[Congressional Record (Bound Edition), Volume 152 (2006), Part 7]
[Senate]
[Pages 9713-9715]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. SCHUMER. Mr. President, I rise in opposition to the confirmation 
of Brett Kavanaugh to the DC Circuit Court of Appeals.
  This court is too important, its jurisdiction too broad, and its 
decisions too final, for a lifetime seat to be entrusted to someone 
with such limited nonpartisan experience--even someone as bright as Mr. 
Kavanaugh clearly is.
  First, let me say that I am continually frustrated by the nature of 
the debate that takes place in the Senate and in the public about the 
so-called politicization of the judicial nomination and confirmation 
process. We are often told--with a straight face--that politics and 
ideology play no part in the President's thinking when it comes to 
judicial nominations.
  But, as anyone who is paying attention knows full well: It is the 
President who too often picks judicial nominees with politics and 
ideology squarely in mind.
  It is the President who too often picks judicial nominees with an eye 
towards shoring up his conservative political base. It is the President 
who too often selects judicial nominees with an eye towards picking a 
political fight. And, of course, on at least one occasion--in the case 
of Harriet Miers--it was the President who withdrew a nominee with an 
eye towards mitigating political damage.
  So, those who complain that the process has become politicized and 
that ideology shouldn't matter should take their quarrel to the other 
end of Pennsylvania Avenue.
  In this case--especially after Mr. Kavanaugh's second hearing--I 
continue to believe that his nomination is too infused with politics 
and that Mr. Kavanaugh himself is neither seasoned enough nor 
independent enough at this early stage of his career to merit a 
lifetime appointment to the second highest court in the land.
  Let me say a word about how deeply important the DC Circuit Court of 
Appeals is.
  But there are serious questions as to why, at barely 40, having never 
tried a case, and with a record of service almost exclusively to highly 
partisan political matters, he is being nominated to a seat on the 
second most important court in America.
  Why is the DC Circuit so important?
  The Supreme Court currently takes fewer than 100 cases a year. That 
means that the lower courts resolve the tens of thousands a cases a 
year brought by Americans seeking to vindicate their rights. All the 
other Federal appellate courts handle just those cases arising from 
within its boundaries. So, for example, the Second Circuit, where I am 
from, takes cases coming out of New York, Connecticut, and Vermont.
  But the DC Circuit doesn't just take cases brought by residents of 
Washington, DC. Congress has decided there is value in vesting one 
court with the power to review certain decisions of administrative 
agencies.
  We have given plaintiffs the power to choose the DC Circuit--and in 
come cases we have forced them to go to the DC Circuit--because we have 
decided for better or worse, that when it comes to these administrative 
decisions one court should decide what the law is for the whole Nation.
  When it comes to regulations adopted under the Clean Air Act by the 
EPA, labor decisions made by the NLRB and rules propounded by OSHA, gas 
prices regulated by the Federal Energy Regulatory Commission, and many 
other administrative matters, the decisions are usually made by the 
judges on the DC Circuit, to which Mr. Kavanaugh aspires.
  To most, it seems like this is the ``Alphabet Soup Court,'' since 
virtually every case involves an agency with an unintelligible 
acronym--EPA, NLRA, FCC, SEC, FTC, FERC, and so on, and so on.
  But the letters that make up this ``Alphabet Soup'' are what make our 
Government tick. They are the agencies that write and enforce the rules 
that determine how much ``reform'' there will be in campaign finance 
reform. They determine how clean the water has to be for it to be safe 
for our families to drink. They establish the rights workers have when 
negotiating with corporate powers.
  The DC Circuit is important because its decisions determine how these 
Federal agencies go about doing their jobs. And, in so doing, it 
directly impacts the daily lives of all Americans more than any other 
court in the country, with the exception of the Supreme Court.
  Mr. President, there is so much at stake when considering nominees to 
the DC Circuit--how their ideological predilections will impact the 
decisions coming out of the court--and why it is vital for Senators to 
consider how nominees will impact the delicate ideological balance on 
the court when deciding how to vote.
  Given the importance of that court, I cannot vote to confirm Mr. 
Kavanaugh. Although Mr. Kavanaugh has held several important and 
influential positions in Government, they have been

