[Congressional Record Volume 164, Number 148 (Thursday, September 6, 2018)]
[Senate]
[Pages S6043-S6044]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. BLUNT. Madam President, I want to speak for a few minutes about 
the hearings going on today with Judge Brett Kavanaugh. I had a chance, 
as you did, to meet him a little over a month ago. It was clear from 
that conversation that he is clearly the best person available, in my 
view, to fill the vacancy left by Justice Anthony Kennedy. I think his 
opening remarks this week gave great evidence to that. He said, as he 
described himself, that ``a judge must be an umpire--a neutral and 
impartial arbiter who favors no litigant or policy. . . . I do not 
decide cases based on personal or policy preferences. I am not a pro-
plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-
defense judge. I am a pro-law judge.''
  What does it mean to be a ``pro-law'' judge? It means that you see 
your job as a judge who will look at the law and determine what the law 
says, whether that is criminal law or civil law.
  I am not an attorney, but if you hire an attorney to give you advice 
on civil law, the greatest benefit you can have

[[Page S6044]]

in making a decision based on that advice is that judges at all levels, 
up to the Supreme Court, will look at the law as hopefully your good 
attorney did and say: This is what this law means. If you make this 
decision based on what the law says, the courts in the United States of 
America will reach that same, likely, conclusion. Your attorney might 
say that the law is not clear on this issue, and that is a different 
scenario. But the judge's job is not to decide what is the right thing. 
The judge's job is not to decide what the law should say. The judge's 
job is not to decide what the people who wrote the Constitution should 
have written or should have meant if they had known everything we know 
today. The judge's job is to look at the law and look at the 
Constitution and decide that is what it said.
  Nothing would be a better example of Judge Kavanaugh's philosophy 
than the 300 opinions he has issued as a judge. There is a lot of 
discussion: Well, there is not enough material out there. We haven't 
seen everything. We haven't seen everything that went through the White 
House when he was the Staff Secretary for President George W. Bush. We 
haven't seen all of that.
  Of course, that is not the case. There is plenty to be seen. In fact, 
there is more paperwork available to look at from Judge Kavanaugh than 
from the last five Supreme Court Justices put together. I will state 
that if you are looking for paper, you have paper. If you are looking 
for the judge's position, you also have 300 cases, some of which were 
appealed to the Supreme Court. Thirteen of his opinions--and I think 
some of them were when he was in the minority on the circuit court 
bench--became the opinions that the Supreme Court essentially adopted 
almost exactly as Judge Kavanaugh had written them.
  What we are trying to do is put somebody on the Supreme Court for a 
lifetime appointment. This individual happens to be somebody who for 12 
years has been on what is often described as the second most important 
court in the country.
  Why would the DC Circuit--that is the court of appeals for the DC 
area--be the second most important court in the country? The reason is 
that most of the cases that involve new Federal law, that involve 
expansive Federal law, wind up right here. For 12 years, Judge 
Kavanaugh has been one of those judges.
  Believe me, if the Supreme Court had said over and over again, when 
there was an appeal from the DC Circuit, that Judge Kavanaugh's opinion 
really makes no sense or that Judge Kavanaugh's opinion wasn't based on 
the law, the facts, and the Constitution, we would have heard about 
that. In 300 opinions, we would have heard about that if that had been 
the case, and we have not heard that. In fact, what we have heard over 
and over again is about the job this judge has done and the skill he 
brings to the court.
  Going back to the idea that a judge's goal is not to decide what the 
judge would like the outcome to be but what the law says, Justice 
Scalia, who was replaced last year by Judge Gorsuch, said that ``the 
judge who always likes the results he reaches is a bad judge.'' Why 
would you be a bad judge if you always liked the decisions you reached? 
The reason is that you couldn't have always been looking at the law. 
The judge doesn't write the law. The judge doesn't come up with the 
law. The judge doesn't even have to agree with the law. The judge's job 
is to decide what the law says. If you look at every case before you 
and evaluate it based on the facts and apply the rule of law, you are 
going to come up with a conclusion you won't always like, but you will 
come up with a conclusion that the people who are in the case will 
understand as far as how you came up with it because you came up with 
it based on the law and the facts.
  Judge Kavanaugh's credentials have been discussed before. Frankly, 
they are not being very widely discussed this week because the 
hearing--at least half the time--appears not to have much to do with 
Judge Kavanaugh at all but whether there is enough paperwork to look at 
or whether a judge would have reached a different conclusion than he 
reached. But his qualifications are pretty significant. He is a 
graduate of Yale Law School. He clerked for three Federal judges, 
including the Justice he is about to replace. Of course, being a clerk 
for a judge means that you have graduated from law school. Someone has 
looked at all the applicants to be their clerk, and--it is almost like 
graduate work after you have graduated from law school--you are chosen 
to be that clerk. So that happened three times with Judge Kavanaugh, 
including for Justice Kennedy. He clerked for Justice Kennedy alongside 
Justice Gorsuch.
  In 2006, President Bush nominated him to serve on the DC Circuit 
Court of Appeals. In addition to that, since 2009, he has been the 
Samuel Williston Lecturer on Law at Harvard Law School. He was hired by 
Justice Kagan before she was nominated to the Court by President Obama 
and who was then dean of Harvard Law School. He has the interesting 
opportunity to be confirmed to the Court--and I believe he will be--and 
to be sitting on the Court with a Justice nominated by President Obama 
who hired him to be a lecturer at Harvard Law School.
  In addition to his legal career, he has devoted himself to his 
community. He coaches his daughter's basketball team with some pride, 
Coach K--not always the Coach K I would think of but the Coach K the 
girls on that team think of when they think of Coach K. He is a church 
volunteer. He has mentored people at schools. He has been widely 
supported by those who have dealt with him--his classmates, colleagues, 
clerks, and legal scholars.
  This week, he received a unanimously ``well qualified'' rating from 
the American Bar Association. That is the very highest rating they can 
give, and it was unanimous. That is a pretty good signal that he must 
have been well prepared as a lawyer to be a judge.
  The Judiciary Committee has received letters from more than 140 law 
professors, more than 40 members of the Supreme Court Bar, 34 of his 
former law clerks, 80 former Harvard Law students, 31 Governors, and 
many more.
  His nomination isn't just widely supported, it is thoroughly vetted. 
There are 480,000 pages of documents and, in 300 cases, the opinions he 
has written.
  I continue to believe that the Supreme Court is one of the 
longlasting and most important legacies of a President, but it is also 
one of the important legacies of the Senate. The Constitution says the 
President nominates but the Senate advises and consents. This is not 
just about advice, it is about becoming a partner in that process of 
becoming a member of the Supreme Court for as long as you live, unless 
you decide to leave earlier than that.
  I am disappointed that almost half of this Senate announced they 
wouldn't be for Judge Kavanaugh before his confirmation hearings. At 
least one-fourth of the Senate announced they wouldn't be for Judge 
Kavanaugh before he was nominated. No matter who was going to be 
nominated, one-fourth of the Senate was not going to be there.
  I think we will find that a majority of the Senate will be there 
later this month. I think we will find the majority of the Senate will 
be there before the first Monday in October, which is the day the Court 
starts to hear cases for the coming year.
  I think Judge Kavanaugh is going to serve our country well and, I 
hope, long. I look forward to his confirmation later this month.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Washington.

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