qualification, that 
he had ``earned the trust of the President'' and his ``senior staff.'' 
All that may be useful for advancement within this President's 
administration or Republican circles, but those are hardly qualities or 
qualifications for an independent judge of this President and this 
administration's actions. Indeed, when pressed at his confirmation 
hearing to provide answers about his qualifications for this lifetime 
appointment and how he would fulfill his responsibilities as a judge, 
Mr. Kavanaugh sounded like a spokesman and representative for the 
administration. Over and over he answered our questions by alluding to 
what the President would want and what the President would want him to 
do. We heard from a nominee who parroted the administration's talking 
points on subject after subject. Rather than answer our questions, he 
referred us to the bland explanation offered by a former Presidential 
spokesman. I do not think the Senate should confirm a Presidential 
spokesman to be a judge on the second highest court in the land. I do 
not believe that Mr. Kavanaugh demonstrated that he has left his role 
as a member of the President's administration or that he will.
  The reasons for the downgrading of Mr. Kavanaugh's ABA rating also 
raise concerns about his independence. Not only did those who have seen 
Mr. Kavanaugh in his limited legal practice describe him as ``less than 
adequate,'' but those who were interviewed recently raised concerns 
about Mr. Kavanaugh's ability to be balanced given his many years in 
partisan positions working to advance a political agenda. They 
described him as ``insulated,'' ``sanctimonious,'' and ``immovable and 
very stubborn and frustrating to deal with on some issues.'' These may 
be good qualities for a partisan political operative, but they are not 
qualities that make for a good judge.
  My concerns about Mr. Kavanaugh's judicial independence are 
heightened by the fact that he has been nominated to the DC Circuit, a 
court which the Republicans have spent more than a decade trying to 
pack. They spent President Clinton's second term blocking his highly-
qualified nominees, Elena Kagan, now Dean of Harvard Law School, and 
Allen Snyder, a former clerk to Chief Justice Rehnquist and highly 
respected litigator. Nonetheless, I voted to confirm Judge John Roberts 
to be a member of the DC Circuit and later supported his nomination to 
be Chief Justice of the Supreme Court.
  After the Senate last year confirmed two of President Bush's nominees 
that I strongly opposed--Janice Rogers Brown and Thomas Griffith--
Republican appointees now comprise a two-to-one majority on this 
important court. This is not a court that needs another rubberstamp for 
the President's political ally.
  The Senate Republican leadership is catering to the extreme rightwing 
and special interest groups agitating for a fight over judicial 
nominations. With a number of judicial nominees ready for bipartisan 
confirmation, the Senate Republican leadership would rather concentrate 
on this controversial and divisive nominee. That this nomination has 
not moved forward for 3 years is indicative of the fact that even 
Republican Senators know what a poor nomination this is. They have made 
no secret of the reason for rushing this nomination through the Senate 
now, after it has languished for 3 years under Republican control, and 
after the nominee admitted to slow-walking his responses to this 
committee. They want to stir up a fight. They want to score cheap 
political points at the expense of another lifetime appointment to the 
courts.
  The Senate Republican leadership is apparently heeding the advice of 
the Wall Street Journal editorial page, which wrote, ``[a] filibuster 
fight would be exactly the sort of political battle Republicans need to 
energize conservative voters after their recent months of despond.'' 
Rich Lowery, editor of the conservative National Review, listed a fight 
over judges as one of the ways President Bush could revive his 
political fortunes, writing that he should, ``[p]ush for the 
confirmation of his circuit judges that are pending. Talk about them by 
name. The G.O.P. wins judiciary fights.'' Republican Senators are 
relishing this chance for a political fight. Senator Thune has said, 
``A good fight on judges does nothing but energize our base. . . . 
Right now our folks are feeling a little flat.'' Senator Cornyn has 
said, ``I think this is excellent timing. From a political standpoint, 
when we talk about judges, we win.'' On May 8, 2006, the New York Times 
reported: ``Republicans are itching for a good election-year fight. Now 
they are about to get one: a reprise of last year's Senate showdown

[[Page S5305]]

over judges.'' The Washington Post reported on May 10: ``Republicans 
had revived debate on Kavanaugh and another Bush appellate nominee, 
Terrence Boyle, in hopes of changing the pre-election subject from 
Iraq, high gasoline prices and bribery scandals.''
  We should not stand idly by as Republicans choose to use lifetime 
Federal judgeships for partisan political advantage. In a May 11, 2006, 
editorial The Tennessean wrote:

       [T]he nation should look with complete dismay at the 
     blatantly political angle on nominations being advocated by 
     Senate Republicans now. . . . Republicans are girding for a 
     fight on judicial nominees for no reason other than to be 
     girding for a fight. They have admitted as much in public 
     comments. . . . In other words, picking a public fight over 
     judicial nominees is, in their minds, the right thing to do 
     because it's the politically right thing to do. . . . Now, 
     Republicans are advocating a brawl for openly political 
     purposes. The appointment of judges deserves far more respect 
     than to be an admitted election-year ploy. . . . It should be 
     beneath the Senate to have such a serious matter subjected to 
     nothing but a tool for political gain.

  On May 3, 2006, the New York Times wrote in an editorial:

       The Republicans have long used judicial nominations as a 
     way of placating the far right of their party, and it appears 
     that with President Bush sinking in the polls, they now want 
     to offer up some new appeals court judges to their 
     conservative base. But a lifetime appointment to the DC 
     Circuit is too important to be treated as a political reward.