[[Page 9714]]

almost exclusively political. While his academic credentials are 
undeniably top-notch, he has largely devoted his legal talents to 
helping notch political victories for his party. While his resume is 
laden with high-profile political assignments, it is light on the kinds 
of professional and nonpartisan accomplishments typical of recent 
nominees to this important court.
  Mr. Kavanaugh has been one of the point people among young Republican 
lawyers, appearing at the epicenter of so many high-profile 
controversial issues in a relatively short career. That is not in 
itself dispositive, but that is all there is. There is not much more we 
can rely on to offset this experience.
  Notwithstanding his legal credentials, he is younger than, and has 
less relevant experience than, almost everyone else who has joined the 
DC Circuit in modern times.
  If this were a nominee for the district court, where it belongs, 
there would not be opposition. But it seems as if Mr. Kavanaugh's 
nomination is repayment for services rendered to the political 
operation of the White House and the Republican Party. He does not have 
a long list of articles. He does not have a long list of judicial 
experience, or even of legal experience outside of the political realm. 
And it shows you the brazenness of this administration, frankly, that 
he would be nominated to the second highest court in the land. It shows 
you that they value ideology and political service above judicial 
experience and depth.
  The bottom line is this, that Mr. Kavanaugh does not belong on this 
court. If my colleagues on the other side of the aisle were not so apt 
to just rubberstamp every single nominee that this administration puts 
forward, he would not get to this court. But the reason we are unable 
to block this nomination is not because of the merits--I wish we could 
because America will regret, I believe, having Mr. Kavanaugh on the 
court for decades to come--but it is because, again, we have seen fewer 
than a handful of times any Republican Member vote against any nominee 
who this White House nominates.
  Mr. Kavanaugh is intelligent; no question. Intelligence alone is 
hardly a criteria for the second most important court in the land.
  Mr. Kavanaugh, when I met him, told me one way to make a judgment 
about him would be to talk to the people who know him, to talk to 
colleagues and judges and others familiar with his work. That is what 
the American Bar Association actually did in preparing his evaluation. 
And I have rarely seen an evaluation that has comments such as these: 
One lawyer said that Mr. Kavanaugh was ``sanctimonious'' and 
inexperienced. A lawyer in a different proceeding said: Mr. Kavanaugh 
did not handle the case well as an advocate and dissembled. Another 
said he was ``inexperienced in the practice of law.'' Others 
characterized him as ``insulated.'' One lawyer who worked with him 
questioned his ability ``to be balanced and fair should he assume a 
federal judgeship.''
  Unfortunately, I think that is the reason he was chosen. The 
administration on this DC Court of Appeals wants people who will not be 
balanced and fair. They want people who have an ideological ax to 
grind, to undo the work of Government which this court oversees.
  It is true that this is the second most important court in the land. 
It is also true to say that there cannot be a single person in this 
body, if they were being honest, who does not recognize that there are 
many more qualified people in Washington to be on this bench.
  So, Mr. President, I must vote against this nomination, with the full 
conviction that we could do a lot better.
  Mr. Kavanaugh, if confirmed, would be the youngest person on the D.C. 
Circuit since his mentor, Ken Starr.
  By a quick review of the preconfirmation accomplishments of the 
active judges who currently sit on the D.C. Circuit, the nominee's 
achievements--though impressive--are simply not on a par.
  Every active judge had significant professional and nonpartisan 
experience to help persuade us that they merited confirmation.
  I remind my colleagues that in recent months, I voted for two 
Republican nominees who were deeply involved in the impeachment of 
President Clinton--Tom Griffith for the very court to which Mr. 
Kavanaugh has been nominated and Paul McNulty to the second highest 
position in the Justice Department.
  Now let me come to the ABA report released recently. Some of my 
