[Congressional Record Volume 164, Number 116 (Wednesday, July 11, 2018)]
[Senate]
[Pages S4891-S4896]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mrs. CAPITO. Mr. President, I want to take a few moments to talk 
about what I believe is an excellent choice that President Trump made 
on Monday, and that is in selecting Judge Brett Kavanaugh to fill the 
vacancy on the Supreme Court.
  Judge Kavanaugh's credentials are those of a person very well suited 
for the U.S. Supreme Court. He excelled as an undergraduate and as a 
law student at Yale and clerked for Justice Anthony Kennedy, who is 
retiring--the man he would replace--and was also a clerk for two 
Federal appeals court judges. He served in a very critical position in 
President George W. Bush's administration.
  Beyond his resume is a record of respect and effectiveness. Judge 
Kavanaugh is highly regarded by his colleagues in the Federal 
judiciary. I think that says a lot about his potential and his 
character in terms of potential to become a Supreme Court Justice. He 
has also impressed others over his long and very prestigious career.
  We saw his wonderful family on Monday night. We can tell they are 
very proud of their dad and their mom, and I was very honored to have 
the opportunity to meet all of them, along with Judge Kavanaugh's 
parents.
  He has been very effective. As a matter of fact, this Supreme Court 
has adopted his reasoning in their opinions on 11 separate occasions, 
and the 300 opinions he has written are frequently cited by Federal 
judges all across the country.
  But perhaps Judge Kavanaugh's most qualifying characteristic is 
something I heard him say at the White House on Monday evening. When 
the President announced his nomination, Judge Kavanaugh committed to be 
open-minded in the cases that come before him as a Supreme Court 
Justice. Open-minded--I think that is critical, and his record backs up 
that commitment.
  He has a long and clear record of fairly applying the text of our 
Constitution and our laws. There will be a lot to consider on Judge 
Kavanaugh because he has such a long and very clear record of writing, 
and the President mentioned his very precise writing skills.
  When I consider nominees for the Supreme Court, I don't look for a 
person who promises particular policy outcomes or someone who is out to 
actually create laws; what I look for is a person who reflects 
experience, fairness, and respect for the Constitution as it is 
written. That is because the Constitution assigns legislative authority 
to us, to elected representatives in the Congress. Accountability to 
the American people is diminished when unelected judges pursue their 
own policy goals.
  A newspaper in the Northern Panhandle of our State, the Wheeling 
Intelligencer, editorialized today:

       Kavanaugh has said that if confirmed to the Supreme Court, 
     his allegiance will be to the Constitution as it is written, 
     not to his personal preferences. That is precisely what the 
     Nation needs.

  Another editorial appearing in West Virginia today--this one from the 
Daily Mail--said:

       A conservative Supreme Court justice interprets the U.S. 
     Constitution for all, not just those on the right or the 
     left.

  I believe Judge Kavanaugh truly understands a Justice's and a judge's 
proper role, and I think no one puts that better than the judge 
himself. I would like to read a portion of a speech he gave last fall:

       One overarching goal for me is to make judging a more 
     neutral, impartial process in all cases, not just statutory 
     interpretation. The American rule of law, as I see it, 
     depends on neutral, impartial judges who say what the law is, 
     not what the law should be. Judges are umpires, or at least 
     should always strive to be umpires. In a perfect world, at 
     least as I envision it, the outcomes of [cases] would not 
     often vary based solely on the backgrounds, political 
     affiliations, or policy views of judges. This is the rule of 
     law

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     as the law of rules; the judge as umpire; the judge who is 
     not free to roam in the constitutional or statutory forest as 
     he or she sees fit.
       In my view, too, this goal is not merely a preference of 
     mine but a constitutional mandate in a separation-of-powers 
     system.

