[Congressional Record (Bound Edition), Volume 152 (2006), Part 7]
[Senate]
[Pages 9602-9619]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF BRETT M. KAVANAUGH TO BE UNITED STATES CIRCUIT JUDGE FOR 
               THE DISTRICT OF COLUMBIA CIRCUIT--Resumed

  The PRESIDING OFFICER. Under the previous order, the Chair lays 
before the Senate the pending cloture motion, which the clerk will 
state.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 632, the nomination of Brett M. Kavanaugh, of 
     Maryland, to be United States Circuit Judge for the District 
     of Columbia Circuit.
         Bill Frist, Arlen Specter, Saxby Chambliss, Larry Craig, 
           Mel Martinez, Elizabeth Dole, Johnny Isakson, Pat 
           Roberts, Ted Stevens, Craig Thomas, Thad Cochran, Chuck 
           Grassley, Judd Gregg, Tom Coburn, Richard Shelby, 
           Lindsey Graham, Orrin Hatch.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Brett M. Kavanaugh, of Maryland, to be United States 
Circuit Judge for the District of Columbia Circuit shall be brought to 
a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN, I announce that the Senator from North Dakota (Mr. 
Conrad), the Senator from West Virginia (Mr. Rockefeller), and the 
Senator from Colorado (Mr. Salazar) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 67, nays 30, as follows:

                      [Rollcall Vote No. 158 Ex.]

                                YEAS--67

     Alexander
     Allard
     Allen
     Bennett
     Biden
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Carper
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kohl
     Kyl
     Landrieu
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--30

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Cantwell
     Clinton
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Lautenberg
     Leahy
     Levin
     Menendez
     Mikulski
     Murray
     Reed
     Reid
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--3

     Conrad
     Rockefeller
     Salazar
  The PRESIDING OFFICER. On this vote, the ayes are 67, the nays are 
30. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Parliamentary inquiry: Is it appropriate now to begin 
debate on the confirmation of Brett Kavanaugh?
  The PRESIDING OFFICER. It is appropriate.
  Mr. SPECTER. Mr. President, I support the confirmation of Brett 
Kavanaugh to the Court of Appeals for the District of Columbia because 
of his academic achievements, professional work, and potential to be an 
outstanding Federal judge.
  Brett Kavanaugh was an honors graduate from Yale University, was a 
graduate of the Yale Law School, and a member of the Law Journal there. 
That is a strong indication of intellectual achievement. He then 
clerked for Judge Walter Stapleton of the Court of Appeals for the 
Third Circuit and then Judge Alex Kozinski of the Court of Appeals for 
the Ninth Circuit and then clerked for Justice Kennedy on the Supreme 
Court of the United States. Those are really outstanding credentials, 
academically and for the beginning career of a young lawyer. He then 
worked in the Solicitor General's Office, argued a case before the 
Supreme Court of the United States, and then worked as associate White 
House counsel and has been Secretary to President Bush.
  He had a second hearing which was requested by the Democrats so that 
he could respond to questions which had arisen in the 2-year interim 
since his first hearing, and he responded by allaying any concerns 
about any involvement which he may have had on the subject of 
interrogation of detainees.
  He was asked about any potential participation in the 
administration's electronics surveillance program. He answered that in 
the negative.
  He responded to questions with respect to the subject of rendition, 
again with no knowledge on his part of any of that.
  He was subject to close questioning about his work with Kenneth Starr 
on the impeachment proceeding, and he was not in a position of 
leadership. He was one of several down the tier, with Mr. Starr being 
Independent Counsel. Mr. Kavanaugh was a deputy, with as many as nine 
other such deputies on his level.
  He was candid in some criticism of the handling of the matter; the 
public release of the report was not the choosing of Independent 
Counsel. He testified that he believed that the Independent Counsel 
statute ought to be changed materially if it was to be revised and that 
having Mr. Starr both on Whitewater and the impeachment of the 
President was too much.
  He wrote a law review article on the issue of peremptory challenges 
for Black jurors and took the position that it was inappropriate, 
should not be done, and displayed in that scholarly aptitude on the 
journal.
  One of the objections raised to Mr. Kavanaugh involved how close he 
was to the President. But it is hardly a surprise that Brett Kavanaugh 
would be close to the President because the President selects people in 
whom he has confidence and who share his approach to jurisprudence, to 
strict construction, and to not legislating from the bench. That 
prerogative of the President is what Presidential elections are about.
  Some of Mr. Kavanaugh's answers were hesitant, and I think he was 
very concerned about being very precise in what he had to say. He might 
have been a little forthcoming, but in a context where there is a 
question about subsequent investigations, if the control of the Senate 
changes, in the context of witnesses appearing before grand juries on 
five occasions, looking for inconsistencies, it is understandable that 
he was very cautious in his comments.
  I believe that on this record, Brett M. Kavanaugh ought to be 
confirmed, and I urge my colleagues to vote in the affirmative.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I have some remarks I would like to make 
on this nomination.
  Mr. LEAHY. Will the Senator yield for just a moment? He does have the 
floor, I fully understand. I assume we would follow the normal order 
that after the chairman spoke, the ranking member would be allowed to 
speak.
  Mr. CORNYN. I will be glad to defer to the ranking member.
  Mr. LEAHY. The Senator from Texas has the floor. He does have the 
floor.
  Mr. CORNYN. Mr. President, I recognize I have the floor and the right 
to the floor, but I will be glad to accommodate the ranking member and, 
if I can, by unanimous consent, request that I be recognized after he 
speaks, I would be happy to relinquish the floor to him.
  Mr. LEAHY. I certainly have no objection to that. I assume what we 
will probably do for the rest of the evening,

[[Page 9603]]

and I suspect we probably will do the same thing tomorrow--hopefully by 
tomorrow night or early Saturday we will finish--we will go back and 
forth. I make a request I be recognized, and upon the completion of my 
remarks, the distinguished Senator from Texas be recognized.
  Mr. DURBIN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Only for the purpose of being in the queue after the 
Senator from Texas, if I can amend the unanimous consent request.
  Mr. LEAHY. I ask unanimous consent that Senator Durbin follow the 
Senator from Texas.
  The PRESIDING OFFICER. Is there objection?
  Mr. LOTT. Reserving the right to object, Mr. President, and I do not 
wish to object, I presume this is a discussion on the nominee. Senator 
Dayton and I have a bill we want to introduce. It will take just 3 or 4 
minutes to comment on the introduction.
  Mr. LEAHY. Mr. President, I ask unanimous consent that before I am 
recognized--the Senator from Texas still has the floor--before I am 
recognized and the Senator from Texas is recognized and then the 
Senator from Illinois is recognized and then the Senator from Idaho is 
recognized, that 10 minutes be divided between the Senator from 
Mississippi and the Senator from Minnesota.
  Will that give Senator Lott and Senator Dayton enough time?
  Mr. LOTT. That will be more than enough time. That is very generous.
  Mr. LEAHY. That upon yielding back of the time of the Senator from 
Mississippi and the Senator from Minnesota, the Senator from Vermont be 
recognized following the chain we talked about.
  The PRESIDING OFFICER. Is there objection?
  Mr. CORNYN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. May I just add to that unanimous consent request that 
Senator Hatch be added as the next speaker on our side of the aisle in 
the queue?
  Mr. LEAHY. I have no objection to that. I think it is quite 
appropriate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. Mr. President, I believe Senator Dayton will actually 
introduce the legislation, and I join as a cosponsor. He will lead off 
with his remarks, and then I will be honored to follow.
  THE PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. DAYTON. I thank the Chair.
  (The remarks of Mr. Dayton and Mr. Lott pertaining to the 
introduction of S. 3239 are printed in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I thank the Senator from Minnesota and the 
Senator from Mississippi, and I thank again the distinguished Senator 
from Texas, who has shown his usual and normal courtesy in allowing me 
to go next.
  The Senate has just passed bipartisan comprehensive immigration 
reform. I think that is an achievement for all Americans, present and 
future, who want to keep our country safe, and it fixes what most will 
acknowledge is a broken system. I mention that because the Senate, 
Republicans and Democrats, worked together to speak about one of 
America's top priorities, and it worked. I think the American public 
understands that. We ought to continue that. We ought to continue that 
on the path of addressing Americans' top priorities.
  We ought to be debating the war in Iraq. None of us can go home 
without hearing a debate on the war in Iraq, either for or against it. 
We ought to be debating it on the floor of the Senate. We are, after 
all, the conscience of the Nation. We should be debating the war in 
Iraq.
  We should debate the rising gas prices. You can't go into a diner in 
America without hearing a debate on that. They ask the same thing: Why 
aren't you debating it on the floor of the Senate?
  How about the health care costs, which are going up at a time when 
seniors are faced with what for many of them is an incomprehensible 
prescription medicine plan. We ought to be talking about that. You 
can't go to the senior center anywhere in the country without hearing 
that being debated. What is wrong with the Senate, the conscience of 
the Nation, debating it?
  How about stem cell research? So many parents of children with 
diabetes, those who have had paralyzing injuries, they say: Why aren't 
you at least determining a way to have stem cell research?
  What about the reauthorization of the Voting Rights Act? Not only has 
the Voting Rights Act worked to help those minorities in this country 
who were denied the right to vote before, but let us make sure that it 
works in the future for children today, Hispanic children today, 
African-American children today, the children of all races? How will we 
guarantee they will have the right to vote? We should reauthorize the 
Voting Rights Act.
  These are all things on which the Senate could come together in a 
bipartisan fashion. We could have a bipartisan debate. The country 
would benefit by it. We would be a better body. The country would be 
better. But instead, it appears that because it is an election year, 
then we have to go to controversial, polarizing judicial nominations.
  This nomination, like the difficult and controversial nominations of 
Judge Terrence Boyle and Michael Wallace, signifies that the Bush-
Cheney administration and those who support it here in the Senate, are 
more interested in playing partisan election-year politics by heeding 
the siren call of special interest groups rather than tackling the 
pressing issues facing Americans today.
  Local and national law enforcement have called upon the President to 
withdraw the nomination of Judge Boyle, as I have, and he would be well 
advised to do so. The nomination of Michael Wallace received the first 
ABA rating of unanimously ``not qualified'' for a circuit court nominee 
in more than 20 years. The last one to get that rating didn't go 
through. And the nomination before us today of Brett Kavanaugh is one 
of the few judicial nominations to be downgraded over time by the ABA.
  The Senate's job is to fulfill our duty under the Constitution, not 
to advance a political agenda. No matter what our political 
affiliation, we are supposed to consider the interests of all 
Americans. We have to be able to assure the American people that the 
judges confirmed to lifetime appointments to the highest courts in this 
country are being appointed fairly to protect their interests, rather 
than to be a rubberstamp for whichever President nominated them. Mr. 
Kavanaugh is a nice young man who was nominated for the U.S. Court of 
Appeals for the District of Columbia Circuit after working for most of 
his career in behalf of the Bush-Cheney administration and the 
Republican Party in partisan, political jobs. Since helping to author 
the Kenneth Starr Report, he has worked in the office of the White 
House Counsel and as staff secretary to the Bush-Cheney administration. 
He was involved in the administration's use of 750 Presidential signing 
statements to try to reserve to the President the power to pick and 
choose which laws passed by Congress he wanted to follow. In other 
words, he allowed the President to sign a bill but then say: This law 
may apply to others, but it is not going to apply to the President or 
anybody else to whom I don't want it to apply. It is the first time in 
my lifetime a President has stated so emphatically, 750 times: I am 
above the law. He has helped the President pack the Federal bench with 
right-wing ideologues.
  He has helped design the White House's overbearing secrecy policy. So 
now we are spending billions of dollars in marking things ``top 
secret,'' some of which were on Government Web sites for long periods 
of time until they realized it was pointing out embarrassing mistakes 
in the Bush-Cheney administration. So they yanked it off

[[Page 9604]]

