[Congressional Record Volume 164, Number 144 (Tuesday, August 28, 2018)]
[Senate]
[Pages S6001-S6002]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. GRASSLEY. Mr. President, I rise on another matter that I have 
addressed the Senate on quite frequently lately, and that is about 
Judge Brett Kavanaugh.
  One week from today, Brett Kavanaugh will appear before the Senate 
Judiciary Committee for the first day of his confirmation hearing. 
After reviewing Judge Kavanaugh's very extensive record, I am convinced 
he is perhaps the most qualified person ever nominated to the Supreme 
Court.
  Some of my colleagues on the other side, including all of the 
Democratic members of the Judiciary Committee, have asked that I delay 
Judge Kavanaugh's hearing. They have asked me to delay the hearing 
because of legal issues surrounding some of President Trump's former 
associates. It is absolutely not clear to me what one has to do with 
the other. But this is, by my account, at least the third strategy 
Democratic leaders have used to try to delay Judge Kavanaugh's hearing.
  Liberal outside groups, if you recall, announced their opposition to 
every one of the 25 potential nominees before the President made his 
decision. Those 25 potential nominees were, for the most part, given to 
the people of the country probably 6 months before the President's 
election. No other President has told you the types of people he was 
going to put on the Supreme Court and given you those examples. Some 
Democrats joined these outside liberal groups, and many others 
announced their opposition immediately after the nomination.
  The minority leader, before he even had a chance to meet with Judge 
Kavanaugh or review Judge Kavanaugh's record, said that he would fight 
the nomination with everything he has.
  Democratic leaders' first strategy was to try to argue that the Biden 
rule, which bars the confirmation of Supreme Court Justices in a 
Presidential election year, also applies during midterm election years. 
This was a strange argument to make given that many of those Senators 
argued in 2016 that the Biden rule didn't even exist for Presidential 
elections.
  Fact checkers and outside observers widely rejected their argument. 
The historical record was clear: The Biden rule has never applied 
during midterm election years.
  The second strategy Democratic leaders pursued was to attempt to bury 
the Judiciary Committee in irrelevant paperwork--mountains of it. I 
have discussed the issue at length previously, so I will only give you 
a bottom line. The bottom line is, we have received more pages of 
documents from Judge Kavanaugh's time as an executive branch lawyer 
than we did from any previous Supreme Court nominee. In fact, we have 
already received over 430,000 pages of Judge Kavanaugh's executive 
branch legal records, which is nearly as many as the last 5 nominees 
combined. This is on top of the 307 opinions he wrote and hundreds more 
he joined as a judge on the DC Circuit over the past 12 years. The 
public already has access right now to every one of those more than 
10,000 pages of judicial writings, as well as the nearly 18,000 pages 
we received in connection with his judicial questionnaire. Those were 
supplemental to the 110 pages he filled out in the questionnaire. By 
the way, that happens to be the most robust questionnaire ever issued 
to a Supreme Court nominee.

  Democratic leaders now are asking me to delay Judge Kavanaugh's 
hearing because of some of the President's former associates' legal 
troubles, but this is just another obvious and opportunistic attempt to 
push the confirmation process past the midterm elections. After all, 
both Justice Ruth Bader Ginsburg and Justice Stephen Breyer were 
confirmed while President Clinton was personally under investigation 
for the Whitewater controversy. In fact, Justice Breyer was confirmed 
while President Clinton's personal documents were under grand jury 
subpoena. Moreover, between June 1993 and February 1999--a period 
during which President Clinton faced significant legal jeopardy--the 
Senate confirmed 248 district judges and 50 circuit judges for lifetime 
appointments.
  It is clear that the Democratic leaders' latest attempt to delay the 
confirmation is unsupported by law or history.
  Another reason Democratic leaders have focused on these issues is to 
divert attention from the great record and abilities of Judge 
Kavanaugh. They know that Judge Kavanaugh is exactly the type of 
Justice the American people want because that is what the Constitution 
calls for--somebody to interpret the law, not to be a superlegislator.
  Judge Kavanaugh has served for 12 years on the DC Circuit Court of 
Appeals--a court many consider to be the second most powerful court in 
our country. During that time, he authored more than 300 opinions and 
joined hundreds more. The Supreme Court has in at least a dozen 
separate cases adopted legal positions advanced by Judge Kavanaugh in 
his opinions. Historians of the Supreme Court would say that is a very 
impressive record.
  Judge Kavanaugh has demonstrated that he understands the proper role 
of a judge. I also would say he sees himself as a judge and not a 
superlegislator. In numerous opinions and in speeches and publications, 
Judge Kavanaugh has eloquently expressed that judges must find and 
apply the law as it is written, not how they wish the law were written. 
If they followed how they wish the law were written, that would fall 
into a category where I would say a Judge becomes a superlegislator.
  Judge Kavanaugh recently said this on that point: ``When courts apply 
doctrines that allow them to rewrite the laws (in effect), they are 
encroaching on the legislature's Article I power.''
  If you ever wonder why judges shouldn't be superlegislators, that is 
because they have lifetime appointments. If you don't like what they 
do, you can't vote them out of office; whereas if the legislating is 
done by the Congress of the United States and you don't like the laws 
the Congress passes, you can vote those Members of Congress out of 
office.
  Judge Kavanaugh has also argued that judges must apply the same 
approach to all cases. He said this: ``Like cases should be treated 
alike by judges of all ideological and philosophical stripes, 
regardless of the subject matter and regardless of the identity of the 
parties to that case.'' Judge Kavanaugh's judicial record reveals that 
he follows his own advice. He decided cases based on his understanding 
of law as written, not his own personal policy preferences or who the 
litigant is.
  In addition to his impeccable qualifications and record of 
achievement, Judge Kavanaugh has shown a dedication to public service, 
mentorship, and diversity. He spent all but 3 years of his legal career 
in public service. He volunteers his time to coach both his daughters' 
youth basketball teams, and he serves meals to the homeless with 
Catholic Charities. Judge Kavanaugh is a proven mentor to law students 
and young lawyers. Judge Kavanaugh has taught courses at Harvard Law 
School on separation of powers and the modern Supreme Court since 2008.
  The Senate Judiciary Committee received a letter in support of his 
confirmation from his former students. They wrote this:

