[Congressional Record Volume 164, Number 115 (Tuesday, July 10, 2018)]
[Senate]
[Page S4860]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mr. SASSE. Mr. President, one of the most consequential duties of the 
Senate is the consideration of a Supreme Court nominee. This is the 
Congress's opportunity to shape the direction of the Federal courts and 
to defend a judiciary that is focused on laws, not policy. For those of 
us who have been called to this role for a limited time, this work is 
important. It will outlast us by decades. None of us should take this 
duty lightly.
  With the appointment of Justice Gorsuch last year and now a record 22 
judges to the courts of appeals, the past 18 months have been among the 
most consequential for the judiciary in the history of the Nation--and 
that was before Justice Kennedy's retirement.
  As significant as these confirmations have been for the last year and 
a half in the judiciary, the current Supreme Court vacancy is arguably 
the most important task before the Senate this year. This vacancy is a 
remarkable opportunity to affirm the role of a judge under our 
constitutional system of republican self-government.
  Fundamentally, this shouldn't be an exercise in policymaking, as 
vital and important as policymaking can be. Making law is not the job 
of the courts in any way, shape, or form.
  Don't get me wrong. Setting goals and making policy can be very 
important, but it is done in the open, and it starts at home. Americans 
answer our biggest questions outside of government with our friends and 
neighbors, with our communities of worship, in our rotary clubs, and in 
our small businesses with entrepreneurship and all sorts of 
volunteerism in America.
  With regard to government, policymaking choices are made by the 
American people through their representatives whom they elect and can 
hire and fire. To put it bluntly, Members of the Senate and Members of 
the House of Representatives at the other end of this building can be 
fired. In fact, 435 of the 535 people we work with in the Congress are 
always within 23 months and 29 days of being sent back home by the ``we 
the people'' who are actually in charge of policymaking in America.
  But the Court is different. Nobody back home can fire a Supreme Court 
Justice. They have lifetime tenure. We should reflect more often on why 
our Founders decided to give members of the judiciary lifetime tenure. 
That is why we don't want those judges with their lifetime tenure to be 
writing laws or making policy. If a judge wants to make policy, he or 
she should take off the black robe of impartiality and run for office. 
It is a legitimate thing to do. All of us in this body have done it. We 
think it is a way to love our neighbor and serve our country, but in 
our system of ``we the people,'' the voters decide who gets to make 
policy. Judges have black robes, and they have lifetime tenure. They 
are not policymakers.
  Regrettably, as our ever-fraying sense of common identity in America 
is falling apart in the eyes of many of our citizens, we are warping 
the role of the Court and of judges, reducing the role of the Court 
from the plain and ever-compelling words of Marbury v. Madison ``to say 
what the law is,'' not what some judge wishes it were; we are, instead, 
seeing the judiciary warped into a profane occupation of pronouncing 
policy preferences but without any mechanism of meaningful 
accountability by which the people could still be in charge. We should 
not let that stand. We should not want to see that perpetual warping of 
the judiciary into a place of being policymakers--yet policymakers 
without accountability.
  We need a recovery of basic civics in the country about what the role 
of a judge is and what the purposes of the courts are. We should not 
let this confirmation process turn into a battle for our own policy 
preferences that just breaks down our constitutional architecture--the 
constitutional architecture on which an American free society depends.
  Sadly, that is apparently what many people in the Resistance aim to 
do. They aim to bork Judge Kavanaugh's nomination by any means 
necessary. We are less than 24 hours into this, and folks are already 
declaring that if you can't see that Brett Kavanaugh is a cross between 
Lex Luthor and Darth Vader, then you apparently aren't paying enough 
attention.
  The American people are smarter than that. That kind of charge is 
silly, and the American people don't want judges who think of 
themselves as superlegislators.
  Unfortunately, far-left super PACs are shouting that we have reached 
the apocalypse. I was outside last night, right at the edge of the 
Supreme Court steps. In addition to the signs that were being held up, 
saying that Brett Kavanaugh was hastening the end of days, there were 
other signs on the ground, which had been printed with the names of 
other potential nominees to the Court, about how they were the ones who 
would bring about the end of days. This isn't true. We need less WWE 
``Thunderdome'' and a lot more ``Schoolhouse Rock.''
  The confirmation process of the Supreme Court nominee should be an 
occasion to do basic civics with our kids, and it shouldn't be dividing 
Republicans and Democrats about policy preferences. It should be an 
occasion for Americans to come together and talk again about why judges 
wear black robes and why they have lifetime tenure. This should be a 
test of the character, competence, and constitutional commitments of 
someone who has been nominated to the judiciary because in the American 
system, judges have a peculiar role--no more and no less than what 
article III of the Constitution gives them.
  In Judge Kavanaugh, we have a compelling guy. He is a standout dad, 
and even his most ardent critic will acknowledge that he is one of the 
most thoughtful and influential judges on the courts of appeals across 
the Nation today. He has a ton of impressive opinions to his name, 
especially on the subjects of separation of powers and administrative 
law, which are now dominating the docket not only of the DC Circuit 
Court of Appeals, where he currently sits, but also at the Supreme 
Court to which he has been nominated.
  Judge Kavanaugh was put on the circuit court at age 41--12 years 
ago--a remarkably young man to be put on such a prestigious court. In 
his 12 years on the court, he has authored more than 300 opinions. I 
think the current count is that more than 100 of his opinions have been 
cited by more than 200 of his peers on other courts across the country. 
He is truly a judge's judge.
  Last night, I heard from people on both the right and left ends of 
the policy spectrum, but legal experts said to me quotes that were 
remarkably eerie in their echo: Brett Kavanaugh is always the smartest 
person in every room he is in, yet when you are in the room, you would 
never know that he knows it because of his humble manner and his 
winsome ways.
  If my colleagues want to pursue these confirmation hearings as mere 
naked partisanship, they should actually resign their seats and try to 
get cable news jobs. But if we want to take our jobs seriously, if we 
want to have an honest debate, then we should be taking seriously our 
charge to uphold the three branches of government, their separate 
responsibilities, and the ways they check and balance one another.
  With those more than 300 opinions, we have a lot of homework to do. I 
am looking forward to beginning to dive further into Judge Kavanaugh's 
opinions over the course of the last 12 years. I am pretty confident 
that what we are going to find is a guy who has lots of deference and 
respect for the limited job that a judge is called to fulfill. I hope 
my colleagues in this Chamber will join me in diving into those 
opinions, sort of foreswearing the ``Thunderdome'' silliness that many 
people outside are urging us to turn the confirmation process into.
  Thank you.
  The PRESIDING OFFICER. The Senator from New Jersey.