  I believe that Judge Kavanaugh and I share the belief that 
faithfulness to the text of the law as written, not the pursuit of a 
particular policy outcome, should be the goal of a judge.
  In the same speech last year, Judge Kavanaugh discussed his meeting 
with then-West Virginia Senator Robert C. Byrd during his confirmation 
process to the DC Circuit. Most West Virginians and Americans know the 
reverence that Senator Byrd had for the text of the Constitution. 
During his speech, Judge Kavanaugh spoke of reading the text of Article 
I with Senator Byrd. Senator Byrd was among the Democrats who voted to 
confirm Judge Kavanaugh to the DC Circuit. I think Judge Kavanaugh's 
record on the DC Circuit and his experience merit a bipartisan 
confirmation process--the same type of bipartisanship that Senator Byrd 
showed when he voted for Judge Kavanaugh.
  For all of the noise and debate outside of this Chamber, the 
confirmation process for a well-qualified Supreme Court nominee does 
not have to focus on trying to guess how a Justice Kavanaugh might rule 
in a particular case. As a matter of fact, I think that will be a 
futile exercise and quite damaging to the process at the same time. If 
we are looking for a fair umpire, which we are looking for, there is no 
reason a nominee with a strong record of applying the text of the 
Constitution and the law should not be confirmed with overwhelming 
support.
  President Trump made clear in his campaign that he would appoint 
judges with respect for the Constitution. I believe he kept his 
commitment when he nominated Brett Kavanaugh to become a Supreme Court 
Justice.
  The process is just beginning where Judge Kavanaugh's record will be 
scrutinized to the nth degree. We are going to have hearings, and I 
hope all of us--and I am certainly putting myself in this category--
will have the opportunity--and I think we will--to sit down one-on-one, 
to talk with Judge Kavanaugh, to make our own judgments about his 
qualifications and his abilities in terms of becoming a Supreme Court 
Justice.
  I look forward to advancing the process, and I look forward to 
meeting with Judge Kavanaugh.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. BARRASSO. Mr. President, I first wish to associate myself with 
the remarks from the outstanding Senator from West Virginia. We had a 
chance to be together on Monday night when the President announced the 
nomination of Judge Brett Kavanaugh to serve on the U.S. Supreme Court, 
and I agree with my colleague from West Virginia that it is a fantastic 
choice.
  I said before that there are three things I want to see in any 
nominee for the Court: the appropriate judicial philosophy, a strong 
intellect, and a solid character. Everything I have seen so far 
confirms that Judge Kavanaugh satisfies all three of these 
requirements.

