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27–916 PDF 2006

S. HRG. 109–435

CONFIRMATION HEARING ON THE NOMINATION

OF BRETT KAVANAUGH TO BE CIRCUIT JUDGE

FOR THE DISTRICT OF COLUMBIA CIRCUIT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MAY 9, 2006

Serial No. J–109–73

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................ 28

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 39

prepared statement .......................................................................................... 93

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 37

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 24

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 98

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 101

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 3

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 35

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

PRESENTERS 

Kozinski, Alex, Judge, U.S. Court of Appeals for the Ninth Circuit, Pasadena, 

California, presenting Brett Kavanuagh, Nominee to be Circuit Judge for 

the District of Columbia ...................................................................................... 8

Stapleton, Walter K., Judge, U.S. Court of Appeals for the Third Circuit, 

Wilmington, Delaware, presenting Brett Kavanaugh, Nominee to be Circuit 

Judge for the District of Columbia ..................................................................... 7

STATEMENT OF THE NOMINEE 

Kavanaugh, Brett, of Maryland, Nominee to be Circuit Judge for the District 

of Columbia Circuit .............................................................................................. 10

Questionnaire .................................................................................................... 13

QUESTIONS AND ANSWERS 

Responses of Brett Kavanaugh to questions submitted by Senator Feingold .... 74

SUBMISSION FOR THE RECORD 

American Bar Association, Stephen L. Tober, Chair, Standing Committee 

on Federal Judiciary, Washington, D.C., statement and attachment ............. 80

(1)

NOMINATION OF BRETT KAVANAUGH, OF 

MARYLAND, TO BE CIRCUIT JUDGE FOR 

THE DISTRICT OF COLUMBIA CIRCUIT 

TUESDAY, MAY 9, 2006 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:01 p.m., in room 

226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman 

of the Committee, presiding. 

Present: Senators Specter, Hatch, Kyl, Sessions, Graham, 

Cornyn, Brownback, Coburn, Leahy, Kennedy, Feinstein, Feingold, 

Schumer, and Durbin. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good afternoon, ladies and gentlemen. It is 

two o’clock and the Judiciary Committee will proceed with the 

nomination of Brett Kavanaugh to be a judge for the Court of Appeals for the District of Columbia Circuit. 

At the outset, we welcome Judge Walter Stapleton, Court of Appeals for the Third Circuit, and Judge Alex Kozinski, Court of Appeals for the Ninth Circuit. We appreciate your coming in today. 

Mr. Kavanaugh is in an unusual circumstance of not having Senators to introduce him. He is a D.C.-Marylander, and as of this moment the Senators from his home State of Maryland are not available to make the introductions, and the Committee has asked 

Judge Stapleton and Judge Kozinski to do that since they have special knowledge of the nominee because he clerked for them. They 

have special insights into his background. 

Just a few words by way of introduction. Mr. Kavanaugh will 

take the witness stand and will be sworn, and will speak for himself, but I think it appropriate to make a few comments about his 

record and about my analysis of these proceedings. 

I have been surprised to see Mr. Kavanaugh characterized as not 

up to the job of judge for the Court of Appeals for the District of 

Columbia Circuit. I have taken a look at his record in some detail, 

and I had a long session with Mr. Kavanaugh, and have asked him 

all of the questions which have been posed on his nomination. The 

issue of the NSA surveillance program, a program that I have 

raised serious questions about, asked him about what, if anything, 

he had to do with it, and he will speak for himself in responding 

to that. 

2

I asked him about the issue of allegations of mistreatment of people on interrogation on the overlay of torture or rendition, and 

again, he will have an opportunity to speak for himself on that subject. 

At our Executive Committee session last week, the question was 

raised about Mr. Abramoff. He will have an opportunity to speak 

for himself about that question. 

In reviewing his record, I note that he was Yale College for his 

bachelor’s degree, cum laude, and he was Yale Law School, where 

he was on the Yale Law Journal. Now, that takes some substantial 

academic qualification, something I know about, because I was 

there. And the only difference between Mr. Kavanaugh’s tenure on 

the Yale Law Journal and being a high academic graduate from 

Yale Law School from my record is that when he was there, the 

competition was tougher. He is slightly younger than I am, and as 

the years have passed, Yale Law School has been more difficult to 

attain academic achievement, but that is something I know of firsthand. 

Then his record beyond law school was to clerk for Judge 

Stapleton, to clerk for Judge Kozinski, and they will speak for 

themselves. 

Then he was in the Office of Solicitor General, where he argued 

one case before the Supreme Court of the United States, and if he 

were on the Judiciary Committee, it would put him in second place, 

not too bad a place to be on the Judiciary Committee on Supreme 

Court arguments. Then he has had a number of arguments on the 

Court of Appeals and a number of arguments before District Courts 

on legal issues. 

Then he served in the Office of Independent Counsel, and that 

was a highly controversial office, beyond any question. And Mr. 

Kavanaugh will describe his activities there, but he was not counsel, he was not deputy counsel. He was one of a tier below, where 

there were 10 associate or assistant counsels there. I know he will 

be asked about what his participation was there, and we will hear 

from Mr. Kavanaugh himself of that. 

He has written two distinguished legal pieces published in the 

journals, one on the Independent Counsel and suggesting changes, 

hardly the mark of an ideologue who works as Independent Counsel that has tunnel vision as to what they did, but has expressed 

ways to improve the operation of Independent Counsel, by showing 

an open mind and showing some progressive thinking as to utilizing his experience. 

Then he wrote an article on the issue of peremptory challenges 

for African Americans and has a—very difficult to use the words 

‘‘liberal’’ or ‘‘conservative’’ or ‘‘progressive’’ around here—but he is 

on the right side of that issue, an issue that I understand well. 

When I became District Attorney of Philadelphia, I did not need to 

have the Federal Courts tell me not to have peremptory challenge 

for blacks. I issued an instruction to my assistants that they could 

not ask for it, and finally the courts caught up with it. And Mr. 

Kavanaugh will speak to his views on that subject, but hardly the 

views of a cramped conservative, but he will describe his views on 

all of these matters. 

3

Then he went to Kirkland and Ellis, which is a very distinguished law firm. I do not how many people from the Judiciary 

Committee could be employed by Kirkland and Ellis today, let 

alone out of law school. Tough row to hoe. And he was taken in 

as a partner, not an equity partner—it is all complicated now with 

law firms—a non-equity partner, but that is an unusual call for a 

firm like Kirkland and Ellis or for any big firm of their nature because of how they evaluated his background and his experience. 

He has been Associate Counsel to the President, and now he is 

Staff Secretary to the President. And if he reflects the views consistent with the President, that is entirely consistent with having 

the President nominate judges. That is our system. That is decided 

by an election. But he will speak for himself as to where he stands 

in the spectrum as to being in the mainstream. 

Just a word about the American Bar Association rating. Early he 

was rated well qualified in the majority, and qualified with the minority camp. And then they reevaluated him 2 years later, and 

they took some additional interviews, and not surprisingly, the 

interviews varied. And now he has been rated in the majority, 

qualified and the minority, well qualified. So you have him moving 

from well qualified to qualified, qualified to well qualified, and not 

a tinker’s bit of difference really in terms of our evaluation, because at minimal he is qualified, and a great many people think 

he is well qualified. 

Senator Schumer.

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. First let me thank 

you for holding this hearing, which many of us had requested, and 

we very much appreciate it. 

And second, I want to thank Mr. Kavanaugh for being back here. 

When we had our private meeting I asked him if he had any objections to come back to, what you good-naturedly referred to as the 

arena at our last hearing, and you said no, and very much appreciate that. I realize while this is not always the most pleasant exercise for a nominee, I think we can all agree it is a very important 

one, because we are talking about nothing less momentous than a 

lifetime appointment to what is generally regarded as the secondmost important court in the land, a court of great importance to 

those of us who sit in the Senate or the House, because it has such 

jurisdiction over governmental issues, and years after this nomination, this court is going to influence a great deal what this Congress and future Congresses have done. 

Now, Mr. Chairman, you know how many of us have deep concerns about this nominee. Just yesterday they were given further 

voice in the form of the American Bar Association’s followup report, 

which was made public yesterday, which explained why six members of the ABA Committee felt compelled to downgrade their rating. 

My concerns are twofold. First, although Mr. Kavanaugh has 

held several important and influential positions in Government, 

they have been almost exclusively political. There is no doubt that, 

Mr. Kavanaugh, you are a highly successful young attorney and 

4

your academic credentials, as certainly outlined by the Chairman, 

are top notch. But your experience has been most notable, not so 

much for your blue chip credentials, but for the undeniably political 

nature of so many of your assignments. For much of your career 

your considerable talents have been enlisted in partisan and polarizing issues. In short, you have been the ‘‘go to’’ guy among young 

Republican lawyers appearing at the epicenter of so many high-profile controversial issues in your short career, and it is only natural 

that such a record would give many Senators pause, particularly 

those of us on this side of the aisle. 

From the notorious Starr report, to the Florida recount, to the 

President’s secrecy and privilege claims to post-9/11 legislative battles including the Victims Compensation Fund, to ideological judicial nomination fights, if there has been a partisan political fight 

that needed a very bright legal foot soldier in the last decade, Brett 

Kavanaugh was probably there. That kind of record is not dispositive, to be sure, but it feeds an impression of partisanship that is, 

to put it mildly, not ideal for a nominee to a critically important 

lifetime post as a neutral judge. 

