[Congressional Record Volume 164, Number 117 (Thursday, July 12, 2018)]
[Senate]
[Pages S4926-S4928]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mr. CORNYN. Mr. President, yesterday, I had the chance to meet with 
the President's nominee to fill the vacancy left by the retirement of 
Justice Anthony Kennedy on the Supreme Court, and I am pleased with the 
nominee the President has chosen. After talking to him yesterday 
morning, I look forward to supporting his nomination and doing whatever 
I can to ensure his bipartisan confirmation.
  My conversation with Judge Kavanaugh refreshed my memory that we 
actually had met back in 2000 when I was attorney general of Texas and 
I was preparing to deliver an oral argument before the U.S. Supreme 
Court--something I had never done before. Thanks to Judge Kavanaugh, 
who wasn't a judge at the time, Paul Clement and Ted Olson--both of 
whom had been Solicitor General of the United States--helped me get 
prepared and do the best job I was capable of doing before the Court, 
providing me a moot court opportunity. So it was good to catch up with 
Judge Kavanaugh.
  I have followed Judge Kavanaugh's career closely. In the interim, 
obviously he has served as a circuit court judge on the DC Circuit 
Court. Some might call it the second most important court in the 
Nation, and that is primarily because it is located here in the 
District of Columbia, and most of the major cases involving 
administrative authority, Federal power, end up finding their way one 
way or the other

[[Page S4927]]

through the DC Circuit Court of Appeals. So he has had a great judicial 
career over the last 12 years and has written on a variety of topics. I 
would say he is a pretty well-known quantity.
  While you are going to hear a lot of demands for additional 
information--and I am all for as much transparency as can be provided, 
and Senators certainly have a right to get their hands on as much 
information as possible about the nominee and his qualifications, his 
background, and how he might perform as a Supreme Court Justice--I hope 
this doesn't turn into a delay-of-game tactic.
  He has had a long career in the government. He worked at the White 
House as Staff Secretary, which, for those who aren't familiar with 
that, means he was the last person who saw a piece of paper before it 
was presented to the President for signature. That doesn't mean he was 
the publisher or the author of that paper, and many times it was really 
to make sure that it was correct, that it was accurate, that it had 
been verified and authenticated, but he was the one who decided to turn 
it over to the President for the President to sign, and it could have 
been major matters or minor matters. But I hope we don't get to a point 
where people say that every document or email that he happens to have 
been copied on or have seen somehow becomes essential for a Senator 
before they can decide whether to support his confirmation.
  I would add that some Senators have come out and announced their 
opposition to the nominee before he was even announced. I think our 
friend from Pennsylvania did that--in other words, announced his 
opposition to anybody this President might nominate to fill the vacancy 
left by Anthony Kennedy. So I hope we don't hear from people like that, 
that now they need more information so they can make a decision. They 
have already made their decision, and it really is just a waste of 
everybody's time and really an insult to the rest of the Senators who 
are doing their due diligence and trying to perform their 
constitutional responsibilities when it comes to providing advice and 
consent on a nominee to the highest Court in the country.
  Many people are familiar with the arc of Judge Kavanaugh's career, 
but let me mention a few things, lest they be lost in all of the noise 
here in Washington.
  Of course, he graduated with honors from Yale College and attended 
Yale Law School--two of the elite universities and law schools in the 
country. He clerked for two Federal appellate judges before Justice 
Anthony Kennedy on the Supreme Court. As the Presiding Officer knows, 
those are the types of jobs that are highly competitive, and only the 
best of the best get asked to serve as law clerks to Federal appellate 
judges and certainly to the Supreme Court. Then he went on to work in 
private practice, in the White House Counsel's office thereafter, and 
finally as Staff Secretary, which I mentioned a few minutes ago, before 
being confirmed to the Federal bench in Washington.
  I want to step back for a moment because in the weeks ahead, we are 
going to have plenty of time to talk about his credentials, his 
experience, and his decisions, and we will have plenty of time to parse 
all of the dissents, the concurrences, the majority opinions he has 
written on the DC Circuit Court of Appeals, but I think it is also 
important to know the man, to know the person, because unfortunately, 
Washington, DC, has a way of chewing up people, and their personality 
and their humanity become separated from the political basis or 
ideological basis upon which people may oppose them. So I think it is 
important to know the qualities of this man because it informs us about 
his character, which I hope we would all agree is an important element 
in the qualifications of a Federal judge.
  Judge Kavanaugh is one who is active in his community, as we heard on 
the night the announcement his nomination was made. He is known as 
Coach K on his daughter's basketball team and acts as a lector at his 
church. He serves meals to needy families on a regular basis and tutors 
children at local elementary schools. Frankly, I don't know where he 
finds the time to do all those things while serving as a member of the 
DC Circuit Court of Appeals. One friend called him a regular old 
``carpool dad.'' I think we all know what that is; it is a dad who 
drives the kids to school. That comment was reported in the Washington 
Post. This friend wrote that those who know Judge Kavanaugh' character 
would render a ``unanimous verdict in his favor.''