  I would like to talk today about a few things I think we can expect 
to see over the next couple of months. First, I think it is safe to say 
that throughout this process, Judge Kavanaugh will not announce how he 
is going to rule on cases that might come before him on the Supreme 
Court. The Presiding Officer and I know--as we walked back from the 
visit at the White House and were heading home after having a chance to 
visit with the President of the United States before he actually told 
the country Judge Kavanaugh would be the nominee--that it is a very 
appropriate thing for the judge to do, to not announce how he is going 
to rule on cases that might come before him at the Supreme Court. In 
fact, the ethics rules say it is exactly what a nominee should do. They 
should avoid making these sorts of comments. The rules say that judges 
and nominees should not answer questions about how they would rule on a 
case they might consider, so I expect that Judge Kavanaugh will follow 
the rules and not get into specifics on which side he may favor.
  It is what Ruth Bader Ginsburg, a current member of the Court, did 
during her confirmation process in 1993. She said that ``a judge sworn 
to decide impartially can offer no forecasts, no hints''--no hints, no 
forecasts, no previews. She said that this would ``display disdain for 
the entire judicial process,'' and she was confirmed. That is the 
Ginsburg standard. Every nominee since then has followed that standard.
  Well, the second thing I expect to happen is that Democrats are going 
to complain that Judge Kavanaugh follows the Ginsburg standard, and we 
have heard it already. They are going to complain that he will not 
promise to take their side in cases that might come before the Court. 
They are going to complain--and have already--that some of the cases he 
has decided in the past didn't work out the way they wanted them to 
work out--not what the law said, not what was right, but what they 
wanted. That is what Democrats in the Judiciary Committee did when Neil 
Gorsuch was nominated to the Supreme Court last year.
  We have seen this movie before. We know the playbook. They have 
criticized him for some of the rulings they didn't like. Even though 
the rulings followed the law, they didn't like the rulings, so they 
criticized the judge for following the law. They suggested he should 
have ignored the law, sided with the little guy, the sympathetic side 
in a case, regardless of what the law said. But Judge Gorsuch knew the 
same thing Judge Kavanaugh knows: Judges are absolutely not supposed to 
consider who they think is sympathetic in a case, where the empathy 
lies. It is where the law lies. They are supposed to be making 
decisions and rules based on the law.
  Federal judges actually swear an oath, and the oath is to 
``administer justice without respect to persons, and to do equal right 
to the poor and to the rich.'' That is what Judge Kavanaugh has done 
during his 12 years as a member of the DC Circuit Court.
  The minority leader, Senator Schumer, has already said that is not 
good enough for him--not good enough for Senator Schumer. He wrote an 
op-ed in the New York Times on July 2, and he wrote this op-ed before 
the President had even made a decision as to who he might nominate. At 
the time, the President was considering a number of names. It didn't 
matter to Senator Schumer; he made it clear that he is going to fight 
any mainstream nominee unless he can confirm that the nominee will rule 
in a certain way. Judges don't do that. Judges shouldn't do it. Well, 
that is the litmus test now for liberal Democrats in the U.S. Senate. 
They are going to try to make people believe that they know how Judge 
Kavanaugh is going to rule in the Supreme Court.
  When President Obama was picking people to serve as judges and 
Justices, he said that he was looking for people who would decide cases 
based on--this was his word--``empathy.'' Well, President Trump has 
consistently selected judges--and we have approved and confirmed quite 
a few now as we have been here since President Trump has taken office--
and Justices who decide cases based upon the law and the Constitution 
of the land. Judge Kavanaugh is exactly that kind of judge. He 
understands that writing the laws is not his job. It hasn't been his 
job in the circuit court, and it would not be his job on the Supreme 
Court. He gave a speech last year in which he said that Congress and 
the President, not the courts, possess the authority and the 
responsibility to legislate. Let me repeat that. Congress and the 
President, not the courts, possess the authority and responsibility to 
legislate.
  The third thing I expect to happen in this whole process is we will 
vote on Judge Kavanaugh's nomination before the next Supreme Court 
session starts in October. That is what the American people want us to 
do. NBC News did a recent poll, and they found that 62 percent of 
Americans want us to vote on this nomination before the November 
election, and only 33 percent said that we should wait. But Democrats 
want to delay. They want to delay the process. The American people are 
saying to get on with it.
  It is early July now. We are going to work through the month of 
August. It gives us plenty of time to consider this nomination. When 
you look at the people serving on the Supreme Court today, we typically 
spend about 66 days to confirm each of them. That is going

[[Page S4893]]

