[Congressional Record Volume 164, Number 130 (Wednesday, August 1, 2018)]
[Senate]
[Pages S5543-S5544]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. CORNYN. Mr. President, earlier this summer I was privileged to be 
at the White House when President Trump announced his nominee to 
succeed Justice Anthony Kennedy, whose retirement from the U.S. Supreme 
Court became effective just a couple of days ago. Judge Kavanaugh's 
nomination continues the streak that we Republicans in the Senate have 
been on for the last 18 months under the Trump administration. We have 
set new records.
  Specifically, we set a record last year for the most circuit court 
judges confirmed in a President's first year, and we set a new record 
this year with the recent confirmation of President Trump's 23rd 
circuit judge, Texan Andy Oldham, who will serve on the Fifth Circuit 
Court of Appeals, and that was 2 weeks ago.
  Keep in mind that we have already set the record with the most judges 
confirmed in the President's first 2 years, and we still have 5 months 
to go. That is unprecedented. That is huge. It speaks volumes about the 
seriousness with which this administration takes its responsibility to 
fill vacancies on the Federal judiciary and the efficiency with which 
this Chamber is carrying out its duty to provide advice and consent.
  Yesterday, we voted on another outstanding nominee, Britt Grant, for 
the Eleventh Circuit. To date, the Senate has confirmed 45 Federal 
judges under President Trump, including Supreme Court Justice Neil 
Gorsuch, and that includes 24 circuit court or intermediate level 
judges.
  But some people don't like to focus on that record of accomplishment 
so much. They like to dwell on Judge Kavanaugh, the nominee to succeed 
Anthony Kennedy, exclusively instead. I understand why the Supreme 
Court vacancy is a very big deal, but it doesn't give license to engage 
in hysterical attacks.
  We have seen Judge Kavanaugh called almost every name in the book. We 
have heard that his confirmation would result in the destruction of the 
Constitution and that the nominee is your worst nightmare and one who 
wants to pave the path to tyranny.
  Well, I just think those sorts of attacks--and hysterical attacks--
undermine the very credibility of the speaker, because anybody who 
knows anything about Judge Kavanaugh knows that none of that is true. 
We are not going to be distracted from carrying out the confirmation 
process in the normal established way through the Judiciary Committee 
first, led by Chairman Grassley, and, then, once we get to the floor, 
with a debate and vote to confirm the judge, hopefully, well in advance 
of the next term of the Supreme Court, which begins the first Monday in 
October.
  We know, for example, that Chairman Grassley has already sent a 
request to the Bush Library to recover many of the records that pertain 
to the nominee's service when he worked at the White House Counsel's 
Office. This was a unilateral request, unfortunately, because our 
Democratic colleagues refused to join us, even after two weeks of 
negotiations and trying to find a way both sides could agree. This is, 
unfortunately, another sign of obstruction, which is basically all that 
our colleagues on the other side of the aisle who are opposing this 
nomination have left.
  Many of the Democrats on the other side have made clear that they 
really aren't interested in the nominee's qualifications. As I 
mentioned previously, five of them came out against the nominee before 
he was even named, in other words, taking the position that the person 
nominated by President Trump would not be able to earn their support. 
Fifteen more, after the nominee was named, came out in opposition. So 
20 Democrats have already announced their opposition to the nominee 
without even taking a few moments even to meet with the judge or 
getting to learn a little more about his record.
  Unfortunately, the role that so many of our friends across the aisle 
want the judiciary to play is that they are really interested in judges 
who basically will be results-oriented. In other words, rather than be 
impartial umpires and call balls and strikes regardless of who is at 
bat, what they want is somebody who will put the thumb on the scales of 
justice and reach a preordained result.
  But that is not the way judges are supposed to serve under our form 
of government. Judges don't run for election. They have lifetime 
tenure. So they are not politically accountable for their decisions at 
the ballot box like those of us in the political branches of government 
are.
  So some of the rhetoric, as I said earlier, is just over the top. One 
of our colleagues even said that you would be complicit and evil if you 
supported this nomination.
  Well, we need to be aware of the double standard that applies. There 
is a stark contrast between Judge Kavanaugh and the confirmation 
process of Justice Kagan. This time around, our Democratic colleagues 
requested every single scrap of paper that made its way across the 
nominee's desk, even when he did not contribute to the policy or 
content of those documents.
  At the time when Justice Kagan was nominated, about 173,000 pages of 
documents were produced from the time that she worked in the White 
House Counsel's Office and on the Domestic Policy Council. She and 
Judge Kavanaugh share in common the fact that they worked in the White 
House Counsel's Office.
  But the difference between Judge Kavanaugh and Justice Kagan is that 
Justice Kagan didn't have any public judicial record at all. Just 
compare that to Judge Kavanaugh's 12 years of serving on the District 
of Columbia Court of Appeals. He has more than 300 written opinions for 
Members to review and ascertain what kind of judge he would be if 
confirmed to the Supreme Court.
  I am surprised that our Democratic friends are asking for so many 
documents that are clearly immaterial, because during the nominee's 
2006 confirmation hearing for the DC Circuit Court of Appeals, our 
colleagues did not ask for any documents, which they are now demanding, 
and specifically, those that came across his desk when he served in the 
important function of White House Staff Secretary. This is, perhaps, a 
little understood office, but basically it is an administrative 
position, where Judge Kavanaugh, at the time, as Staff Secretary at the 
White