Now, for those who question the good faith of these concerns, 

who suggest that some of us are reflexively or unalterably opposed 

to any Republican involved in the impeachment of President Clinton or other political causes, let me mention two names, Tom Griffith and Paul McNulty. Mr. Griffith, whom I voted to confirm to a 

seat on the very court to which Mr. Kavanaugh aspires, was Senate 

legal counsel during impeachment; and Paul McNulty, who I voted 

to confirm—many of us, I think all of us—voted to confirm to be 

the No. 2 official at the Department of Justice, was Chief Counsel 

and spokesman for the House Judiciary Committee Republicans 

during impeachment. 

Despite their blue-chip Republican credentials and participation 

in hot-button political issues, I was convinced that both of these 

men had substantial experience in professional and nonpartisan 

work, so that any concerns about inexperience, cronyism, and partisanship was, for me at least—and I think for most of us on this 

side of the aisle—laid to rest. 

So, Mr. Chairman, we are all operating in good faith here, and 

we have demonstrated ourselves to be open-minded on the President’s nominees to top judicial and executive posts. At last count, 

we have confirmed 240 of President Bush’s nominees, and Democrats have voted for the vast majority of them. 

Then there is a second and related concern. Although Mr. 

Kavanaugh is extremely well credentialed, he is younger than and 

has had less relevant experience than almost everyone who has 

joined the D.C. Circuit in modern times. We would have fewer concerns if the President had nominated a mainstream conservative 

with a record of independence from partisan politics, who has demonstrated a history of nonpartisan service with a proven record of 

commitment to the rule of law, and who we could reasonably trust 

will serve justice, not political patrons or ideology if confirmed to 

this powerful lifetime post. Both Stephen Breyer and Ruth Bader 

Ginsberg, whose biographies are often cited at these proceedings, 

had substantial nonpolitical experience before they were nominated 

to appellate courts. Mr. Kavanaugh, if confirmed, I believe would 

5

be the youngest person on the D.C. Circuit since his mentor, Ken 

Starr. And if you go through the preconfirmation accomplishments 

of the active judges who currently sit on the D.C. Circuit, Mr. 

Kavanaugh’s achievements, though impressive, are not on the 

same scale. 

Judge Sentelle, for example, had extensive practice as a prosecutor and trial lawyer, and experience as a State judge and as a 

Federal district court judge. Judge Randolph spent 22 years with 

Federal and State Attorneys General offices, including service as 

Deputy Solicitor General of the United States and a law firm partnership. Judge Rogers had 30 years of service in both Federal and 

State Governments, including a stint as the Corporation Counsel 

for the District of Columbia, and several years on D.C.’s equivalent 

of a State supreme court. 

Like Mr. Kavanaugh, many of the 9 active judges on this court 

held prestigious clerkships, including clerkships on the Supreme 

Court and involvement at the high levels of Government, that no 

doubt involved some partisan work. But they all had significant additional experience, nonpartisan experience, to help persuade this 

Committee that they merited confirmation. 

Now, of course, these concerns are echoed in a new report from 

the American Bar Association. They cannot be dismissed, as some 

of my colleagues suggest, as merely intemperate rants by Democrats on the Committee, and predictably, of course, some are already launching a campaign to denigrate the ABA, despite boasting 

of Mr. Kavanaugh’s original rating 2 years ago, and attack the 

character of one of the ABA Committee members, and I hope we 

would refrain from doing that. 

According to the ABA report released yesterday, one judge who 

saw your oral presentation in court, Mr. Kavanaugh, said, ‘‘You 

were less than adequate,’’ that you had been sanctimonious, and 

that you had demonstrated experience on the level of an associate. 

A lawyer in a different proceeding had this to say: ‘‘Mr. Kavanaugh 

did not handle the case well as an advocate and dissembled.’’ That 

is a pretty serious statement. According to the report, other lawyers—and note the plural—expressed similar concerns, repeating 

in substance that the nominee was young and inexperienced in the 

practice of law. Still others—again note the plural—characterized 

Mr. Kavanaugh as, ‘‘insulated,’’ and one in particular questioned 

Mr. Kavanaugh’s ability ‘‘to be balanced and fair should he assume 

a Federal judgeship.’’ And yet another individual said this. He said 

that Mr. Kavanaugh is ‘‘immovable and very stubborn and frustrating to deal with on some issues.’’ 

These new concerns, apparently based on some 36 additional 

interviews, were so serious that six members of the ABA Committee changed their vote. On the phone call yesterday I asked Mr. 

Tober, the head of the Committee, was it rare for people to change 

their vote? And he said no. And I said, was it usual? And he said 

no. So it happens, but it does not happen all that often. 

We have other reasons for concern. I must say that I was disturbed by some of the answers I got from you, Mr. Kavanaugh, the 

first time around. On the issue of the role of ideology and judicial 

philosophy in the picking of judges by this administration, for example, you repeatedly insisted, totally implausibly, that such conVerDate 0ct 09 2002 15:17 Jun 22, 2006 Jkt 027916 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27916.TXT SJUD4 PsN: CMORC
6

siderations played no role. That was simply not believable, and, 

frankly, put your credibility at issue. You began to clarify your 

statements in our meeting last week—and I hope we can have further dialog—but to say that an ideology had no effect, well, show 

me some nominees to high offices, high judicial offices who were 

Democrats, who were moderates, who were maybe strongly prochoice— 

Chairman SPECTER. Senator Schumer, you are past 10 minutes. 

How much longer will you be? 

Senator SCHUMER. I just have another minute and a half, Mr. 

Chairman. Thank you. 

It was not believable, that is the bottom line. And in addition, 

Senators will want to ask you, among other things, about your role 

in setting of policy relating to executive power and the separation 

of powers. You admitted to me, for example, that in your job as 

Staff Secretary, you had input on the controversial issue of Presidential signing statements. There will be questions about that. I 

expect you will also get questions about your involvement, if any, 

in this administration’s detention policies, torture policies and rendition policies. These issues, among many others, deserve further 

scrutiny, and given the scant record we have, I hope no one will 

question the good faith we have in asking them. 

So, Mr. Chairman, I would say that many of my colleagues and 

I have a sincere and good faith concern about this nominee. We feel 

that the nominee is not apolitical enough, not seasoned enough, not 

independent enough, and has not been forthcoming enough. Maybe 

this hearing will remove those concerns, but it is certainly necessary. 

Last week, Mr. Kavanaugh, I asked you to think of ways to alleviate these concerns, and I look forward to hearing your testimony. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Schumer. 

Senator SCHUMER. I just want to say Ranking Member Leahy 

could not be here at the beginning of this hearing, but will be here 

in about an hour. 

Chairman SPECTER. Thank you, Senator Schumer. 

One addendum to my comments. Mr. Kavanaugh also clerked for 

Supreme Court Justice Anthony Kennedy. 

Judge Stapleton and Judge Kozinski, it is our practice to ask our 

witnesses to be sworn at nomination proceedings, as we had a 

number of circuit judges sworn during the confirmation of Justice 

Alito. So with your consent, would you rise and take the oath? 

Do you solemnly swear that the testimony you will give before 

the Judiciary Committee will be the truth, the whole truth and 

nothing but the truth, so help you God? 

Judge Stapleton. I do. 

Judge Kozinski. I do. 

Chairman SPECTER. Let the record show both witnesses answered in the affirmative. 

Judge Stapleton, you are the first circuit judge for whom Mr. 

Kavanaugh clerked, so we will begin with you. 

7

PRESENTATION OF BRETT KAVANAUGH, NOMINEE TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY 

WALTER K. STAPLETON, JUDGE, UNITED STATES COURT OF 

APPEALS FOR THE THIRD CIRCUIT, WILMINGTON, DELAWARE 

Judge STAPLETON. Thank you. Mr. Chairman and members of 

the Committee, I appreciate the invitation to introduce Brett 

Kavanaugh. That is not because I think he needs any introduction 

to this Committee, but rather because I believe I am in a position 

to share information that is quite probative with respect to the important issue that is before you. 

I have been a Federal judge for over 35 years, the last 20 of those 

years as a member of the Court of Appeals for the Third Circuit, 

and based on that experience, I believe I understand well what it 

takes to be able to serve well as a United States Circuit Judge. 

I have known Mr. Kavanaugh well for over 15 years. I first met 

him in March 1989 when I interviewed him for a clerkship. He had 

one of the most impressive resumes I have ever seen, and believe 

me, I have seen a lot of resumes. Among other things, as you 

noted, Mr. Chairman, he was editor of the Yale Law Journal, and 

at the point in time I met him, he had received an honors grade 

in every course he had taken at Yale Law School save one. Best 

of all, the professors who knew him well, assured me that—and I 

quote—‘‘His work is uniformly of very high quality, thoughtful, 

independent-minded, yet very balanced, and always clearly written.’’ 

I have recently resurrected the notes I made after our lengthy 

personal interview, and they say, ‘‘extremely talented, mature, confident yet modest, good sense of humor.’’ Now, in other words, a 

judge’s dream of a law clerk, and I didn’t have to ponder the decision about hiring him for very long. And he certainly did not disappoint, and I will always treasure the time that we shared. 