to put it around the middle of September. There is no reason we need to 
take any longer than that.
  Judge Kavanaugh has been through this process before and has been 
confirmed by the Senate before. He was confirmed to the circuit court 
by a vote of 57 to 36 in this body. Four Democrats supported his 
confirmation.
  Judge Kavanaugh has served on the circuit court for over 12 years, 
has written a number of rulings--I think over 300. His background as a 
judge gives us powerful evidence of the kind of Justice he will be. He 
is going to take the law and the Constitution at face value. He is not 
going to treat them like blank pages on which he can rewrite the laws 
the way he wishes they were. In a speech last year, he made it very 
clear. He said: ``The judge's job is to interpret the law, not to make 
the law or make policy.'' This view--and every example I have seen from 
Judge Kavanaugh's record--is squarely in the mainstream of American 
legal thinking today. He is smart, he is fair, and I believe he is very 
well qualified.
  Regrettably, none of this matters to some of the Democrats. They are 
going to use the same scare tactics they use every time a Republican 
President nominates someone to the Supreme Court. They did it 40 years 
ago when President Gerald Ford nominated John Paul Stevens to the 
Court. Liberals accused him of ``antagonism to women's rights.'' When 
President Reagan nominated Justice Kennedy 31 years ago, the Justice 
who has just retired from the Court, Democrats said his nomination 
``should be unsettling to those concerned with the health and legal 
status of women in America.'' They have been using the same old lines 
for more than 40 years. It is never true; it is never reality. But 
apparently for the Democrats, it never gets old.
  I hope the Democrats in the Senate will give Judge Kavanaugh a 
chance. I hope they will take the time to consider his qualifications 
and actually sit down and talk with him before they rush to condemn 
him, although quite a few rushed to condemn him even before the 
President had decided and he was named to the Court.
  I also look forward to sitting down with the nominee and exploring 
some of his views more fully, but everything I have seen so far 
suggests to me that it is going to be a very good conversation and that 
Judge Kavanaugh would make an excellent Justice of the Supreme Court.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SANDERS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SANDERS. Mr. President, today I rise to oppose the nomination of 
Brett Kavanaugh to the Supreme Court. This is an issue I will return to 
in the coming weeks and months at greater length, but I did want to say 
a few words about why I am in opposition to Mr. Kavanaugh.
  I think many Americans have a pretty good sense of what the function 
of Congress is and what the President of the United States does, but, 
in fact, I think many Americans do not fully appreciate the role that 
the Supreme Court plays in our lives. In the past decade alone, the 
Supreme Court has issued some incredibly controversial and, to my mind, 
disastrous decisions that have had a profound impact on the lives of 
the American people.
  Let me review for a moment why this nomination is so very important 
by looking at what the Supreme Court, often by a 5-to-4 vote--a one-
vote majority--has done in recent years. If you go out onto the streets 
of any community in the United States of America--whether it is a 
conservative area or a progressive area--what most people will tell you 
is that we have a corrupt campaign finance system--a system that today, 
as we speak, allows billionaires to spend hundreds of millions of 
dollars to buy elections. Most Americans, whether they are Democrats or 
Republicans or Independents, do not think that is what American 
democracy is supposed to be about. What most people think is that the 
majority should rule. Sometimes you win, and sometimes you lose, but 
everybody gets a vote--not a situation in which billionaires can spend 
unlimited sums of money to support candidates who represent their 
interests. That is, in fact, what goes on right now.
  Many Americans may think that was a decision made by Congress, made 
by the President. That is not so. That disastrous decision that is 
undermining American democracy came about by a 5-to-4 vote of the U.S. 
Supreme Court in the Citizens United case.
  That is what a Supreme Court decision can do. It can undermine 
American democracy and create a situation where the very wealthiest 
people in this country can buy politicians and influence legislation.
  Several years ago, the Supreme Court upheld the constitutionality of 
the Affordable Care Act, but the Court also ruled that the Medicaid 
expansion as part of the Affordable Care Act had to be optional for 
States.
  I am on the Health, Education, Labor, and Pensions Committee, which 
helped to write that bill. I can tell you that there was almost no 
discussion--I don't recall any discussion--about whether or not that 
legislation would apply and all elements of the legislation would apply 
to every State in the country.
  The Supreme Court ruled that this was not the case. They said that 
the decision of expanding Medicaid was up to the States. Today, we have 
17 States in our country that still have not expanded Medicaid. What 
that means in English--in real terms--is that today there are millions 
and millions of people, in 17 States in this country, who are ill, 
people who can't afford healthcare, people who are literally dying 
because they don't go to the doctor when they should, and that is all 
because of a decision of the U.S. Supreme Court.
  It is not only the issue of campaign finance or the issue of Medicaid 
and healthcare where the Supreme Court has acted in a disastrous way. I 
think everybody knows that our country has a very, very shameful 
history in terms of civil rights. It has been a very long and hard 
struggle for us to finally say that in America, regardless of the color 
of your skin, regardless of your economic position, you have the right 
to vote. It is not a radical idea, but it is a struggle for which very 
brave people fought for many decades.
  In 1965 the Congress finally passed the Voting Rights Act, which had 
the impact of eliminating racial discrimination in voting. That Act, 
passed by Congress, has been reauthorized multiple times since. In 
other words, what Congress said is that everybody in this country has 
the right to vote, regardless of the color of your skin.
  In 2013 the Supreme Court--again, by a 5-to-4 vote--ruled that parts 
of the Voting Rights Act of 1965 were outdated, and they struck down a 
major part of that law that guaranteed that all Americans had the right 
to vote. Literally days after that decision was rendered by the Supreme 
Court, officials in State after State responded by enacting voting 
restrictions targeted at African Americans, poor people, young people, 
and other groups of citizens who don't traditionally vote Republican.
  Literally days after that Supreme Court decision, State officials 
said: Wow, we now have the opportunity to make it harder for our 
political opponents to vote.
  They moved very, very quickly with restrictive voting rights laws. 
That situation was created by, once again, a 5-to-4 vote by a 
conservative Supreme Court.
  Just this year, we saw the Supreme Court rule against unions in a 
really outrageous decision in the Janus case, designed to weaken the 
ability of workers and public employees to negotiate fair contracts. 
Just this year, we saw the Supreme Court uphold President Trump's 
Muslim ban and other important pieces of legislation.
  This is already a Supreme Court that, given the option, will rule, as 
they have time and again, often by a 5-to-4 vote, in favor of 
corporations and the wealthy and against working people; that will 
continue to undermine civil rights, voting rights, and access to 
healthcare; that are edging closer and closer to ruling that a person's 
religious beliefs should exempt them from following civil rights laws.
  Having said that, let me say very briefly why I oppose the nomination 
of