friends across the aisle have fallen over themselves to dismiss, 
dilute, and denigrate that report. This, of course, despite the fact 
that last time around, Mr. Kavanaugh and several Senators frequently 
repeatedly boasted about his original, higher ABA rating.
  Here is why the observations noted in that report are important. When 
he and I met recently, I asked Mr. Kavanaugh how we are to judge 
someone with his scant record. He has very few writings. He is younger 
than almost everyone who has been nominated to the D.C. Circuit. He has 
never been a judge.
  Mr. Kavanaugh told me that one way to make a judgment about him would 
be to talk to the people who know him, to talk to colleagues and judges 
and others who are familiar with him and his work.
  Well, that is one of the things the American Bar Association actually 
did in preparing its evaluation. They talked--as Mr. Kavanaugh himself 
suggested--with people who are familiar with his work.
  What is more, they do it under a promise of confidentiality, so that 
they will be likely to obtain the most honest and candid appraisals--
rather than the expected plaudits from peers and previous employers.
  Many of those interviewed echoed precisely the concerns that I and 
others have raised--his lack of relevant experience and the effect the 
insularity of his political experience might have on his ability to be 
a neutral judge.
  Now, I understand that none of the 14 committee members found Mr. 
Kavanaugh flatly ``not qualified.''
  But I ask my colleagues, shouldn't we give substantial weight to 
these statements from people who are familiar with his work--not 
isolated remarks, but a multitude of them, from different quarters, 
commenting about different court appearances and interactions with him?
  Given the importance of the D.C. Circuit, we have a duty to closely 
scrutinize the nominees who come before us seeking lifetime appointment 
to this court.
  And it is no insult to Mr. Kavanaugh, to say that there can't be a 
single person in this room, if they were being honest, who doesn't 
recognize that there are scores of lawyers in Washington and around the 
country who are of equally high intellectual ability, but who have much 
more significant judicial, legal, and academic experience to recommend 
them for this post.
  So I would say that many of my colleagues and I have a sincere and 
good-faith concern that this nominee is not apolitical enough, not 
seasoned enough, not independent enough, and has not been forthcoming 
enough. The hearing did not alleviate those concerns.
  Indeed, Mr. Kavanaugh was evasive when he should have been 
forthright; he sidestepped questions when he should have met them head 
on.
  During an extended exchange with me, he repeatedly refused to answer 
a simple question--whether he had ever expressed opposition to a 
potential judicial nominee within the White House, even though there is 
no conceivable earthly privilege that should have prevented him from 
answering.
  On another occasion, it took Senator Leahy four tries before Mr. 
Kavanaugh would answer the simple question: Why did you take 7 months 
to respond to the Judiciary Committee's written questions in 2004?
  On yet another occasion, he continued to refuse to tell us whether he 
is in the mold of Scalia and Thomas, even though he has spent several 
years selecting and vetting highly ideological judges for the President 
who has repeatedly promised to nominate judges in ``the mold of Scalia 
and Thomas.''

[[Page 9715]]

  If the President can say repeatedly at campaign stops and speeches 
that he wants judges in the mold of Scalia and Thomas, and if those 
statements are not just meaningless, empty rhetoric, why can't we 
Senators find out in some meaningful way whether there is any truth in 
advertising?
  In short, if the nominee had spent the last several years on a lower 
court or in a nonpolitical position proving his independence from 
politics, I could view his nomination in a different light.
  But he has not. Instead, his resume is almost unambiguously 
political. Perhaps with more time, and different experience, we would 
have greater comfort imagining Mr. Kavanaugh on this court. But that 
day is not yet here.
  Therefore, I vote nay on the nomination and urge my colleagues to do 
the same.
  With that, I yield the floor and, once again, thank my colleague from 
Michigan.
  The PRESIDING OFFICER. The Senator from Michigan.

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