[Congressional Record Volume 164, Number 120 (Tuesday, July 17, 2018)]
[Senate]
[Pages S4983-S4985]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mr. GRASSLEY. Mr. President, as I have done two or three times before 
in the last week, I would take some of my colleagues' time to discuss 
the nomination of Judge Kavanaugh to serve as an Associate Justice on 
the Supreme Court.
  I think the debate surrounding his confirmation has highlighted the 
deep divide between how conservatives view the role of the judiciary 
versus how liberals view it. The reason liberal outside groups oppose 
Judge Kavanaugh's nomination is quite simple: They don't think he will 
promote their preferred policies and the outcomes of those policies 
while on the Bench.
  I can't think of a better example that demonstrates how differently 
liberals and conservatives view the role of the judiciary, so let me 
tell you how I and most Americans view the role of the judiciary. There 
are pretty simple things we learned from high school government courses 
about the checks and balances of government--pretty simple, pretty 
common sense, because it is all about the purpose of the Constitution 
of the United States.
  Under the Constitution, we have three branches of government. 
Congress makes the law, the President enforces the law, and the 
judiciary interprets and applies the law and the Constitution.
  The judiciary's role as a coequal and independent branch of 
government is significant. It is confined. In the words from the 
Constitution, they can only deal with cases and controversies. As 
Alexander Hamilton explained in Federalist Paper No. 78, the judiciary 
``may truly be said to have neither FORCE nor WILL, but merely 
judgment.'' In other words, the judiciary must stay in its lane--a very 
slow lane--calling balls and strikes as the courts see them, without 
trying to encroach on Congress's authority to make policy through the 
legislative process. When the Supreme Court goes beyond its mandate and 
enters the policymaking arena, it threatens the structure of our 
Constitution.
  To preserve the judiciary's independence, Justices of the Supreme 
Court are appointed for life. They are not directly accountable to the 
voters for

[[Page S4984]]

their decisions. The American people can toss out those of us in 
Congress if we make bad policy decisions, but if a judge ends up 
legislating, we are stuck with a judge who made those bad decisions for 
life.
  The benefit of this arrangement is that judges can make decisions 
according to the laws, not based on the whims of political opinion 
because they are immune from that political opinion. But the downside 
is that some judges can see their independence as a green light to 
override the policy choices of Congress or the States and substitute 
their own policy preferences. The threat this poses to self-government 
should be very self-evident: Instead of the people's representatives 
making policy choices, unelected judges who aren't answerable to the 
American people make them.
  Conservatives believe that judges must rule according to the law as 
written. In any case, the law might lead to a liberal political result 
or, it might require a conservative political result, but the judge 
can't take that into consideration. The law must be interpreted 
regardless of whether the judge agrees with the political results of 
the decision. A good judge will oftentimes personally disagree with the 
result he or she reaches.
  Many liberals view the role of the judiciary very differently. 
Liberals believe that an independent judiciary, unaccountable to the 
American people, is a very convenient way to achieve policy outcomes 
that can't be achieved through the democratic and representative 
process. That is why, in nearly every case before the Supreme Court, it 
is very predictable how the four Democrat-appointed Justices will rule. 
In most cases, they will reach the result that achieves liberal 
political goals. How else can you explain the fact that the Democrat-
appointed Justices have voted to strike down every restriction on 
abortion--a right that appears nowhere in the Constitution--but would 
uphold restrictions on political speech or gun rights? After all, these 
rights are expressly covered by the First and Second Amendments.
  The unfortunate reality is that liberal jurisprudence is thinly 
veiled liberal policymaking, and I am very generous when I say ``thinly 
veiled.'' This explains many of the leftwing attacks on Judge Kavanaugh 
that are now going on. Judge Kavanaugh has a track record of putting 
aside any policy preferences that he has and ruling according to the 
law as it is written. I think this is a virtue. Indeed, it is necessary 
for judges to do that--to show their impartiality, to show their 
judicial temperaments. But liberal outside groups and their Senate 
allies see this as a threat. They want judges who will impose their 
policy preferences--only have those policy preferences disguised as 
law, of course. They want politicians hiding under their judicial 
robes. That is why many of the attacks on Judge Kavanaugh are based on 
policy outcomes.
  Leftwing groups are spending millions of dollars to convince the 
American people that Judge Kavanaugh is hostile to their preferred 
policies. I believe this effort will be unsuccessful. What the American 
people see in Judge Kavanaugh is a judge who will rule according to the 
law, not for or against various policies.
  Nine Ivy League Justices and their cadre of mostly Ivy League law 
clerks aren't equipped to replace Congress's exclusive lawmaking 
function.
  One attack I have seen on Judge Kavanaugh is that he represents a 
threat to the Affordable Care Act's protection of people with 
preexisting conditions. I want to tell you why numerically that just 
doesn't work out--because the same five Justices who twice upheld the 
constitutionality of the Affordable Care Act are still on the Court. 
Justice Kennedy, whom Judge Kavanaugh would replace, voted to strike 
down the Affordable Care Act. In other words, even assuming you could 
predict Judge Kavanaugh's vote 1 year or 10 years from now on the 
Affordable Care Act, his vote would not change the outcome. Moreover, 
Judge Kavanaugh had two opportunities to strike down the Affordable 
Care Act on the DC Circuit, where he now serves. He did not do it. So 
where do they get the idea that he is a predictable vote to undo the 
ACA?
  For those of us for repeal, maybe we ought to vote against him 
because he hasn't voted that way on the DC Circuit--those of us who 
thought the Affordable Care Act should be repealed--and because he may 
not be a sure vote to do that. And even if he were, there are still 
five votes to preserve it.
  The leftwing groups might want to put away their crystal ball. Even 
the New York Times fact checker threw cold water on the argument that 
Kavanaugh was a sure vote against the Affordable Care Act. The New York 
Times labeled the leftwing attacks ``exaggerated.''
  Another attack on Judge Kavanaugh is that he is hostile to abortion 
rights. This attack misrepresents his record on the DC Circuit. There, 
Judge Kavanaugh acknowledged that the court must decide the case based 
on Roe v. Wade and subsequent abortion decisions. He applied the 
precedent, as precedent requires judges to so do.
  We hear the same fearmongering over abortion every time there is a 
Supreme Court vacancy. I remember that 38 years ago when Sandra Day 
O'Connor was going to be the first woman appointed to the Supreme 
Court, there was real worry then that Roe v. Wade was in jeopardy. She 
is one of those who preserved it in the Casey v. Planned Parenthood 
case 12 years later, as she got on the Court. Yet Roe v. Wade is still 
the law of the land. Justices have a way of surprising us. I think 
Justice Kennedy, now leaving the Court, was one of those because even 
though we didn't pursue this in depth with him at his hearing, those of 
us who are pro-life--and I am one of them--were pretty assured that 
Kennedy might be one of those votes to override Roe v. Wade. Yet, in 
1992, in the Casey v. Planned Parenthood case, Kennedy was one of the 
majority who voted not to do any harm whatsoever to Roe v. Wade.