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Judge Kavanaugh. As it happens, I do not usually believe anything that 
President Trump says because I think, sadly, that he is a pathological 
liar, but I do think this is a moment where we should believe one thing 
that he said during the campaign. I think, in this instance, he was 
actually telling the truth. During the campaign, he was asked if he 
wanted to see the Court overturn Roe v. Wade, the landmark decision 
that protects a woman's right in this country to control her own body. 
He responded to that question:

       Well, if we put another two or perhaps three justices on, 
     that's really what's going to be--that will happen. And 
     that'll happen automatically, in my opinion, because I am 
     putting pro-life justices on the court.

  That is Donald Trump during the campaign.
  On a separate occasion, as many recall, Trump suggested that women 
who have abortions should be punished. I have very little doubt that 
while he may evade the question of whether or not he wants to overturn 
Roe v. Wade--I have zero doubt--he would not have been appointed by 
Donald Trump unless that is exactly what he will do.
  As I think we all know, President Trump put forth a list of 25 
potential justices, all of whom were handpicked by the Heritage 
Foundation and the Federalist Society. These two extreme rightwing 
groups claim they have ``no idea'' how any of the people on that list 
would rule on Roe v. Wade, but overruling Roe has been a Republican 
dream for 40 years. Please do not insult our intelligence by suggesting 
it is possible that any of these candidates could secretly support a 
woman's right to control her own body. That will not be the case.
  That brings us to Judge Kavanaugh. You may remember that last year 
the Federal Government was sued by an undocumented teenage girl they 
were keeping in detention in Texas. She discovered that she was 
pregnant while in detention and tried to obtain an abortion. Judge 
Kavanaugh wanted to force her to delay the proceeding, presumably until 
it was no longer legal under Texas law for her to obtain an abortion in 
that State. When he was overruled by the full DC Circuit, he complained 
in a dissent that his colleagues were creating a right to ``abortion on 
demand.'' Does that sound like someone who is going to strike down 
State laws that create undue barriers to abortion access, or does it 
sound like somebody who had no problem with forcing a teenage girl to 
carry a pregnancy to term?
  There is also another case percolating out of Texas that could have 
even graver consequences for tens of millions of Americans. The State 
of Texas and 17 other Republican States have sued the Federal 
Government, claiming that the Affordable Care Act is unconstitutional, 
and the Department of Justice under Donald Trump agrees with them. 
While I do not know how Judge Kavanaugh would rule on this case--nobody 
could, of course, know that--I will note that in another case about the 
ACA, he suggested that the President could simply refuse to enforce 
laws that he deems unconstitutional, regardless of what the Courts say.
  What we are dealing with here is, literally, a life-and-death 
decision regarding preexisting conditions, regarding the issue of 
whether today you have cancer, heart disease, diabetes, or some other 
life-threatening illness. Before the Affordable Care Act, an insurance 
company could say to you: Oh, you have a history of cancer, we are not 
going to insure you because we can't make money out of you because that 
cancer might recur. It might be: You are too sick and we are going to 
lose money on your case and we are not going to insure you or, if we do 
insure you, your rates are going to be five times higher than somebody 
else's of your age.

