[Congressional Record Volume 164, Number 119 (Monday, July 16, 2018)]
[Senate]
[Pages S4957-S4959]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mr. CORNYN. Mr. President, last week I had the chance to reconnect 
with Judge Brett Kavanaugh, the President's choice to be Associate 
Justice of the U.S. Supreme Court, succeeding Anthony Kennedy, who has 
announced his retirement effective at the end of this month. I say 
reconnect because I actually met Judge Kavanaugh back in 2000, when, as 
attorney general of Texas, I had the great privilege to represent my 
State in front of the U.S. Supreme Court in an oral argument.
  As part of my preparation for that argument--something that is sort 
of like the Super Bowl for lawyers--I had a chance to practice that 
argument in a moot court, as it is called, in front of three 
distinguished Supreme Court advocates, including Brett Kavanaugh, who 
at that time was a private lawyer. I am sure I benefitted from his 
help, as I did from the help of the other two.
  I have followed Judge Kavanaugh's career closely in the 18 years 
since I met him. Of course, in the last 12 years, he has served with 
distinction on the DC Circuit Court of Appeals, which some have called 
the second most powerful court in the Nation, since most of the 
controversial litigation involving the Federal Government tends to come 
up through that appellate court from the district courts here in the 
District of Columbia.
  Based on what I know of Brett Kavanaugh, I am pleased with the 
nominee the President has chosen. After talking to him again, I look 
forward to supporting his nomination and doing everything I can to 
ensure his bipartisan confirmation.
  On the issue of bipartisanship, let me just point out that Justice 
Gorsuch was confirmed by 54 votes, a bipartisan vote of confirmation. I 
would expect, based upon his similar qualifications in many ways--
outstanding academic record, outstanding experience, and demonstrated 
ability on a circuit court of appeals--that I would think and expect 
that Justice Kavanaugh would get a bipartisan confirmation vote, much 
as Justice Gorsuch has. Obviously, they are two different individuals, 
but in terms of their experience, education, preparation, and judicial 
philosophy, I think it would be difficult to explain why one would vote 
for Justice

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Gorsuch's confirmation and vote against Justice Kavanaugh.
  I know Members of the Senate take our responsibilities to provide 
advice and consent very seriously. I know a number of our colleagues 
who don't have the benefit of 18 years of familiarity with the judge 
will want to do their homework, and that is exactly as it should be.
  A bipartisan questionnaire has now gone out to the judge from the 
Judiciary Committee. Senator Feinstein, the Democratic ranking member, 
and Senator Grassley, the Republican chairman, have sent a 
questionnaire, asking him to answer a litany of questions necessary for 
the Judiciary Committee to prepare for the hearing, which I hope will 
occur sometime in mid-August or so. We know also that nominees for 
judicial office get a very extensive background check, and that will 
have to be updated. I am sure that will take place as well.
  Then, we all will have the chance to meet with Judge Kavanaugh, as I 
did, and to make our own personal assessment after asking questions and 
getting his answers to those questions.
  Many people have now become familiar with the arc of his career: 
graduating with honors from Yale College, graduating Yale Law School, 
clerking for two appellate judges before clerking for Justice Anthony 
Kennedy on the Supreme Court. From there he went on to work as the 
Staff Secretary at the White House.
  I want to pause and talk about what the Staff Secretary at the White 
House does. This is kind of an obscure but important position. 
Basically, you are the last eyes on a document before the President 
signs it. So what that means is there is a tremendous responsibility to 
coordinate and to verify the accuracy of the contents of the documents 
and that they reflect the policies that the President does indeed 
support before it is presented to him for his signature.
  I mention the Staff Secretary position because the last time Judge 
Kavanaugh was confirmed to the DC Circuit Court of Appeals, there was 
no discussion about getting the voluminous copies of records that came 
across his desk as Staff Secretary. No one particularly thought that 
those were very useful, and that is for understandable reasons. He 
didn't author those documents. He didn't create them, but he was 
responsible for their verification and authentication and to see that 
they got to the President after having been reviewed as they should be. 
So as for any excuse that we hear along this confirmation process that 
the thousands--maybe hundreds of thousands, maybe millions--of 
documents that would have come across his desk as Staff Secretary will 
have to all be produced before Senators can vote on his confirmation, 
well, they didn't do that back when he was confirmed to the DC Circuit 
Court of Appeals. I think it makes no logical sense that documents that 
came across his desk that he did not create and he did not vouch for 
are relevant, but, rather, that represents a fishing expedition 
designed to delay the confirmation process unnecessarily.
  After he was Staff Secretary at the White House, he practiced law. 
Then, of course, he was confirmed to the Federal bench. His resume is 
really one that speaks for itself, but I want to address some of the 
character assassinations that have already begun about the judge 
because it is pretty troubling, knowing him as I have come to know him, 
to hear these accusations and descriptions, which I think are pure 
fantasy. They are worse than that. As I said, they are character 
assassinations. They are conspiracy theories. They are designed to 
cause good people to doubt this nominee, but there is a good answer to 
each of them.
  First comes one from House Minority Leader Pelosi, who has no role 
whatsoever in the Supreme Court process. The Senate has the 
responsibility of providing advice and consent. The House of 
Representatives is a virtual spectator, like the rest of the American 
population. She called his nomination ``a clear and respectful assault 
on the fundamental rights of women.'' It is an outrageous statement.
  NARAL Pro-Choice America, the national abortion rights action league, 
has claimed that any vote to confirm him would be one that would 
``punish women.'' This same group also degenerated into a middle-school 
mocking of his name. I am not sure what relevance that has, but it 
shows, I believe, how desperate opponents of this nomination are.
  If you don't have anything substantive to offer as criticism or if 
you don't have policy differences that you want to debate, engage in 
name calling. That is all this is.
  A Yale Law professor, Amy Chua, wrote last week in the Wall Street 
Journal about how Judge Kavanaugh had been a mentor to young female 
lawyers whom he has engaged with over his legal career. The professor 
wrote that since he joined the Court of Appeals for the DC Circuit in 
2006, a quarter of the judge's law clerks, the most valued members of 
his staff, have been members of a minority group--one or the other--and 
more than half, 25 out of 48, have been women. Years ago, when I was a 
member of the Texas Supreme Court, it seemed as though I also had a 
similar proclivity to hire female clerks.