We worked very hard and we were asked to resolve many intractable controversies. Facing challenges like that together promotes 

a bonding process in which the participants get to know each other 

awfully well, and we talked at length, not only about the law, and 

about the challenges we faced, but about his hopes and aspirations 

for the future. 

Toward the end of the clerkship I urged him to consider the judiciary as a career if he should ever have that opportunity, and I did 

that because I believed he had the makings of my kind of judge. 

There was no trace of arrogance and no agenda. He applied his 

legal acuity and common sense judgment with equal diligence to 

every case, large or small, undertaking his evaluation of each without predilection. His ultimate recommendations were based on 

careful case-by-case analyses of the facts of each case, and objective 

application of the relevant precedents. It was clear to me that he 

understood the crucial role of precedent in a society that’s committed to the rule of law. 

Brett thanked me for my advice, but in characteristically modest 

fashion, said he doubted that he would get the opportunity to so 

serve. 

Now, Mr. Kavanaugh, of course, has had a variety of opportunities since that time, as I knew he would. Anyone with his talents 

8

would have many opportunities. As a result, in addition to his impressive legal skills, I believe Mr. Kavanaugh has the sophistication, the insight and maturity that comes from having served in a 

variety of professional positions, noteworthy not only because of 

their variety but also because of the awesome responsibilities that 

each carried. 

While I believe all of his professional experience would serve him 

well as a judge, a substantial portion of that experience renders 

Mr. Kavanaugh, I believe, exceptionally well qualified in terms of 

experience. I refer, of course, to the fact that in addition to his exposure to private practice and his service to the President, Mr. 

Kavanaugh has had substantial litigation experience on both sides 

of the bench. As you’re aware, and as the Chairman has mentioned, he’s worked with a one-and-one relationship not only with 

the two Court of Appeals Judges that are here this afternoon, but 

also with a Justice of the United States of the Supreme Court and 

a Solicitor General of the United States. As you are also aware, Mr. 

Kavanaugh’s litigation experience has included appearance before 

all levels of our Federal courts. 

Now, I have stayed in touch with Mr. Kavanaugh, and have followed his career with interest since he left my chambers. I have 

heard nothing from, and I’ve heard nothing about Mr. Kavanaugh 

in the intervening years that has caused me to question in any way 

my original judgment about the kind of judge he would be if he 

could have that opportunity. His responsibilities, it’s true, from 

time to time, have called upon him to make—to take positions on 

issues which reasonable minds could differ about. That’s part of 

being a lawyer. But I believe he has consistently served his client 

well, and in a thoroughly professional manner. 

In sum, members of the Committee, I believe Mr. Kavanaugh’s 

intelligence, his common sense judgment, his temperament, and his 

dedication to the rule of law, make him a superb candidate for the 

position of United States Circuit Judge, and I can commend him 

to you without reservation. 

Thank you for this opportunity to address the Committee. 

Chairman SPECTER. Thank you very much, Judge Stapleton. 

Judge Kozinski. 

PRESENTATION OF BRETT KAVANAUGH, NOMINEE TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY 

ALEX KOZINSKI, JUDGE, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, PASADENA, CALIFORNIA 

Judge KOZINSKI. Good afternoon, Mr. Chairman, members of the 

Committee. It’s a great pleasure and honor for me to be back. 

Thank you for inviting me to introduce my good friend, my former 

law clerk, Brett Kavanaugh. 

I probably do not need to take my full 5 minutes, because I can 

just say ‘‘me too’’ to everything that Judge Stapleton said, but let 

me just take a few minutes, a couple minutes, if I can, to give my 

own personal view. 

I’m glad, Mr. Chairman, that you mentioned that Brett 

Kavanaugh went to Yale and you and he had that in common. We 

have that in common too. He went to Yale and I have a son named 

Yale. 

9

[Laughter.] 

Judge KOZINSKI. I tried to get in, but I wasn’t as fortunate. I got 

rejected. 

But I have had a number of clerks from Yale and Harvard and 

many other fine law schools, and among them, Brett Kavanaugh 

was one of the finest. I met him about the same time that Judge 

Stapleton met him, in March ‘89. We both interviewed him for a 

job for clerkship right out of law school, but Judge Stapleton was 

just faster making an offer. So I had to pick him up the following 

year, because he accepted a clerkship with Judge Stapleton first. 

I must tell you that in the time that I had Brett clerk for me, 

I found him to be a positive delight to have in the office. He’s really 

bright and he’s really accomplished and he’s really an excellent 

lawyer. But most, virtually all, folks who qualify for a clerkship 

with a circuit judge these days have those qualities. 

But 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 a case from just one perspective. Like a 

good lawyer, like—Mr. Chairman, you were a prosecutor, you know 

this very well—you have to look at a case from different perspectives, not just one, and not early in the case take one perspective 

and then stick with it. Brett was very good in changing perspectives. 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 serve the people of the United States 

in achieving the correct result at the court. And he always did it 

with a sense of humor and a sense of sort of gentle self-deprecation. He was always—my staff, my secretaries, his co-clerks all enjoyed having him and all enjoyed particularly the fact that he was 

not in any way pompous or in any way stuck on himself, but was 

always ready to help others or was ready to be friendly with others. 

And I think that’s a very important quality in a judge. This may 

seem trivial and maybe seem like I’m mentioning things here that 

ought not to be mentioned in a committee, but part of what makes 

the job of judging different from other jobs is that it is not a mechanical process. It is ultimately a human process. You have to understand something about how people think, something about how 

people live, something about how people feel. And what I think 

Brett Kavanaugh brings to the table, what he brought to the table 

when he was my law clerk, is a sense of humanity and a sense of 

understanding. 

I will not speak to the question of confirmation or nonconfirmation. This obviously is something that is up to the committee. I can 

only say that I give Brett Kavanaugh my highest recommendation. 

I gave him my high recommendation when he applied to Justice 

Kennedy, my own mentor, and I continue to give him the highest 

recommendations. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Judge Kozinski. 

I have just one question for each of you. Judge Kozinski, how old 

were you when you were appointed to the Ninth Circuit? 

Judge KOZINSKI. I was 35 years old, Mr. Chairman. 

10

Chairman SPECTER. Judge Stapleton, how old were you when you 

were appointed to the Federal bench, first to the district court? 

Judge STAPLETON. Thirty-five years old. 

Chairman SPECTER. And may the record show that Justice Kennedy was appointed to the Ninth Circuit when he was 38 years old. 

Anybody have any questions for the judges? Senator Schumer? 

Senator SCHUMER. Just one question for both. Since Mr. 

Kavanaugh clerked for each of you right after, a year after law 

school, have either of you had occasion to have him appear before 

you in your court as a lawyer. 

Judge STAPLETON. I have not. 

Judge KOZINSKI. Nor have I. 

Chairman SPECTER. Thank you very much, Judge Stapleton. 

Thank you very much, Judge Kozinski. Appreciate your being here. 

Judge KOZINSKI. My pleasure. 

Judge STAPLETON. Thank you. 

Chairman SPECTER. Mr. Kavanaugh, would you step forward for 

the oath? 

If you would raise your right hand. Do you swear that the testimony you will give before the Judiciary Committee will be the 

truth, the whole truth, and nothing but the truth, so help you God? 

Mr. KAVANAUGH. I do. 

Chairman SPECTER. Before beginning your testimony, Mr. 

Kavanaugh, I note an infant in the audience and what appears to 

be a mother, and both appear to be wife and child, and perhaps 

other family. Would you introduce them, please? 

STATEMENT OF BRETT KAVANAUGH, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Mr. KAVANAUGH. Yes. 

Thank you very much, Mr. Chairman, for the opportunity to appear here before the Committee. I’m grateful to the President for 

nominating me to this important— 

Chairman SPECTER. Mr. Kavanaugh, there is a question pending, 

and the question was would you introduce your family. 

Mr. KAVANAUGH. Yes. 

[Laughter.] 

Mr. KAVANAUGH. And I thank my family for being here. Since I 

last appeared before the Committee, there have been two major 

changes in my record, and they’re both sitting behind me. My wife, 

Ashley Estes Kavanaugh, and my 8-month-old daughter, Margaret 

Murphy Kavanaugh. She’s watched a little C–SPAN in her day. 

This is her first live Senate hearing, however. I’m not sure—as 

you’ve probably already noticed, Mr. Chairman, I’m not sure she’s 

going to make it very long, but she wanted to be here for the start. 

My uncle, Mark Murphy, is here. And my brother-in-law, J.D. 

Estes, is here. My mom and dad are here, Martha and Ed 

Kavanaugh. They are, and have been, an inspiration to me. They’ve 

been married for 43 years, and I am their only child. I’m just very 

proud that they’re behind me today. 

My mom in particular, in terms of career path, has had a profound influence on my career choices. Throughout her life she’s 

been dedicated to public service. When she was in her 20’s, she 

taught public high school in the District of Columbia, at McKinley 

11

and H.D. Woodson high schools. She then decided to go back to law 

school in the 1970’s and became a State prosecutor out in Rockville, 

Maryland. She was later appointed to the State trial bench by Governor Schaefer and then by Governor Glendening, in Maryland. 

She’s instilled in me a commitment to public service and a respect 

for the rule of law that I’ve tried to follow throughout my career. 

