[Congressional Record Volume 164, Number 135 (Wednesday, August 15, 2018)]
[Senate]
[Pages S5600-S5601]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Madam President, on a separate note, this week, we will continue the 
confirmation process for the nominee to fill the vacancy left by the 
retirement of Justice Anthony Kennedy from the U.S. Supreme Court. Of 
course, I am talking about Judge Brett Kavanaugh.
  This last weekend, the Senate Judiciary Committee released to the 
public another enormous batch of records from Judge Kavanaugh's service 
as a lawyer in the George W. Bush White House. It also released another 
21,000 pages just last night. The office of President Bush has now 
produced more than 174,000 pages of material to the committee, and, of 
course, that is on top of the judge's judicial record, which has 
already been produced to the committee.
  According to the Wall Street Journal, the White House has turned over 
more than 195,000 documents on Judge Kavanaugh--significantly more than 
were produced for either Justice Kagan or Justice Gorsuch. As Chairman 
Grassley has pointed out, it is the largest cumulative production of 
executive branch material ever received in the course of evaluating a 
Supreme Court nominee.
  These records, of course, are being reviewed as they are produced, in 
addition to the 307 opinions or cases in which Judge Kavanaugh wrote an 
opinion as an appeals court judge, as well as the hundreds more 
opinions that he joined as a member of the panel.
  Once upon a time, our Democratic friends said that these opinions and 
cases were what mattered the most--not extraneous paper that bears no 
relevance to the judge's qualification or that he even had any input 
in. Perhaps our friend, the Democratic leader, remembers the standard 
he set with regard to documents during Justice Sotomayor's 
confirmation. He appropriately pointed out, ``It is the judicial 
record, more than speeches and statements, more than personal 
background, that most accurately measures how modest a judicial nominee 
will be.''
  Of course, at the time, the discussion was whether judges respected 
their unique role in our government, one that came to be described as a 
modest role--in other words, not primarily as a policymaker. The point 
is, I agree with the comments made by our friend Senator Schumer that 
it is the judicial record that tells us the most about how a judge will 
perform once elevated to the U.S. Supreme Court.
  At another point, the Democratic leader said, with regard to then-
Judge Sotomayor that ``we've heard precious little about the body and 
totality of your 17-year record on the bench, which everybody knows is 
the best way to evaluate a nominee.'' Again, I agree with him.
  In one final instance, addressing Judge Sotomayor, he said: ``I want 
to turn to your record on the bench, which I believe is the best way to 
get a sense of what your record will be on the bench in the future.'' 
Again, that is common sense.
  Well, you heard it: The best way to get a sense for how a judge will 
perform in the future is how he or she has performed on the bench in 
the past, and that is according to our friend, Senator Schumer--not me, 
although I agree with him.
  As I said, Democrats have 12 years' worth of cases and opinions from 
Judge Kavanaugh, and I hope they have started to look at them, but I am 
not so sure that is the case. I believe 20 Democrats have already come 
out against the nominee, so, apparently, they don't need to see 
anything else in order to reach a conclusion, and, as I have noted in 
the past, five of them came out against the nominee before he was even 
nominated, indicating, of course, that they would oppose anyone 
nominated by this President.
  Now they have turned their tactics to making requests for more and 
more documents, even while the Washington Post describes their campaign 
to block Kavanaugh as ``fizzling.'' The article said that our 
Democratic colleagues have all but acknowledged they are unable to 
prevent the confirmation, so you might ask: Why the paper chase?
  The real answer is, that is all they have left. The Archivist, 
appointed by former President Obama, has stated that he cannot, nor can 
any current Archivist, change the law or longstanding and consistent 
practices when it comes to document production. There is no end run 
around this process. Of course, the Senate already has most, if not 
all, of the documents we need--many more, as I mentioned, than they had 
for either Justices Gorsuch or Kagan. What is going on exactly? I think 
I have indicated my opinion. It is all they have left.
  During the time we were away from Washington this last week, Chairman 
Grassley said the confirmation hearing for Judge Kavanaugh will begin 
on September 4, which will be 57 days after President Trump's 
announcement of the nomination. This is entirely consistent with 
Justices Sotomayor, Kagan, and Gorsuch. Hearings for those nominees 
occurred 48 or 49 days after the President's announcement.
  We continue to hear new lines of attack developing or, I should say, 
trying to develop. One I have heard involved Judge Kavanaugh's role as 
Staff Secretary in the White House--an important job, to be sure, but 
one more like a traffic cop--in this case, for documents--than a 
substantive policymaker. As Staff Secretary, he didn't contribute to 
the documents. He didn't make the policy articulated in the documents. 
He just made sure they made their way, properly vetted, through the 
White House, to the President's desk for his signature. That is what 
the Staff Secretary does.
  Others have said they wonder what role Judge Kavanaugh played in 
developing administration policy regarding detention and interrogation 
of suspected terrorists. I will answer that for them. The answer is 
none.
  We have heard a few other objections being tossed around, and I will 
continue to address those in the coming days and weeks. Today I think 
the last word should go to a self-described liberal, feminist lawyer--
that is what she called herself--who has argued more

[[Page S5601]]

cases before the U.S. Supreme Court than any other woman. In POLITICO, 
she wrote recently, with regard to Judge Kavanaugh, ``Sometimes a 
superstar is just a superstar.'' She said our Democratic colleagues 
should ``stop pretending that Kavanaugh or his record is the issue.'' 
She went on to say he is well-qualified, brilliant, has integrity, and 
is within the mainstream of legal thought.
  Her last words were the most emphatic. She said: ``Democrats should 
quit attacking Kavanaugh--full stop.'' She said their behavior is 
``unbecoming,'' and I don't disagree with her.
  We know many on the other side are not particularly interested in the 
nominee's qualifications. As I said, for some, the fact that President 
Trump nominated Judge Kavanaugh is all they need to know. They are 
opposed to anybody and everybody this President might nominate. Others 
have now come out in opposition before they have examined these, 
perhaps approaching, 1 million pages of documents that will be 
produced. Again, it is obvious it is not material to their decision 
because they have already announced their opposition. They don't even 
want to wait until the hearing where the judge will be questioned and 
provide answers to the committee's questions.
  We know there is not much to attack when it comes to the judge's long 
judicial record of objectivity and fairness on the DC Circuit. They are 
trying to dig through other people's emails and conduct a government-
sponsored, taxpayer-funded fishing expedition through the records of 
the entire Bush White House: If we can't find anything wrong with the 
nominee, let's distract people by raising other issues by digging 
through the papers of the Bush White House.
  As I said, I call this the great paper chase. It may result in a 
never-ending tower of cardboard boxes. Ultimately, it gets us nowhere, 
and it costs all of us a great deal of time and effort and accomplishes 
nothing.
  The truth is, Judge Kavanaugh is eminently qualified and well 
respected by everybody who knows him. Having met the judge in 2000, 
when I served as attorney general of Texas, where he helped me get 
ready for my oral arguments before the U.S. Supreme Court, I have known 
the judge and followed his career since that time.
  I agree that he is not only eminently qualified, but he is well 
respected by all those who know him, including me. I look forward to 
confirming Justice Kavanaugh before the Supreme Court begins its next 
term at the beginning of October.
  I yield floor.

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