[Congressional Record Volume 164, Number 130 (Wednesday, August 1, 2018)]
[Senate]
[Pages S5548-S5549]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. LEAHY. Mr. President, I do have a few comments I will make.
  Mr. President, I have had the privilege of serving in the U.S. Senate 
for 44 years. For 20 of those 44 years, I was either the chairman or 
the ranking member of the Judiciary Committee. During those 44 years, I 
have seen 19 nominations to the Supreme Court. I voted for most of the 
nominees--for both Republican and Democratic Presidents. The first one 
was John Paul Stevens, who was nominated by President Ford.
  I voted on every current member of our Nation's highest Court.
  When I was in Vermont over the weekend I was thinking of these 
nominations, and I believe that I have never seen so much at stake with 
a single seat as with the current nomination of Judge Kavanaugh.
  There is one thing we can all agree upon, Republicans and Democrats 
alike, that like many Supreme Court nominees before him, Judge 
Kavanaugh has impressive academic credentials and judicial experience. 
But unlike most of his predecessors, Judge Kavanaugh also had a 
lengthy, partisan career.
  Prior to his time on the bench, Judge Kavanaugh was a political 
operative engaged in some of the most divisive fights in our Nation's 
recent history--including Kenneth Starr's investigation of President 
Clinton, Bush v. Gore, and five contentious years as a senior official 
in President George W. Bush's administration.
  It is no surprise, then, that Judge Kavanaugh has quite a paper 
trail--over one million pages. His lengthy, controversial record was 
something that the White House was well aware of when the President 
selected him. But the President selected him, nonetheless. Under the 
advice and consent clause of the Constitution, the burden falls now to 
the Judiciary Committee to review his record. It should be self-evident 
that records relating to an especially significant period of a Supreme 
Court nominee's career should be among those most closely examined by 
the Senate.
  Indeed, the methodical review of a federal court nominee's full 
record is not optional. It is the most fundamental part of the Senate's 
constitutional obligation to provide advice and consent. In fact, we 
saw just a few weeks ago that such vetting led to the withdrawal of a 
circuit court nominee with a record of very offensive college writings.
  This process must be even more exhaustive for a nomination to our 
Nation's highest Court.
  One only need look to the Senate's consideration of Justice Elena 
Kagan. Like Judge Kavanaugh, she served in the White House prior to her 
nomination. I was chairman of the Judiciary Committee at the time. I 
worked with the ranking member at the time, Senator Jeff Sessions. We 
requested the full universe of her documents from the Clinton 
Presidential Library. We worked together. We wanted to ensure the 
request was expedited. We wanted the collection to be complete.
  Crucially, President Obama made no claims of executive privilege. In 
fact, less than one percent of the documents were withheld on personal 
privacy grounds. To this day, those emails are posted online for anyone 
to see.
  Then, I also supported then-Senator Sessions' request for documents 
related to military recruitment at Harvard. Military recruitment at 
Harvard is not the sort of thing one thinks of for a Supreme Court 
nominee, but Justice Kagan, a brilliant lawyer, had been dean of the 
law school.
  Well, that request was beyond the scope of our committee's usual 
practice, but I agreed with the Republicans that the records could 
potentially be of public interest, and therefore they ought to be 
subject to public scrutiny.
  Transparency weighed in favor of disclosure, but, then, transparency 
almost always does.
  For Justice Sotomayor, when I was chair, I joined then-Ranking Member 
Jeff Sessions to request decades-old records from Justice Sotomayor's 
time working with a civil rights organization in the 1980s. Remember, 
she was a sitting judge on an appellate court, and we had her record, 
which is what some of the Republicans are saying is all we should look 
at with Judge Kavanaugh. They wanted the documents during the time she 
had worked with a civil rights organization decades before. We did have 
3,000 opinions that she had written over the 17 years she served as an 
appellate and district court Federal judge. Every Republican wanted 
those records, and those of us who were in the majority, the Democrats, 
said: Fine, the public should know what they are. We agreed.
  What a change, what a change--they wanted to have the records from 
Justice Kagan and Justice Sotomayor, and they had to come up with those 
records, but he doesn't have to. This is what the American people 
deserve to see from Judge Kavanaugh. Every document of public interest 
should be made public with no artificial restrictions and no abuse of 
executive privilege.
  The American people deserve the unvarnished truth of this man, just 
as Senate Republicans rightly demanded of the two highly qualified 
women that President Obama nominated. We wanted the records from them, 
and we want the records from him, but, unfortunately, the Judiciary 
Committee is not on track to uphold its bipartisan standard of 
transparency. Two weeks ago, my Republican friends expressed a 
willingness to request White House documents that Judge Kavanaugh 
authored or contributed to as Staff Secretary of President Bush. We 
thought it was very similar to requests made of Justice Sotomayor and 
Justice Kagan.
  But then they had a private meeting with White House Counsel last 
week. Now, suddenly, we can't do that. Suddenly, the White House, a 
different branch of government, is telling the independent Senate 
Judiciary Committee what they have to do, and suddenly all of Judge 
Kavanaugh's Staff Secretary records were off-limits.