[[Page S5544]]

House, was responsible for making sure that the documents presented to 
the President for review had been properly vetted and were in good 
form. That is the responsibility--not to provide input in terms of the 
policy or the content of those documents. So he really was more or less 
a traffic cop for the paper flow across the President's desk. As such, 
those documents would have no bearing whatsoever on the judge's 
qualifications or experience and are unnecessary to produce for this 
confirmation process.

  Just as with Justice Kagan's confirmation, there was a bipartisan 
understanding in 2006, during Judge Kavanaugh's confirmation, that 
certain documents are unnecessary and should be off limits. In 2006, 
Judge Kavanaugh responded to the standard questionnaire for appellate 
nominees. Our Democratic colleagues didn't complain about that at the 
time. In fact, at Judge Kavanaugh's hearing in 2006, Senator Feinstein, 
the ranking member on the Judiciary Committee, noted that ``without a 
record either as a trial lawyer or as a judge, it's very difficult for 
some of us to know what kind of judge you would be and whether you can 
move away from the partisanship and into that arena of objectivity and 
fairness.'' But now our friend from California has 12 years of judicial 
service and more than 300 opinions she and others--all of us--can 
review to answer the very questions she said she needed to answer.
  So my question is, why are our colleagues across the aisle suddenly 
claiming they need every email, every memo, and every Post-it note that 
went across the nominee's desk? Well, we know the reason is because 
they cannot attack Judge Kavanaugh's judicial record of objectivity and 
fairness on the DC Circuit. Instead, they are trying to dig through 
other people's emails and documents and conduct a government-sponsored, 
taxpayer-funded fishing expedition through the records of the entire 
Bush White House. I call this the great paper chase.
  You have heard us warn that the Democrats' demands for every document 
from Judge Kavanaugh's time in the White House is nothing more than a 
stall tactic. Several media reports over the last few days have now 
confirmed that this is, in fact, their exact strategy. Here is a 
statement from the San Francisco Chronicle: ``Feinstein, other Senate 
Dems have plan on Brett Kavanaugh nomination: Stall.''
  Their broader, coordinated strategy is to delay and stall, not 
actually vet, the nominee. So for most of them, it really won't matter 
that Judge Kavanaugh will have more documents produced before his 
confirmation than any other nominee in American history; it won't 
matter that some documents have already been released--for example, 
from his tenure working for the independent counsel; it won't matter 
that the process is fully transparent and thorough because they have 
already made up their minds.
  To be clear, overwhelmingly, our Democratic colleagues are simply not 
interested in vetting Judge Kavanaugh because they have already made up 
their minds to vote against the nomination. I hope the three or four or 
five Democrats who are still open-minded to confirmation of the judge 
will encourage their other colleagues to change their approach and to 
make sure they do what we are required to do under the Constitution 
once the President has made a nomination like this, and that is to 
provide advice and consent, not just obstruction and delay and 
resistance.
  Many of the excuses they are now giving, particularly with regard to 
documents, are merely smokescreens for their true goal, which, as we 
see here in the San Francisco Chronicle, is simply to stall, stall, 
stall. They have telegraphed this strategy in the press, and they have 
made it clear that it is their only shot at blocking this mainstream 
nominee, because the truth is that Judge Kavanaugh is imminently 
qualified and well respected by all who know him.
  I believe it is our responsibility to continue to vet the nominee and 
to continue to encourage Members to meet with him and to continue their 
review of his record--particularly in the last 12 years on the DC 
Circuit Court of Appeals--because I am convinced that if they do that, 
they will be willing to support the nominee, if they have an open mind 
and if they haven't already engaged in the political calculation to 
oppose the nominee no matter what the reason may be.
  I look forward to confirming the judge early this fall. Chairman 
Grassley has said he hopes to have a hearing on the nomination and then 
a vote on the Senate floor in advance of the October term of the 
Supreme Court. I look forward to helping him keep that schedule and 
confirming this good man and fine judge to the Supreme Court of the 
United States.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. REED. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Corker). Without objection, it is so 
ordered.

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