Mr. Chairman, I’m a product of my parents; I’m also a product 

of my experiences, and I’d like to take a few minutes to share a 

few of those experiences and how I think they might shape how I 

would come to the bench as a judge. 

I attended Yale Law School in the late 1980’s. It was a challenging yet collegial environment. It was a place that instilled a desire to make a difference. It was a place that encouraged public 

service. And while I was at Yale Law School I decided, as you 

know, to seek a judicial clerkship after my time there. 

I clerked for Judge Walter Stapleton on the Third Circuit. Judge 

Stapleton is a gentleman and a scholar. He’s an experienced judge, 

and he’s a great friend. If I am confirmed to be a judge, I will do 

everything in my power to bring to the bench the decency and the 

good judgment and the collegial manner of Walter Stapleton. And 

I thank him for being here today. 

After I clerked for Judge Stapleton, I clerked for Judge Alex 

Kozinski on the Ninth Circuit. Judge Kozinski, as many of you 

know, has a passion for the law. When we started as law clerks, 

he told us we work for the people and we should consider ourselves 

on the job 24 hours a day, 7 days a week, 365 days a year. And 

I can say from personal experience that Judge Kozinski lived up to 

that promise. We worked very hard, he was very thorough. I thank 

him for all he’s done for me in my career and for coming here today 

from California. If I am confirmed to be a judge, I would seek to 

bring to the bench the thoroughness and the thoughtfulness and 

the dedication to the rule of law that Judge Kozinski has demonstrated on the bench for more than 2 decades. 

After I finished those two clerkships, I worked in the Solicitor 

General’s Office at the Department of Justice. I experienced the 

ethic of that office, that the United States wins its point when justice is done. In that office I had the opportunity for the first time 

to argue a case in court before the Fifth Circuit Court of Appeals. 

I was able to stand up for the first time and say Brett Kavanaugh 

for the United States, a moment that was very proud for me and 

remains so. 

In the October 1993 term of the Supreme Court, I clerked for 

Justice Anthony Kennedy. Justice Kennedy is a student of history, 

he’s a student of the Supreme Court. He talks often about the compact between generations that the Constitution represents. And he 

conveyed to his clerks, and certainly conveyed to me—to use one 

of his favorite phrases—the essential neutrality of the law. I’m forever grateful to Justice Kennedy for the opportunity to clerk for 

him. 

After I finished that clerkship, I worked for Judge Starr in the 

Independent Counsel’s Office. It was a difficult, it was a tough job, 

it was an often thankless job. In that capacity, I had the opportunity to argue cases before the Supreme Court of the United 

States and the D.C. Circuit Court of Appeals. I learned some lesVerDate 0ct 09 2002 15:17 Jun 22, 2006 Jkt 027916 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27916.TXT SJUD4 PsN: CMORC
12

sons in that office. I had some thoughts about how it all operated 

and, as the Chairman has noted, I tried to make a contribution, the 

improvement of the public legal system, by writing an article in the 

Georgetown Law Journal that identified better ways, in my judgment, to conduct investigations of high-level executive branch officials. 

I then went to Kirkland & Ellis, where I became a partner, represented institutional clients of the firm, and also did pro bono 

work for several years. 

In 2001, I joined the White House Counsel’s Office under Judge 

Al Gonzales. In that office I did some of the standard work of the 

office—ethics issues, separation of powers issues. I also worked 

with many members of the staff of this Committee and other Members of Congress on civil justice issues, such as class action reform, 

medical liability reform, and the very important terrorism insurance legislation in 2002. 

I also worked on judges, on the nomination of judges, and I had 

the opportunity to help recommend judges to the President of the 

United States for him to nominate to the Federal courts. In that 

capacity, on the district court level I worked closely with many 

members of the Senate and their staffs in the States that I was assigned, including some members of this Committee. 

In July of 2003, I became staff secretary to President Bush. This 

is what I call an honest broker for the President, someone who 

tries to ensure that the range of policy views on various subjects 

in the administration are presented to the President in a fair and 

even-handed way. 

I’ve worked closely with the President and with the senior staff 

at the White House and other members of the administration for 

nearly 3 years. I think I’ve earned the trust of the President, I’ve 

earned the trust of the senior staff, that I’m fair and even-handed. 

This kind of high-level experience in the executive branch has been 

common for past judicial nominees, especially on the D.C. Circuit, 

which handles so many important and complicated administrative 

and constitutional issues. 

Mr. Chairman, I have dedicated my career to public service. I revere the rule of law. I know first-hand the central role of the courts 

in protecting the rights and liberties of the people. And I pledge to 

each member of this Committee, and I pledge to each member of 

the Senate, that, if confirmed, I will interpret the law as written 

and not impose personal policy preferences; that I will exercise judicial power prudently and with restraint; that I will follow precedent in all cases fully and fairly; and above all, that I will at all 

times maintain the absolute independence of the judiciary, which 

in my judgment is the crown jewel of our constitutional democracy. 

Mr. Chairman, I will be happy to answer any questions. Thank 

you. 

[The biographical information can be found in Senate Hearing 

No. 108–878, Serial No. 108–69, hearing date: April 14, 2004.] 

[The updated biographical information of Mr. Kavanaugh follows:]

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Chairman SPECTER. Thank you very much, Mr. Kavanaugh. 

We now turn to 5-minute rounds for each Senator. 

Mr. Kavanaugh, I begin with the question as to what assurances 

can you give this Committee and the Senate and the American people about your independence from the President and the White 

House. I look at a long list of nominees who have voted against 

their Presidential nominator on many, many celebrated matters. 

Just a few: Justice Douglas dissented on the Korematsu case, the 

Japanese internment case, against President Roosevelt’s policy. Famous decision by Justice Tom Clark turning against Truman on 

the Steel Seizure case not long after he was nominated. Justice 

Kennedy, Justice O’Connor disagreeing on a woman’s right to 

choose from President Reagan. Justice Souter disagreeing with 

President Bush the elder. Famous disagreements that President 

Eisenhower expressed about Chief Justice Warren. Perhaps the 

most famous case, Salmon Chase had advocated policies as the Secretary of the Treasury, and then, after being appointed to the Supreme Court, declared unconstitutional the monetary policy he had 

implemented as President Lincoln’s treasurer. 

What positive assurances can you give of your independence? 

Mr. KAVANAUGH. Mr. Chairman, if confirmed to be a D.C. Circuit 

judge, I will call them as I see them, regardless of who the litigants 

may be. I know that independence of the judiciary, as I said in my 

opening, is a key part of our constitutional system. I would not 

hesitate in any case to rule the way I saw the case, regardless of 

who the parties were, regardless of whether the President was involved. 

Chairman SPECTER. Would you consider yourself independent in 

the tradition of the judges, justices whom I’ve just named? 

Mr. KAVANAUGH. Absolutely, Mr. Chairman. I know that there’s 

a long history in our constitutional system of judges being drawn 

from the executive branch, and I would— 

Chairman SPECTER. Mr. Kavanaugh, let me interrupt you. 

There’s a great deal to cover and I only have 5 minutes. 

Did you have anything to do with the issues of interrogation of 

prisoners relating to the allegations of torture in the so-called 

Bybee memorandum? 

Mr. KAVANAUGH. No, Mr. Chairman. 

Chairman SPECTER. Did you have anything to do with the questions of rendition? 

Mr. KAVANAUGH. No, Mr. Chairman. 

Chairman SPECTER. Did you have anything to do with the questions relating to detention of inmates at Guantanamo? 

Mr. KAVANAUGH. No, Mr. Chairman. 

Chairman SPECTER. Did you have anything to do with Mr. 

Abramoff and the many visits which he apparently made to the 

White House? 

Mr. KAVANAUGH. No, Mr. Chairman. 

Chairman SPECTER. Do you have anything to do with the President’s policy on so-called signing statements? 

Mr. KAVANAUGH. Mr. Chairman, signing statements come 

through the Staff Secretary’s Office, and I help ensure that relevant members of the administration have provided input on the 

signing statements. In the first instance they’re drafted in the JusVerDate 0ct 09 2002 15:17 Jun 22, 2006 Jkt 027916 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27916.TXT SJUD4 PsN: CMORC
21

tice Department, but I do help clear those before the President sees 

them. 

Chairman SPECTER. That poses a very difficult and contentious 

issue which this Committee is going to have hearings on. And I can 

understand that in your role as coordinator you would have the responsibility for coalescing materials. Did you take any position as 

to the constitutional authority for the President to limit the substance of legislation by expressing limitations in the signing statements? 

Mr. KAVANAUGH. Mr. Chairman, it is common for signing statements, this President and previous Presidents, to identify potential 

constitutional issues like Appointments Clause issues, Presentment 

Clause issues, or issues relating to INS v. Chaddha, for example, 

the line item veto case. On those matters, I make sure that they 

have been properly staffed to other members of the White House 

staff. They come up in the first instance from the Justice Department and the Office of Management and Budget. 

Chairman SPECTER. Were you called upon to give the President 

any advice as to the constitutional implications of the signing statements? 

Mr. KAVANAUGH. Well, Mr. Chairman, I think, without discussing internal matters, I think it’s common to explain the general 

parameters of signing statements, for example, that there’s been a 

history of them, and identifying potential constitutional issues in 

legislation, particularly Appointments Clause, Presentment Clause, 

and the other issues identified. 