the Web sites and marked it ``top secret.'' We even have now the FBI 
going to a dead journalist--to a dead journalist, Jack Anderson--and 
pressuring his elderly widow to give up his notes of 20 and 30 years 
ago because it might prove embarrassing to some in their party.
  So my question for this nominee, which is the same question I have 
asked of all nominees of either party, is whether you will be an 
independent check and balance.
  I recall recommending to President Clinton a well-known Republican 
from my State for a seat on the Second Circuit Court of Appeals. I did 
that even though the man is certainly more conservative than I and 
belonged to the other party. I did it because I knew he would be 
independent; he would not be a rubberstamp for any President, 
Republican or Democratic.
  Regrettably, Mr. Kavanaugh has failed through two hearings to 
establish that he has the capacity to be an independent check on his 
political patron, in this case a President who is asserting 
extraordinary claims of power. In fact, despite his close ties to the 
White House's inner circle, he wouldn't even tell us what issues he 
would recuse himself from hearing as a judge. We asked him 
specifically: Here is a case where you designed the legal basis for 
something, and now it comes before you as a judge; would you recuse or 
rule on work you have done? He wouldn't even acknowledge that he would. 
Instead we heard from a nominee who parroted the Bush-Cheney 
administration's talking points on subject after subject. I don't think 
the Senate should confirm a Presidential spokesperson to be a judge of 
the second highest court in the land.
  After carefully evaluating Mr. Kavanaugh's record and his answers at 
two hearings, it is clear that he is a political pick being pushed for 
political reasons. His nomination is a continuation of the Republicans' 
decade-long attempt to pack the DC Circuit.
  You can go all the way back to President Clinton's first term when 
the Republicans started playing politics with the DC Circuit. They 
blocked President Clinton's nominees so they could make sure they had a 
majority of Republican appointees on the court. They were among the 61 
of President Clinton's nominees that the Republicans pocket 
filibustered. And their plan succeeded. After confirming two other 
nominees last year whom I strongly opposed--Janice Rogers Brown and 
Thomas Griffith--Republican nominees now comprise a 2-to-1 majority on 
the second most important court in the land. This is not a court which 
needs another rubberstamp for this President's assertions of Executive 
power.
  The Republican majority who chose to shrink the court when there was 
a Democratic President is now bent on packing this court. They want 
this up-or-down vote even though they didn't apply that standard or 
anything near it to President Clinton's nominees to the DC Circuit. As 
I say, they denied 61 of President Clinton's nominees an up-or-down 
vote. When they stalled the nomination of Merrick Garland to the DC 
Circuit beyond the 1996 election, even Senator Hatch as chairman of the 
committee became frustrated. He claimed the way the Republicans were 
opposing judicial nominees was playing politics with judges, was 
unfair, and he was sick of it. I wish he had followed through instead 
of joining with his fellow Republicans in denying 61 judges an up-or-
down vote. We did finally get Merrick Garland through, but he was the 
last one the Republicans were willing to consider for confirmation to 
this important circuit.
  Here we have a person with no real experience other than being 
willing to take political orders.
  Let me tell you about two of the nominees of President Clinton whom 
the Republicans would not allow to have a vote, a so-called pocket 
filibuster. One was Elena Kagan. They wouldn't allow her to come to a 
vote. Some even said: We are not sure of her qualifications. She is now 
dean of the Harvard Law School. These are the same people pushing a 
nominee for the Fifth Circuit, as I mentioned earlier, who is rated 
unanimously unqualified. And they pocket filibustered Alan Snyder. He 
had served as a clerk to Justice Rehnquist--no screaming liberal he, 
God rest his soul. Mr. Snyder was an experienced and respected 
litigator, but he was pocket filibustered. The fact is, for the rest of 
President Clinton's second term, they blocked all nominees to the DC 
Circuit, pocket filibustered them all with impunity.
  I will give a little background. During the 17 months I was chairman 
of the Judiciary Committee, I tried to stop the poisonous pocket 
filibustering. I am a Democrat, and the Bush-Cheney administration is 
Republican. In 17 months, I moved through, and the Democratic-
controlled Senate moved through, 100 of President Bush's nominees. We 
actually moved them faster than the Republicans had moved them for a 
Republican President.
  But I don't want to say they rubberstamped everybody. They, the 
Republicans, actually did treat one nominee the same way they treated 
President Clinton's. It is the way they treated White House Counsel 
Harriet Miers when the President nominated her.
  She is a woman who has not gone to Ivy League schools but has a more 
impressive background and experience than this nominee--certainly much 
more legal experience than this nominee. Republicans questioned her 
qualifications. They demanded answers about her work at the White House 
and her legal philosophy. They would meet on an off-the-record basis 
with the press and say what a terrible nomination this was for 
President Bush to make.
  I said: At least let her have a hearing. All Democrats on the 
committee said: Out of fairness to the President, we ought to let his 
nominee have a hearing. The Republicans said: She is not going to get a 
hearing, and they forced the President to withdraw her nomination.
  Despite the political battle, as I said when I moved through 100 of 
President Bush's nominees, I approached the nomination of Mr. Kavanaugh 
with an open mind. I gave him the chance that Elena Kagan and Alan 
Snyder never received. In fact, he has had more opportunities than 
they. He has had an opportunity to demonstrate at not one but two 
hearings that he could be an independent nominee who deserved to be 
confirmed.
  The Washington Post noted in 2003, when President Bush nominated Mr. 
Kavanaugh, that he had nominated somebody ``who will only inflame 
further the politics of confirmation to one of this country's highest-
quality courts'' and concluded that it was ``too bad Mr. Bush is too 
busy playing politics to lead.'' I agree. Instead of being an uniter, 
he is being a divider.
  I kept an open mind, even though only 1 of the 22 judges appointed to 
the D.C. Circuit since the Nixon administration, Kenneth Starr, had 
even less legal experience at the time of his nomination than 
Kavanaugh. Throughout all Republican and Democratic Presidents, only 
Kenneth Starr had less experience since President Nixon's time than Mr. 
Kavanaugh.
  I even kept an open mind after Mr. Kavanaugh's nomination was one of 
the few to be downgraded by the ABA. I can't recall anyone being 
confirmed after such a development.
  But after I saw Mr. Kavanaugh at his recent hearing, I could 
appreciate one judge interviewed by the ABA peer review subcommittee 
describing Mr. Kavanaugh as ``less than adequate'' and someone who 
``demonstrated experience on the level of an associate.'' Others 
interviewed recently raised concerns about Mr. Kavanaugh's ability to 
be balanced and fair, given his years in partisan positions, working to 
advance a particular partisan political agenda. He was described by 
interviewees as ``sanctimonious,'' ``immovable and very stubborn and 
frustrating to deal with on some issues''--not the qualities that make 
for a good judge.
  Despite the word put out falsely by the Bush-Cheney defenders, it was 
not a change in membership in the ABA peer review committee that led to 
his downgrading. Three-quarters of those who previously reviewed this 
nomination, and continued on the committee, voted to downgrade the 
rating based on the recent interviews and review.

[[Page 9605]]

  His response to one very simple question I asked during his most 
recent hearing spoke volumes. I asked the nominee why he had taken 7 
months to answer the written questions submitted to him following his 
initial hearing in 2004. He repeated the meaningless phrase that he 
``took responsibility'' for such dismissive and irresponsible conduct 
and, implicitly, for his lack of seriousness about the confirmation. 
When he did that, it actually elicited laugher from the hearing room 
but not laughter from me because I felt it was not the first time he 
``dissembled'' in response to my questions.
  I suspect the truth is, he made a political calculation and decided 
to expend his time and effort at his benefactor's reelection campaign 
during the spring, summer, and fall of 2004 rather than answering the 
questions legitimately asked by Senators on the Judiciary Committee. He 
may be brilliant at politics and have powerful supporters, but that 
doesn't mean he will be a good judge. This is, after all, a vote to 
determine not who your supporters are or not how good you have been at 
partisan politics but how good a judge you will be.
  In my opening statement at his hearing, I raised a key question 
regarding this nomination: Will he demonstrate his independence and 
show he can serve in the last independent branch of the Government? One 
party controls the White House, the Senate, the House of 
Representatives. There is only one body left to be independent. That is 
the courts. Can we look to him to be a check and balance on the 
President, who is asserting extraordinary claims of power, or on any 
President?
  He could have told us something about his responsibilities as staff 
secretary or as an associate White House counsel, giving us examples 
when he showed independence and good judgment, but he didn't. Instead, 
he appeared at his confirmation hearing to be a spokesman and 
representative for the administration. Instead of speaking about how 
independent he would be, he basically over and over again acted like a 
spokesman for the administration.
  Courts are not supposed to be owned by the White House. I don't care 
which administration is in control of the White House, they are not 
supposed to control the courts. Over and over he answered our questions 
by alluding to what the President would want and what the President 
would want him to do. We are going to confirm somebody who, in sworn 
statements, talks about how he would try to make sure he ruled as the 
President would want him to rule? Have we really sunk that low in the 
Senate on judicial nominations?
  We heard from a nominee who responded not with independent answers 
but with the administration's talking points. We heard from a young man 
who, when invited by the chairman to introduce his family, began his 
remarks not by introducing the family but by thanking the President for 
nominating him and later emphasized--as if that was a qualification--
that he had ``earned the trust of the President'' and his ``senior 
staff.''
  I have no problem with the President nominating Republicans--although 
that seems to be all he will nominate, unlike other Presidents of both 
parties who have nominated people from both parties--but I expect him 
to nominate somebody who can be independent and will not have his 
strings pulled by the White House. It may be useful for advancement 
within the Bush-Cheney administration in Republican circles, but they 
are not qualifications for a judge who can be independent if he is 
asked to rule on this President's or the Bush-Cheney administration's 
policies.
  Senator Graham put the question this way during the course of the 
hearing: ``There is a fine line between doing your job as a White House 
counsel and being part of the judicial selection team and being a judge 
yourself. There is a line between being an advocate and being a 
judge.'' I don't believe he showed he knows that line. The DC Circuit 
is too important to pack with those who would merely rubberstamp the 
Bush-Cheney administration or any administration, Democratic or 
Republican. We can't rubberstamp an administration's policies.
  We had the sudden and basically forced resignation of the President's 
handpicked head of the CIA, Porter Goss. America witnessed another 
``heck of a job'' accolade to an administration insider leaving a 
critical job undone. This administration insider--we saw what a great 
job he did. So, like administration insiders who ran FEMA right after 
Hurricane Katrina, the President said they had done a heck of a job. I 
think virtually all Americans, Republican and Democratic, would 
disagree. In fact, for that matter, this week we learned that the 
President's Secretary of the Veterans' Administration was in charge 
when there was the largest theft of private information from the 
Government ever--the largest theft ever, the loss of information on 
more than 26 million American veterans.
  Compounding the incompetence is the misguided decision by the 
Veterans' Administration for secrecy in trying to cover it up for the 
last 3 weeks. Boy, if we don't talk about it, if we cover it up, maybe 
nobody will know that we lost the critical private information of 26 
million veterans.
  This is falling on the heels of last year's debacle of the $1 billion 
shortfall in the VA's budget for veterans health care by the same 
leadership, who said: Oh, we have plenty of money when they want to 
make political points, then quietly to the Congress after, saying: 
Whoops, we don't. It is a heck of a job. It is just one more heck of a 
job by this administration.
  Maybe we should have a ``heck of a job'' medal to give to all of 
these people who get fired for incompetence--give them a ``heck of a 
job'' medal--great big thing, you have done a heck of a job. It is a 
heck of a job on Katrina; it is a heck of a job on rubberstamping 
nominees for the courts; it is a heck of a job when you lose 26 million 
records and put these veterans at great risk. Oh, wait a minute. They 
did say they would have an 800 number. If you are 1 of the 26 million 
now facing identity theft, maybe lose your car, maybe lose your house, 
maybe lose your pension, maybe lose your life savings, we have an 800 
number for you.
  Anybody try to get through to that 800 number? If you do, they tell 
you go out and buy protection. Whatever happened with ``the buck stops 
here''? It has to be more than photo-ops when you run operations.
  What is desperately lacking throughout this administration is 
accountability. The attack on 9/11 happened on their watch. You don't 
see accountability. The faulty intelligence, the years of fundamental 
mistakes in Iraq, hundreds of billions of dollars spent in the war in 
Iraq, and we were told that we were going to be greeted as liberators 
and that it would be over in a matter of days. The lack of preparation, 
the horrific aftermath of Katrina, and on and on--billions spent on 
homeland security.
  First, a crony of the President was going to be put in to run the 
Department of Homeland Security until they found out the very 
disturbing things about his personal life; found out things that the 
administration knew about, that they were trying to keep secret. But 
when the press found out about it, somebody had an excuse not to go 
there.
  Be ready on a moment's notice if we are ever attacked again, like we 
were attacked early on in the Bush-Cheney administration. Well, with 
Katrina, we had days and days and days of notice. It didn't do any 
good.
  I think, speaking in behalf of the President for a moment, it is not 
all his fault. He has not been helped by the Republican-controlled 
Congress that won't provide any checks and balances. The Republican 
controlled Congress won't raise the questions that might be asked, and 
that, had they been asked, might have forced the administration to do a 
better job. But the Republican-controlled Congress won't serve as a 
check and balance, when there are colossal failures of homeland 
security, or at the VA, or anywhere else. Can we at least ask for the 
courts to be a check and balance to preserve our rights and our way of 
life? If our Government overreaches, at least we can count on

[[Page 9606]]

the courts to be there to check and balance.
  In fact, now that the administration is raiding congressional 
offices, the Republican leadership in Congress is finally protesting. 
When ordinary Americans' telephone calls and Internet use is being 
wiretapped without warrants, that same Republican leadership looked the 
other way. I guess they had to tread on the toes of Members of Congress 
before the Republican Congress will say anything.
  Last year, when the President nominated Harriet Miers, Republicans 
questioned her qualifications and demanded answers about her work at 
the White House and her legal philosophy. They defeated her nomination 
without a hearing. Now it appears that they are back to their 
rubberstamping routine with every Senate Republican ready to approve 
this nomination without question or pause.
  Then we ask the question: The President's counsel, the staff 
secretary, did that nominee act as a check and balance, or will he 
continue, as he said at his hearing, to do whatever the President 
wanted?
  At his hearing, Senator Feinstein and I gave him another opportunity 
to answer concern about his loyalty to the President. We asked about 
recusal. He could have said he would not hear any matter that raised 
questions about the President's claims of executive power insofar as 
was involved with the development of the policies and practices of the 
Bush-Cheney administration. It is almost judicial ethics 101 in the 
first year of law school. The easy answer is: Of course, I will not 
rule on that. Of course, I would recuse myself on something I have 
developed in the White House. He could have walled off matters covered 
by the Presidential signing statement--750 of them. This President has 
shown unchecked Executive power exceeding that of Richard Nixon. He 
could have said that given his role in the development of this 
administration's secrecy policies he would recuse himself from those 
questions regarding the right of the American people to know about 
their Government. It would not only be the right answer, but it would 
be an easy answer. After all, the administration stacked that court 
with so many Republicans, he should feel comfortable, but even there he 
didn't say he would follow basic judicial ethics.
  At a time when the Senate should be addressing America's top 
priorities, the President and his Senate allies instead are trying to 
divide and distract from fixing real problems by pressing forward with 
this controversial unqualified nomination.
  We showed in the recent debate that at least among senior Members--
Republican and Democratic Members--we could be uniters and not 
dividers.
  Unfortunately, in this case, the White House wants to be dividers not 
uniters. And the leadership is ready to cater to the extreme right-wing 
and special interest groups agitating for a fight on judicial 
nominations. They made no secret of the reason for pushing nominations 
to the Senate. They are even willing to hold up confirmation of the new 
Director of the CIA to vote now instead of a week from now on a 
nomination that has waited 3 years anyway. They just want to stir up a 
fight.
  Mr. Kavanaugh is a young, relatively inexperienced but ambitious 
person who, in two hearings, has failed miserably to demonstrate his 
capacity for independence. I have voted for an awful lot of Republican 
nominees, and I expect I will in the future. I am not going to vote for 
any nominee--Republican or Democrat--who has failed to demonstrate his 
capacity for independence. This nominee has not, and I cannot in good 
conscious support action on this nomination to one of the Nation's 
highest courts.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, almost 3 years have passed since Brett 
Kavanaugh was nominated to the U.S. Court of Appeals for the DC 
Circuit. I am glad that the time has finally come for an up-or-down 
vote on his nomination.
  Despite the threats of a filibuster and the unwarranted attacks on 
the nominee's qualifications and character, Brett Kavanaugh will soon 
be confirmed by a bipartisan majority of this body.
  I fully support his nomination, and believe that he will be a 
valuable addition to the Federal bench. In just a moment, I will 
outline the reasons why.
  But, first, I must say I am troubled that his confirmation has been 
needlessly protracted and contentious. It is the contentiousness that 
concerns me most.
  Brett Kavanaugh's nomination has routinely been described in the 
press as ``controversial''--not because of any legitimate quality or 
characteristic of the nominee, but simply because my colleagues on the 
other side have declared it so.
  These individuals have demeaned Kavanaugh as a ``crony,'' a 
``partisan warrior,'' and have characterized his nomination as ``among 
the most political in history'' and ``judicial payment for political 
services rendered.'' Yet, a leading Democrat critic during a recent 
hearing conceded that Brett Kavanaugh has ``blue-chip credentials.'' I 
don't understand how these comments can be squared with one another.
  Mr. President, I have deep concerns about the tenor of many recent 
debates over this President's judicial nominees. I fear that this 
confirmation battle is just the latest in a series of bad precedents 
set in recent years when it comes to confirmation votes on a 
President's nominees.
  The fight over Justice Samuel Alito's nomination is the first example 
that comes to people's minds, but there are many others. You will 
recall that during the Alito debate, one of his opponents said, ``You 
name it, we'll do it,'' to defeat the Alito nomination. Sadly, that 
statement captured the tone of the Alito confirmation debate--where we 
saw a distinguished public servant subjected to unwarranted, baseless 
attacks.
  Fortunately, a bipartisan Senate rejected the attempt to filibuster 
Samuel Alito. Any attempt to filibuster Brett Kavanaugh would surely 
meet the same fate.
  I don't think that I am going out on a limb when I say that neither 
the Alito nor the Kavanaugh confirmation debates could be considered 
the Senate's ``finest hour.'' Taken together with many others, these 
confirmation battles have the potential to paint for the public a 
distorted picture of our Federal judiciary--and further erode the 
confidence in our legal system.
  The U.S. Senate should take the lead and give the public a more 
accurate understanding of the judge's role in our constitutional 
democracy. To achieve that, the judicial confirmation process must be 
more civil, respectful, and free of partisan politics.
  There are many reasons I support this fine nominee.
  Brett Kavanaugh is, by any reasonable measure, superbly qualified to 
join the Federal bench. His legal resume is as impressive as they 
come--one with a demonstrated commitment to public service. After law 
school at Yale, where he was an editor of the Yale Law Journal, 
Kavanaugh held prestigious clerkships for three Federal appellate 
judges--including U.S. Supreme Court Justice Anthony Kennedy. He also 
served in the Solicitor General's office, the Office of Independent 
Counsel, and was a partner at Kirkland & Ellis, one of the Nation's 
elite law firms. Most recently, he was Associate White House Counsel, 
and is currently Staff Secretary to President Bush, a job whose title 
belies the very serious and important responsibilities that that 
individual performs.
  Earlier this month, the Judiciary Committee had the good fortune of 
hearing from Kavanaugh's mentors, two men who know him best. Neither of 
these men recognized the critics' demeaning description of Brett 
Kavanaugh as a partisan or as someone with an agenda.
  Ninth Circuit Judge Alex Kozinski told the Committee that he ``never 
sensed any ideology or agenda'' when Kavanaugh served as his law 
clerk--perhaps the most important job other than the job of the judge 
in judicial chambers. Third Circuit Judge Robert Stapleton urged 
Kavanaugh to consider