  There is no way to predict how a Justice will rule in a particular 
case. Many times, this Senator has been disappointed by what he thought 
a Justice might do if approved. Who could have predicted that Judge 
Scalia, for example, would strike down a ban on flag-burning? Just this 
term, we saw how Justices appointed by Republican Presidents can reach 
decisions with liberal political results because that is what the law 
requires. In Sessions v. Dimaya, Justice Gorsuch sided with an 
immigrant who challenged a statute under which he could have been 
deported as unconstitutionally vague. In Carpenter v. the United 
States, our Chief Justice Roberts, who most of the time is considered a 
conservative or strict constructionist, held that police were required 
to obtain a warrant before searching cell phone location data. If you 
are a law enforcement person, you consider that a bad decision. If you 
are a privacy rights person, you consider Chief Justice Roberts to be 
right.
  It is sad--very sad--but not surprising that leftwing groups and 
their Senate allies oppose Judge Kavanaugh's confirmation based on 
policy concerns rather than on legal concerns. Luckily, a majority of 
Americans and a majority of Senators believe that the mark of a really 
good judge is someone who does what the Constitution assigns them to 
do--interpret the law as written, regardless of whether the result is 
liberal or conservative or even anything in between. As Justice Gorsuch 
said, judges wear robes, not capes.
  In his 12 years on the DC Circuit, Judge Kavanaugh has a clear track 
record of setting aside any policy preferences and ruling according to 
law as Congress wrote it. Criticizing the results of certain decisions 
says more about his critics than about the judge himself.
  We are already seeing an attempt at Borking Judge Kavanaugh. I was in 
the Senate when liberal groups and some of my colleagues smeared the 
highly respected Judge Bork after he was nominated for the Supreme 
Court. Judge Bork was very candid with the Senate Judiciary Committee. 
He was unfairly attacked for being so candid. We are seeing liberal 
groups and their Senate allies try to replicate this shameful episode.
  But since the nomination of Justice Ginsburg to the Supreme Court, 
the tradition has been for nominees to, in her words, give ``no hints, 
no forecasts, no previews'' of how they would vote, and that applies to 
how they would address certain cases. In a press conference last year, 
the minority leader affirmed that ``there is a grand tradition that I 
support that you can't ask''

[[Page S4985]]