Chairman SPECTER. Mr. Kavanaugh, you wrote an article on peremptory challenges, where there had been a practice among prosecutors to issue what are called peremptory challenges—which, for 

those who do not know, means that a prospective juror can be disqualified without stating any reason, where blacks were eliminated. My time is up and I will quit, but you can answer. 

Mr. KAVANAUGH. Mr. Chairman, I think one of the great Supreme Court decisions ever decided was Batson v. Kentucky. It 

overruled Swain v. Alabama, and held that a prosecutor’s use of 

race in striking potential jurors from the jury box was unconstitutional under the Equal Protection Clause of the 14th Amendment. 

One of the concerns I had—that was decided in 1986; I was in 

law school from 1987 to 1990—one of the concerns I had was what 

procedures will be used to help guarantee that right to be free of 

racial discrimination in the jury selection procedure. And I wrote 

a note that advocated certain procedures that help ferret out potential racial bias in the jury selection process. 

Chairman SPECTER. Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Just when Senator Specter went over all of the issues, he mentioned torture in connection with the Bybee memo. Were you involved in any way in the Counsel’s Office in opining about the 

proper use of torture? 

Mr. KAVANAUGH. No, Senator. The first time I learned of that 

memo, I believe, was— 

Senator SCHUMER. I did not ask about the memo. I asked just in 

general. 

Mr. KAVANAUGH. No, Senator. 

22

Senator SCHUMER. Thank you. OK, I would like to ask you a few 

questions that you did not answer. These were submitted in writing or orally at the last hearing. I will tell you all of them. 

First, Senator Leahy asked you whether Karl Rove was involved 

in the judicial selection process at any point while you were there. 

I asked you how you would have voted on the impeachment of 

President Clinton. Senator Kennedy asked you whether you agreed 

with Judge Pryor, who called Roe v. Wade an abomination. And 

Senator Durbin asked you if you consider yourself in the mold of 

Scalia and Thomas, which is the mold that the President has said 

he is going to choose judges in. 

First, Rove. Was Karl Rove involved in any of the selection of 

judges while you were there? 

Mr. KAVANAUGH. Mr. Chairman, I think that is a question that 

the Counsel to the President should answer in the first instance. 

I don’t think as a judicial nominee here I should talk about who 

was involved. The Counsel to the President chairs the judicial selection committee, and if there is a question about who is involved 

in recommending judges— 

Senator SCHUMER. What we are trying to determine, in the previous time you were here, you said that no ideology was involved 

in the selection of judges. I do not see why you cannot answer that 

question. What is improper about answering that question? 

Mr. KAVANAUGH. Senator, I will check whether I can answer that 

question. And if I can, I will provide the answer. 

Senator SCHUMER. What would come to mind which would prevent you from answering that question? 

Mr. KAVANAUGH. Senator, I just want to be careful that I check 

with the Counsel on something like that and be sure that there is 

not an issue before I disclose something in the context— 

Mr. KAVANAUGH. Is there any privilege that would prevent you 

that you can see, that would come to mind right now? 

Mr. KAVANAUGH. I can check with the Counsel on that, Senator. 

Senator SCHUMER. Do you have knowledge of the answer? 

Mr. KAVANAUGH. Well, I was involved in the judicial selection 

process. 

Senator SCHUMER. So you would know yes or no, you just choose 

not to answer? 

Mr. KAVANAUGH. And I would be happy to provide the answer. 

I just want to check first. 

Senator SCHUMER. OK. 

Next, how would you have voted—I know you were involved in 

the impeachment of President Clinton—how would you have voted 

if you were a Senator? 

Mr. KAVANAUGH. Senator, I don’t think it’s appropriate for the office that submitted the report to comment on whether the House 

made the proper decision to impeach or whether the Senate made 

the proper decision not to— 

Senator SCHUMER. When lawyers argue cases, all the time they 

say they are disappointed in the verdict, they are happy with the 

verdict. That is not a violation of anything, as far as I know, except 

your desire not to answer the question. 

Mr. KAVANAUGH. I guess this gets to an ethic I’ve learned about 

prosecutors offices when I worked in the Solicitor General’s Office, 

23

that it’s not appropriate to comment on a jury verdict. And I don’t 

think it’s appropriate in this instance for me, as a member of the 

Independent Counsel’s Office, to comment on whether the House 

decision was correct or whether the Senate decision was correct. 

Senator SCHUMER. In an op-ed in the Washington Post in 1999, 

you wrote a defense of Ken Starr, where you said ‘‘Starr uncovered 

a massive effort by the President to lie under oath and obstruct 

justice.’’ You also wrote that, ‘‘The word that ordinarily describes 

such behavior is not ‘trapped’ but ‘guilty.’’’ You were pretty clear 

to state your views in 1999, but you do not want to state them 

now? 

Mr. KAVANAUGH. I think that was based on Judge Wright’s finding of contempt, and there was also a censure resolution introduced 

in the Senate that used some more language. So I think the language there, it was a joint op-ed. 

Chairman SPECTER. But you just said you did not think it was 

appropriate to answer. And you felt it very appropriate, in a similar role, to answer, to make some very strong statements then. 

Mr. KAVANAUGH. I think this goes to a key point, Senator, which 

is impeachment and then conviction take into account more than 

just the facts. As you know from participating on the House side 

at the time and the Senators know from participating on the Senate side, there were— 

Senator SCHUMER. I participated in votes. 

Chairman SPECTER. Now, let him finish his answer, please. 

Senator SCHUMER [continuing]. On both sides. 

Mr. KAVANAUGH. On both sides, that’s right, Senator. And I 

think, as many of the Senators and House members discussed at 

the time, it wasn’t just a simple question of whether there was a 

violation of law committed, but there were broader considerations 

for the country. And that’s where it really gets, really gets, I think, 

improper for someone in the Independent Counsel’s Office to say 

whether they think the President should have been impeached. 

Senator SCHUMER. I fail to see the distinction. Let me ask you 

to answer, since my time is ending here, the two other questions. 

Do you consider Roe v. Wade to be an abomination? And do you 

consider yourself to be a judicial nominee, like the President said 

he was going to nominate people, in the mold of Scalia and Thomas? 

Mr. KAVANAUGH. Senator, on the question of Roe v. Wade, if confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully 

and fully. That would be binding precedent of the Court. It’s been 

decided by the Supreme Court— 

Senator SCHUMER. I asked you your own opinion. 

Mr. KAVANAUGH. And I’m saying if I were confirmed to the D.C. 

Circuit, Senator, I would follow it. It’s been reaffirmed many times, 

including in Planned Parenthood v. Casey. 

Senator SCHUMER. I understand. But what is your opinion? 

You’re not on the bench yet. You’ve talked about these issues in the 

past to other people, I’m sure. 

Mr. KAVANAUGH. The Supreme Court has held repeatedly, Senator, and I don’t think it would be appropriate for me to give a personal view of that case. 

24

Senator SCHUMER. OK, you are not going to answer the question. 

How about being in the mold of Scalia and Thomas? 

Mr. KAVANAUGH. I don’t want to talk about current members of 

the Court, but I do think I can describe some of the justices or 

judges in the past that I think I would try, that have been role 

models to me, including Justice White, Justice Jackson, and for a 

couple of reasons. They were people who took an active part in our 

Government system, which is some— 

Senator SCHUMER. I understand. Just explain to me why it is appropriate for the President to say that he will appoint nominees in 

a particular mold, but you cannot answer whether you would be 

part of that. 

Mr. KAVANAUGH. As a potential inferior court judge, Senator, on 

the D.C. Circuit if confirmed, I just don’t want to talk about currently sitting members of the Supreme Court. I’m happy to talk 

about Justice Jackson and Justice White, if you’d like. 

Senator SCHUMER. OK. I wish I could say it, but I do not think 

you have clarified any of these answers that we asked you the first 

time. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Senator Hatch. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. 

Welcome again to the Committee. You are one of the few who 

have had this great experience of being brought back here twice. 

Let me just take a— 

Mr. Chairman, I would like to take most of my time to make just 

a few comments rather than to ask questions at this time. 

I think that during his first hearing 2 years ago in 2004 and his 

written submissions afterwards, Mr. Kavanaugh more than adequately answered all the questions that had been posed to him. 

The Committee already has a 159-page hearing record before it on 

this nominee. And I am confident in Mr. Kavanaugh’s abilities and 

capacities in both the understanding and knowledge of the law. I 

suspect that he will continue to show his intellect, sound judgment, 

and judicial temperament. 

I have no doubt that Mr. Kavanaugh fully appreciates the proper 

role and limitations placed on Federal appellate judges in our constitutional system. And while I am not pleased with all the circumstances that have resulted in holding this unusual if not unprecedented second hearing, I take solace in the fact that Chief 

Justice Roberts, whom many in the public and a super-majority of 

Senators found to be an extremely capable individual after his confirmation hearings last September, was also subject to two confirmation hearings before he was able to sit on the D.C. Circuit. I 

hope that Brett Kavanaugh’s confirmation will not be delayed as 

long as now-Chief Justice Roberts’s was. He was delayed for 11 

solid years, between the time that the first President Bush nominated him and the time that the second President Bush, our current President, renominated him. 