[[Page 9607]]

the judiciary as a career because, in addition to this young clerk's 
legal acumen, he displayed ``no trace of arrogance and no agenda.''
  Judge Stapleton praised the nominee for appreciating the ``crucial 
role of precedent in a society that is committed to the rule of law.''
  Brett Kavanaugh clearly understands the impartiality and independence 
required of an article III judge. At his first hearing in April of 
2004, Mr. Kavanaugh described it best when he said: ``I firmly disagree 
with the notion that there are Republican judges or Democrat judges. 
There is only one type of judge. There is an independent judge under 
our Constitution. And the fact they may have been a Republican or a 
Democrat or an independent in a past life is completely irrelevant to 
how they conduct themselves as judges.''
  The independence of our Federal judiciary is, again, using Brett 
Kavanaugh's words, ``the crown jewel'' of our constitutional democracy. 
But I worry that the Senate--perhaps inadvertently--is giving the 
American people a distorted view of our system. I regret that at the 
root of these harsh and unfair attacks may be a deep-seated cynicism, 
namely, that Federal judges are somehow just another branch of the 
legislature, that they are merely politicians in black robes who are 
somehow able to inject their own policy agendas into court decisions, 
thereby rendering the popular phrase ``legislating from the bench.''
  But nothing could be further from the Founders' vision of our 
judiciary under the Constitution; Federal judges are given life tenure 
without salary reduction, precisely because we want to ensure they will 
decide each case, big or small, on its own merit according to the law, 
according to the facts and not with any agenda.
  Judicial independence requires faithful application of the 
Constitution and the law to each case. I supported Chief Justice John 
Roberts and Justice Sam Alito because I believe they will respect our 
Constitution and respect our laws. And I believe Brett Kavanaugh will 
do the same.
  Brett Kavanaugh is a dedicated public servant who will serve this 
Nation with distinction as a Federal judge. I urge my colleagues to 
confirm him.
  I yield the floor.
  The PRESIDING OFFICER. Under the unanimous consent, the Chair 
recognizes the Senator from Illinois.
  Mr. DURBIN. Mr. President, we are considering the nomination of Brett 
Kavanaugh to the United States Court of Appeals for the DC Circuit. Why 
are we taking extra time on this nomination? Why are Members coming to 
the Senate on both sides, some expressing support and others 
opposition? Why is this different from any judicial nomination? There 
are two reasons. This is not your normal Federal court. The United 
States Court of Appeals for the DC Circuit is the second highest court 
in America. It has been the launching pad for Supreme Court Justices. 
They consider some of the most complex and technical litigation that 
faces the Federal bench. It is not just another court.
  Second, Brett Kavanaugh is not just another judicial nominee. Brett 
Kavanaugh comes to this nomination with not the weakest credentials in 
the history of this bench, but the second weakest credentials.
  Earlier this month, Senator Kennedy called the Kavanaugh nomination a 
triumph of cronyism over credentials. Unfortunately, I must agree. The 
nomination of Brett Kavanaugh is a political gift for his loyal service 
to this President and his political party. Mr. Kavanaugh is not being 
given an engraved plaque for his fine service; he is being given a 
lifetime appointment to the second highest court in the land. By every 
indication, Brett Kavanaugh will make this judgeship a gift that keeps 
on giving to his political patrons who have rewarded him richly with a 
nomination coveted by lawyers all over America.
  In light of his thin professional record, Mr. Kavanaugh bears a 
particularly high burden of proof. I have sat through the hearings with 
Mr. Kavanaugh. In my estimation, he has not met that burden. He has so 
little experience as a practicing lawyer, no experience as a judge. He 
had a special obligation when it came to these nomination hearings to 
tell us what he believes and what he would do on this important 
judicial assignment. He failed.
  As I said about the DC Circuit, it is not just any court of appeals. 
It is the first among equals. It is based in Washington, but its 
rulings affect Americans from coast to coast. It is the court of last 
resort in some cases involving the air that every American breathes, 
the water that we give our children, the right of labor organizations 
to collectively bargain, whether Americans will have access to 
telecommunications, and even the price we pay for electricity.
  The significance of the DC Circuit is seen in the way it has become 
the farm team for the Supreme Court. Over half of all the Supreme Court 
nominees during the past quarter century were judges on the DC Circuit 
where President Bush wants to send his staff secretary, Brett 
Kavanaugh. If Mr. Kavanaugh is confirmed for the DC Circuit, it would 
not surprise me if the Republicans would try to elevate him to the 
highest court in America.
  Let's take a look at his experience for this job. Compared to others 
who have served on this important court, Mr. Kavanaugh's track record 
just does not stand up. He has never had a jury trial in his life. And 
he has never had a trial before a judge. I don't believe he has ever 
taken a deposition. I don't know if he has ever filed a motion in 
court. There is no evidence that he has any understanding, basic 
understanding, of trial practice in civil or criminal courts in 
America.
  Think of that for a moment. Though this man has graduated from 
outstanding schools, he has clerked for important judges, he has never 
had to roll up his sleeves and represent the client or represent the 
United States of America or any State or local jurisdiction at a trial.
  He has very little experience, of course, on the issues that come 
before this court. Nearly half of the cases in the DC Circuit Court 
involve Federal agencies dealing with the environment, electricity, 
labor unions and telecommunications. Mr. Kavanaugh was asked: Now, in 
this field of expertise that you want to be a judge in, tell us, what 
kind of cases have you handled? What kind of experience do you have? 
What did you bring to this? What kind of wisdom as a judge will you 
bring to this? He could identify only one case in his entire life that 
he had ever been involved in that related to any of those four 
important agencies.
  During the 113-year history of the DC Circuit Court there has only 
been one judge, only one in its history, who has been nominated who had 
fewer years of legal experience than Brett Kavanaugh. That judge was a 
man by the name of Ken Starr. No other DC Circuit Court judge in the 
past 113 years has had less experience than Brett Kavanaugh.
  Is that the best we can do? Is that the best the President and the 
White House can do for the people of America? Give us young men who may 
have great promise, but little experience? People who may be right on 
the political issues for this White House but have not demonstrated the 
wisdom or life experience that qualify them to stand in judgment on 
critical issues that affect the lives of every single American?
  At his second hearing Mr. Kavanaugh tried to assure us that his 
career in government service was similar to others who have served in 
the DC Circuit. He compared his background in government service to a 
former DC Circuit judge by the name of Abner Mikva, who served with 
distinction on the DC Circuit Court from 1979 to 1995. It was truly a 
Lloyd Bentsen/Dan Quayle moment that Brett Kavanaugh would suggest that 
he was in Abner Mikva's league. That comparison is such a stretch.
  Judge Mikva had 28 years of legal experience before he was nominated 
to the DC Circuit. Abner Mikva served for 9 years in Congress, 10 years 
in the Illinois legislature. He had worked for over 12 years in private 
practice. As the late Senator Lloyd Bentsen, who just passed away, 
said, to paraphrase, I

[[Page 9608]]

know Abner Mikva; Abner Mikva is a friend of mine, and Brett Kavanaugh 
is no Abner Mikva.
  Because of his thin track record as a lawyer, Mr. Kavanaugh had a 
special burden of proof to be candid and forthcoming with the 
committee, to tell us who he is and what he stands for. He did not meet 
that burden. Every time he came close to answering a hard question, he 
quickly backed away. But he was well-schooled in the process because he 
spent his time in the White House coaching judicial nominees not to 
answer questions. Well, he learned as a teacher, and he demonstrated it 
before the Senate Judiciary Committee.
  For example, he would not tell us his views on some of the most 
controversial policy decisions of the Bush administration--like the 
issues of torture and warrantless wiretapping. He would not comment. He 
would not tell us whether he regretted the role he played in supporting 
the nomination of some judicial nominees who wanted to permit torture 
as part of American foreign policy, who wanted to roll back the clock 
on civil rights and who wanted to weaken labor and environmental laws. 
It would have been so refreshing and reassuring if Brett Kavanaugh 
could have distanced himself from their extreme views. But a loyal 
White House counsel is not going to do that. And that is how he came to 
this nomination. That is how he addressed the Senate Judiciary 
Committee with his loyalty to the President.
  He would not tell us what role he played in the White House's 
unprecedented efforts to give the President virtually unchecked power 
at the expense of congressional oversight.
  In light of Mr. Kavanaugh's failure to open up to the committee, we 
have to just guess about his brief career. He coauthored the Ken Starr 
Report; he represented Elian Gonzales; he worked in Florida on the Bush 
2000 recount; he worked with Karl Rove and the Federalist Society to 
pick ideological judicial nominees. He has been the go-to lawyer time 
and time again for the far right in American politics. And now he is 
being handsomely rewarded for his loyalty, for his service to his 
political party.
  Other than his judicial clerkships, Mr. Kavanaugh has only worked for 
two people during his entire legal career: President George Bush and 
Ken Starr.
  Given this background, I asked Mr. Kavanaugh if he would agree to 
recuse himself in cases involving the Republican Party or the Bush 
administration. Clearly, he has a conflict of interest, at least the 
appearance of a conflict of interest, from all of the years he spent as 
a loyal Republican attorney. I asked him, Would you step away from 
cases that directly impact the Republican Party and the Bush 
administration policies? He refused.
  The real question is whether Judge Kavanaugh would be fair and open-
minded. And there are new concerns that have been raised about Mr. 
Kavanaugh's judicial temperament. I saw him at the last hearing with 
his wife and baby. He looks like a fine father--a beautiful young 
family. To all appearances, a good person coming from a good family. 
But those who have watched him in the courtroom have come to different 
conclusions.
  Last month the American Bar Association downgraded Mr. Kavanaugh's 
rating after conducting additional interviews with judges and lawyers 
who had actually seen him in the courtroom and worked with him in the 
limited exposure he has had to America's courtrooms. A judge who was 
interviewed by the American Bar Association stated that Mr. Kavanaugh's 
oral presentation at the hearing was ``less than adequate'' and that he 
had been ``sanctimonious.'' That is not a great send-off if a person 
who is being nominated for a lifetime appointment to the bench, a 
person who will now stand in judgment not only of other judges but of 
the counsels and attorneys that appear before him.
  A lawyer interviewed by the American Bar Association also said: ``Mr. 
Kavanaugh did not handle the case well as an advocate and dissembled.'' 
That doesn't sound very promising for someone seeking a lifetime 
appointment to the second highest court in the land with some of the 
most technical and difficult arguments and issues to consider.
  One interviewee called Mr. Kavanaugh ``insulated.'' Another person 
said Mr. Kavanaugh is ``immovable and very stubborn and frustrating to 
deal with on some issues.''
  Is that what we are looking for in a judge, an insulated person, 
immovable and stubborn, who dissembles when he is in the courtroom and 
has a sanctimonious way about him? I can tell you, as a practicing 
lawyer, that is a judge I would avoid, and most people would avoid 
nominating that kind of lawyer to become a judge.
  The ABA also stated they were disappointed that Mr. Kavanaugh seemed 
to have a ``lack of interest'' in the Manual Miranda ``memogate'' 
scandal and that he failed to conduct an internal White House 
investigation as to whether the scandal had tainted the Bush 
administration's judicial nomination process.
  This issue is one I know pretty well. I was one of two Senators whose 
computers were hacked into by Mr. Manny Miranda, who at the time was a 
Republican staff member, who worked at various times for the Senate 
Judiciary Committee and for the Senate Republican leadership. Mr. 
Miranda hacked into my computer, my staff computer, and stole hundreds 
if not thousands of legal documents--memoranda that had been prepared 
by my staff analyzing issues, analyzing nominees. Mr. Miranda stole 
these documents and then turned them over to organizations that were 
sympathetic with his political point of view. There was some question 
as to whether those documents somehow migrated to the White House 
decision process--legitimate questions because those were times when 
many of these nominees were very controversial.
  When Mr. Kavanaugh was asked about these things, he was not that 
interested--either when the ABA asked the questions or when the 
questions were asked in the Senate Judiciary Committee. Those questions 
went to the integrity of the process of naming men and women to our 
Federal judiciary for lifetime appointments. You would believe that Mr. 
Kavanaugh, in his capacity as White House Counsel, would have taken 
that issue much more seriously than he obviously did.
  This nominee is not the best person for an important job. Michael 
Kavanaugh does not deserve a lifetime appointment to the second highest 
court in the land.
  I believe he has a bright future in some other setting. I think after 
practicing law, actually finding out what it means to represent a 
client, perhaps going into a courtroom someday, maybe sitting down 
before a judge, maybe taking a deposition, understanding what it means 
to file a motion in court, and what that means to go to argue for a 
hearing, maybe to prepare a legal brief, to argue a point of view, 
maybe win a few or lose a few, actually go into a courtroom with a 
client, pick a jury in a civil case, be a prosecutor in a criminal 
case, watch as the case unfolds before the judge and the jury, watch it 
go through to verdict, consider whether or not to launch an appeal--the 
things I have just described are not extraordinary.
  This is the ordinary life of practicing attorneys across America. But 
my life experience, as limited as it was in practicing law, included 
all of these things. They helped me to understand a judge's 
responsibility--a trial court judge, even an appellate court judge. 
This is like sending Mr. Kavanaugh into a setting where he has no 
familiarity and no experience.
  You might say: Well, maybe he will learn on the job. Maybe he will 
turn out not only to be a good law student but a heck of a judge. Well, 
it is not a question of trial and error here. It is a question of 
lifetime appointment. We do not get a makeover on this decision. If 
this Senate approves Brett Kavanaugh for the second highest court in 
the Federal judiciary in America, he is there for life.
  Maybe he will learn on the bench. Maybe he will turn out to be 
objective on the bench. Maybe he will move away from a solid legal 
political background