  I asked one of them one day: Why is it you think I hired you to be my 
law clerk?
  She said: It is easy, Judge--women are smarter, and they work harder.
  Perhaps that is what Judge Kavanaugh discovered during his experience 
too.
  These women, these former clerks, have spoken glowingly about Judge 
Kavanaugh's mentorship and his personal decency and support and 
encouragement for their careers. It is absurd and hyperbolic to call 
Judge Kavanaugh anti-woman. It is so ridiculous. You would wonder why 
anybody would feel as if they needed to respond. Here in Washington, 
DC, in the echo chamber inside the beltway and with all the special 
interest groups and the mainstream media unfortunately many times 
repeating these falsehoods over and over again, it is necessary for 
some of us to stand up and say: This is blatantly false.
  The women who know Judge Kavanaugh best and worked alongside him in 
his chambers would take issue with Ms. Pelosi's characterization.
  A second line of conspiracy theories regarding Judge Kavanaugh 
relates to Presidential power. Some have claimed that Judge Kavanaugh 
believes that a President cannot be indicted for a crime and that that 
should be an automatic disqualification for Supreme Court 
consideration. Well, this arises out of a misreading and a 
misunderstanding of a 2009 Minnesota Law Review article he wrote that 
explored a gray area of the law and suggested that Congress consider 
legislation that would defer civil lawsuits and criminal charges until 
after the President leaves office.
  As people will remember, Judge Kavanaugh worked for a while for the 
independent counsel who was investigating then-President Clinton. He 
said he learned from that experience that a President is busy doing so 
many things, it really makes sense not to provide immunity but, rather, 
to defer litigation of those criminal indictments, should there be any, 
and civil cases until after the President leaves office. He was quick 
to note that if the President ever engaged in serious misconduct, there 
was always the option of impeachment, which is very different from a 
criminal case. It is one where Congress expresses its view on the 
suitability of an office holder to continue holding office, and that is 
always a last resort.
  As one fact checker found, his position is different from saying that 
Presidents can't ever be indicted. Professors like Noah Feldman at 
Harvard Law have agreed. The Fact Checker from the Washington Post 
concluded by calling these claims ``an extreme distortion'' of Judge 
Kavanaugh's views and I believe gave it two Pinocchios for being false 
and misleading.
  A third and final line of bogus arguments I want to address this 
afternoon hinges on his views regarding the Affordable Care Act, 
sometimes called ObamaCare, with the senior Senator from Massachusetts 
saying that he is ``hostile to healthcare.'' That is as preposterous as 
saying he is hostile to women. Who is hostile to healthcare? Well, that 
was also fact-checked by the New York Times, which found hers and other 
claims to be highly exaggerated.
  The reality is that Judge Kavanaugh, in his official capacity, has 
issued two

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dissenting opinions and legal challenges to the Affordable Care Act, 
both highly technical in nature. Clearly, he is not against healthcare. 
That is really just a dumb comment. He is simply a judge, who has no 
role in evaluating the wisdom or efficacy of policies. His job is to 
call balls and strikes, as an umpire would, to decide whether something 
is within the law or outside of the law. I believe he will continue to 
do that when confirmed as a Justice on the Supreme Court.
  I agree with the majority leader, Senator McConnell, who last week 
said Judge Kavanaugh's qualifications are ``so obvious, and his 
reputation so excellent, that unhinged attacks are all that remains in 
the far left's arsenal.'' I agree with him, but that doesn't mean we 
won't continue to hear these unhinged, ridiculous charges against a 
good man. Judge Kavanaugh, by all accounts, is a fair and thoughtful 
judge who approaches each judicial decision with precise reasoning and 
careful analysis. That is why the conspiracy theories will not work. 
They are doomed to fail, and the cracks are already beginning to show.
  As I said, the Judiciary Committee will conduct a thorough and timely 
hearing, and then we will follow with an up-or-down vote in the 
committee and then on the Senate floor this fall, prior to the time the 
Supreme Court's new term begins in October. The eventual outcome from 
this process should be that Judge Kavanaugh will be easily confirmed. 
That is what he and I believe the American people deserve.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Daines). Without objection, it is so 
ordered.