  Our job in the Senate should not be to score political points or 
advance partisan agendas. Our job is to fulfill our duty under the 
Constitution for the American people. We must be able to assure the 
American people that the judges confirmed to lifetime appointments to 
the highest courts in this country are fair to those who enter their 
courtrooms and to the law.
  We have heard from many who are concerned about the nomination of Mr. 
Kavanaugh: The AFL-CIO, United Auto Workers, and Service Employees 
International Union have all written to us opposing this nomination. 
The Leadership Conference on Civil Rights, NARAL PRO-Choice American, 
and the National Council of Jewish Women have all written to us 
opposing this nomination. The Society of American Law Teachers, 
National Employment Lawyers Association, and the Alliance for Justice 
have all written to us opposing this nomination. Earthjustice and 
Community Rights Counsel have written to us concerned about this 
nomination.
  The Senate's job is to fulfill our duty under the Constitution, 
rather than act as a rubberstamp for the President's attempt to pack 
the courts with political allies. We must be able to assure the 
American people that the judges confirmed to lifetime appointments to 
the highest courts in this country are being appointed to be fair and 
protect their interests, rather than those of a Presidential patron. 
Mr. Kavanaugh has given the Senate no reason to believe he has the 
capacity for independence.
  I am prepared to vote on Mr. Kavanaugh right now unless others on the 
other side would wish to talk, which, of course, would lead others to 
talk. As I said to the two leaders last night, I would be willing to go 
to a vote soon.
  Mr. FEINGOLD. Mr. President, I wish to first note my concern about 
the procedure followed in the Judiciary Committee to report out this 
nomination precipitously to the floor. Our practice on nominations in 
the committee has been first to hold a hearing. Next, Senators are 
given the opportunity to review the transcript of the hearing and 
submit written questions. Normally, we are given a week to do that, 
which is a reasonable length of time. Then, once a nominee answers any 
written questions, the nomination can be noticed, and we have the right 
to hold that nomination over for 1 week. That is not an extraordinary 
amount of time, but it is at least sufficient for the Senators on the 
committee to do their jobs and have confidence that the nomination has 
been considered with due diligence.
  There is no good reason that we couldn't follow that schedule in this 
case. Mr. Kavanaugh's situation is unusual because he was first 
nominated several years ago, but his first nomination was essentially 
abandoned when he decided not to respond to written questions for a 
full 7 months after his hearing in April 2004. Senators on the 
Democratic side requested a new hearing for him over a year ago, after 
he was renominated. His nomination lay dormant until just a few weeks 
ago.
  Then, all of a sudden, there was a full court press to get this 
nomination done. Why is that? The rush to judgment in the committee, as 
far as I can tell, was based on nothing more than the majority leader's 
desire to have a floor vote on the nomination before our next recess. 
There was no reason for the rush except for the majority leader's 
political timetable. There is no crisis in the District of Columbia 
Circuit, which has the lowest caseload of any circuit in the country. 
All we were asking on the Democratic side in the committee was that we 
follow the regular order--a timely hearing and the opportunity to ask 
written questions.
  I do want to note that I finally received answers the day before the 
committee vote to some of the questions that I first asked back in 
April 2004. I was not entirely satisfied with those answers, but they 
were certainly more complete than those the nominee provided when he 
first answered my questions in November 2004. The fact that these 
questions were finally answered just completes the record from 2004. I 
believe Senators deserved a chance to review the transcript of the 
hearing held on May 9, 2006, and ask further questions if they wanted 
to. A lot has happened in this country and in this administration where 
Mr. Kavanaugh works during the interval between his hearing in May 2004 
and the hearing earlier this month. That is one of the reasons a second 
hearing was necessary. So it was a mistake for the chairman of the 
Judiciary Committee to short-circuit the process by simply decreeing 
that written questions would not be permitted.
  Since the leader has decided to press forward on this nomination, I 
will vote no. I do not think Mr. Kavanaugh is the right choice for this 
vacancy. He is a very bright young lawyer and he has some impressive 
credentials. He may well be ready for appointment to a district court 
judgeship. But his record does not give me confidence that he is ready 
to serve on the District of Columbia Circuit, widely seen as the second 
highest court in the land.
  Mr. Kavanaugh has written almost nothing that we can look to for a 
sense of his judicial philosophy, of his judgment, of his temperament. 
In addition, so much of his career after clerking has been spent in 
partisan political positions that it is certainly legitimate to wonder 
whether he can be fair and impartial in a judicial role. Partisan 
political work does not necessarily disqualify someone from taking the 
bench. As has been pointed out, many very good appellate or Supreme 
Court judges held political posts. But most held other positions as 
well that demonstrated the capacity for independence. The Senate is 
entitled to ask for evidence that the nominee can be nonpartisan and 
impartial, not just assurances. In Mr. Kavanaugh's case, there is 
simply no record to examine to give comfort on that score. Furthermore, 
we know from the latest ABA evaluation that at least some people who 
have come in contact with him in his work do not think that he is 
prepared to be an appellate judge.
  Of the currently serving judges on that court, only one--Judge 
Douglas Ginsburg--had less legal experience when he or she was 
confirmed than Brett Kavanaugh now has. Ginsburg had 13 years of legal 
experience, including a year as a Senate-confirmed Assistant Attorney 
General and 8 years as a professor at Harvard Law School. He had a 
record that the Senate could much more easily evaluate. Other judges on 
that circuit had much longer careers when they were appointed. Judge 
Sentelle had 19 years of experience, including 10 years of private 
practice and 5 years as a judge; Judge Henderson had 18 years, 
including 4 as a U.S. district judge; Judge Randolph had 21 years of 
legal experience; Judge Garland, 20 years; Judge Edwards, 15 years, 
including 10 years as a law professor at Michigan and Harvard; Judge 
Tatel, 28 years; Judge Judith Rogers, 30 years, including 11 years as a 
judge; Judge Janice Rogers Brown, 28 years, including 11 years as a 
judge; Judge Griffith, 20 years.
  The District of Columbia Circuit is not a place to learn the judicial 
ropes,

[[Page S5306]]