Now, while today’s hearing will and should concentrate and focus 

on qualifications of Brett Kavanaugh to serve on the D.C. Circuit 

25

Court of Appeals, when you see nominees with the backgrounds of 

John Roberts and Brett Kavanaugh having been held up for so 

many years for so little reason, sometimes you have to ask yourself 

if there may be motivations at play that have nothing at all to do 

with the nominee’s actual fitness to sit on the bench. To date it has 

been almost 3 years since Mr. Kavanaugh was first nominated. I 

think it is time to vote on his nomination, and frankly it is past 

time for the Senate to vote on Mr. Kavanaugh’s nomination. 

So at this point, I would like to welcome you, Mr. Kavanaugh, 

your wife and baby and of course your family. Since the last time 

before this Committee, you have become a husband and father, and 

I join in welcoming Mrs. Kavanaugh here and your 8-month-old 

daughter Margaret to the Committee. 

I also want to acknowledge the presence of Mr. Kavanaugh’s parents. I have known them for a long time. Ed Kavanaugh for many 

years, he headed up the major trade association, the Cosmetic, 

Toiletries, and Fragrance Association, and he is deservedly admired by many in this town. And his mother served with distinction as a State court judge in Maryland for many, many years. 

Sometimes in these confirmation hearings, in the rush to get to 

more controversial matters, there is a tendency to skip over too 

quickly on the qualities and attributes that led the President to 

nominate the individual—and in this case, Mr. Kavanaugh—in the 

first place. And I think Senator Specter has already given us an 

overview of the nominee’s impressive educational and employment 

background. We have also heard the testimony of two excellent 

Federal court judges for whom he clerked, both of whom I know—

Judge Kozinski of the Ninth Circuit and of course Judge Stapleton 

of the Third Circuit Court of Appeals. I think we should weigh 

their words very carefully. These are people of impeccable reputations and ability on the bench. 

Not only did you distinguish yourself as a clerk on two appellate 

courts, but you also served as a clerk on the Supreme Court. You 

had an academic career that was pretty impressive as well, at Yale. 

You’ve had a series of impressive and highly responsible jobs in 

both the executive branch and in the private sector. And you’re a 

talented appellate advocate as well before the Supreme Court. 

Now, let me just say—my time is running out, but in addition 

to your three judicial clerkships, as you have mentioned, you 

worked in the Solicitor General’s Office, in the Department of Justice, with Ken Starr, and of course with the Office of Special Counsel. And of course nobody should judge you as an attorney for having worked in something that was as unpleasant as that. Attorneys 

work on unpleasant matters in many ways, and you would be a 

pretty doggone poor attorney if you were not willing to work with 

distinction and with fairness when called upon to do so. And I 

think knowing you and knowing what happened in the Clinton 

matter, you served with distinction and fairness. 

My time is about up so I just—I will make some more comments 

if we have another round, but I just want to congratulate you for 

standing in there and being willing to serve on the circuit court of 

appeals. I know you could make a fortune on the outside, but you 

have made public service your life and I do not see how we can find 

a better person to serve and give public service than you. So I just 

26

want to personally express my fondness for you, my high admiration for you, and the fact that you will have my support in every 

step of this process. 

Chairman SPECTER. Thank you, Senator Hatch. 

Under the early bird rule, on the side for the Democrats are Senator Feinstein, Senator Durbin, Senator Kennedy, Senator Feingold, and on the Republican side are Senator Coburn, Senator 

Graham, Senator Sessions, and Senator Kyl. So under the early 

bird rule we now turn to Senator Durbin. 

Senator DURBIN. Thank you, Mr. Chairman. 

Mr. Kavanaugh, thank you for returning. In 2003, Jay Bybee was 

confirmed to a seat on the Ninth Circuit. A year and a half later, 

we learned he had authored the infamous torture memo when he 

headed the Justice Department’s Office of Legal Counsel. In the 

memo he claimed the President has the right to ignore the law that 

makes torture a crime and narrowly defined torture as abuse that 

causes pain equivalent to organ failure or death. 

The torture memo was requested by, addressed to the then-White 

House Counsel, Alberto Gonzales. So clearly the White House 

Counsel’s Office knew that Mr. Bybee had authored the torture 

memo at the time of his nomination. Did you know that Mr. Bybee 

authored the torture memo or similar memos at the time of his 

nomination? 

Mr. KAVANAUGH. No, Senator, I think you’re referring to the August 1, 2002, memo. I was not aware of that memo until there was 

public disclosure of it in the news media, I think in the summer 

of 2004. 

Senator DURBIN. The administration has now repudiated the 

memo. In retrospect, should the fact that Mr. Bybee authored the 

torture memo have disqualified him from consideration as a nominee? 

Mr. KAVANAUGH. Senator, I don’t think, sitting here as a prospective judge, as a nominee to a court of appeals, I should talk about 

another sitting judge and whether that person should or should not 

have been nominated. I just don’t think that’s a proper role for me. 

Senator DURBIN. But you see that is what we are struggling with 

here. We do not have a number of cases that you have argued before a court, because you haven’t. We do not have trials that you 

have taken to a jury verdict, because there are none. We have to 

rely on what you have done with your life and where you have 

been to try to determine what your values are. Senator Schumer 

asked you a series of questions related to the work of your life, 

which you did not feel were appropriate to answer. And now I am 

trying to plumb that same type of well to find out what you really 

believe and who you are. And every time we get close, you say 

sorry, I can’t answer. That is a problem for a person seeking a seat 

on the second-highest court in the land. I do not know where to go 

in questioning you. You do not want to talk about what you have 

done that might have any political implication. And frankly, when 

it comes to legal work, there is not much to turn to. Do you see 

the problem we are facing? 

Mr. KAVANAUGH. Senator, on that memo, I can say that the administration has repealed that memo. I agree with that decision. 

I do not believe the analysis in that memo was correct. I think that 

27

memo did not serve the presidency or this President well. And I am 

willing to talk about the memo itself. 

Senator DURBIN. Well, let me ask you. You were in charge of judicial nominations, or at least involved in judicial nominations with 

the White House. And that is why we are going into this. Let’s go 

to another nominee and see if you might respond to this. 

In September 2003, the President nominated William Haynes to 

be a judge on the Fourth Circuit. As General Counsel to the Department of Defense, Mr. Haynes had been the architect of the administration’s discredited detention and interrogation policies. For 

example, Mr. Haynes recommended that Secretary Rumsfeld approve the use of abusive interrogation techniques, like threatening 

detainees with dogs, forced nudity, and for forcing detainees into 

painful stress positions. During the 108th Congress, Mr. Haynes’s 

nomination stalled after his involvement in this scandal came to 

light. Just this February, the President decided to renominate him. 

What was your role in the original Haynes nomination and decision to renominate him? And at the time of the nomination, what 

did you know about Mr. Haynes’s role in crafting the administration’s detention and interrogation policies? 

Mr. KAVANAUGH. Senator, I did not—I was not involved and am 

not involved in the questions about the rules governing detention 

of combatants or—and so I do not have the involvement with that. 

And with respect to Mr. Haynes’s nomination, I’ve—I know Jim 

Haynes, but it was not one of the nominations that I handled. I 

handled a number of nominations in the Counsel’s Office. That was 

not one of the ones that I handled. 

Senator DURBIN. So let me try this approach and see if we can 

learn a little more. Manny Miranda was an employee of the Senate 

Judiciary Committee on the Republican staff and then on the Senate Majority Leader’s staff. He hacked into the computers of the 

members and staff of this Committee, stealing thousands of documents and memoranda which were then shared with others. Did 

you know Manny Miranda, or do you know him today? 

Mr. KAVANAUGH. I knew Manny Miranda because he was a member of Senator Hatch’s staff and then Senator Frist’s staff working 

on judicial nominations. 

Senator DURBIN. Did you ever work with him in terms of judicial 

nominations? 

Mr. KAVANAUGH. He was part of a group of Senate staffers that 

did work on judicial nominations with people at the Department of 

Justice and the White House Counsel’s Office. We talked about this 

last time. I did not know about any memos from the Democratic 

side. I did not suspect that. Had I known or suspected that, I would 

have immediately told Judge Gonzales, who I’m sure would have 

immediately talked to Chairman Hatch about it. Did not know 

about it, did not suspect it. He was part, however, of the staff, of 

course, that worked on judicial nominations, including with—on 

both sides. 

Senator DURBIN. My time is up. But I think one of the problems 

you had with the American Bar Association when they downgraded 

your rating was they thought you were dismissive of this, that you 

did not take this as a serious problem, that a Republican staffer 

had broken into the computers of Democratic Senators and their 

28

staff, were stealing documents and sharing them with those who 

were plotting the strategy for the White House. Would you like to 

respond as to whether or not you think this was a serious matter, 

perhaps criminal? 

Mr. KAVANAUGH. Senator, I don’t know what the American Bar 

Association said about that, but I know what I told them and what 

I’ve told the Committee. Had I known or suspected anything like 

that, I would have immediately told Judge Gonzales, who I’m sure 

would have immediately called Chairman Hatch. I know the matter has been under investigation in the Senate. I know the matter 

has been under investigation by a special prosecutor. That is a serious matter. And that is what I said to the American Bar Association and that’s what I’m saying to this Committee. 

So that’s my view on the matter. 

Senator DURBIN. Thank you. 

Chairman SPECTER. Thank you very much, Senator Durbin. 

Senator Coburn. 

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator COBURN. Thank you, Mr. Chairman. 