  Judge Kavanaugh is the former captain of his high school basketball 
team. He has run the Boston Marathon--something I aspire to do. I just 
made it through a half-marathon years ago but never a full marathon, 
much less the Boston Marathon. He has won his court's annual 5K race 
five times. As a matter of fact, I have seen him year after year over 
in Anacostia when we have a race for charity that many of our Senate 
offices participate in, along with the press and the Federal agencies, 
including the courts. I believe I have seen him run in those 5K races 
with his team.
  Professionally, Judge Kavanaugh is known as a distinguished legal 
professional, but it is important to know that even amidst the hustle 
and bustle of a high-powered legal career, he found time to do a lot of 
very important things. While in private practice, for example, he was 
head of a practice group devoted to protecting religious liberties. You 
don't earn a big fee as a lawyer by advocating in cases involving 
religious liberties. Typically, these are cases where you volunteer 
your time because you believe in the right of the citizen to have their 
case heard by the courts. Particularly when it comes to religious 
liberties, Judge Kavanaugh's record is crystal clear. He has advocated 
on behalf of those--regardless of their ability to pay--whose religious 
liberties were at risk. He also wrote two briefs for the Supreme Court 
of the United States supporting the cause of religious liberty, 
including the case I mentioned earlier that I argued in the Supreme 
Court involving the Santa Fe Independent School District, which was 
sued by the American Civil Liberties Union to prevent them from 
allowing a student to volunteer their time to offer an inspirational 
saying or a prayer before a football game in Texas. He authored an 
amicus brief in support of that case.
  When he is not volunteering for causes he believes in, he is the 
father of two daughters--something near to my heart, and I know the 
Presiding Officer has two daughters as well. He has been a mentor to 
many law students whom he has taught over the years.
  His colleague, Jack Goldsmith, a distinguished lawyer in his own 
right at Harvard, described him as having ``many, many considerable 
strengths as a judge and potential Justice, and [also] as a person.''
  His former professor, Akhil Amar, who supported Hillary Clinton in 
the last election, wrote in the New York Times a couple of days ago 
that Judge Kavanaugh is a ``superb nominee'' who has ``already shown 
flashes of greatness.'' I believe the headline of that op-ed piece by 
Professor Amar talked about the liberal case for Brett Kavanaugh, and I 
appreciate his willingness to talk about the man and his professional 
credentials and not get bogged down in the polarized politics of 
judicial confirmations here in Washington. He called the nomination of 
Judge Kavanaugh President Trump's ``finest hour, his classiest move.'' 
That is pretty impressive.
  These are just a few of the reasons why here in the Senate we need to 
now move forward confidently and deliberately with the confirmation 
process. We will proceed thoroughly but with expedition. It is, after 
all, our constitutional role--now the President has discharged his 
constitutional role--to offer advice and consent on the President's 
nominee. I believe the President has chosen wisely, just as he did when 
he chose Neil Gorsuch for the vacancy created by the unfortunate death 
of Justice Scalia. The President has chosen well again, and I believe 
this nominee is deserving of this high honor to serve on our Nation's 
highest Court.
  There are some who said that we need to wait or that there is not 
enough time before the midterm election to confirm Judge Kavanaugh. 
Well, that is a pretty transparent stalling tactic. Justice Kennedy 
said he is vacating the Bench at the end of this month, so when the 
Supreme Court reconvenes on October 1--I believe it is the first Monday 
in October--it would

[[Page S4928]]

be good to have that vacancy left by the retirement of Judge Kennedy 
filled with this nominee. So the idea that we can somehow put this off 
until after the midterm elections I think makes no sense, or if it 
makes sense, it makes sense only from the standpoint of stalling the 
confirmation process.
  I agree with the senior Senator from Connecticut, who said recently 
that the Senate should do nothing to artificially delay consideration 
of the next Justice. I agree with him. Since Justice Gorsuch and 
Justice Sotomayor were confirmed just 66 days from the time they were 
nominated, a similar amount of time should not be unreasonable for 
Judge Kavanaugh. I am not suggesting it be exactly 66 days; it might be 
a few days earlier or a few days later. But just to sort of orient 
everybody as to the timeframe we are talking about, if it were 66 days, 
like Justice Gorsuch and Justice Sotomayor, that would mean we would 
vote to confirm Justice Kavanaugh on September 13, if my math is 
correct.
  Well, we know that these judicial nominations--particularly for the 
Supreme Court of the United States--are hotly contested, and that is 
because on the left, they see the Court as an end run around the 
democratic process. In other words, what you can't win in an election 
and what you can't win in a debate and vote of Congress, well, if you 
can get the Court to do it--unelected, lifetime-appointed judges--then 
you have basically won in advancing your policy position at the Federal 
level. I would say that the opposite philosophy is one that was 
embraced by Alexander Hamilton and James Madison, who viewed the courts 
as what they called the least dangerous branch because they viewed the 
courts as not being political and judges as being impartial arbiters of 
the law and letting the chips fall where they may. But on the left, if 
they can't achieve their desired policy outcomes through the normal 
legislative process, well, doing it by lawsuit and by court decision 
becomes the means to their end. That is why they are so upset, I think, 
about this President's nominee. He is what I would call a traditional 
judge in the James Madison, Alexander Hamilton mold--someone who 
believes that judges have a very important job in our government, but 
it is a limited job and role.

  In other words, the main responsibility for making public policy 
should fall on the shoulders of Members of Congress and the President 
because we stand for election. If people don't like what we are doing, 
they can knock on our door and say: Senator, we don't like what you are 
doing. We want you to change your vote or your point of view.
  That is entirely appropriate. If we don't, they reserve the time-
honored right to throw the rascals out. You can't do that for a Federal 
judge. That is why their role under the Constitution is circumscribed 
as interpreting the law and applying the facts to settled law.
  I understand why our friends across the aisle are disappointed. They 
were hoping that President Hillary Clinton would be filling this 
vacancy, and they were hoping that Majority Leader Chuck Schumer would 
be the one guiding that nomination through the Senate. Instead, they 
were disappointed--I understand it; it is a normal human reaction--that 
President Trump won, so he is the one making the nomination, and a 
Republican Senate, led by Majority Leader McConnell, is the one guiding 
this nomination through.
  I can understand their disappointment. It is no reason to drag your 
feet or obstruct an orderly and thoughtful deliberative process when it 
comes to filling this vacancy. We are going to have a chance to talk 
about this topic a lot in the coming weeks.