nor is it a place to reward a loyal employee. It is a court that makes 
decisions every day that have a huge effect on the lives and 
livelihoods of American citizens and American businesses. It has a 
caseload that demands not only a good legal mind but judgment, wisdom, 
and experience. Brett Kavanaugh has impressive credentials, but his 
limited record makes it impossible for me to be confident that he will 
be the fair and impartial judge that this country needs on such an 
important court. So I will vote no.
  (At the request of Mr. Reid, the following statement was ordered to 
be printed in the Record.)
 Mrs. BOXER. Mr. President, I oppose the nomination of Brett 
Kavanaugh to be U.S. Circuit Judge for the District of Columbia.
  Mr. Kavanaugh's lack of experience, partisan ideological leanings, 
lack of judicial temperament, and refusal to adequately answer 
questions posed by the Judiciary Committee make him unqualified to sit 
on the second highest court in the country.
  Mr. Kavanaugh is a young lawyer who has spent most of his career in 
partisan positions. He lacks substantive courtroom experience and has 
never tried a case to a verdict. In fact, a judge before whom he 
appeared characterized Mr. Kavanaugh work as ``less than adequate'' and 
at the experience level of an associate.
  Nor is Mr. Kavanaugh a noted legal scholar. The highlight of his 
career has been working with Kenneth Starr in the Office of the 
Solicitor General and at the Office of the Independent Counsel, where 
he spent 4 years and coauthored the infamous Starr Report.
  Upon further review the nonpartisan American Bar Association panel 
downgraded Mr. Kavanaugh's rating from ``well-qualified'' to 
``qualified.'' He was described by interviewees as ``sanctimonious,'' 
and ``immovable and very stubborn and frustrating to deal with on some 
issues.'' These are not qualities that make for a good judge. His low 
rating and nonjudicious demeanor put him in stark contrast to the 
majority of appointments to the DC Circuit who received ``well-
qualified'' ratings and respectful reviews from the American Bar 
Association review panel.
  The President can and should do better than this. The country 
deserves better than this.
  Mr. LEVIN. Mr. President, although I may not agree with a judicial 
nominee on policy matters, I will support that nominee as long as his 
or her values are consistent with the fundamental principles of 
American law and there is no indication that the nominee is so 
controlled by ideology that ideology distorts his or her judgment. 
Regardless of their political views, I will support a nominee who 
demonstrates fairness and openmindedness and whose reasoning is 
straightforward, clearly expressed, and worthy of respect.
  Brett Kavanaugh is, unfortunately, not such a nominee. Because Mr. 
Kavanaugh does not have a judicial record to review, evaluating his 
fitness for the bench is not easy. We do not have written opinions from 
him that would reveal whether he looks objectively at both sides of an 
issue before making a decision. Therefore, we must judge his 
temperament on how he has conducted himself in interviews before the 
American Bar Association Standing Committee on the Federal Judiciary 
and how he answered questions posed by the Senate Judiciary Committee. 
Neither assessment gives me the confidence necessary to vote to confirm 
Mr. Kavanaugh to the DC Circuit.
  In its 2003 assessment of Mr. Kavanaugh, the ABA record noted 
concerns with the breadth of Mr. Kavanaugh's professional experience. 
It was noted that he had never tried a case to verdict or judgment; 
that his litigation experience over the years was always in the company 
of senior counsel; and that he had very little experience with criminal 
cases. Specifically, the committee said: ``Indeed, it is the 
circumstance of courtroom experience that fills the transcripts that 
make the record before the Court of Appeals, and concerns were 
expressed about the nominee's insight into that very process.''
  In its report on its recent reassessment of Mr. Kavanaugh, the ABA's 
Standing Committee on the Judiciary down-graded its rating of his 
qualifications. The report states that one judge who saw Kavanaugh's 
oral presentation in court said that Kavanaugh was ``less than 
adequate,'' and that he had been ``sanctimonious,'' and had 
demonstrated ``experience on the level of an associate.'' A lawyer in a 
different proceeding said: ``Mr. Kavanaugh did not handle the case well 
as an advocate and dissembled.''
  According to the report, the 2006 interviews of Mr. Kavanaugh raised 
a new concern involving his potential for judicial temperament. 
Interviewees characterized Mr. Kavanaugh as, ``insulated,'' which one 
person commented was due to his current position as Staff Secretary to 
the President. Another interviewee questioned Mr. Kavanaugh's ability 
``to be balanced and fair should he assume a federal judgeship.'' And 
another said that Kavanaugh is ``immovable and very stubborn and 
frustrating to deal with on some issues.''
  A judge needs to be able to balance competing viewpoints and 
objectively determine a fair and equitable outcome. Mr. Kavanaugh's 
lack of judicial or courtroom or scholarly experience added to my 
doubts about his impartiality and lead me to vote no.
  Mr. DODD. Mr. President, I rise to briefly state my reasons for 
opposing the nomination of Brett Kavanaugh to serve as a judge on the 
Court of Appeals for the District of Columbia Circuit Court.
  I must say at the outset that I regret having to cast this vote. 
Throughout my tenure here in the Senate, I have supported the vast 
majority of presidential nominees--regardless of the party to which a 
president has belonged. With regard to the current administration, I 
have joined with my colleagues in voting to confirm the overwhelming 
majority of its judicial nominees--including those with whom I differed 
on matters of legal and public policy. I had assumed that, when 
nominated, Mr. Kavanaugh would likely be among this large group of 
judicial nominees to receive broad bipartisan support. After all, he 
has a commendable academic background, and served as a law clerk to two 
Circuit Court judges and one Supreme Court Justice.
  However, it appears--that after emerging from a confirmation process 
where his conduct can be described as disappointing at best, and 
dismissive at worst--Mr. Kavanaugh has practically invited opposition 
to his nomination. In my view, there are few duties more important to 
the Senate than the consideration of the nomination of article III 
jurists. Other than considering a declaration of war or an amendment to 
the Constitution, nothing is more important than deciding on a judicial 
nominee. The reasons for that view are practically self-evident: 
article III judges are appointed for life, and they are appointed to 
lead and populate an entirely separate branch of government. Our entire 
constitutional framework rests on an act of faith, first taken by our 
Founders, that is in some respects as audacious as it is vital: that 
the President will nominate, and the Senate will confirm, only those 
judicial nominees who demonstrate the temperament, intellect, 
experience, and character to stand independent of the executive and 
legislative branches of government and hold those branches accountable 
to the law. If a nominee does not demonstrate those qualities during 
the nomination process, if he or she does not show a capacity to render 
independent judgments and uphold the principle of equal justice under 
law, then the outcome of a vote on that nomination is, in this 
Senator's view, a foregone conclusion: the nomination must be opposed.
  During Mr. Kavanaugh's two confirmation hearings, he failed to 
demonstrate the requisite qualifications for the high position to which 
he has been nominated. He failed to provide meaningful responses to 
many of the questions put to him. After his first hearing, he delayed 
providing any answers at all to written questions for seven months. It 
was not until after the 2004 elections that he finally decided to 
provide those answers. When asked the reason for this delay, he offered 
only a feeble rationale, saying he took responsibility for what he 
termed a ``misunderstanding''. I found this explanation to be 
implausible, to say the least. As Associate White House Counsel, one of 
Mr. Kavanaugh's responsibilities was to prepare judicial nominees to 
successfully navigate the confirmation process. So for him to say he