[[Page 9609]]

to understand the law. Maybe he will have some on-the-job training as a 
judge in the second highest court in the land. But is that the best we 
can do? Doesn't that harken back to other things in this administration 
that have troubled us--people being appointed to positions they clearly 
were not qualified for because they were well connected, they knew the 
right people? That should not be the test for the Federal judiciary. It 
certainly should not be the test for the second highest court in the 
land.
  I believe the White House, I believe the Republican party, could have 
done better. There are so many quality judges across America who are 
Republicans, in my home State of Illinois and in Federal district 
courts, who could have been nominated for this important and 
prestigious position. Instead, this nominee falls short. It is no 
surprise to me that the American Bar Association downgraded his 
nomination.
  I hope if he is approved that in the years to come he will prove me 
wrong. At this point, there is little evidence to base that on. But I 
hope for the sake of this court and for the Federal judiciary that is 
the case.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Hatch). The Senator from Idaho.
  Mr. CRAIG. Mr. President, we are in a kind of a unique procedure this 
evening as we debate three nominees who will be voted on tomorrow 
morning, obviously, the nomination of Brett Kavanaugh being one of 
them. But another one that is critical to the United States and 
critical to the public lands domain of our United States and critical 
to this western Senator and to the western Senator who is presiding at 
this moment is the nominee for the new position of Secretary of the 
Interior.
  Tonight, I stand to support the nomination of Governor Dirk 
Kempthorne of my State of Idaho, who will be considered and voted on 
tomorrow by the Senate. I was extremely proud that our President would 
recognize, as Secretary Gale Norton stepped down, that it would be 
right and appropriate to nominate another westerner with the kind of 
experience westerners uniquely have in the capacity that Governor 
Kempthorne has had to serve not only as a U.S. Senator but as a 
Governor in a very large public lands State.
  The Department of Interior, of course, is the largest landlord in my 
State, as is true in the State of Utah. It is through that experience, 
and working with the Federal Government and working with the Department 
of Interior, that I believe Dirk Kempthorne, as our new Secretary of 
the Interior, will do extremely well.
  When he came before the Energy and Natural Resources Committee, on 
which I serve, he came with the support, the bipartisan support, of 40 
current sitting Governors of the States of the United States. I am not 
quite sure I have ever seen that before, that 40 Governors--Democratic 
and Republican--would step up and say, in behalf of one of their 
colleagues, that he is qualified and they support him without condition 
to become the new Secretary of the Interior. Governor Kempthorne 
developed a close working relationship with these Governors as he 
served as chairman of the National Governors Association just a few 
years ago.
  I have watched Governor Kempthorne for two terms, or 8 years in my 
State of Idaho, take very difficult situations and sometimes competing 
sides and bring them together to resolve a problem and to come out 
whole and smiling in behalf of their interests and in behalf of the 
State of Idaho. It is with that kind of style and capacity that 
Governor Kempthorne comes to the position of Secretary of the Interior.
  Dirk Kempthorne has successfully resolved one of the largest tribal 
water disputes in Idaho history, if not in the West--a tribal dispute 
we dealt with here on the floor, just a year ago, after he and others 
had spent well over 5 years working through all the fine and difficult 
points of negotiation between very opposing and sometimes conflicting 
parties as they dealt with that.
  When you live in the arid West, as I and the Senator from Utah do, 
you know how important water is. We find it, obviously, life-
sustaining. And if it is not managed well, it can create great conflict 
or it can change the whole character of an environment or a State. And 
certainly for the wildlife of our great States, it is critically 
important habitat.
  Here in the East, we worry about too much water. Out in the arid 
West, we worry about not enough water. And it is with that kind of 
experience that the Governor comes to the Secretary's position to 
become one of the Nation's largest water landlords, presiding over the 
Bureau of Reclamation and all that they do in the Western States and 
across the Nation in the management of critical water resources and the 
infrastructure that sustains those resources.
  As a U.S. Senator, both the Presiding Officer, the Senator from Utah, 
and I served with Governor Kempthorne. He introduced and won passage of 
S. 1, the Unfunded Mandates Reform Act, critical and necessary as we 
work on legislation here to make sure we do not impact States and 
create and demand certain things from States that are, if you will, 
demanded but unfunded as a part of a Federal jurisdiction or 
responsibility. That is the law of the land today, and it certainly 
showed his skills as a legislator.
  Under the leadership of Governor Kempthorne, the Western Governors' 
Association developed a 10-year strategy to increase the health of 
America's forests. Out of that collaborative process, and working with 
us here, we created the Healthy Forests Act, with the guidance and the 
assistance of the Bush administration, working cooperatively with 
public land timber State Senators.
  It was one of the first major pieces of legislation passed to manage 
our forested lands of the Nation in a right and appropriate fashion, to 
restore health-damaged ecosystems, and to protect and promote the 
collaborative community effort where community watersheds were involved 
and at risk as a result of fire. So I was pleased to work with the 
Governor in his capacity at that time as chairman of the Forestry 
Subcommittee here in the Senate, and we were able to successfully bring 
that to conclusion. That is the law of the land today.
  Knowing the West, as I said earlier, is critically important to the 
Secretary of the Interior because he is the landlord for much of the 
western landscape of our Nation, let alone our crown jewels, our 
national parks and all that they bring for the citizens of our country.
  When he was nominated and we had our first visit, he said: Larry, 
what should some of our priorities be? And I said: You come at a unique 
time to the Department of Interior. Because there is no question, in my 
mind, at least, this Senator--and in looking at the new energy policy 
we passed a year ago and all that we have done to get this Nation to 
producing energy once again--the Governor is the landlord of one of the 
largest storehouses of energy in this Nation.
  The kind of drilling for gas in the Overthrust Belt in the West today 
that we are now reengaging in, with new environmental standards, to 
bring billions of cubic feet of gas on line in the upper Rocky Mountain 
States, is presided over by the Secretary of the Interior.
  A debate that has gone on here, somewhat quietly, on the floor of the 
Senate but will take shape in the very near future dealing with the 
drilling of gas down in the Gulf of Mexico, off the coast of Florida, 
in lease sale 181, once again, dealing with offshore resources, is in 
part if not in whole the responsibility of the Secretary of the 
Interior.
  The oil shales of Colorado that we are working to develop now--a lot 
of it on our public lands West--is the responsibility of the Bureau of 
Land Management and the Secretary of Interior.
  I believe in the next 2\1/2\ years Dirk Kempthorne presides over the 
Department of Interior as the second Secretary of the Interior of this 
Bush administration, he will, by his presence and the efforts currently 
underway, actually produce more energy for this

[[Page 9610]]

Nation and our Nation's energy consumers than will the Secretary of 
Energy. It is that kind of uniqueness and the domain over which he 
presides that makes this position tremendously important.
  (Mr. Martinez assumed the Chair.)
  Mr. CRAIG. Lastly, the Governor leaves Idaho with a legacy of growing 
and expanding the Idaho State park system that I know he is very proud 
of, as am I. And now he steps into the role of really being the 
caretaker of all of our National Park System. That is so phenomenally 
important to our country.
  The parks we have oftentimes called the crown jewels of the great 
outdoors of our country. And they truly are that. Whether it is 
Yellowstone in the West or whether it is the Great Smokies south of us 
here and slightly to the west or whether it is down in the Everglades 
of Florida--of which the Presiding Officer is so proud of that great 
park system--Dirk Kempthorne, as Secretary of Interior, will have a 
tremendous responsibility over that domain.
  Tomorrow, we will vote on Governor Kempthorne, and he will become the 
next Secretary of the Interior for the Bush administration and for the 
United States of America. My guess is that vote will be a resounding 
vote because when he left here as a Senator, he left in a tremendous 
state of good will with his colleagues. He has returned as a nominee to 
visit with, I believe, nearly all of us to assure us that he will be 
here to listen and to work with us in his role and responsibility as 
our new Secretary of the Interior.
  So as an Idahoan and as a U.S. Senator, I am tremendously proud that 
our President has nominated and we, tomorrow, will confirm Dirk 
Kempthorne as our next Secretary of Interior.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise in strong support of the 
confirmation of Brett Kavanaugh to serve on one of the most important 
courts in our judicial system, the U.S. Court of Appeals for the 
District of Columbia Circuit. Brett Kavanaugh is an extremely bright, 
hard-working, ethical lawyer. I have known him for many years.
  His father Ed Kavanaugh served as head of a major trade association 
here in Washington for many years, and he is known by my colleagues in 
Congress as a straight shooter. In this case, the apple did not fall 
far from the tree. Brett's mother Martha served for many years as a 
State court judge in Montgomery County, MD, and I am sure serves as a 
great model of judicial temperament and jurisprudential excellence and 
fairness for her son.
  Brett Kavanaugh was nominated to the DC Circuit Court of Appeals in 
July of 2003. That is almost 3 years since he was nominated. Due in 
large part to the delay tactics employed by some earlier this month, 
Mr. Kavanaugh was the subject of a highly unusual second hearing on his 
nomination. Interestingly, when he was the nominee for the same court, 
Chief Justice Roberts was also subjected to a second hearing before the 
Judiciary Committee. Frankly, it may be the case that in each of these 
two circumstances, the second hearing tells us more about the partisan 
nature of the judicial confirmation process than it reveals about the 
qualifications of the nominees.
  I might add that in both second hearings, both of these people, now 
Chief Justice Roberts and Brett Kavanaugh, came off very well, without 
one touching by anybody who was trying to do away with them.
  I hope that the 14-year time period between Chief Justice Roberts' 
first nomination and confirmation to the DC Circuit is not matched or 
exceeded by the Kavanaugh nomination. Since he was nominated almost 3 
years ago, Mr. Kavanaugh has become a husband and father. Let us pray 
that he does not become a grandfather before he gets a vote in the 
Senate.
  This is a good day because not only can we see the light at the end 
of the tunnel, but we can actually get through the tunnel and complete 
action on this nomination that has languished for nearly 3 years. Now 
that Mr. Kavanaugh has once again answered questions at the unusual 
second hearing--and as was the case with his first hearing, some of the 
questions were not posed to him in the most civil fashion--and now that 
he has been reported to the floor by the Judiciary Committee, it is my 
hope he will soon have the up-or-down vote he deserves on the floor of 
the Senate.
  I commend the manner in which Chairman Specter has brought this 
nomination through the Judiciary Committee and on to the floor. In the 
sunshine of the hearing room, it became ever more apparent that there 
are no serious objections to this nomination. Brett Kavanaugh is a 
highly qualified nominee and a proven public servant. Mr. Kavanaugh's 
education, employment history, and record of public service should 
speak for themselves.
  Brett Kavanaugh is a local guy. He went to high school at Georgetown 
Prep in Bethesda, MD, where he was educated by the Jesuits. From what I 
can tell, he heard the call of St. Ignatius to be a true man for 
others. I suspect that many of my colleagues, especially those Jesuit-
educated Members, appreciate that background.
  He went to Yale University for college. Having excelled there, he 
went on to Yale Law School, where he was editor of the ``Law Review.'' 
That is no small achievement. It shows that he was an excellent 
student, one of the best.
  He went on to not one but two circuit court clerkships. You don't get 
those clerkships unless you are one of the best. A judge really gets to 
know his clerks. They work in close quarters together. The judge has a 
true opportunity to get the measure of the man. Brett Kavanaugh's 
former employers, these judges, his mentors, thought so much of Brett 
that they came to Washington to testify at his confirmation hearing 
earlier this month. That is the second confirmation hearing. They did 
not mince their words.
  This is what Judge Walter Stapleton, one of most respected judges in 
the Third Circuit Court of Appeals, had to say about his former clerk:

       I am confident that Mr. Kavanaugh's perspectives on both 
     life and the law will result in his becoming what I regard as 
     a ``judge's judge.'' His personal confidence is matched by 
     his humility, and his legal acuity by his good, common sense 
     judgment. When he served as my clerk, no case was too small 
     to deserve his rapt attention and, without exception, he 
     initiated his evaluation of a case with no predilections. His 
     ultimate recommendation resulted from a careful case-by-case 
     analysis of the facts and an objective application of the 
     relevant precedents. He is firmly committed to the 
     proposition that there must be equal justice for all and that 
     this can be a reality only if all of our courts faithfully 
     and objectively apply the statutory declarations of Congress 
     and the teachings of the Supreme Court.