I just want to put a few points into the record. Of the 12 members of the D.C. Circuit and the two seniors, none have as broad 

experience in terms of measurement points as our nominee here 

today. Only five have clerked on the Federal appeals court out of 

the 14; only four have clerked on the Supreme Court; only six have 

argued before the court of appeals; only five have argued before the 

Supreme Court; only seven have had editorial positions on law review; only four have had previous judicial experience. Of everybody 

that is on there now, only four have had previous judicial experience and only four had any legislative branch experience. 

Again, I want to address the issues out in the open. I think what 

is happening here today I am somewhat embarrassed about. We 

have somebody who is obviously qualified. The ABA says he is 

qualified. He is not downgraded, he is recognized as qualified. He 

is extremely well qualified and well qualified. This time he is well 

qualified, with a minority extremely well qualified—or qualified 

and well qualified. 

But what it requires is ‘‘qualified.’’ And if you look at the ABA’s 

position of what ‘‘qualified’’ is—and let me read it for you, should 

we have any questions regarding that—let me find it. It means 

that the nominee meets the committee’s very—this is ‘‘qualified.’’—

means that the nominee meets the committee’s very high standards with respect to integrity, professional competence, 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. 

Everybody on that ABA says you are qualified. And I just read 

what it means. The idea that we are fishing around because we do 

not like something the Bush administration has done, or we are 

going to imply and impugn the integrity of somebody who has been 

in a position of responsibility and has offered his good services to 

fulfill the requirements of the executive branch, and anything you 

do not like about the executive branch you are going to try to tie 

29

to this gentleman, is improper. It also is dismissive of our open 

form of Government. And is exactly, again—I will say again—exactly what the American people are sick of, partisan sniping that 

is not about the issues but trying to score a point and trying to undermine somebody’s integrity who has absolute integrity on these 

issues. 

They have answered the questions. We are here—we are here—

to give a second look at somebody who has already answered the 

questions. And there is precedent to not give answers to questions 

about certain privileged communications within the White House. 

That does not mean that those are necessarily devious or wrong. 

It means you protect the Office of the Presidency. That is an appropriate role. There is nothing wrong with that. 

I will have one question for you. Why do you want to be a Federal judge? 

Mr. KAVANAUGH. Senator, I want to be a Federal judge because 

I know from experience and through my upbringing the role of the 

courts in protecting the rights and liberties of the people. I know 

how essential the rule of law is to our country. I know how the 

independence of our Federal judiciary is central to our constitutional form of Government. I think, based on my experience and 

my background, I can make a contribution to the administration of 

justice. I think I can be a good judge. And it’s part of my commitment to public service that I’ve carried out for most of the 16 years 

since I graduated from law school. 

Senator COBURN. Do you think it makes any difference on your 

ability to be an appellate judge in this country which side of the 

issue you were on the impeachment or which side of the issue you 

were on any of these issues that have been raised? Your personal 

opinion, when you have testified that you are not going to allow a 

personal opinion to interfere in your interpretation of the law and 

the independence of the judiciary, does that have a bearing? 

Mr. KAVANAUGH. Senator, I absolutely believe in the idea that 

judges are neutral and impartial and that whatever activities may 

have occurred in someone’s past life in terms of Government activities, those are good experience to have to become a good judge. But 

it also is true, once you put on the black robe, you’re impartial and 

you represent the law. As Justice Kennedy used to tell us, the essential neutrality of the law. And I think that is a principle that 

I would seek to follow were I to be confirmed to the D.C. Circuit 

Court of Appeals. I think it’s essential to our entire system of Government. There’s no such thing on the courts as a Republican judge 

or a Democratic judge. Once you’re on the court, all the judges are 

there representing the justice system, representing the idea of justice. 

Senator COBURN. Thank you. My time has expired. 

Chairman SPECTER. Thank you, Senator Coburn. 

Senator Feinstein. 

Senator FEINSTEIN. I am happy to yield to Senator Kennedy. My 

understanding is you wanted to go next? 

Senator KENNEDY. I appreciate that. We have this health legislation on the floor now which we are trying to work through. If it 

is convenient for the Senator from California, I would just take the 

time. I thank the Chair. 

30

Congratulations to you, Mr. Kavanaugh, for gaining the President’s confidence. The Circuit Court, as you know, has such special 

jurisdiction in terms of so many different areas of legislation that 

we pass—National Labor Relations Board, the relationship of workers and what happens to workers, discrimination against workers 

in the workplace, environmental kinds of issues they are working 

through. And their judgments on so many of these end up being 

the law, and so few go on to the Supreme Court. And we have seen 

very interesting trends that have taken place in the District court. 

So this has a special relevancy and importance. So that is at least 

why we spend as much time as we do on this particular nomination. 

Just on the—I want to just really focus in on this issue, again, 

of torture and rendition, your role there. I am on the Armed Services Committee and we have spent a lot of time. We have had 10 

investigations of torture, and none of them have revealed what we 

are constantly seeing revealed now with newer reports that have 

come on up in the newspapers and exposed by Freedom of Information reports. So it is something that is—And we have a policy of 

rendition which is of enormous concern to many of us. 

And we also know that Mr. Gonzales was in touch with Mr. 

Bybee when he was over at OLC. I mean, we have gone through 

all of this. This was all through the Gonzales—when Mr. Gonzales 

was up for Attorney General. And we also know that Haynes was 

in touch with the White House at that time, good chance that he 

was in touch with OLC. 

So this is the background. Have you ever previously—as you well 

know, that Bybee memorandum effectively said that if you go on 

out, you are in the military service or under contract and you go 

out and torture someone, it does not make any difference how 

badly you torture or what pain you inflict, as long as your purpose 

is to get information rather than to hurt an individual, you are 

going to be vindicated in terms of any kind of protections. I mean, 

effectively. That also was included in the Bybee. 

And Mr. Gonzales repudiated it when he came up before the 

Committee to be Attorney General. Is this the first time you have 

every made a comment on the Bybee memorandum? You responded 

to Senator Durbin and said that, in sort of a followup question, 

that you did not agree with the reasoning or the rationale for it. 

Is this the first time that you have ever said anything about the 

Bybee? 

Mr. KAVANAUGH. I believe it is. It is possible I have said something to people I work with, but this is the first time, certainly, I 

have been questioned about it. 

Senator KENNEDY. But you have not, prior to this time, ever 

made a comment or statement to others indicating that you found 

it particularly offensive. Because it has been a major issue, an 

issue in question out there. Please. 

Mr. KAVANAUGH. Senator, I know that Judge Gonzales in the 

summer of 2004 had a press conference where the memo was repealed and talked about this issue. I think also at his confirmation 

hearing in 2005, he said he disagreed, I believe, with the legal 

analysis in there, that the legal analysis in there was incorrect. 

31

And so I know members of the administration have repudiated that 

memorandum, or at least the legal analysis in that memorandum. 

Senator KENNEDY. And your testimony is that you had nothing 

with the promotion of Bybee to the Ninth Circuit. Is that correct? 

Mr. KAVANAUGH. That was not one of the nominations I worked 

on, and I knew he was, of course, being nominated but I didn’t 

know some of the issues that you’re talking about today. 

Senator KENNEDY. Well, then you are saying that you did not 

know he wrote what we know is the Bybee memorandum at the 

time that he was being considered for the circuit? 

Mr. KAVANAUGH. I first learned of the existence of that memo, 

I think, when there was a Washington Post story in the summer 

of 2004. I think that is the first—I’m pretty sure that’s the first 

time I learned anything about the August 1 memo. 

Senator KENNEDY. And for Mr. Haynes, have you expressed an 

opinion in terms of the legal counsel for the Defense Department, 

for promotion? I understand you have not handled the Haynes 

nomination? 

Mr. KAVANAUGH. That’s correct, Senator. And in terms of my 

portfolio in the Counsel’s office, it involved a lot of civil justice 

issues—worked on nominations, some ethics issues, separation of 

powers issues. It did not involve the kinds of issues you’re raising 

in your questions. 

Senator KENNEDY. Well, are not most of those—I mean, the—

most of those issues, class actions, insurance reform, are not most 

of those handled in the various departments, or were they—are 

those not sort of policy issues handled in the departments? Those 

are the issues that you were working on? 

Mr. KAVANAUGH. I worked, I would say, primarily on judicial 

nominations. In the wake of September 11th, there were a number 

of civil justice issues that I worked on, including the terrorism insurance litigation. 

Senator KENNEDY. OK. Just finally, on the documents that were 

taken here from the Committee and that you have the familiarity—

and you have indicated that you, in reviewing them, had no understanding or awareness that they had been taken, been stolen. Have 

you ever gone back, now that you are aware of it, and seen what 

decisions you may or might not have taken on the basis of documents that were illegally taken? To see whether you may have 

made some judgments or decisions to reach certain conclusions, 

now that you know that they were not properly taken? Have you 

ever thought, well, I ought to go back, I might have made some 

judgments or decisions when I was working for the President and 

I ought to take a look at this, since you know that these documents 

now were taken? Have you ever thought about that? 

Mr. KAVANAUGH. Senator, there’s a very important premise in 

your question that I think is incorrect, which is I didn’t know about 

the memos or see the memos that I think you’re describing. So I 

think— 

Senator KENNEDY. Oh, you never saw any of those? 