  One of the major achievements of the Affordable Care Act, which was 
supported by 90 percent of the American people, is that we must not end 
the protections the American people have today against insurance 
companies that would bring back preexisting conditions--that would 
discriminate against people who were ill. It is very likely that case 
will come before the U.S. Supreme Court. Yet 90 percent of the American 
people say we should not discriminate against people who have cancer or 
heart disease and that insurance companies should not be allowed to 
deny them coverage or raise their rates to levels that people cannot 
afford.
  The Trump administration has supported the argument of the Republican 
Governors and will not defend the ACA in court, which will come to the 
Supreme Court. Unless I am very mistaken, Judge Kavanaugh will vote 
with the rightwing majority and allow discrimination against people who 
have serious illnesses to, once again, be the law of the land.
  Time and again, Judge Kavanaugh has sided with the interests of 
corporations and the wealthy instead of the interests of ordinary 
Americans. He has sided with electric power utilities and chemical 
companies over protecting clean air and fighting climate change.
  He has argued, if you can believe it, that the Consumer Financial 
Protection Bureau, which has saved consumers billions and billions of 
dollars from the greed and illegal behavior of Wall Street and 
financial institutions, is unconstitutional because its structure does 
not give enough power to the President. He has also argued against net 
neutrality.
  He dissented in an OSHA case and argued that SeaWorld should not be 
fined for the death of one of its whale trainers because the trainer 
should have accepted the risk of death as a routine part of the job.
  While nobody can predict the future, we can take a hard look at Judge 
Kavanaugh's record and extrapolate from his decisions what kind of 
Supreme Court Justice he will be. I think the evidence is overwhelming 
that he will be part of the 5-to-4 majority, which has cast decision 
after decision against the needs of working people, against the needs 
of the poor, and against the rights of the American people to vote 
freely, without restrictions.
  This is an issue to which I will return. I just want the American 
people to understand, when they hear this debate taking place here and 
think, well, it is the same ol' same ol'--with people yelling at each 
other--that this is an enormously important decision which will impact 
the lives of tens and tens of millions of people. I hope very much that 
the American people become engaged on this issue, learn about Judge 
Kavanaugh's record, and join with those of us who are in opposition to 
his nomination.
  I yield the floor.
  Mr. GRASSLEY. Mr. President, I am pleased the Senate is considering 
Brian Benczkowski to serve as the Assistant Attorney General for the 
Criminal Division. This is a critical position at the Department of 
Justice and its extended vacancy has hindered the agency's 
effectiveness. Mr. Benczkowski has the experience and qualifications to 
lead the Criminal Division. I am proud to support his nomination on the 
floor today.
  Mr. Benczkowski was nominated 400 days ago. The Judiciary Committee 
held his confirmation hearing nearly a year ago. A fully staffed and 
well-functioning Criminal Division is vitally important to the 
Department of Justice's mission.
  Over a dozen former U.S. Attorneys, from both the Bush and Obama 
administrations, support his nomination. They wrote that the head of 
the criminal division is ``the nerve center of federal prosecution, and 
the absence of a confirmed occupant can diminish the effectiveness of 
our law enforcement program throughout the country.''
  The former prosecutors went on to state: ``Those of us who know Brian 
recognize that he is the right person to provide that leadership and to 
be a strong and effective partner with the United States Attorneys' 
Offices.''
  Mr. Benczkowski already has an impressive legal career. He previously 
served as the Republican staff director on the Senate Judiciary 
Committee from 2009-2010.
  He also served as a counsel on the House Judiciary Committee. Before 
that time, he worked on the Senate Budget Committee and served as a 
counsel to Senator Domenici for 4 years.
  Mr. Benczkowski excelled as a leader during his time on the Judiciary 
Committee. During his time as staff director, he was instrumental in 
passing the Fair Sentencing Act. This law reduced the disparity in 
federal criminal sentencing between crack and powder cocaine. His 
leadership was instrumental