[[Page S5307]]

had a ``misunderstanding'' about the need to promptly answer questions 
put to him by Senators strains credulity.
  Mr. Kavanaugh also failed to provide full and candid answers to 
important questions about his role and views in helping to shape some 
of the administration's most controversial policies--from the 
development of legal rationales for torture to the drafting of 
Executive orders to reduce the public's access to presidential records. 
He also refused to tell the committee on what types of matters, if any, 
he would recuse himself if such matters came before him as a judge.
  This refusal to be forthcoming with the Judiciary Committee--and by 
implication, with the Senate as a whole--bespeaks a dismissive attitude 
toward the confirmation process that I find highly troubling. We have 
seen in recent years a growing tendency of candidates to treat the 
confirmation process more as a game of hide-and-seek than a profoundly 
serious process designed by the Senate to provide Senators with the 
information that they need to make careful, reasoned decisions about 
nominees. If candidates do not provide vital information about their 
background and their views, they make it impossible for Senators to 
adequately discharge their constitutional duty to advise and consent 
with respect to article III nominees.
  I would be remiss if I did not also mention two other facts about 
this nomination that make it highly unusual. One is that the American 
Bar Association, ABA, downgraded its rating of the nominee, from 
``highly qualified'' to ``qualified''. Six of the eight members of the 
ABA committee who voted previously on this nomination voted to 
downgrade his nomination based on new information about his ability to 
act independently and his sparse record as a judge and legal 
practitioner. It also bears mentioning that this nominee, if confirmed, 
would be one of the least experienced judges to have served on this 
particular court. Only former Judge Kenneth Starr had less experience.
  For these reasons, I must oppose this nomination. I hope that, if 
confirmed, this nominee will prove me wrong by growing into a wise, 
independent, and fair-minded jurist. But regrettably, at this time, he 
has given the Senate paltry and insufficient facts on which to believe 
he is prepared for the high office to which he has been nominated.
  Mr. KENNEDY. Mr. President, the Court of Appeals for the DC Circuit 
is the second-highest court in the Nation. As such, its judges bear a 
unique responsibility.
  By law, the DC Circuit has exclusive jurisdiction over many issues 
that other appellate courts cannot deal with. Only the judges of the DC 
Circuit can hear appeals under many critical laws that affect our 
economy, our environment, and our election system. Because the Supreme 
Court only hears a limited number of cases, the judges of the DC 
Circuit often have the final word on laws that affect the lives of 
millions of Americans, at home and in the workplace.
  Unlike most of the members of the DC Circuit. Brett Kavanaugh is not 
a judge, an experienced litigator, or a legal scholar. Far from it. Mr. 
Kavanaugh is a political operative, a man whose ambition has placed him 
at the center of some of the most politically divisive events in recent 
memory. He is not qualified for this position. If his nomination is 
approved, I can say with confidence that Mr. Kavanaugh would be the 
youngest, least experienced and most partisan appointee to the court in 
decades.
  Mr. Kavanaugh blatantly lacks the broad legal experience that is the 
hallmark of Federal judges--particularly those at the highest levels. 
He has never tried a case to verdict or to judgment. In fact, Mr. 
Kavanaugh has only practiced law for 10 years. Even counting his time 
as a law clerk, he still has only half of the average legal experience 
of nominees to the DC Circuit. To put this in context, Mr. Kavanaugh 
would be the least experienced member of the DC Circuit in almost a 
quarter century.
  His lack of experience is underscored by his responses to questions 
from Judiciary Committee members. When he was asked to name his 10 most 
significant cases, Mr. Kavanaugh could only cite five cases for which 
he actually appeared in court, and only two cases in which he was lead 
counsel. He even cited two cases for which he merely wrote a friend-of-
the-court brief for someone who was not a party to the lawsuit.
  I am not alone in my judgment that Mr. Kavanaugh is not qualified for 
this position. Aside from my seven colleagues on the Judiciary 
Committee who voted against his appointment, organizations from around 
the country are united in their opposition to his nomination. The AFL-
CIO, the Leadership Conference on Civil Rights, the NAACP, the National 
Urban League, the United Auto Workers. The list reads like a who's who 
of citizen representatives.
  Most troubling, however, is the lukewarm evaluation of the American 
Bar Association, which has now conducted three separate evaluations of 
Mr. Kavanaugh. On the latest and perhaps closest evaluation, the ABA 
took the unusual step of downgrading its rating of Mr. Kavanaugh. 
Today, a majority of that committee does not believe Brett Kavanaugh 
can meet their highest standard for Federal nominees.
  Why did the ABA downgrade its rating? It did so after confidential 
interviews with judges and lawyers familiar with his work, when 
numerous questions were raised about Mr. Kavanaugh's ability as an 
attorney and potential appellate judge.
  A judge who heard Mr. Kavanaugh's oral arguments found that his 
presentation was ``less than adequate,'' and that he demonstrated 
skills ``on the level of an associate''--a young lawyer at a law firm. 
Lawyers familiar with his work raised additional questions about his 
impartiality and partisanship. One attorney specifically questioned 
whether Mr. Kavanaugh was capable of being ``balanced and fair should 
he assume a Federal judgeship.''
  But Mr. Kavanaugh's lack of qualifications goes beyond years of 
experience or individual interviews. More important, Mr. Kavanaugh is 
almost completely unfamiliar with the substantive issues of law that 
consistently arise in the DC Circuit.
  These aren't arcane concerns. The DC Circuit has a key role in 
upholding the rights of American workers. That court decides far more 
appeals than any other circuit of decisions by the National Labor 
Relations Board on unfair labor practices. Usually, these cases are 
filed by employers across the country attempting to overturn unfair 
labor practice findings against them by the Board. Recently, almost one 
in three such appeals have been heard by the DC Circuit.
  During our hearings, I asked Mr. Kavanaugh whether he had any 
experience handling labor law matters. He couldn't provide a single 
example of work in this area--not one. Instead, he made vague reference 
to his work as a law clerk and his brief time in the Justice 
Department.
  The DC Circuit is also important to anyone who breathes our air or 
drinks our water. It is the only Federal appellate court that can hear 
appeals on rules to protect the environment under the Clean Air Act and 
the Safe Drinking Water Act. It is the only Federal court that can 
grant a remedy when the executive branch fails to follow congressional 
mandates to protect the environment under these laws.
  Nothing in Mr. Kavanaugh's record suggests that he would be willing 
to keep the executive branch in compliance with the law on these 
matters. More generally, nothing in his record suggests that he would 
be able to avoid the partisanship and politics that have marked his 
brief career.
  In fact, partisan politics is the only area in which Mr. Kavanaugh's 
qualifications cannot be questioned. He has been deeply involved in 
some of the most bitterly divisive political events in the last 
decade--and always on the same side.
  At the Office of the Independent Counsel, Mr. Kavanaugh authored the 
infamous Starr Report, wrote the articles of impeachment against 
President Clinton, and investigated the tragic suicide of Vince Foster.
  As an Associate White House Counsel, Mr. Kavanaugh worked to support 
the nomination and confirmation of Jay Bybee, the author of the 
notorious--but then still secret--torture memo. He also was personally 
responsible for drafting the executive order that made presidential 
records less accessible to the public and the press.