  That is what I would call a ringing endorsement, a refutation of 
everything that has been said by the other side--and by a great judge, 
by the way, who knows a lot about judging and knows a lot about 
character.
  Judge Alex Kozinski on the Ninth Circuit Court of Appeals had a 
similar experience during Mr. Kavanaugh's time with him. This is what 
he had to say at his hearing:

       I must tell you that in the times that I had Brett clerk 
     for me, I found him to be a positive delight to have in the 
     office. Sure . . . he is really bright, and he is really 
     accomplished, and he is a really excellent lawyer. But most, 
     virtually all, folks who qualify for a clerkship with a 
     circuit judge these days have those qualities.
        . . . Brett brought something more to the table. He, first 
     of all, brought what I thought was a breadth of mind and a 
     breadth of vision. He didn't look at the case from just one 
     perspective . . .
       Brett was very good in changing perspective. Sometimes I'd 
     take one position and he'd take the opposite, and sometimes 
     we'd switch places. He was very good and very flexible that 
     way. I never sensed any ideology or any agenda. His job was 
     to serve me and to serve the court, and to serve the people 
     of the United States in achieving the correct result at the 
     court. He always did it with a sense of humor and a sense of 
     gentle self-deprecation.

  These are strong words of support from another great circuit court of 
appeals judge on the Ninth Circuit Court of Appeals which is on the far 
west of this country. And these words describe precisely the type of 
qualities we want in members of the Federal judiciary.

[[Page 9611]]

  Mr. Kavanaugh went on from those clerkships with these great circuit 
courts of appeal judges to bigger and better things. He worked in the 
office of the Solicitor General of the United States. There is hardly 
any one in this body who can claim that experience. He clerked for 
Supreme Court Justice Anthony Kennedy. Only the best and brightest 
lawyers win these types of challenging and prestigious assignments.
  Mr. Kavanaugh went on to become a partner in one of the greatest law 
firms in the country, Kirkland & Ellis, a leading national law firm. 
That doesn't happen to somebody who is as described by some of my 
partisan colleagues on the other side.
  Brett Kavanaugh left the no doubt financially lucrative practice at 
Kirkland & Ellis and returned to public service. He is a public 
servant. For the last 6 years, he has worked at the White House, first 
in the White House Counsel's Office--you don't get there unless you are 
really good--and currently as staff secretary to the President of the 
United States. Pretty impressive stuff. Some people say just a 
secretary. Come on, this is a person who vets the documents the 
President sees. It is a person you trust, whom the President trusts. It 
is a person with wisdom and decency and magnanimity. Nevertheless, some 
opponents of this nomination are suggesting that somehow Mr. Kavanaugh 
is unqualified to serve on the DC circuit. Come on.
  Let us be clear. Mr. Kavanaugh has been practicing law for 16 years. 
He has argued civil and criminal matters before trial courts, appeals 
courts, and even the U.S. Supreme Court. I have heard Senators on this 
floor criticizing him for not having been a judge, not having been on 
the court, not having argued all kinds of cases. He has. I don't know 
what they have been reading, but they sure as heck haven't been reading 
the transcript or don't know what is going on here. Very few lawyers 
ever argue a case before the Supreme Court. Mr. Kavanaugh has done so.
  The vast majority of his legal practice has been as a public servant. 
I remember a time when public service was applauded and valued, as it 
should be. My colleague from Arizona, Senator McCain, should be 
commended for reminding young men and women how crucial it is for 
citizens to transcend their own immediate needs and wants and to serve 
something larger than themselves. That is what Brett Kavanaugh has done 
with his life. Yet instead of applauding him, some attack him. For 
some, his public service has become a liability. I wish I was kidding, 
but I am not making this up. You have heard it here tonight. Apparently 
some believe Mr. Kavanaugh is just too political.
  His great, alleged sins were to work for the Office of the 
Independent Counsel in the investigation of the Whitewater matter and 
later to work for President Bush. Although I think most fair observers 
would have to say that both of these demanding jobs are professional 
achievements, some are trying unfairly to use political innuendo to tar 
and feather this fine young lawyer. But that dog just won't hunt.
  As a lawyer in the Office of the Independent Counsel, an office 
created by Democrats in the wake of Watergate, he worked on an 
investigation initiated by a Democratic President and his Attorney 
General. Nobody has ever suggested that his work was anything but 
professional. He was not a political partisan. Yet some people are 
hyperventilating as though the President nominated some partisan hack 
to a lifetime position on the Federal bench. I know Brett Kavanaugh. I 
have known him for years. I can tell you, he will be neither a partisan 
nor a hack on the bench. He has all the capacities and qualities to 
become a great judge.
  This false charge of partisanship should be recognized for what it 
is--an absolute fabrication. You heard what two Federal judges for whom 
he clerked had to say about Mr. Kavanaugh. It doesn't get much better 
than that.
  Another variation on this attack against Brett is the claim that he 
does not have adequate judicial experience. We need to put this in 
perspective. On the DC Circuit, only 4 of the 20 judges confirmed since 
President Carter's election served previously as judges. Then, all of a 
sudden, it is a bad thing because Brett Kavanaugh has not had 
experience as a judge. President Clinton nominated and the Senate 
confirmed--this is a Democratic President--32 lawyers with no prior 
judicial experience, including Judges David Tatel and Merrick Garland 
to the DC Circuit. Good judges. Are we to believe that those who make 
these arguments also believe that Chief Justice Earl Warren, Justice 
Hugo Black, and even Chief Justice Marshall were somehow lacking 
because they had not been involved in politics and had no prior 
judicial experience?
  I could go on and name a whole bunch of other Supreme Court Justices 
who never had any prior judicial experience, some of whom are revered 
as the greatest Supreme Court Justices in history. It is very unfair to 
use that argument, as has been used in countless numbers of cases for 
President Bush's nominees and, I might add, President Reagan's as well. 
It was not that long ago that the minority leader publicly urged the 
President to nominate individuals with a diversity of experience rather 
than just looking to prior judicial service. Well, Brett Kavanaugh fits 
this bill.
  His background as staff secretary may prove to be particularly good 
judicial training. In a letter signed by eight individuals who served 
as either counsel or deputy counsel to the President, this is how they 
described that role he fulfilled:

       The importance of this position, as well as its substantive 
     nature, is not always well known or understood outside the 
     White House. As Staff Secretary, Mr. Kavanaugh is responsible 
     for ensuring that all relevant views are consistently and 
     accurately presented to the President. The ability to assess 
     presentations of differing arguments on a wide range of topic 
     areas is a skill that would serve him well on the D.C. 
     Circuit.

  I concur. I ask unanimous consent that the full letter be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    Wiley Rein & Fielding LLP,

                                      Washington, DC, May 5, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Specter: We are writing to offer our strong 
     support for the confirmation of Brett Kavanaugh to the United 
     States Court of Appeals for the D.C. Circuit. We have each 
     served as Counsel or Deputy Counsel to the President, and 
     believe that Mr. Kavanaugh has the qualifications and 
     experience necessary for the D.C. Circuit.
       As former Counsel and Deputy Counsel to the President, we 
     understand the importance of judicial appointments, 
     particularly those to the federal courts of appeals. In our 
     view, Mr. Kavanaugh possesses all of the requisite 
     qualifications for such an appointment, including outstanding 
     academic credentials, keen intellect, a calm and thoughtful 
     demeanor, and exceptional analytical skills. He has extensive 
     relevant professional experience, including arguments before 
     the Supreme Court of the United States and the federal courts 
     of appeals.
       We would also like to emphasize the critical nature of the 
     position that Mr. Kavanaugh currently holds as Staff 
     Secretary. The importance of this position, as well as its 
     substantive nature, is not always well known or understood 
     outside the White House. As Staff Secretary, Mr. Kavanaugh is 
     responsible for ensuring that all relevant views are 
     concisely and accurately presented to the President. The 
     ability to assess presentations of differing arguments on a 
     wide range of topic areas is a skill that would serve him 
     well on the D.C. Circuit.
       Mr. Kavanaugh would be a fair and impartial judge, 
     dedicated to the rule of law. He possesses the highest 
     personal integrity and is exactly the type of individual this 
     country needs on the federal appellate bench. We urge the 
     Senate to act promptly to confirm him to the U.S. Court of 
     Appeals for the D.C. Circuit.
           Sincerely,
                                                 Fred F. Fielding,
         On behalf of: Arthur B. Culvahouse, Jr., Peter J. 
           Wallison, Phillip D. Brady, Richard A. Hauser, Timothy 
           E. Flanigan, David G. Leitch, John P. Schmitz, Jay B. 
           Stephens.

  Mr. HATCH. So with few rounds left, some activist groups opposing 
this nomination claim that Mr. Kavanaugh is too young and too 
inexperienced. It really is time for these folks to get a grip. Brett 
was nominated when he was 39 years of age. Today, as a result of

[[Page 9612]]

several years--actually 3--of delay and obstruction, he is 41. All 
three of the judges Brett clerked for were nominated before the age of 
39. Justice Kennedy was 38, sitting on the Supreme Court today. Judges 
Kozinski and Stapleton were 35 when they were put on the bench.
  Several of my colleagues on the Judiciary Committee were elected in 
their early thirties. I don't think they would allow others to charge 
that they were too immature for the work. If James Madison could be the 
principal drafter of the Constitution in his midthirties, I think a man 
in his early forties, with 16 years of legal practice, and tough legal 
practice at that, is sufficiently mature to serve on the Federal bench.
  I believe it is clear that most of the arguments marshaled against 
Mr. Kavanaugh are nothing more than a combination of hokum and 
downright hogwash. So it is not a surprise that the American Bar 
Association has repeatedly found him qualified for this position. Let 
me explain what that means.
  After an extensive review, the American Bar Association gives ratings 
to all of the President's judicial nominees, and the judicial committee 
factors in these ratings when evaluating judicial nominees. A rating of 
qualified means this from the ABA:

       The nominee meets the committee's very high standards with 
     respect to integrity, professional competence, and judicial 
     temperament, and that the committee believes that the nominee 
     will be able to perform satisfactorily all of the duties and 
     responsibilities required by the high office of a Federal 
     judge.

  What qualified nominee has demonstrated more professional excellence? 
Brett Kavanaugh has been reviewed by the ABA on three separate 
occasions. On each occasion, he has been found qualified to serve in 
this position. Twice he received a rating of majority well qualified, 
minority qualified. In his most recent rating, he received a rating of 
majority qualified and minority well qualified. Much has been made of 
that, some calling it a downgrade. Come on. Over the last 3 years, he 
received 42 individual ratings by members of the American Bar 
Association, and all, with no exceptions in these 42 ratings, found 
him--all of them found him qualified for this position.
  Some will try to make hay out of his most recent rating. Keep your 
focus on the fact that everybody from the ABA who ever evaluated 
Kavanaugh's ability to serve on the Federal bench found him fully 
qualified to do the job. Some of those doing the rating gave him the 
highest rating of well qualified. Nobody from the ABA ever found him to 
be not qualified to be a Federal judge. There is good reason for that. 
They would not dare do that with a person of his ability--although they 
did in one other case recently.
  Frankly, I have always been skeptical of the ABA ratings. We have had 
some great committee ratings and some lousy ones. The lousy ones are 
where they allow politics to enter into it. Many Democrats consider the 
ratings of the American Bar Association their gold standard. Whenever 
the Democrats have called something their gold standard, I have found 
it useful to scratch beneath the surface because you will find that it 
is only goldplated. Nevertheless, the Judiciary Committee looks to the 
evaluations of the American Bar Association because these evaluations 
can often provide useful information.
  I would like to commend the many men and women of the ABA who 
volunteer their time and energy to compile these ratings. These are 
volunteers. In my experience, however, the system is not infallible. 
For example, Judges Richard Posner and Frank Easterbrook received mixed 
qualified/not qualified ratings when they were nominated by President 
Reagan. This was a great and unpleasant surprise to those of us who 
were confident they would do excellent work on the bench, and many were 
convinced that those ratings were issued for ideological reasons. 
Today, these two judges are among the most frequently cited members of 
the Federal judiciary, and their work is widely admired all over the 
legal profession and all over the Federal courts.
  Just recently, to show you how bad it can get, Michael Wallace, a 
nominee to the Fifth Circuit, seems to have fallen victim to an 
ideological review process by the ABA. He graduated at the top of his 
class at Harvard and went on to the Virginia Law School, where he 
distinguished himself. He clerked not only for the Mississippi Supreme 
Court but also for the late Chief Justice Rehnquist--positions that the 
average lawyer can only dream about. Yet he was given a unanimously not 
qualified rating. I am very curious about the facts surrounding that 
rating, and I suspect that part of that comes from the fact that he was 
chairman of one of the major legal entities in this country and they 
didn't like the way he chaired it, even though he is a brilliant man.
  I also looked at every person on the rating committee for Brett 
Kavanaugh, and all rated him qualified, and most rated him well 
qualified, and there were a number who were partisan Democrats. There 
is no question about it, as shown by their schedule of donations. Maybe 
that had something to do with the downgrading that some on the other 
side have talked about, even though he was found qualified by every one 
of those 42 raters.
  I understand that some are suggesting that past battles over 
particular public policy issues might have something to do with 
Wallace's rating and also with Kavanaugh's rating. In practice, it is 
sometimes hard to see clearly because the ABA rating system generally 
operates under a principle of anonymity. It is virtually impossible to 
find out who said what about whom, and try to figure out whether it was 
fair and objective or with an eye toward evening up old scores.
  While the ABA rating system is murky in some respects, the bottom 
line with respect to the ABA rating of Brett Kavanaugh is that he was 
rated three times and found qualified by everybody who rated him each 
time--even though some of them on the present committee are very 
partisan.
  Remarkably, some are trying to distort Mr. Kavanaugh's positive ABA 
rating and recommendation into a negative rating. As Tom Sawyer 
remarked in Huckleberry Finn, you can't pray a lie.
  This is an important nomination because the DC Circuit Court of 
Appeals is such an important court. It reviews many matters relating to 
the actions of powerful Federal agencies. Many of its decisions will 
never be reviewed by the Supreme Court.
  It is important to have judges on the DC Circuit Court, like Brett 
Kavanaugh, who understand the proper role of judges and the judiciary. 
For too long, some Federal judges have been permitted to run roughshod 
over the traditions of the American people.
  My colleague from West Virginia, Senator Byrd, recently introduced a 
constitutional amendment that would reestablish the Constitution's 
traditional meaning on school prayer. In recent years, some Federal 
judges have taken such a radical view of the Constitution's 
establishment clause--one that is not only at odds with the views of 
the Founders but with the current views of a majority of Americans in 
nearly every State--that the Constitution's commitment to the free 
exercise of religion is now endangered. The results of this corrupted 
constitutional interpretation were manifest most prominently in the 
decision in Santa Fe Independent School v. Doe, where the court 
determined that a voluntary student-led prayer before a high school 
football game somehow violated the Constitution. A voluntary school 
prayer. We should applaud Senator Byrd for seeking to reestablish the 
Constitution's traditional meaning.
  The meaning of our constitutional and statutory laws has been twisted 
by some judges on issue after issue. It happened when the Supreme Court 
discovered rights to abortion and later to burn the American flag and 
completely overturned the statutes of almost every State in the Union--
certainly 49 of them. It can happen again today, as liberal activist 
groups are urging judges to promote same-sex marriage in State and 
Federal courts. That is another illustration.
  Our judges must show a proper respect for the Constitution. The 
Constitution is not owned by the courts or

[[Page 9613]]

controlled by judges. No less than judges, Members of this body take an 
oath to support the Constitution. The judiciary is a creature of the 
people and their Constitution, and the judiciary should not be a forum 
for wholesale social changes initiated by special interest groups and 
opposed by ordinary Americans.
  I have no doubt that Brett Kavanaugh understands that fundamental 
distinction between judging and lawmaking. Let me read for the record 
what was said by Neal Katyal, a Georgetown University Law Center 
professor, former attorney to Vice President Gore, and former Clinton 
administration official. Let me read his expressed strong support for 
Mr. Kavanaugh. He says:

       I do not believe it appropriate to write to you unless I 
     feel strongly about a particular nominee. I feel strongly 
     now: Brett Kavanaugh should be confirmed to the United States 
     Court of Appeals for the DC Circuit. . . . Mr. Kavanaugh 
     would be a welcome, terrific addition to the United States 
     Court of Appeals.