a judicial nominee ``about a specific case that might come before 
them.'' That is exactly the Ginsburg rule.
  I expect, if Judge Kavanaugh wants to be on the Supreme Court not 
only for the sake of being on the Supreme Court, getting there, but 
also to serve the role he ought to serve as an impartial Justice, that 
he is going to follow the Ginsburg rule when he comes before my 
Judiciary Committee. I implore my colleagues not to try to extract 
assurances about how he will rule in specific cases in exchange for a 
confirmation vote, because they ought to get the answer from Kavanaugh 
that Ginsburg would give and, as far as I know, every one of the 
nominees since then.
  The only question that matters is this: Does Judge Kavanaugh strive 
to apply the law as written by Congress, regardless of his personal 
views? From what I know about Judge Kavanaugh--and I haven't gone 
through all of his 300 opinions yet that he has written as a circuit 
judge, but the answer appears to be yes.
  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. THUNE. 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. THUNE. Mr. President, if there is one thing we have been able to 
rely on over the past half century or so, it is Democratic hysteria 
over Republican Supreme Court nominations. No sooner does a Republican 
President announce a nomination than the Democrats are off and running. 
It doesn't matter who the nominee is--the playbook is the same. The 
Democrats warn that equal rights are in jeopardy; that our system of 
government may not survive; in fact, that Americans may not survive. 
That is right. In the lead-up to Justice Gorsuch's confirmation, the 
head of one liberal organization stated that there was ``substantial 
evidence'' that if Gorsuch's ``egregious views were to become law, 
Americans' lives . . . would be put at risk in untold ways.'' I am 
happy to report that a year into Justice Gorsuch's tenure on the 
Supreme Court, Americans seem to be doing OK.
  Fast-forward to Judge Kavanaugh's Supreme Court nomination, and once 
again, Democrats are predicting that the sky will fall if a Republican 
President's Supreme Court nominee is confirmed.
  Faced with an eminently well-qualified, mainstream nominee, they have 
been forced to resort to distortions or outright conspiracy theories to 
make their case. Their statements have been so extreme that they have 
already been called out more than once by the mainstream media.
  The New York Times--not exactly known as an apologist for the 
Republican Party--published a fact check with the headline ``Democrats 
Overstate Kavanaugh's Writings on the Affordable Care Act.''
  The Washington Post published a fact check that described a 
Democratic characterization of Kavanaugh as ``extreme distortion.'' Two 
tweets offering a truly absurd conspiracy theory about Justice 
Kennedy's resignation received four Pinocchios from the Washington 
Post--a rating that qualifies the tweets as ``whoppers.''
  At the root of Democrats' frenzy is their belief that the only good 
Supreme Court Justice is a Supreme Court Justice who shares their 
political beliefs and who will rule in support of them. That is a very 
disturbing point of view. Our system of government is based on the rule 
of law, but the rule of law depends on having judges who will rule 
based on the law and the facts, not on their personal opinions.
  Once judges start ruling based on their political opinions or their 
feelings about what they would like the law to be, then we will have 
replaced the rule of law with the rule of individual judges. That is 
exactly what Democrats are pushing for. They are looking for Supreme 
Court Justices who will rule based not on the law but their personal 
beliefs. More specifically, they are looking for judges who will rule 
based on Democrats' beliefs. Just look at the Democrats' statements 
since Judge Kavanaugh's nomination. Democrats aren't interested in 
whether Judge Kavanaugh is qualified or will rule in accordance with 
the law; instead, they are concerned about his views on specific issues 
and whether those views line up with Democrats' opinions.
  Democrats want a Supreme Court that will ratify the opinions of the 
Democratic Party, whether or not those opinions are in line with the 
law or the Constitution. Of course judges have political opinions. Of 
course judges have personal feelings. When you are a judge, your job is 
to leave those things at the courtroom door. Your job is to judge based 
on the law and the facts, even when you don't like--especially when you 
don't like the outcome. As Justice Gorsuch has said, ``A judge who 
likes every outcome he reaches is very likely a bad judge--stretching 
for results he prefers rather than those the law demands.''
  I don't know how Judge Kavanaugh would rule on the cases he would 
face as a member of the Supreme Court, but I do know that in each and 
every case, he would look not for the results he prefers but for those 
the law demands.
  In a 2017 speech at Notre Dame Law School, Judge Kavanaugh said:

       I believe very deeply in those visions of the rule of law 
     as a law of rules, and of the judge as umpire. By that, I 
     mean a neutral, impartial judiciary that decides cases based 
     on settled principles without regard to policy preferences or 
     political allegiances or which party is on which side in a 
     particular case.

  That is it. That is the job of a judge--to serve as the umpire, to 
call the balls and strikes, not rewrite the rules of the game.
  When you are considering a candidate for Congress, political 
opinions, like those the Democrats are demanding, matter. When it comes 
to judges, there are really only two important questions: First, is 
this judge well qualified? Second, does this person understand the 
proper role of a judge? When it comes to Judge Kavanaugh, the answer to 
both questions is yes. His qualifications are outstanding. He is a 
graduate of Yale Law School. He clerked for a Supreme Court Justice. He 
is a lecturer at Harvard Law School. Most importantly, as a judge on 
the DC Circuit Court of Appeals, he has handed down thoughtful, well-
respected decisions that reveal his deep respect for the law and the 
Constitution and his understanding that it is a judge's job to 
interpret the law, not to legislate from the bench.
  It is unfortunate that Democrats' belief that the only good judges 
are liberal judges is preventing them from giving an outstandingly 
qualified nominee like Judge Kavanaugh a fair hearing. There is still 
time for them to abandon their partisan political opposition and take a 
real look at Judge Kavanaugh's qualifications for the Supreme Court. I 
hope they will.
  Mr. President, 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. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.