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in several pieces of bipartisan legislation, including the Crime 
Victims Fund Preservation Act of 2009, the Secure and Responsible Drug 
Disposal Act of 2009, the Judicial Survivors Protection Act of 2009, 
and the Combat Meth Enhancement Act of 2009.
  Mr. Benczkowski also served in several different roles at the 
Department of Justice. In 2008, he became the chief of staff to the 
Attorney General and the Deputy Attorney General. He also served as the 
chief of staff to the ATF. In total, he held five senior leadership 
positions in different divisions in the Department of Justice, working 
with components and law enforcement agencies across the Department.
  During Mr. Benczkowski's decade in the private sector, he gained 
extensive litigation management experience that will serve him well as 
he oversees the Criminal Division.
  Some of my colleagues on the other side of the aisle have said they 
will not support his nomination because he allegedly lacks experience. 
They say this because Mr. Benczkowski was never a prosecutor.
  But the head of the Criminal Division is not a prosecutor. The 
position oversees criminal matters and formulates and implements 
criminal enforcement policy. It requires a deep knowledge of Federal 
criminal law, experience in government investigations, and strong 
management skills. Mr. Benczkowski, with his years of experience in 
relevant fields, is clearly qualified for this position.
  But don't just take my word for it. Five former heads of the Criminal 
Division appointed under the Bush and Obama administrations said this 
about Mr. Benczkowski's nomination: ``Mr. Benczkowski has the necessary 
leadership, management and substantive experience to lead the 
Division.'' They noted that, ``by virtue of our service in the position 
to which Mr. Benczkowski has been nominated, we are familiar with the 
qualifications and experience necessary for success in the job.''
  They went on to say ``throughout his career, on the criminal defense 
side in private practice and in the Department, he has worked on 
complex criminal investigations on a range of issues; significant 
criminal legislation matters; important criminal policy matters; and 
domestic and international law enforcement matters.''
  These former heads of the Criminal Division know better than anyone 
the background and qualifications required to do the job, and they 
think that Mr. Benczkowski is a good fit for this role.
  Some of my colleagues have raised a different concern, related to Mr. 
Benczkowski's legal representation of Alfa Bank while he was working at 
the law firm of Kirkland and Ellis. The Senate learned of this matter 
when reviewing his FBI background investigation.
  Normally the committee doesn't publicly discuss any matters contained 
in the background investigation but because this matter raised some 
concerns for some senators, Mr. Benczkowski voluntarily waived his 
privacy rights, so we could freely and publicly question him on this 
matter.
  At his hearing, the committee members extensively questioned him 
about his representation of Alfa Bank. He answered all our questions. 
He was not evasive. His testimony was public. It was very credible and 
uncontroverted.
  Mr. Benczkowski also then responded in writing to several rounds of 
written questions submitted to him.
  After this hearing, I helped Senator Durbin arrange an intelligence 
briefing with the Office of the Director of National Intelligence 
related to Alfa Bank.
  I also helped arrange for the Deputy Attorney General to call Senator 
Durbin to explain the Department's long-standing tradition that it does 
not confirm nor deny investigations, particularly when it comes to a 
nominee's client.
  When clients are under investigation, they need lawyers to represent 
them. Are we now going to have a political litmus test for nominees 
based upon the clients they stepped forward to represent in private 
practice?
  There is no credible allegation that Mr. Benczkowski did anything 
wrong or unethical related to his limited representation of Alfa Bank 
or otherwise. He has promised to recuse himself from handling any 
matters involving Alfa Bank, and he has promised to consult with ethics 
officials regarding any other times he may need to recuse.
  I believe Mr. Benczkowski will be an outstanding head of the Criminal 
Division. I urge my colleagues to join me in supporting his nomination.
  Mr. SANDERS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. COONS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COONS. Mr. President, I come to the floor to raise concerns both 
about the next vote we will take--a vote that will or will not confirm 
President Trump's nominee Brian Benczkowski to be the Assistant 
Attorney General of the Criminal Division of the U.S. Department of 
Justice--and to express my concern about our President's actions at the 
NATO summit and his upcoming meeting with Vladimir Putin, the President 
of the Russian Federation.
  Let me start with Mr. Benczkowski. I come to the floor to speak in 
opposition to our proceeding to his confirmation. Mr. Benczkowski has 
been nominated to serve as an Assistant Attorney General and will be in 
charge of the Criminal Division at the U.S. Department of Justice.
  How big of a division is that--10, 50, 100? It actually has 900 
employees and 600 career Federal prosecutors. The U.S. Department of 
Justice takes up, handles, investigates, and prosecutes cases of an 
unbelievable range, complexity, and sophistication in every district 
court in the entire United States. One would have to assume that to 
take on such a significant--such an important--role as overseeing, 
supervising, and managing 900 professionals and 600 career prosecutors 
that Mr. Benczkowski must be very qualified to serve.
  As someone who is himself an admitted member of the Delaware bar and 
serves on the Judiciary Committee, I hesitate to suggest that I have 
the qualifications because I have never tried a criminal case in court, 
so I am not sure how I would directly supervise a whole team of career 
Federal prosecutors. Mr. Benczkowski has never prosecuted a case. He 
has never supervised a criminal prosecution. In fact, he has not ever 
appeared in Federal court, by his own admission, except for on one or 
two limited occasions in order to address routine scheduling or other 
matters.
  Mr. Benczkowski is before us, in his having been nominated to 
supervise the single largest, most complex, most sophisticated law firm 
in America for criminal matters on behalf of the people of the United 
States, without his having the relevant experience. In my view, that 
alone is disqualifying. That alone should lead us to pause in terms of 
whether we should confirm this man to lead the Criminal Division as the 
Assistant AG.
  Virtually all of the last several Senate-confirmed Assistant 
Attorneys General for the Criminal Division have had extensive prior 
experience as prosecutors, as former U.S. attorneys, as career or 
elected folks who have either been within the Department of Justice or 
have been attorneys general. This is for good reason, for the Federal 
Government holds enormous power and discretion when it comes to 
criminal prosecutions. The Assistant Attorney General is responsible 
for overseeing offices that investigate and prosecute money laundering, 
fraud, organized crime, public corruption, and a host of other serious 
offenses. It is that AAG who ultimately signs off on some of the 
edgiest or most difficult or most questionable prosecutorial decisions. 
Every American should expect that the person who is nominated for this 
important job is qualified to meet the weighty demands of this job.
  Secondly, every American is entitled to the assurance that the 
Department of Justice will be independent and that criminal 
prosecutions will rise and fall with the facts and the law and nothing 
else. Sadly, Mr. Benczkowski fails to pass this test too.
  He led the Department of Justice's transition team for the Trump 
administration. He previously served with our now-Attorney General and 
former Senator Jeff Sessions. Yet, after leaving the transition team 
for the Trump