  He didn't allow his own partisan feelings to be interjected into this 
very important decision of whom we should support for the court.
  I am fully supportive of Brett Kavanaugh's nomination. I look forward 
to his long career on the bench. I urge my colleagues to give his 
nomination the support it deserves.


                     Nomination of Dirk Kempthorne

  Mr. President, having spoken about Mr. Kavanaugh, I wish to take a 
minute or two to speak about my friend, Dirk Kempthorne, who will be 
voted upon tomorrow, as I understand it, as well.
  Dirk Kempthorne served with us in the Senate. I have been here for 30 
years, and I have to say that he was one of the finest people with whom 
I have ever served. He was decent, honorable, and hard-working. He was 
a person who was honest. This is a man who became a great Governor. He 
did a great job while he was here. He was only here a short time in the 
Senate, but it was long enough for those of us who knew him to 
establish in our minds and in our experience the fact that he was and 
is a great human being.
  He is nominated now for Secretary of the Interior, and I hope 
everybody in this body will vote for him tomorrow. You cannot do 
better. The man is honest, decent, honorable, and will work with all of 
us in the Senate, not just Republicans. And he is from the West. He 
understands the problems of Federal lands. He understands the problems 
that confront the West. He understands the problems of energy. He 
understands the problems of the environment. He understands the 
problems of national parks. You can go right down the list.
  This man has tremendous experience and has been a wonderful Governor 
of Idaho, our neighboring State. He and his wife are two of the best 
people I know. I hope everybody will vote unanimously in his favor 
tomorrow, or whenever we have that vote.


                    Nomination of Michael V. Hayden

  Finally, I thank the leadership for expeditiously scheduling the 
confirmation vote for General Michael V. Hayden of the U.S. Air Force 
to be Director of the Central Intelligence Agency. In particular, I 
thank Intelligence Committee Chairman Roberts for organizing the open 
and closed hearings last week before our committee. The committee has a 
heavy work schedule, but nothing should be more important than moving 
forward an important nomination like this one.
  I also recognize the work of my other colleague, Senator Warner, for 
expediting this nomination through his committee. Air Force GEN Michael 
Hayden has spent his life in the service of our great country. I honor 
his dedication. He has honored us with his dedication.
  In my opinion, he brought enormous distinction to the uniform he 
wears, and his contributions have served the security of this Nation, 
particularly since the attacks of 9/11. They have made a profound 
difference in our ability to defend ourselves in a war unlike any we 
have been forced to fight.
  He was before us last year, and he is well known to this body. When 
last we saw him, he was to become the first deputy of an organization 
formed by the Congress, the Office of the Director of National 
Intelligence. In the legislation that created this office, we tasked it 
and its first officeholders with the enormous job of weaving together 
the disparate but impressive elements of the American intelligence 
community. Our concept was to create a whole that would be greater than 
the sum of its parts, but we left the work in the hands of the first 
Director, Ambassador Negroponte, and his deputy, the man whom the 
President now nominated to head the CIA.
  As a longtime military officer, as one who spent most of his life as 
an intelligence consumer and a distinct part of his life in both the 
human and technical practices of intelligence, and now as an architect 
of the new intelligence structure, General Hayden is an individual 
exceptionally prepared to take on the responsibility of transforming 
the CIA.
  It is my hope and expectation that, under the leadership of General 
Hayden, the talents and capabilities of the CIA not only make the 
difference in winning this current war on global terrorism but remain 
central to facing all of the challenges that loom before us once this 
particular conflict is won.
  We have the very real possibility of conflicts with Iran and North 
Korea. We must face the fact that the day may come when we are faced 
with the threat of armed groups from Latin America.
  What the CIA does today, if the lessons and experience it gathers 
from its contributions are conveyed to its new cadres, will play a key 
role in managing the conflicts of tomorrow. Let's hope none of these 
potential conflicts become such, and I really don't believe we need to 
allow them to become such.
  Reform of the intelligence community, in which the CIA has and should 
maintain a central position, is already well underway, in part due to 
the creation of the Office of the Director of National Intelligence and 
also due to the oversight by the Senate Intelligence Committee in 
insisting that the flaws in the intelligence process we have revealed 
be redressed.
  The DNI was created to coordinate the elements of the community, as 
well as to advance a reform agenda for the community as a whole, and in 
each of its elements.
  Reform, particularly in time of war, is never easy, and it is much 
more complicated than creating a new bureaucratic structure. It 
requires creating a new culture that brings a common, professional set 
of doctrines and values to all components of the community that builds 
on the extraordinary capabilities that exist, while assembling new 
hybrid excellencies within an entity whose effectiveness must become 
greater than the sum of its parts.
  General Hayden comported himself with great probity in his 
confirmation hearing last week and rendered honest and detailed answers 
to a great range of questions in both the open hearing and in the 
executive hearing. The general's lifetime experience has prepared him 
for taking this post, and I have the highest regard for him.
  I might add that one of the first decisions that he will have made 
will be choosing Mr. Kappas to be his Deputy. I have been checking with 
many leaders in the CIA and elsewhere, and they say Mr. Kappas is an 
outstanding person who can help bring about an esprit de corps that may 
be lacking.
  Having said all this, I want to praise Director Goss. I served with 
Porter Goss when he was chairman of the Intelligence Committee in the 
House. He is a wonderful man. He did a great job in helping to change 
some of the mindsets at the CIA. He made a very distinct imprint on the 
CIA for good, and we will miss him as well. But it should not be 
construed that General Hayden is replacing him because he didn't do the 
job. Porter said he wasn't going to stay there an excessively long 
time.
  I have to say that I believe that as great as Porter Goss is and was, 
General Hayden will be a good replacement. He is one of the best people 
who has ever served this country. He has spent a lifetime in 
intelligence. He is

[[Page 9614]]

one of the few people who really understands it all, and he is a 
straight shooter. He tells the truth; he tells it the way it is. He is 
an exceptionally decent, honorable man, and his wife is a very 
honorable and good person as well, as are his children.
  So I hope all of us will consider voting for General Hayden. He is 
worth it. We should vote for him. We should be unanimous in the 
selection of a CIA Director, but even if we are not, I hope the 
overwhelming number of Senators will vote for this great general, this 
great intelligence officer, this great person who we all know is 
honest, decent, and capable.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I have been waiting some time to talk about 
General Hayden. I note the presence of the distinguished chairman of 
our committee, a committee on which I am proud to serve. Given the fact 
we are starting a discussion of General Hayden to head the Central 
Intelligence Agency, I ask unanimous consent that Chairman Roberts be 
allowed to speak at this time and that I be able to follow the chairman 
after he has completed his remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Kansas.
  Mr. ROBERTS. Mr. President, I thank the Senator from Oregon for 
allowing me to go first as chairman of the committee. Senator Wyden is 
a very valued member of the committee with very strong and independent 
views but has always contributed in a bipartisan way on behalf of our 
national security.
  Good evening, Mr. President. The hour is a little late. Actually, the 
night is young, but I am not. Nevertheless, I am going to try to be 
pertinent on a matter that is of real importance, and that is, in fact, 
the nomination and hopefully what we expect to be the confirmation of 
GEN Michael V. Hayden to serve as Director of the Central Intelligence 
Agency.
  As chairman of the Select Committee on Intelligence, I rise tonight 
and associate myself with the remarks made by Senator Hatch, who is 
another very valued member of the committee, in strong support of the 
nomination of General Hayden to be the next Director of the Central 
Intelligence Agency.
  He is eminently qualified for this position. He is a distinguished 
public servant, as has been noted, who has given more than 35 years of 
service to his country.
  Senator Hatch referred to our hearings both open and closed that we 
held last week. It was my goal as chairman to ensure that every Senator 
had enough time to ask any question they wanted or to express any 
concern they had on their mind in regards to this nomination and the 
qualifications of this man. I think we accomplished that. We gave every 
Senator 20 minutes and then another 20 minutes, and then in a regular 
order, additional time.
  I might add, Senator Wyden certainly took advantage of that. After 
over 8 hours, the general, the chairman, and other members of the 
committee finally concluded.
  I think it was a good hearing. I think it was a good open hearing and 
a good closed hearing. General Hayden certainly distinguished himself, 
and he showed the committee that he will be an outstanding choice for 
CIA Director.
  General Hayden entered active duty, in terms of background, with the 
U.S. Air Force in 1969 after earning both his bachelor's and master's 
degree from Duquesne University in his hometown of Pittsburgh.
  He has had a lengthy and diverse career. He has served as Commander 
of the Air Intelligence Agency and as Director of the Joint Command and 
Control Warfare Center. He has been assigned to senior staff positions 
at the Pentagon, at the headquarters of the U.S. European Command, the 
National Security Council, and at the U.S. Embassy in the People's 
Republic of Bulgaria. General Hayden has also served as the Deputy 
Chief of Staff for the United Nations Command and U.S. Forces in Korea 
and, more importantly, he has served most recently at the highest 
levels of the intelligence community. From 1999 to 2005, General Hayden 
was Director of the National Security Agency.
  Finally, in April of last year, following intelligence reform and a 
great deal of committee action in regards to the Intelligence Committee 
to determine the accuracy of our 2002 NIE, National Intelligence 
Estimate, and then we went through intelligence reform, we had the 9/11 
Commission, we had the WMD Commission appointed by the President, he 
was unanimously confirmed by this body to serve in his current position 
as the Principal Deputy Director of National Intelligence. He had that 
kind of background, had that kind of expertise, had that kind of 
experience.
  Given his experience at NSA and the Office of the Director of 
Intelligence, I don't think there is any question General Hayden is 
well known to the Intelligence Committee. He has briefed us many times. 
I don't know of anybody in any hearing or briefing who has done any 
better. It is because of his qualifications and my experience working 
with him that I support his nomination.
  This nomination comes before the Senate at a very crucial time. We 
are a nation fighting a war in which the intelligence community is on 
the front lines. The CIA is an integral and very vital part of the 
intelligence community. We need strong leadership in order to protect 
our national security.
  When General Hayden takes the helm at the Agency, he is going to find 
a number of issues that will demand his attention. These are the same 
issues that we touched on and asked the general to respond to during 
his confirmation hearings.
  First, he must continue to improve the Agency's ability to provide 
public policymakers with high-quality analytic products.
  The Senate Intelligence Committee's July 2004 report on intelligence 
related to Iraq's WMD programs did conclude that the agencies of the 
intelligence community did not explain to policymakers the 
uncertainties behind their Iraq WMD assessments.
  Analysts must also observe what I refer to as the golden rule of 
intelligence analysis, and we asked this specifically of the general: 
Tell me what you know, tell me what you don't know, tell me what you 
think and, most importantly, make sure that we understand the 
difference.
  It will be up to General Hayden to ensure that the CIA analysts 
adhere to this rule in the future.
  Second, General Hayden must improve the CIA's ability to collect what 
we call humane intelligence. He can begin by ensuring that the Agency 
is more aggressive in its efforts to penetrate hard targets and in the 
use of very innovative collection platforms.
  Third, General Hayden, it seems to me, must improve information 
access--not information sharing, information access. There is a big 
difference. We on the Intelligence Committee will look to the general 
to ensure that appropriately cleared analysts community-wide, with a 
need to know and the proper training have access to the CIA's 
intelligence information in its earliest form, while at the same time 
protecting sensitive sources and methods.
  No doubt the general will face a number of significant tasks, but 
based on his record as a manager, his qualifications, and his 
demonstrated leadership, I believe he is the right choice to lead the 
CIA. The Senate should expeditiously confirm him and let him get to 
work over at Langley.
  Mr. President, I strongly support the nominee, and I urge my 
colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I am next in line, but I understand the 
majority leader and the distinguished Senator from Nevada wish to have 
a brief colloquy. I will defer to them and pick up when they are 
finished.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. FRIST. Mr. President, I ask unanimous consent that during this 
evening's session, it be in order for Senators to speak in executive 
session

[[Page 9615]]

on the Kavanaugh nomination No. 632, or the Hayden nomination No. 672; 
provided further, that following disposition of the Kavanaugh 
nomination, the Senate proceed to a vote on the Hayden nomination No. 
672; further, if No. 672 is confirmed, then the Senate immediately 
proceed to a vote on the confirmation of Calendar No. 693; I further 
ask unanimous consent that following those votes, Senator Nelson of 
Florida be recognized to speak up to 5 minutes, and the Senate then 
proceed to a cloture vote with respect to Executive Calendar No. 630, 
Dirk Kempthorne to be Secretary of the Interior; provided further, that 
if cloture is invoked, Senator Landrieu be recognized for up to 10 
minutes, and the Senate then proceed to an immediate vote on the 
confirmation of the nomination of Dirk Kempthorne.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, what all this means is that by this 
agreement, we will allow Senators to speak tonight on either the 
Kavanaugh nomination or the Hayden nomination. We will convene tomorrow 
morning at 8:45. It is our hope that we will be able to vote on the 
confirmation of the Kavanaugh nomination after convening. We will then 
proceed to the votes on the Hayden nomination and the cloture vote on 
the Kempthorne nomination. Senators, therefore, can expect three early 
rollcall votes during Friday's session.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, before he leaves the Chamber, I simply wish 
to say to the distinguished chairman of our committee that I thank him 
for his kind and gracious introductory remarks to me. As he knows, 
sometimes we agree, as we did in the effort to make public the CIA 
inspector general's report on 9/11. I appreciated working with the 
distinguished chairman on that matter. Sometimes we disagree, as we do 
tonight with respect to the nomination of General Hayden, but Chairman 
Roberts has always been courteous and fair in our committee and 
essentially to every member. I thank him for that as he leaves the 
Chamber tonight. Clearly, Chairman Roberts and Senator Hatch, two 
distinguished members of our Intelligence Committee, want no part of 
it, but there are those who want to turn the Hayden nomination into a 
referendum on who is toughest on terrorism, Republicans or Democrats. 
These people do America a disservice. I know of no Senator who 
sympathizes with a terrorist. I know of no Senator who wishes to coddle 
al-Qaida. I know of no Senator who is anything other than a patriot.
  Unfortunately, this nomination is being used to divide the Senate and 
the American people on the issue of terrorism. Just this past Monday, 
the Washington Post newspaper reported that the White House:

       Seems eager for a battle over the nomination of Air Force 
     GEN Michael V. Hayden as CIA Director.