       We . . . represent a broad spectrum of political and 
     ideological beliefs, as well as perspectives on judicial 
     philosophy. We may have differing views on political issues 
     surrounding the confirmation process, but we all agree on one 
     thing: Judge Kavanaugh is a rigorous thinker, a devoted 
     teacher, and a gracious person.

  But this letter goes on with other things that are important about 
Judge Kavanaugh, so I quote again:

       Both inside and outside the courtroom, Judge Kavanaugh 
     evinced a genuine warmth and interest in his students and 
     their careers. . . . He was exceptionally generous with his 
     time, making himself available to meet with students not only 
     to discuss the class, but also to assist with their scholarly 
     writings or to offer career advice. In many instances, he has 
     continued to provide advice and support long after the class 
     ended by writing letters of recommendation and serving as a 
     valued mentor. In our view, his genuine interest in helping 
     young lawyers demonstrates a deep commitment to the legal 
     community as a whole.


[[Page S6002]]


  That is from students of his of differing political views.
  Federal judges also play an important role in mentoring the next 
generation of lawyers. They typically hire four new law clerks each 
year to help them research and decide cases. A law clerk is like a 
judge's right arm. A judge's law clerks know the judge better than 
anyone else. Day in and day out, law clerks work closely with a judge 
in chambers every day on complex legal issues.
  Judge Kavanaugh has clearly taken seriously his mentorship role with 
his clerks. His former law clerks submitted a letter to this committee 
strongly supporting his confirmation. They wrote:

       It was a tremendous stroke of luck to work for and be 
     mentored by a person of his strength of character, generosity 
     of spirit, intellectual capacity, and unwavering care for his 
     family, friends, colleagues, and us, his law clerks. . . . He 
     is unfailingly warm and gracious with his colleagues no 
     matter how strongly they disagree about a case, and he is 
     well-liked and respected by judges and lawyers across the 
     ideological spectrum as a result. . . . He always makes time 
     for us, his law clerks. He makes it to every wedding, answers 
     every career question, and gives unflinchingly honest advice. 
     That advice often boils down to the same habits we saw him 
     practice in the chambers every day: Shoot straight, be 
     careful and brave, work as hard as you possibly can, and then 
     work a little harder.

  That is from his law clerks.
  One of the areas where Judge Kavanaugh has had a particular impact is 
his commitment to diversity. More than half of his law clerks have been 
female. Indeed, during one year, all four of his law clerks were 
female, which was a first for the DC Circuit.
  Judge Kavanaugh's female law clerks sent the committee a letter. 
These law clerks wrote:

       We know all too well that women in the workplace still face 
     challenges, inequality, and even harassment. Among other 
     things, women do not enjoy a representative share of 
     prestigious clerkships or high-profile legal positions, but 
     this committee and the American public more broadly should be 
     aware of the important work Judge Kavanaugh has done to 
     remedy those disparities. In our view, the Judge has been one 
     of the strongest advocates in the Federal judiciary for women 
     lawyers.

  Additionally, Judge Kavanaugh has a track record of recruiting and 
hiring diverse law clerks from the best law schools. It is clear that 
he cares about expanding opportunities to unrepresented groups in the 
law. The legal profession should be open to anyone, regardless of where 
they grew up or where their parents emigrated from. Judge Kavanaugh's 
clerks reflect this important principle.
  In sum, Democratic leaders committed 1 month ago to oppose Judge 
Kavanaugh's confirmation. They have thrown a lot against the wall to 
try to delay his confirmation, but none of it sticks. Judge Kavanaugh 
will have his hearing next week, and I am looking forward to it.
  Based upon my review of Judge Kavanaugh's extensive record, it 
appears that he is extremely qualified to sit on the Supreme Court. He 
understands the proper role of a judge in our constitutional system, 
and he has devoted time to serving his community and improving the 
legal profession.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Perdue). The Senator from Alaska.

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