[[Page S4896]]

administration, he went on to private practice in a law firm where he 
represented Alfa-Bank, which is one of the largest Russian banks. It is 
a Russian bank which, through its owner, a Russian oligarch, has close 
ties to Vladimir Putin.
  At times, it is hard for me to believe how many people immediately 
around the President, his Cabinet, his campaign team, or around him 
personally have had concerning, inexplicable, difficult-to-understand 
ties to Russian entities, but here we are again. To be frank, I am 
concerned that Mr. Benczkowski's position--if confirmed by this Senate 
in just 5 minutes in a vote we are about to take--could enable him to 
directly interfere with Special Counsel Mueller's ongoing investigation 
into Russian interference.
  I have raised concerns about this, about ensuring that Attorney 
General Sessions fully complies with his recusal from matters related 
to the last election. Adding Mr. Benczkowski to the mix in his 
absolutely central role as the Assistant Attorney General who will 
oversee the Criminal Division raises these concerns even further. 
Adding another senior person to the Justice Department's leadership 
team who raises these concerns about real independence gives me real 
pause.
  I joined all of the Senate Judiciary Committee Democrats in a letter 
that asked the administration to move Mr. Benczkowski to some other 
position and to send us a qualified, capable nominee who does not have 
concerning Russian connections. Unfortunately, the administration 
hasn't done that. My friends on the other side of the aisle seem poised 
to confirm this gentleman today.