  The article goes on to say:

       The White House hopes voters will see the warrantless 
     surveillance program Hayden started as head of the National 
     Security Agency as tough on terrorism rather than a violation 
     of civil liberties.

  I believe the American people deserve better than the White House 
agenda of false choices. I believe one can fight the terrorists 
ferociously and protect the liberties of law-abiding Americans. I 
believe the Senate should not be bullied into thinking that security 
and liberty are mutually exclusive, and I believe that millions of 
Americans share that view. From the days of Ben Franklin, security and 
liberty in America have been mutually reinforcing, and it is our job to 
maintain this sacred balance.
  This is harder to do now because across America there is less trust 
and there is more fear. The lack of trust has been fed by the Bush 
administration telling the public that they have struck the right 
balance between security and liberty, but then we have had one media 
report after another that contradicts that claim.
  When the media reports come out, the administration says it can't say 
anything because responding would help the terrorists, but then the 
administration responds in multiple forums to get out the small shards 
of information that they believe is helpful to their point of view.
  The increased fear among our people is nourished by the fact that 
there are no independent checks on the Government's conduct, as there 
have been for more than 200 years in America. Law-abiding Americans 
have no reason to be confident that anyone is independently verifying 
reports about the administration's reported surveillance of their 
personal phone calls, e-mails, and Internet use.
  All of this mistrust and fear has translated into a lack of 
credibility. The administration has given us, by words and deeds, a 
national security routine: Do one thing, say another.
  An absolute prerequisite to running intelligence programs 
successfully is credibility. Despite the scores of talented, dedicated, 
patriotic people working at Langley today, the failings of the Agency's 
recent leadership have left the Agency's credibility diminished.
  The Agency is now looking at the prospect of its fourth Director 
since 
9/11. The last Director brought partisanship and lost talented 
professional staff as a result. The Agency's No. 3 man, who resigned 
this month, is being investigated by the FBI for links to the bribing 
of a former Congressman. It is long past time to get it right at the 
CIA.
  This will be the second time I have voted on a Hayden nomination. The 
first time around, when he was nominated to serve as Deputy National 
Intelligence Director, I voted for the General. In my view, General 
Hayden's technical knowledge is not in question. He has always been 
personable in any discussions the two of us have had, and he has always 
been extremely easy to talk to.
  But since I last voted for him, information has come to light that 
has raised serious questions about whether the General is the right 
person to lead the CIA. There are serious questions about whether the 
General will continue to be an administration cheerleader; serious 
questions regarding his credibility; serious questions about his 
understanding of and respect for constitutional checks and balances, 
and the important accountability in Government that they create.
  Here are the facts: Last December, the New York Times reported that 
since 9/11, the National Security Agency, which General Hayden was in 
charge of at the time, initiated a warrantless wiretapping program. 
General Hayden, reported once more in the media to be the architect of 
the program, became the main public spokesperson in its defense. At a 
White House press conference in December of 2005 and at subsequent 
events, including a speech at the National Press Club this past 
January, the General vigorously defended the administration's warrant-
less wiretapping program.
  Even before the war in Iraq, I was concerned about politicizing 
intelligence. Since then, I think they are only additional grounds for 
concern.
  At his confirmation hearing, General Hayden said he wants to get the 
CIA out of the news. To me, this was a curious statement, given all the 
time he has spent on the bully pulpit defending the President's 
warrantless wiretapping program. Inevitably, any political appointee 
will have an allegiance to the White House that appointed him or her. 
But when it comes to positions in the intelligence community, I believe 
that this allegiance, regardless of whether a Republican or a Democrat 
is in the White House, should go only so far.
  It is not good for our great country to have a CIA Director who jumps 
into every political debate that comes up here in Washington, D.C. It 
is not good for our great country to have a CIA Director who willingly 
serves as an administration cheerleader. It is not good for our great 
country to have a CIA Director who gets trotted out again and again and 
again to publicly argue for the President's controversial decisions. 
Politicizing the position renders the CIA Director less effective and 
less credible.

[[Page 9616]]

  Inevitably, Americans will begin to see the Director as an 
administration defender rather than a conveyor of the unvarnished 
truth. And in our next CIA Director, we need more truth and we need 
less varnish.
  My second concern rises out of the first. Not only has General Hayden 
raised questions through his words and actions about politicizing 
intelligence, but, unfortunately, even when he says something, you 
cannot trust, based on his words, that what he says is credible.
  At the National Press Club speech he gave in January defending the 
NSA warrantless wiretapping program, the General repeatedly stated that 
the program was limited to international to domestic, or domestic to 
international calls. For instance, he said:

       There is always a balancing between security and liberty. 
     We understand that this is a more--I'll use the word 
     ``aggressive''--program than would be traditionally available 
     under FISA. It is also less intrusive. It deals only with 
     international calls.

  Later, General Hayden said:

       That is why I mentioned earlier that the program is less 
     intrusive. It deals only with international calls.

  He explained:

       The intrusion into privacy--the intrusion into privacy is 
     significantly less. It is only international calls.

  He added:

       We are talking about here communications we have every 
     reason to believe are al-Qaida communications, one end of 
     which is in the United States.

  At the conclusion of the Press Club address, he was asked by a 
reporter:

       Can you assure us that all of these intercepts had an 
     international component, and that at no time were any of the 
     intercepts purely domestic?

  The General said:

       The authorization given to NSA by the President requires 
     that one end of the communications has to be outside the 
     United States. I can assure you by the physics of the 
     intercept, by how we actually conduct our activities, that 
     one end of these communications are always outside the United 
     States of America.

  With those final words, the speech and the press conference 
concluded.
  But then, just weeks ago, Americans read in the USA Today newspaper 
that the NSA, according to the paper, was also gathering basic 
information concerning hundreds of millions of innocent Americans' 
domestic phone calls. I cannot confirm or deny what was in that 
article, but I can tell you when I opened the paper that morning and 
read the article, it raised serious concerns for me about whether the 
General had been misleading.
  Unfortunately, this is not a single incident in an otherwise perfect 
record. There is a pattern of saying one thing and doing another when 
it comes to the General. For instance, General Hayden said he received 
legal authority to tap Americans' phone calls without a warrant in 
2001. A year later, in 2002, the General testified before Congress's 
joint 9/11 inquiry that he had no authority to listen to Americans' 
phone calls in the United States without first obtaining enough 
evidence for a warrant. As conceded by the General himself, at the time 
he made these statements to Congress, the NSA was in fact doing the 
very thing he led us to believe it could not: engaging in warrantless 
wiretapping on persons here in our country.
  When I asked the General to explain these contradictions at his 
confirmation hearing, I didn't get much of a response. At best, I got a 
nonanswer that reflected the General's skill in verbal gymnastics, but 
not the type of candor that America needs in its next CIA Director.
  There is another example that I want to talk briefly about, Mr. 
President. When General Hayden came before the Senate Intelligence 
Committee last year in conjunction with his nomination to serve as a 
deputy to Ambassador Negroponte, I asked him about the NSA Trailblazer 
Program. This had been one of the General's signature NSA management 
initiatives, one that had been again reported as one designed to 
modernize the Agency's information technology infrastructure. In 
response to my questions--I want to be specific about this because 
there has been a lot of discussion about it--among a variety of other 
comments the General made about the Trailblazer Program, at page 44 of 
the transcript of that 2005 hearing that was held to approve General 
Hayden to be the deputy to Mr. Negroponte, the General said with 
respect to the Trailblazer Program:

       A personal view, now--looking back--we overachieved.

  Now, I cannot go into detail here on the Senate floor because of the 
classified nature of the information involved, but suffice it to say 
today the press is reporting that the program is belly-up and the press 
is reporting that it is a billion dollars worth of junk software.
  I take my constitutional responsibility to give advice and consent to 
the President's nominations very seriously. Last Monday, after the 
hearing, I did something that I do not customarily do. I reached out to 
the general once more in an effort to try to find grounds for 
supporting his nomination. In my office I asked that he keep the Senate 
Intelligence Committee fully and currently informed of all intelligence 
activities other than covert actions.
  In writing, the general responded:

       Regarding communications with Congress on critical issues, 
     if confirmed as Director of the Central Intelligence Agency I 
     intend to have an open and complete dialog with the full 
     membership of the committee, as indicated by 501(C) 502 and 
     503 of the National Security Act as amended.

  So far, so good. But then the general added:

       As you understand, there will continue to be very sensitive 
     intelligence activities and operations such as covert actions 
     that, consistent with legislative history and longstanding 
     practice, is briefed only to leadership of the committee. On 
     those rare occasions, communications with those Members will 
     be exhaustive.

  So once again the bottom line, General Hayden's response is 
ambiguous. If confirmed he intends to sometimes inform Congress and at 
other times only inform certain Members, without explaining how this 
will be decided or what his role in the decision will be.
  Read his response from Monday and you still can't determine when he 
will brief members of the Senate Intelligence Committee on the 
activities of the CIA, and when they will be learning about them by 
reading the morning newspaper.
  As I stated, the CIA is looking at the prospect of its fourth 
Director in this dangerous post-9/11 world. Serious reform is needed to 
get the Central Intelligence Agency headed in the right direction. To 
make this happen, America needs a CIA Director who says what he means 
and means what he says. Unfortunately, time and time again, General 
Hayden has demonstrated a propensity for neither. His words and acts on 
one occasion cannot be reconciled with words and acts on another. He is 
a man with a reputation for taking complicated questions and giving 
simple answers.
  Unfortunately and repeatedly, when I have asked him simple questions, 
he has given me complicated answers, or nothing at all.
  Americans want to believe that their Government is doing everything 
it can to fight terrorism ferociously and to protect the legal rights 
and civil liberties of law-abiding Americans. But right now millions of 
Americans are having trouble locating the checks and balances on 
Executive power. They don't know what the truth is and they are very 
concerned about what is next.
  I believe it is time for the Senate to break that cycle. I remain 
concerned that what has happened at the National Security Agency under 
General Hayden will be replicated at the Central Intelligence Agency. 
For that reason, I oppose the nomination.
  I yield the floor.
  The PRESIDING OFFICER (Mr. DeMint). The Senator from Illinois.
  Mr. DURBIN. Mr. President, let me commend my colleague from the State 
of Oregon, a member of the Senate Intelligence Committee, a committee 
on which I served for 4 years. Senator Wyden's statement is consistent 
with his service on that committee. It shows that he takes that 
assignment very seriously, he does his homework on a very challenging 
committee assignment, and that he has given great thought and 
reflection to this important decision about whether General

[[Page 9617]]