[[Page S5308]]

This was order was so restrictive that one observer said it would 
``make Nixon jealous in his grave.''
  We gave Mr. Kavanaugh an opportunity to prove that he was independent 
and impartial in spite of his partisan past. I personally noted that 
this was my chief concern with his nomination, and I know that my 
colleagues did the same. Mr. Kavanaugh refused to specify the issues 
and policies on which he would recuse himself--in spite of the fact 
that he was at the center of a number of executive policy directives in 
recent years.
  His answers to our questions resembled political talking points more 
than they did the answers we would expect from a nominee to such a 
prominent lifetime position in the Nation's Judiciary. He has shown 
nothing to suggest that he will stand up to the President when his 
duties require it.
  Mr. Kavanaugh is not qualified for this job. Even worse, his 
nomination is a harsh reminder of the partisan and ideological 
pressures that have marked many recent judicial nominations. His 
nomination seems little more than a crass administration attempt to 
politicize the courts and provide a solid vote in favor of even the 
most extreme political tactics of the administration. The Federal 
courts need experienced, independent judges who can rise above their 
partisan beliefs and enforce the rights and guarantees of our 
Constitution and the rule of law. Mr. Kavnaugh is not such a nominee, 
and I urge my colleagues to oppose his nomination.
  Mr. SESSIONS. Mr. President, I rise today to urge my colleagues to 
confirm President Bush's nomination of Brett M. Kavanaugh to be a U.S. 
circuit judge on the U.S. Court of Appeals for the District of Columbia 
Circuit.
  President Bush first nominated Brett Kavanaugh to the DC Circuit on 
July 25, 2003. He received a hearing before the Judiciary Committee on 
April 27, 2004, but the committee did not vote on Mr. Kavanaugh's 
nomination. President Bush renominated Mr. Kavanaugh on February 14, 
2005, and again on January 25, 2006. It is past time for Mr. Kavanaugh 
to receive an up-or-down vote on the Senate floor.
  Brett Kavanaugh is a well-respected attorney with impeccable academic 
credentials and the background and experience necessary to serve as an 
excellent judge on the DC Circuit. He currently serves as Assistant to 
the President and staff secretary. He previously served in the White 
House Counsel's Office as Senior Associate Counsel and Associate 
Counsel to the President.
  Mr. Kavanaugh graduated from Yale College, cum laude, and Yale Law 
School where he served as the notes editor on the Yale Law Journal. He 
served as a judicial law clerk for Justice Anthony Kennedy on the 
Supreme Court of the United States, as well as Judge Walter Stapleton 
of the U.S. Court of Appeals for the Third Circuit and Judge Alex 
Kozinski of the U.S. Court of Appeals for the Ninth Circuit.
  Prior to his Supreme Court clerkship, Mr. Kavanaugh earned a 
fellowship in the Office of the Solicitor General of the United States. 
After his clerkship, Mr. Kavanaugh served as an Associate Counsel in 
the Office of Independent Counsel, where he handled a number of the 
novel constitutional and legal issues. He was a partner at the 
prestigious Washington law firm of Kirkland & Ellis and has argued both 
civil and criminal matters before the Supreme Court and appellate 
courts throughout the country.
  Besides his obvious academic and professional credentials, I would 
note that Mr. Kavanaugh believes in giving back to his community. While 
in private practice, Mr. Kavanaugh took on challenging pro bono 
matters, including representation of the Adat Shalom congregation in 
Montgomery County, MD, against an attempt to stop the construction of a 
synagogue in the county.
  Those who know Mr. Kavanaugh best strongly praise his intelligence, 
integrity, and approach to the law. Mark Touhey III, Mr. Kavanaugh's 
supervisor at the Independent Counsel's Office, wrote in his support: 
``Mr. Kavanaugh exhibit[s] the highest qualities of integrity and 
professionalism in his work. These traits consistently exemplify Mr. 
Kavanaugh's approach to the practice of law and will exemplify his 
tenure as Federal appellate judge.''

  Judge Walter Stapleton said of Mr. Kavanaugh: ``He really is a 
superstar. He is a rare match of talent and personality.'' After 
arguing against Mr. Kavanaugh in the Supreme Court, Washington attorney 
Jim Hamilton stated, ``Brett is a lawyer of great competency, and he 
will be a force in this town for some time to come.''
  Some of Mr. Kavanaugh's critics have tried to argue that he is too 
young to be a Federal appellate judge. In truth, Mr. Kavanaugh is 41 
years old and has had a broad range of experience that makes him an 
ideal candidate for the DC Circuit.
  Mr. Kavanaugh's legal work ranges from service as Associate Counsel 
to the President, to appellate lawyer in private practice, to 
experience as a prosecutor. He clerked at two of the U.S. Courts of 
Appeal, the Third and Ninth Circuits, and at the Supreme Court. In 
private practice and during his service as a prosecutor, Mr. Kavanaugh 
participated in appellate matters in a number of the Federal courts of 
appeal and in the Supreme Court.
  Besides, at age 41, Mr. Kavanaugh is considerably older than many of 
our Nation's most distinguished judges were at the time of their 
nomination. In fact, all three of the judges for whom Mr. Kavanaugh 
clerked were appointed to the bench before they were 41. All have been 
recognized as distinguished jurists. Justice Kennedy was appointed to 
the Ninth Circuit when he was 38 years old. Judge Kozinski was 
appointed to the Ninth Circuit when he was 35 years old. Judge 
Stapleton was appointed to the district court at 35 and later elevated 
to the Third Circuit. There are many other examples of judges who were 
appointed to the bench at a young age and have had illustrious careers:

------------------------------------------------------------------------
                 Name                            Circuit            Age
------------------------------------------------------------------------
Judge Harry Edwards...................  DC Circuit...............     39
Judge Douglas Ginsburg................  DC Circuit...............     40
Judge Kenneth Starr...................  DC Circuit...............     37
Judge (now Justice) Samuel Alito......  Third Circuit............     40
Judge J. Michael Luttig...............  Fourth Circuit...........     37
Judge Karen Williams..................  Fourth Circuit...........     40
Judge J. Harvie Wilkinson.............  Fourth Circuit...........     39
Judge Edith Jones.....................  Fifth Circuit............     35
Judge Frank Easterbrook...............  Seventh Circuit..........     36
Judge Donald Lay......................  Eighth Circuit...........     40
Judge Steven Colloton.................  Eighth Circuit...........     40
Judge Mary Schroeder..................  Ninth Circuit............     38
Judge Deanell Tacha...................  Tenth Circuit............     39
Judge Stephanie Seymour...............  Tenth Circuit............     39
Judge J.L. Edmondson..................  Eleventh Circuit.........     39
------------------------------------------------------------------------