[[Page S5549]]

  Then last Friday, in a stark departure from committee precedent, 
Chairman Grassley, who is a friend of mine, shocked me when he sent a 
partisan request that omitted any and all records from Judge 
Kavanaugh's three contentious years as Staff Secretary. This was a 
particularly extraordinary admission, given that Judge Kavanaugh 
himself singled out his three years as Staff Secretary as ``among the 
most instructive'' for him as a judge, when he provided advice ``on any 
issue that may cross the [president's] desk.'' During this time, Judge 
Kavanaugh said he helped to ``put together legislation,'' and he 
``worked on drafting and revising executive orders.''
  Karl Rove described Judge Kavanaugh as playing a major role in 
reviewing and improving practically every policy document that made it 
to the President. Judge Kavanaugh said this experience gave him a 
``keen perspective on our system of separated power.''
  Yet, Senate Republicans don't want to see any of it. Not even those 
memos and other documents that Judge Kavanaugh himself authored and 
edited.
  Just as I worked to provide these same documents when the Republicans 
requested them in a Democratic administration, I do not believe the 
Senate can fulfill its constitutional duty to provide advice and 
informed consent to a nominee for our Nation's highest Court without 
vetting three years' of such critical records.
  That is why, yesterday, I joined Ranking Member Feinstein and the 
other Judiciary Democrats to send our own records request to the Bush 
Presidential Library. The request mirrors--not surprisingly--almost 
word for word the request I sent with then-Senator Jeff Sessions for 
Justice Kagan.
  We simply cannot have a lower standard of transparency for Trump 
nominees than for past nominees of both Republican and Democratic 
Presidents. The fact that the Judiciary Committee is willing to move 
forward without Judge Kavanaugh's full record is especially alarming 
because the last time Judge Kavanaugh testified before the Senate under 
oath, he appeared to provide a misleading account of his work at the 
Bush White House.
  In his 2006 confirmation hearing, I and other senators asked about 
his knowledge of several Bush-era scandals, including warrantless 
wiretapping, torture, and detainee treatment. Judge Kavanaugh testified 
he had no knowledge of such issues until he read about it in the paper. 
He testified in response to a question from Senator Durbin that he 
``was not involved in the questions about the rules governing detention 
of combatants.'' Again, this was under oath.
  After his confirmation, press reports indicated that he had 
participated in a heated discussion in the White House over the 
legality of detainee policies. Judge Kavanaugh discussed whether the 
Supreme Court would uphold the Bush administration's decision to deny 
lawyers to certain enemy combatants. Judge Kavanaugh advised that his 
former boss, Justice Kennedy, would likely reject the argument that the 
White House was putting forth.
  I try to look at this conversation every way I can. I was a trial 
lawyer. I took depositions. I argued cases. I am trying to reconcile it 
with Judge Kavanaugh's sworn testimony under oath, but it is 
impossible. It makes it all the more critical that we review his 
complete White House record to find out what he really did.
  The only records I have seen from Judge Kavanaugh's time as Staff 
Secretary are a handful of emails previously released through an 
unrelated FOIA request. One happens to show very clearly that Judge 
Kavanaugh was looped in, notwithstanding his statement, on the Bush 
White House's efforts to message the infamous torture memos. From the 1 
million records that exist on Judge Kavanaugh, we have but one drop in 
the bucket, but in that one drop, they are discussing torture. It is 
something he said that he had read about only in the papers. Yet this 
email shows he worked on these issues while in the White House.
  I am afraid that my Republican friends clearly do not want records 
from Judge Kavanaugh's three years as staff secretary to be public, but 
the fact that records may be controversial doesn't mean they should be 
hidden from the public view. Indeed, just the opposite principle 
applies. Just as we gave all of the records on President Obama's 
nominations, we should do this.
  The American people must not be in the dark about controversial 
aspects of a nominee's record. Certain principles are more important 
than party. Transparency is one of them.
  We have learned this lesson before. Wearing blinders when considering 
a former administration official for a lifetime judgeship presents 
grave risks.
  When President Bush nominated Justice Department lawyer Jay Bybee to 
the Ninth Circuit in 2003, I and other Senators asked about his 
involvement in the legal issues surrounding the war on terror. He 
didn't answer our questions. But a year after he was sworn in for a 
lifetime position on the Federal court, the American people learned 
that Judge Bybee gave the legal green light for the official use of 
torture, something that most people now agree is one of the darkest 
chapters in our nation's history. Had we known that at the time, Judge 
Bybee would still be known as Mr. Bybee. He never would have been 
confirmed. A majority of Republicans and Democrats would have voted 
against him.
  Judge Kavanaugh was directly involved in some of the most politically 
charged moments of our recent history. The Senate owes the American 
people an unsparing examination of his nomination--a nomination that 
could shape their lives for a generation.
  It is my hope that Senate Republicans and Chairman Grassley will 
reconsider their partial records request for Judge Kavanaugh and join 
the Democrats' request for all of his records. I agreed when they 
demanded that for Justices Kagan and Sotomayor.
  Well, if that is the standard we followed for both of those 
tremendous jurists--Justice Sonia Sotomayor and Justice Elena Kagan--
shouldn't we demand the same of Judge Brett Kavanaugh? He is no 
different than they are on the issue of what he has had to say. We 
ought to find out what it is. Then make up your mind; vote for him or 
vote against him. I am pretty sure that had we gotten the right answers 
on then-Mr. Bybee, he never would have become Judge Bybee.
  I don't believe that many Senators of either party will stand up here 
and say that it is great that we broke the law on torture for dubious 
reasons.
  I see the Senator from Missouri.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BLUNT. I thank my friend, the Senator from Vermont.

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