Hayden should be named to head the CIA.
  Senator Wyden and I have discussed this nomination. There are some 
things he cannot share with me because they were learned behind closed 
doors in the Senate Intelligence Committee, but I have become 
convinced, as well, that General Hayden, despite his many great 
attributes and good qualifications, is not the right person for this 
appointment.
  When we reflect on America since 
9/11, there are many things that are very clear. First, this country 
was stricken in a way that it has never been stricken since the War of 
1812, when the British invaded the United States, invaded this Capitol 
building, sacked and burned it. We found 3,000 in- nocent Americans 
destroyed on American soil--a gut-wrenching experience that we will 
never forget. It changed America and it called on the President, on the 
leadership in Congress, to summon the courage to respond.
  In the days that followed that horrible event, there were some 
inspiring images. We can recall the videotape of firefighters ascending 
the stairway into the World Trade Center, to certain death, braving 
what they knew was a terrible disaster to try to save innocent lives.
  We can recall the President of the United States going to the rubble 
of the World Trade Center in New York and in a few brief moments 
rallying America and the world behind our cause.
  We can remember Members of Congress standing just a few feet away 
from this Senate Chamber, Members of Congress who hours before had been 
locked in partisan combat, who put it all aside after 9/11, sang ``God 
Bless America,'' and said: What can we do to save America?
  After that, the response around the world; this great, giant, the 
United States of America, having suffered this terrible loss, was able 
to count its friends and allies very quickly. So many nations stepped 
forward and said: We are with you. We will help you. We understand that 
you must bury your dead and grieve your losses, but then you must 
defend yourself and your Nation for its future, and we will be there.
  It was an amazing outpouring of support for our great country. It was 
a wonderful, encouraging moment.
  The President came to this Congress and gave a speech shortly after 
9/11 that I will say was one of the best I had ever heard, summoning us 
to gather together as a nation to defend ourselves against this threat 
of terrorism. Then, of course, we considered the PATRIOT Act. We 
changed the laws of America so our Government would have new tools to 
pursue the terrorists. It passed with an overwhelming bipartisan vote, 
very quickly, and we started to roll up our sleeves and take on this 
task.
  At the time I was a member of the Senate Intelligence Committee. I 
realized then more than ever how important that committee was. 
Intelligence is the first line of defense, and good intelligence used 
wisely can protect America from terrorism and from enemies who would 
inflict great casualties and pain on us.
  Then, a few months later, came a new challenge, a challenge we had 
not anticipated on 9/11. The President and this administration told us 
that the real battle was against Saddam Hussein in Iraq. I remember 
sitting in that Senate Intelligence Committee just days before the vote 
on the Senate floor about the invasion of Iraq and turning to a staffer 
who said to me: Senator, something is unusual here. This is the first 
time we have ever considered any kind of effort of this magnitude 
without asking the intelligence agencies of the United States to tell 
us what they know so we can gather information from every source and 
make a conscious and sensible judgment about what we should do. It is 
called a National Intelligence Estimate, an NIE.
  So at my staffer's prompting, I requested a National Intelligence 
Estimate, as did Senator Graham of Florida. It turned out it was 
routine to produce them, but no one had taken the time to do that 
before the invasion of Iraq.
  In very short order, just a few weeks, a National Intelligence 
Estimate was submitted to the Intelligence Committee. There were claims 
in that NIE that turned out to be false, but at the time we didn't know 
it. There were claims about weapons of mass destruction that threatened 
the safety of the United States of America. There were claims of 
capacities and capabilities by Saddam Hussein in Iraq that were greatly 
exaggerated. There were claims that Saddam Hussein and the Iraqis were 
producing nuclear weapons which could be used against the United 
States. Leaders in the White House were telling us they were fearful of 
mushroom clouds that could result in a nuclear holocaust. All of this 
was given to the American people and the Intelligence Committee.
  The sad reality was when we sat in the Intelligence Committee behind 
closed doors, we knew that the American people were not getting the 
full story, that in fact even within this administration there was a 
dispute as to the truth of these statements, statements given every day 
and every night by the leaders of this administration.
  We know what happened. We invaded Iraq. Saddam Hussein, in a matter 
of weeks, was gone as their dictator, and we came to learn that all of 
the claims about weapons of mass destruction were false, totally false. 
The American people had been misled.
  There is nothing worse in a democracy than to mislead the people into 
war, and that is what happened. We learned, as well, that there were no 
nuclear weapons. All those who claim there was a connection between 9/
11 and Saddam Hussein could find no evidence. The statements made by 
the President in his State of the Union Address that somehow or another 
Saddam Hussein was obtaining yellowcake or the makings of nuclear 
weapons from Africa turned out to be false, and the President had to 
concede that point.
  Then, in light of it, we decided it was time to take a look. The 
Intelligence Committee on which I served decided to ask two questions: 
First, did our intelligence agencies fail us? Did they come up with bad 
information when they should have given us good information and good 
advice? Were we, in fact, misled into this war by that information? And 
second: Did any member of this administration misuse that intelligence 
information, use it in a fashion that did mislead or deceive the 
American people? Those were two specific assignments accepted by the 
Senate Intelligence Committee. I served on the committee while we were 
in the process of meeting that obligation. We came to learn the first 
assignment was exactly right. The Senate Intelligence Committee 
concluded, as did the House, that our intelligence agencies had failed 
us. Our first line of defense had failed us, giving us information that 
was totally flawed, information which was not reliable, information 
which never should have resulted in the invasion of Iraq.
  The administration had argued that we have a new foreign policy, a 
preemptive foreign policy. We can't wait to be attacked, the President 
said, we have to attack first if there is a threat. It turns out the 
information used to measure that threat was wrong, in the invasion of 
Iraq.
  Mr. President, 23 of us in the Senate voted against the use of force 
in Iraq, 22 Democrats and 1 Republican. We believed then, most of us, 
that the information being given to the American people was misleading, 
the intelligence information was not accurate.
  It turns out that our estimate was true. It turns out that our 
invasion of Iraq was based on false pretenses and on intelligence 
information that was fatally flawed.
  The second investigation to be undertaken by the Senate Intelligence 
Committee, promised more than 2 years ago, was that we would look into 
the misuse of this intelligence by members of this administration. That 
is a tough thing to ask a Senate Intelligence Committee, led by a 
Republican chairman, to do, because it is likely to bring some 
embarrassment to the administration of the President.
  Unfortunately, as I stand here today, the promise of almost 2 years 
ago to complete this second phase has not been completed. We still 
don't know if

[[Page 9618]]

members of this administration misused the intelligence.
  But there are things that we do know, things that are very clear. It 
is clear that in the lead-up to the invasion of Iraq and afterwards 
there was a separate intelligence agency created in the Department of 
Defense by a man named Douglas Feith that became virtually a renegade, 
independent operation. It was not working in concert with other 
agencies of our Government gathering intelligence. That is inconsistent 
with what we hoped to be a coordinated intelligence effort in our 
Government. But Secretary Rumsfeld, who enjoyed the confidence of the 
President, was able to initiate this intelligence operation in defiance 
of many other intelligence agencies. We know that for a fact.
  Then we came to learn several other things. We learned that after 9/
11, the Bush administration, for the first time in modern history, 
decided that they needed to rewrite the standards of interrogation for 
detainees. For decades we had held to the standard of the Geneva code, 
which basically said that we would not engage in torture, cruel, 
inhuman, or degrading treatment. But the infamous Bybee memo, exchanged 
at the time with Alberto Gonzales, then-White House Counsel, and many 
others, was at least a suggestion that we could breach those rules and 
change those rules. That conversation, in closed sections of the White 
House, took place without the knowledge of the American people. But 
then the terrible disclosure at Abu Ghraib torture, inhuman treatment 
perpetrated, sadly, by those who were in the service of the United 
States.
  It was clear then that the issue of torture was one that was front 
and center for us as a Nation to face during this time of terror. So 
with this torture issue before us, we also had other things to 
consider.
  Not long thereafter came the news that this administration was 
engaging in activities which clearly were beyond the law--the so-called 
warrantless wiretaps of Americans. You see, under the laws of the 
United States and under our Constitution, one cannot invade through a 
wiretap the privacy of another without court approval. No executive 
branch office, Department of Justice, or FBI can engage in a wiretap 
without the approval of a court order or, when it comes to questions of 
international security, foreign intelligence gathering, through the 
FISA court, a special court created for that purpose. Those are the two 
options.
  But this administration said that it was above the law; that it 
didn't have to answer to those courts; that it didn't have to work 
through those courts; it could engage in warrantless wiretaps through 
the National Security Agency, an agency administered by General Hayden.
  Several weeks ago, USA Today disclosed more information indicating an 
invasion of privacy where the telephone records of innocent American 
people are being gathered by the same agency, the National Security 
Agency, in an effort I cannot describe in detail because I have not 
been briefed, but in an effort to find some intelligence information.
  Now comes the nomination of General Hayden to become Director of the 
Central Intelligence Agency after all of this experience.
  Let me say at the outset that I respect General Hayden. He is a man 
who has served his country with distinction for over three decades. 
Many say--and I cannot disagree--that he is one of brightest minds when 
it comes to intelligence, and the agencies that he has worked with in 
the past are clear evidence of that.
  I honor and appreciate his service. I know he is a man of 
considerable knowledge and formidable intellect. He is well versed in 
the questions of intelligence, particularly in the most technical 
areas. However, I have three primary reservations about this 
nomination.
  First, I am concerned about the role of General Hayden in the NSA's 
warrantless wiretapping of American citizens.
  Second, I am concerned about how the CIA will treat detainees in 
their custody and how they will implement the clear prohibition on 
torture and cruel, inhuman, or degrading treatment standard that was 
passed last year in the McCain amendment, which I cosponsored, by a 
vote of 90-9 on the floor of the U.S. Senate.
  I am also concerned about the issue of the General's independence, 
not merely his independence as an individual but his ability to stand 
up to the Department of Defense and the likes of Secretary Rumsfeld, 
and separate defense intelligence operations under Douglas Feith. I 
raised these concerns when I met with General Hayden, and they we were 
echoed by many members of the committee during the hearings.
  First, I would like to address the issue of surveillance of American 
citizens.
  As Director of the NSA, General Hayden presided over a program that 
carried out warrantless wiretaps on innocent Americans. Those wiretaps 
did not have judicial approval, nor did they have meaningful 
congressional oversight. Precious few Members of Congress were briefed 
about the wiretaps, and they were sworn to secrecy about this 
procedure.
  General Hayden has stated that the Attorney General and other legal 
authorities within the administration had concluded that such actions 
were proper and legal. In fact, I have seen no evidence of that 
whatsoever.
  We created the FISA court to issue warrants for such surveillance. If 
the administration believes the FISA court is not sufficient in this 
age of terrorism and high technology, the administration should come to 
Congress and ask us to change the laws, as we did with the PATRIOT Act.
  In addition to warrantless wiretaps, General Hayden reportedly 
oversaw a program that assembled an enormous database, the largest in 
the history of the world, of literally millions of calls made by 
Americans to Americans in the United States. Tens of millions of 
Americans appeared to have been included in this database. And most of 
us in Congress learned about it on the front page of USA Today.
  I am disturbed about the role that General Hayden played in 
overseeing these practices. It is certainly critical that the Director 
of the CIA protect our security but also not endanger our liberties.
  Second, I am concerned about the way the CIA will treat detainees. 
When the McCain amendment was pending, it was opposed openly by Vice 
President Richard Cheney who said that he believed intelligence 
agents--those working for the CIA--should not be bound by the 
provisions of the McCain amendment. We disagreed. We passed, on the 
floor of the Senate, as I said earlier, by a vote of 90-9, clear 
standards barring torture, cruel, inhuman and degrading treatment. I 
believe that we should never engage in that treatment--and that is what 
the McCain amendment requires. Senator McCain said it well last year, 
and I quote him. He said, ``It's not about who they are. It's about who 
we are.''
  I believe we should have one clear, uniform interrogation standard 
that applies to all United States personnel--those in uniform and those 
in a civilian capacity.
  I was disturbed when General Hayden was meeting with me and did not 
appear to share that view. He was evasive. While he said that we must 
establish clear guidelines, he indicated he might prefer to have one 
standard for the military and another standard for intelligence 
personnel. He said he wanted to study the question, but that two sets 
of rules might be appropriate.
  I disagree. There is only one standard. It should be clear and 
unequivocal.
  Finally, there is the question of independence. The Pentagon controls 
an estimated 80 percent of the intelligence budget. That fact alone 
makes it critical for the CIA to vigorously defend its independence 
over the Department of Defense. We need an independent voice at the 
CIA.
  I note that last year's intelligence authorization bill, as passed by 
the Senate Intelligence Committee, stated that the Director of the CIA 
should be appointed from ``civilian life.''
  That bill in the end never reached the floor of the Senate for a 
vote, but

[[Page 9619]]

we should nevertheless consider that recommendation seriously.
  General Hayden assured me that he stood up to Secretary Rumsfeld in 
the FISA operation when he disagreed with him, and that he will 
continue to do so.
  Colleagues on the Intelligence and Armed Services Committee, whom I 
deeply respect, including Senator Levin of Michigan, have concluded 
that General Hayden will assert that independence and stand up to the 
Pentagon. I certainly hope he does.
  Within the Bush administration, the question of the independence of 
intelligence agencies is particularly important. That is because the 
intelligence process has been abused.
  This administration clearly politicized and distorted the use of 
intelligence to promote the false premise that Saddam Hussein was tied 
to the 9/11 attacks and that Iraq was developing weapons of mass 
destruction, including nuclear weapons. We know now that was false.
  In 2002, the administration undermined the independence and 
credibility of the intelligence process by creating the Office of 
Special Plans at the Pentagon under the leadership of Under Secretary 
of Defense Douglas Feith. Several of us addressed this issue as part of 
the Intelligence Committee's 2004 Report on the Prewar Intelligence 
Assessments on Iraq. And Senator Levin joined me in this.
  We wrote:

       The Intelligence Community's findings did not support the 
     link between Iraq and the 9/11 plot [that] administration 
     policy officials wanted [in order] to help galvanize support 
     for military action in Iraq. As a result, officials under the 
     direction of Under Secretary Feith took upon themselves to 
     push for a change in the intelligence analysis so that it 
     bolstered administration policy statements and goals.

  I asked General Hayden about Douglas Feith and the Office of Special 
Plans. To his credit, he was critical of that operation. He said it was 
not legitimate ``alternative analysis,'' and he described the troubling 
pattern in which preconceptions shaped the search for intelligence.
  General Hayden reiterated his discomfort with the Feith approach in 
testifying before the Intelligence Committee. I hope that when he is 
confirmed, as I am certain he will be, that General Hayden will go even 
further in opposing efforts to subvert the intelligence process.
  Today, we face even graver dangers than we did in 2003 when Under 
Secretary Feith was operating his own intelligence shop.
  The war in Iraq has claimed over 2,400 American lives, and there is 
no end in sight.
  Iran has pursued three different methods of enriching uranium and has 
experimented with separating plutonium, moving closer to the possible 
development of nuclear weapons.
  Osama bin Laden is still at large; al-Qaida has splintered in 
different and dangerous directions, and North Korea is expanding its 
nuclear arsenal.
  All these issues make it extremely important that our intelligence 
community conduct independent, accurate, trustworthy analysis. And it 
is critical that we operate within the bounds of our own Constitution 
and our laws.
  We should not have one standard for the military and another for the 
intelligence community, a position once argued as high in this 
administration as Vice President Cheney. We should not engage in 
torture or hold detainees indefinitely without of charging them with a 
crime.
  Just 2 weeks ago, the President of the United States said it would 
soon be time to close Guantanamo. That certainly is something that many 
of us believe is in order. Those who are dangerous to the United States 
should be charged and imprisoned. Those who have no value to us from an 
intelligence viewpoint should be released, if they are not a danger to 
the United States.
  We cannot ignore the fundamental privacy rights of American citizens 
and the moral values and rights reflected in the treatment of those 
detainees.
  General Hayden will be taking charge of the CIA, by many reports at a 
time when the Agency is demoralized. He will have to oversee critical 
reforms.
  Last December, members of the 9/11 Commission handed out report cards 
on reform for the Bush administration. They gave the CIA an 
``incomplete'' in terms of adapting to its new mission.
  I hope General Hayden can change that. I hope that he will be the 
independent voice that we need.
  I yield the floor.

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