  Age should not be the sole measure of a person's experience. Many 
Senators began their service at a young age. Senators Biden and Kennedy 
were elected to the Senate at the age of 30, and Senator Leahy was 
elected at age 34.
  Some of Mr. Kavanaugh's critics have suggested that we should hold 
his service in the White House for President Bush against him. They 
seem to suggest that Mr. Kavanaugh's public service to his Nation is 
somehow a disqualifier for later serving on the bench. I disagree.
  Public service in the executive or legislative branches of Government 
should not be a disqualifier for judicial office. This has never been 
the case, nor should it be. Justice Stephen Breyer was once the chief 
counsel to the Senate Judiciary Committee before being nominated and 
confirmed to the First Circuit by a substantial majority. I hope that 
none of us believe that his service on Senator Kennedy's staff should 
have disqualified him.
  Judge Abner Mikvah spent most of his career prior to the bench as a 
Democrat in elective office. He was a State legislator in Illinois and 
later a U.S. Congressman. In fact, he was a sitting Congressman when he 
was nominated to the DC Circuit. He, too, was confirmed by a 
substantial majority.
  The Senate has not considered service as a Democratic staff member or 
as a Democratic Congressman a bar to service as a U.S. Circuit Judge, 
nor should it consider Mr. Kavanaugh's service in President Bush's 
White House as a strike against him. Suggesting that service in an 
elective branch of Government somehow tarnishes a lawyer's reputation 
would be a terrible message for this body to send to the legal 
community and to all citizens. Mr. Kavanaugh is superbly qualified to 
serve as a U.S. circuit judge, and he has made clear that he 
understands the role of a judge is different from the role of a member 
of the White House staff.
  Some of Mr. Kavanaugh's critics have raised concerns about Mr. 
Kavanaugh's ABA rating. The ABA's Committee on the Federal Judiciary 
has consistently and unanimously

[[Page S5309]]

found that Mr. Kavanaugh has the integrity, professional competence, 
and judicial temperament to serve on the DC Circuit. Each year Mr. 
Kavanaugh's name has been in nomination the committee has rated Mr. 
Kavanaugh, and each year every member of the committee has found him 
``qualified'' or ``well qualified.''
  According to the ABA:

       To merit a rating of ``well qualified,'' the nominee must 
     be at the top of the legal profession in his or her legal 
     community; have outstanding legal ability, breadth of 
     experience and the highest reputation for integrity; and 
     either demonstrate or exhibit the capacity for judicial 
     temperament. The rating of ``qualified'' means that the 
     nominee meets the Committee's very high standards with 
     respect to integrity, professional competence and judicial 
     temperament and that the Committee believes that the 
     nominee will be able to perform satisfactorily all of the 
     duties and responsibilities required by the high office of 
     a federal judge.

  In 2004 and 2005 a majority of the committee thought Mr. Kavanaugh 
had earned its highest rating, ``well qualified''; the rest thought he 
had earned a ``qualified'' rating. This year the balance changed, with 
more members of the committee believing he deserved a ``qualified'' 
rating and the rest thinking he deserved a ``well qualified'' rating.
  Despite the fact that the ABA committee has included many committed 
Democrats, the committee remains unanimous that Mr. Kavanaugh is 
indisputably competent, intelligent, and qualified to serve on the DC 
Circuit. In response to what some of my Democratic colleagues have said 
about Kavanaugh's ABA rating, listen to what ABA committee chairman, 
Stephen Tober had to say:

       Let me underscore . . . that we didn't find him not 
     qualified. There's not a breath of that in this report or any 
     earlier report. We found him qualified/minority well 
     qualified. What I said at the end is what, in fact, many 
     people said, that he has a solid reputation for integrity, 
     intellectual capacity--a lot of people refer to him as 
     brilliant--and an excellent writing and analytical ability. 
     Those are great skills to bring to the court of appeals. 
     There is just no question about that.

  According to Mr. Tober, in all of the ABA's ratings, Mr. Kavanaugh's 
``positive factors haven't changed a whole lot. He is found to have 
high integrity. He is found to be brilliant. He is a very skilled 
writer and legal analyst. He has those components, and I have said this 
before . . . he has those skills that will serve him well, certainly, 
on a Federal court.
  Finally, Mr. Tober acknowledged that ``there is not a single not 
qualified vote in the picture.''
  Brett Kavanaugh is a highly qualified attorney who has experience as 
an appellate litigator presenting arguments in court, and experience as 
a judicial law clerk on the other side of the bench evaluating 
appellate arguments. He has spent most of his career as a public 
servant. I am confident that he will perform his duties as a judge in a 
fair and even-handed manner.
  Today's vote on this nominee is long past due. I urge my colleagues 
to confirm Brett Kavanaugh to be a U.S. circuit judge.
  Mr. REID. I intend to vote against the confirmation of Brett 
Kavanaugh to the DC Circuit Court of Appeals. This youthful, relatively 
inexperienced nominee lacks the credentials to be approved for a 
lifetime appointment to the second most important Federal court in the 
country.
  At the outset, let me contrast this nomination with a circuit court 
nomination we recently approved: the nomination of Milan Smith to the 
Ninth Circuit Court of Appeals. Mr. Smith is a pillar of the California 
legal community, a distinguished practicing lawyer with 27 years of 
experience in complex legal transactions. His nomination was the 
product of extensive consultation with Democratic Senators. The 
Judiciary Committee approved his nomination 18 to 0, and the full 
Senate gave its consent unanimously.
  The Smith nomination is an example of the way the process is supposed 
to work. The Constitution gives the President and the Senate a shared 
role in filling vacancies on Federal courts. Working together, we can 
move highly qualified nonpartisan nominees through the process without 
rancor or delay.
  But when the President uses judicial appointments as a reward to the 
extreme rightwing of the Republican Party, he invites controversy and 
conflict. Regrettably, that may be just the result that the White House 
wants.
  Cesar Conda, a former domestic policy adviser to Vice President 
Cheney, recently wrote in the Roll Call newspaper: ``For Bush, a 
renewed fight over conservative judges . . . just might be the cure to 
the Republican Party's current political doldrums.''
  One of my Republican colleagues is quoted in the National Review 
earlier this month as saying: ``A good fight on judges does nothing but 
energize our base. Right now our folks are feeling a little flat. They 
need a reason to get engaged, and fights over judges will do that.''
  At the same time, a lengthy debate over judges serves to distract 
attention from the pressing problems facing the Nation: an intractable 
war in Iraq, soaring gas prices, millions of Americans who lack health 
insurance. Instead of addressing these vital issues, this Senate has 
been forced to spend days and weeks and months talking about divisive 
judicial nominees.
  The nomination of Brett Kavanaugh is nothing if not divisive. All 
eight Democrats on the Judiciary Committee oppose his confirmation. 
Every leading civil rights, environmental, and labor organization in 
the country has urged that he be rejected.
  This nomination is not the product of consensus and consultation--it 
is a poke in the eye to the Senate. It is a wedge that disrupts the 
wonderful bipartisanship which has characterized the immigration debate 
over the past 2 weeks.
  I recently met with Brett Kavanaugh. He seems like a bright young 
man. But he is a 41-year-old lawyer who has spent his short legal 
career in service to partisan Republican causes.
  His two principal accomplishments as a lawyer are his work as an aide 
to Special Counsel Kenneth Starr during the misguided crusade to 
impeach President Clinton, and his current duty as a political lawyer 
in the Bush White House. Those positions do not disqualify Mr. 
Kavanaugh from future service, but they do not constitute the kind of 
broad experience in the law that we should expect from a nominee to the 
District of Columbia Circuit.
  The DC Circuit is a uniquely powerful court. It has jurisdiction over 
challenges to Federal activities affecting the environment, consumer 
protections, workers and civil rights. This court hears appeals from 
the Environmental Protection Agency, the National Labor Relations 
Board, the Equal Employment Opportunity Commission, the Occupational 
Safety and Health Administration and other agencies.
  As a result, DC Circuit judges sit in a unique position to judge 
Government actions that affect our lives in fundamental ways. Mr. 
Kavanaugh's slim, partisan record gives me no confidence he is the 
right person to assume this awesome responsibility.
  In the 113 years since the Court of Appeals for the DC Circuit was 
established in 1893, 54 judges have sat on the court. Only three of 
those judges came to the court with less experience than Kavanaugh. DC 
Circuit judges have averaged over 26 years of legal experience at the 
time of their appointment to the DC Circuit. Mr. Kavanaugh, in 
contrast, graduated from law school a mere 16 years ago.
  It is not just Mr. Kavanaugh's youth but his lack of practical 
experience that renders him unfit for this post. In his 16 years as a 
lawyer he has never tried a case to verdict or judgment. When 
questioned about this deficiency at his committee hearing, the nominee 
presumed to compare himself to Chief Justice John Roberts. But at the 
time of his appointment to the DC Circuit, Roberts had argued dozens of 
cases before the Supreme Court. Kavanaugh has argued just one such 
case, on behalf of the Starr investigation.
  There are other kinds of experience one might bring to an appellate 
court. Some nominees are respected scholars. Some are sitting judges. 
Kavanaugh is neither. His high-ranking position in the Bush White House 
might constitute relevant experience, but we have little idea what he 
has accomplished in that role. He largely refused to answer questions 
from the committee about the issues he has handled or the positions he 
has advocated.
  We know he helped to select many of the controversial judicial 
nominees

[[Page S5310]]

who have tied the Senate in knots in recent years. We know he was the 
author of a far-reaching government secrecy policy, despite his own 
role in stripping President Clinton of every vestige of privacy and 
privilege during the Starr investigation. Other than that, all we know 
is that Mr. Kavanaugh has had a fancy west wing title.
  Most nominees gain more stature over the course of their legal 
careers, but Mr. Kavanaugh is headed in the opposite direction. The 
American Bar Association recently took the rare step of lowering its 
rating of this nominee.
  Lawyers and judges interviewed by the nonpartisan ABA Committee 
described Mr. Kavanaugh as ``sanctimonious,'' ``immovable'' and ``very 
stubborn and frustrating to deal with on some issues.'' A judge before 
whom Mr. Kavanaugh appeared considered him ``less than adequate'' and 
said he demonstrated ``experience on the level of an associate.'' A 
lawyer who observed him during a different court proceeding stated: 
``Mr. Kavanaugh did not handle the case well as an advocate and 
dissembled.''
  Needless to say, these are not qualities that make for a good judge.
  Still others described Mr. Kavanaugh as ``insulated.'' That is the 
last quality we want in a 41-year-old man who will soon begin the 
cloistered life of an appellate judge. Mr. Kavanaugh lacks the wide-
ranging experience that breeds wisdom and judgment, and he is unlikely 
to acquire those qualities on the bench.
  Mr. Kavanaugh's thin legal resume contrasts with the resumes of the 
two Clinton nominees who were blocked by the Republican-controlled 
Senate when they were nominated to the same court. Elena Kagan, now the 
Dean of Harvard Law School, had been both a practicing lawyer and a 
leading administrative law scholar at the time of her nomination. Allen 
Snyder, a former clerk to Justices Harlan and Rehnquist had been a 
litigation partner at the law firm of Hogan and Hartson for 26 years.
  Under what definition of fairness do my Republican colleagues insist 
that Brett Kavanaugh is entitled to a Senate vote while Elena Kagan and 
Allen Snyder were denied a vote? By what standard do they consider 
Kavanaugh qualified to sit on the DC Circuit when these two other 
distinguished lawyers were denied that honor?
  Unlike Kagan and Snyder, Mr. Kavanaugh will be considered by the 
Senate. But I will cast my vote against confirmation. This nominee's 
record is too sparse and the court to which he is nominated is too 
important to the rights that Americans hold dear.
  I urge the Senate to reject this unacceptable nomination.
  Mr. President, even in this Bush Presidency, I continue to believe 
that a judge should have experience in a courtroom. I know that is 
somewhat heretical in the environment we have, but I really believe 
that if you are going to be a judge, you should have some practical 
experience, at least picking a jury, arguing to a jury, appearing 
before a court, making your views known to the judge. That is largely 
lacking with this young man.
  We have testimony before the Judiciary Committee from two judges for 
whom he worked. It is unusual that people clerk for two separate 
judges. These clerkships are usually a year long, and you sit back 
there and you shuffle papers for the judge and you draft opinions for 
the judge on the cases that come before the judge--but that is very 
different than courtroom experience as a practicing lawyer. You may go 
watch a few arguments, but clerking for two judges doesn't do the 
trick. That doesn't give you the experience to be a judge, especially a 
judge on the District of Columbia Circuit Court of Appeals, the second 
highest court in the land.
  I understand that Mr. Kavanaugh has argued several appeals. But not 
very many, and in any event that's not the same as trying cases in my 
view.
  I am going to vote against confirmation of Brett Kavanaugh. I want to 
make four brief points about this nomination.
  First, Brett Kavanaugh is a youthful partisan who lacks the 
credentials to be approved for a lifetime appointment to the second 
most important Federal court in our country. He is 41 years old. He has 
spent his short legal career in service to Republican causes.
  He worked as an aide to Special Counsel Kenneth Starr. I think the 
work of Kenneth Starr will go down in history as a blight on this 
country. This partisan investigation disrupted this country and it was 
aided by the nominee who is before the Senate at this time.
  He has been a lawyer in the White House for President Bush. The fact 
that he worked for Starr and now works in the White House doesn't 
disqualify him, but these do not add up to the kind of experience we 
should have from a nominee to the District Circuit Court. It doesn't 
add up.
  Second, Mr. Kavanaugh's lack of practical experience renders him 
unfit for the post. In his years as a lawyer, he has never tried a case 
to a verdict or to judgment.
  There are other kinds of experience one might bring to an appellate 
court. Some nominees are respected scholars and some are sitting 
judges. Mr. Kavanaugh is neither.
  His high-ranking position in the White House might constitute 
relevant experience, but we have little idea about what he accomplished 
in that role. He has largely refused to answer questions from the 
committee about the issues he has handled or the positions he has 
advocated.
  The big push for this man comes from partisans who want to push the 
majority in the Senate toward the nuclear option. They think it would 
be a great thing to disrupt the Senate in this way.
  Third, the American Bar Association recently lowered its rating of 
this nominee. Most nominees gain more stature over the course of their 
legal careers, but Mr. Kavanaugh is headed in the opposite direction, 
and rightfully so. Lawyers and judges of the nonpartisan ABA committee 
described Mr. Kavanaugh as being ``sanctimonious'' and ``frustrating to 
deal with.'' That says it all.
  A judge before whom Mr. Kavanaugh appeared described him as ``less 
than adequate'' and said he demonstrated experience ``at the level of 
an associate.''
  A lawyer who observed him during a different court proceeding stated 
that:

       Mr. Kavanaugh did not handle the case well as an advocate 
     and dissembled.

  Needless to say, these are not qualities which make a good judge. But 
the right wing wants him, and he is going to become a judge.
  Finally, let me say this: The nomination of Mr. Kavanaugh is 
divisive. All eight Democrats on the Judiciary Committee oppose his 
confirmation. Every leading civil rights, environmental, and labor 
organization in the country urged that he be rejected.
  The Constitution gives the President and the Senate a shared role in 
filling vacancies on the Federal court. Working together, we can move 
highly qualified, nonpartisan nominees through the process without 
rancor or delay. But when the President uses judicial appointments as a 
reward to the extreme rightwing of the Republican Party, it invites 
controversy and conflict. And that is what we have. In sum, this 
nominee's record is too sparse. The court to which he is nominated is 
too important. I hope we get a lot of votes against this nomination. I 
understand that everyone on the other side of the aisle will walk over 
here and vote for this unqualified candidate, but that is not how it 
should be.
  If there is no one else wishing to speak, I ask that we proceed to 
the vote on Mr. Kavanaugh.
  Mr. FRIST. Mr. President, 2 weeks ago before the Senate Judiciary 
Committee, Brett Kavanaugh, the President's nominee for the DC Circuit 
Court of Appeals, pledged that if he is confirmed:

       I will interpret the law as written and not impose personal 
     policy preferences;
       I will follow precedent in all cases fully and fairly, and, 
     above all, [I] will at all times maintain the absolute 
     independence of the judiciary, which, in my judgment, is the 
     crown jewel of our constitutional democracy.

  Listen to the words that Brett Kavanaugh used: Fair, independent, 
committed to the rule of law. These are the qualities America wants in 
our federal judges.
  We need more qualified nominees on the bench who practice judicial 
restraint and respect the rule of law, and Brett Kavanaugh fits that 
description.
  President Bush nominated Mr. Kavanaugh on July 25 of 2003. And since 
this time, he's endured not one--

[[Page S5311]]

but two--hearings before the Senate Judiciary Committee.
  He has been candid and forthcoming in answering countless oral and 
written questions from the Judiciary Committee. And he has met one-on-
one with numerous Members--both Republican and Democrat.
  And now it's time that Brett Kavanaugh gets the fair up-or-down vote 
that he's been waiting on for 3 years.
  Later this morning, the Senate will give him that vote. We will 
fulfill our constitutional duty of advice and consent.
  Over the last few weeks, we've heard a lot about his sterling 
credentials and professional experience.
  He is a graduate of Yale College and Yale Law School and was awarded 
a prestigious Supreme Court law clerkship.
  He has an extraordinary range of experience in both the public and 
private sectors.
  He has dedicated more than 16 years to public service--as an 
appellate lawyer, a prosecutor, and an Assistant to the President.
  He has argued both civil and criminal matters before the U.S. Supreme 
Court and appellate courts throughout the country.
  And he has received the American Bar Association's stamp of approval 
to serve on the Federal bench on three separate occasions.
  Brett Kavanaugh is respected in the legal community for his keen 
intellect and legal prowess. And he has earned the reputation as a man 
of integrity, fairness, and honesty.
  In a larger sense, today's vote is about more than just Brett 
Kavanaugh as an individual nominee. Today's vote is another sign of 
progress for the judicial nominations process.
  The Senate is continuing on a path we began a little more than a year 
ago. At that time, the Senate turned away from judicial obstruction and 
advanced the core constitutional principle that every judicial nominee 
with majority support deserves a fair up-or-down vote.
  I am proud of the Senate for continuing on this path--for fairness, 
for principle, for the Constitution.
  And I urge my colleagues to support the nomination of Brett 
Kavanaugh.
  Mr. LEAHY. Mr. President, have the yeas and nays been ordered?
  The PRESIDENT pro tempore. The yeas and nays have not been ordered.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER (Mr. Isakson). Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Brett M. Kavanaugh, of Maryland, to be United States Circuit Judge 
for the District of Columbia Circuit?
  The yeas and nays have been ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from North Carolina (Mrs. Dole) and the Senator from South 
Dakota (Mr. Thune).
  Further, if present and voting, the Senator from North Carolina (Mrs. 
Dole) and the Senator from South Dakota (Mr. Thune) would have voted 
``yea.''
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from North Dakota (Mr. Conrad), the Senator from Hawaii 
(Mr. Inouye), the Senator from West Virginia (Mr. Rockefeller), and the 
Senator from Colorado (Mr. Salazar) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 57, nays 36, as follows:

                      [Rollcall Vote No. 159 Ex.]

                                YEAS--57

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Carper
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Landrieu
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Vitter
     Voinovich
     Warner

                                NAYS--36

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Cantwell
     Clinton
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--7

     Boxer
     Conrad
     Dole
     Inouye
     Rockefeller
     Salazar
     Thune
  The nomination was confirmed.
  The PRESIDING OFFICER. The President will be immediately notified of 
the Senate's action.

                          ____________________