Mr. KAVANAUGH. No, Senator, that’s correct. I’m not aware of the 

memos, I never saw such memos that I think you’re referring to. 

I mean, I don’t know what the universe of memos might be, but 

I do know that I never received any memos and was not aware of 

32

any such memos. So I just want to correct that premise that I 

think was in your question. 

Senator KENNEDY. OK. My time is up, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Kennedy. 

On the Republican side, we have, in sequence, Senator Graham, 

Senator Sessions, Senator Cornyn, and Senator Kyl. And on the 

Democratic side, we have, who has not questioned, Senator Feinstein and Senator Feingold. I had Senator Feinstein ahead of Senator Kennedy on the list. 

Senator FEINSTEIN. Yes, I yielded to Senator Kennedy. 

Chairman SPECTER. OK, I just wanted to be sure that the list is 

correct. It is sometimes judgmental. Senator Feinstein was here 

first, but she left for awhile. Senator Kennedy came. But at any 

rate, Senator Feinstein yielded. But I wanted it known that that 

was the list that I had. And now Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. I want to congratulate you for having the hearing, because I think it is appropriate. 

It is a lifetime appointment, that people be able to ask questions 

and he be able to answer within his ability to do so without compromising what he believes to be his ethics or any proper role he 

may have played as a lawyer. 

Do you believe you were treated fairly by the ABA? 

Mr. KAVANAUGH. Senator, the American Bar Association has 

rated me three times. I’m going to get directly to the question, but 

I’m going to give you some background, if I could. I’ve been rated 

three times by the American Bar Association. And each time, there 

were 14 individual reviews conducted by members of the Committee. So there have been a total of 42 separate reviews conducted 

of me based on interviews with lots of people and review of lots of 

record. 

All 42 have found that I’m well qualified or qualified to serve on 

the D.C. Circuit Court of Appeals. So I’m pleased with that and I’m 

proud of that. And to the extent—and none of the 42 has found 

that I’m not qualified, and I think the Chair of the Committee yesterday said that there’s not been a breath of anyone saying that 

I’m not qualified. So I’m proud and pleased with the 42 of 42. 

Senator GRAHAM. So do you think you were fairly treated? 

Mr. KAVANAUGH. Senator, I think, sitting here as a nominee, I 

would prefer not to talk about my—you know, about the American 

Bar Association other than to say that I’m pleased and proud to 

have 42 of 42 rating me well qualified or qualified. 

Senator GRAHAM. Based on your going through that experience, 

would you recommend that we continue to consult the ABA when 

it comes to judges? 

[Laughter.] 

Mr. KAVANAUGH. Senator, again, I’m pleased and proud of the 

ratings. Their—in the future, maybe, will look back and have some 

observations, but right now I don’t think I have any observations 

to offer the Committee about the American Bar Association. 

Senator GRAHAM. Your time at the White House, you dealt with, 

I think you described your job. One of these constitutional questions that we are trying to wrestle with here is the inherent authority of the President in a time of war versus any designated role 

of the judiciary or the Congress in general. Do you agree with JusVerDate 0ct 09 2002 15:17 Jun 22, 2006 Jkt 027916 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27916.TXT SJUD4 PsN: CMORC
33

tice Jackson’s evaluation in the Youngstown Steel case that the 

President or the executive branch is at their strongest maximum 

power when they have concurrence of the legislative body? 

Mr. KAVANAUGH. I agree completely with that, Senator. 

Senator GRAHAM. Very specific question. Do you believe that at 

a time of war, the Congress has the ability to amend, pass the Uniform Code of Military Justice and not infringe on the President’s 

inherent authority as commander in chief? 

Mr. KAVANAUGH. Senator, that sounds like a specific hypothetical 

that could come before the court, so I’d hesitate to give an answer. 

In terms of Justice Jackson’s framework, that of course for a half 

century has been the guiding framework. I think it’s a work of genius, that opinion, in terms of setting out the different categories 

of Presidential power and Congressional power in times of war and 

otherwise, in terms of, as you say, category I, when the President 

and the Congress work together, that’s when the power is at the 

strongest. And category II, that’s what they call the twilight zone 

in the opinion. And then in category III, where a President acts 

against the express or implied will of Congress, that’s where the 

President’s power is at its lowest ebb and raises some very serious 

constitutional questions, according to Justice Jackson. I think 

that’s an exceptional opinion that has guided American law, the relationship between Congress and the executive for about a half-century, and it’s really been the foundation of these kinds of issues 

that I know you and the Committee have been working on. 

Senator GRAHAM. Finally, and if you don’t want to answer it, you 

don’t have to, but are you a Republican? If so, why? 

Mr. KAVANAUGH. Senator, I am a registered Republican. As I 

said before to Senator Coburn, I believe very much that it’s good 

to have judges who’ve participated in Government. That’s been part 

of our experience in the past, to have judges on the D.C. Circuit 

who’ve participated in the executive branch, who’ve worked in the 

executive branch; judges on the Supreme Court. 

Specifically, to answer your question, when I was first registering 

to vote, President Reagan was President and I agreed with him on 

some issues and registered Republican in the first election in—I 

guess 1984 was the first one I voted in. 

Chairman SPECTER. Thank you very much, Senator Graham. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Let me just say this. This is a difficult nomination. First of all, 

you’re very young, which is, I think, a blessing for you. But in 

terms of an appellate judge, I think it is a detriment. Obviously, 

you’ve had a good education, you have done well. You have spent 

a lot of your life in at least a semi-political capacity. The question 

comes up, how can you assure us that you will be fair? Would you 

recuse yourself from any judgment that concerned this administration? 

Without a record either as a trial lawyer or as a judge, it’s very 

difficult for some of us to know what kind of a judge you would be 

and whether you can move away from the partisanship and into 

that arena of objectivity and fairness. 

Mr. KAVANAUGH. Senator, thank you for the question. I think in 

the past, on the D.C. Circuit and on the Supreme Court and on 

34

other courts of appeals other than the D.C. Circuit, prior Government experience in the legislative branch or the executive branch 

has been seen as a very valuable asset, whether it was Judge 

Abner Mikva or Judge Patricia Wald, Judge John Roberts on the 

D.C. Circuit, Judge Merrick Garland, who President Clinton appointed to the D.C. Circuit. That kind of experience has been seen 

as very valuable experience and valuable background. 

And of course the question—I think only four of the last 21 

judges on the D.C. Circuit have actually had prior judicial experience, so the norm on the D.C. Circuit, in fact the overwhelming 

norm, is for the judges on the D.C., Circuit since 1977, not to have 

had prior judicial experience. What they’ve had usually is Government experience in the legislative branches or the executive 

branches. 

And your question really goes to how do you assess someone’s 

record. And I think that’s done through an assessment of going 

back, in my case 16 years in my career, and looking at the things 

I’ve done. In the Staff Secretary’s Office now, where I’m an honest 

broker, where I have to be fair and even-handed in the kind of role 

I perform for the President, some of the work I’ve done in the 

Counsel’s Office on judges, I’ve worked with your office and Senator 

Boxer’s office in the past on judges I know and worked closely on 

that. When I was in private practices, working on not just institutional clients, but pro bono cases. One of my proudest cases is I 

worked on a pro bono case for a synagogue in my home county that 

was seeking to build in a new location. Some of the neighbors 

didn’t want it there. I represented them. They won in Federal district court. 

And the Independent Counsel’s Office, I know, Senator, that 

that’s controversial and that’s raised some questions. And I think 

in that office, my record shows that I was fair and conducted myself responsibly. I’ve written an article about some reforms that I 

think would help avoid some of the problems that I think were systemic in the Independent Counsel’s— 

Senator FEINSTEIN. I am running out of time. Answer the recusal 

question? 

Mr. KAVANAUGH. On the recusal question, I know that there will 

be issues of recusal that I will face. There are standards in place 

under 28 U.S.C. 455, and I will analyze those closely were I to be 

confirmed to be a judge. There will be some difficult questions. I 

do not want to prejudge how I would rule on any recusal motion 

or how I would handle any particular case, but I do know, Senator, 

that it will be an issue in certain cases. I pledge to you that I’ll 

take that seriously, that I’ll study the precedents of people like myself who’ve come to the bench, that I will talk to my colleagues, 

were I to be confirmed, and that I’ll make the judgment responsibly. I pledge that to you. 

Senator FEINSTEIN. As you look back at the Kenneth Starr investigation today—I just read the op-ed you wrote in 1999—what are 

your thoughts? What do you think? 

Mr. KAVANAUGH. On the Independent Counsel Office investigation in general, I think a couple things, Senator. First of all, I 

think it was, in retrospect, probably a mistake for Judge Starr to 

be assigned additional investigations after the initial Whitewater 

35

and Madison investigations. So he got new jurisdiction over a Travel Office matter, an FBI files matter, and eventually the Lewinsky 

matter. I think it would have been better in retrospect for Judge 

Starr to have handled what he was initially assigned and, if there 

was a new Special Counsel needed in these other matters, for new 

people to be appointed. By adding to the jurisdiction, it created the 

impression that Judge Starr was somehow the permanent special 

investigator of the administration. He was assigned a very specific 

matter. 

So that’s one thing in retrospect. And frankly, even at the time 

that I thought it was a concern, I think the way the report was released was a real problem. I thought that at the time. And I think 

the way that was released did not serve anyone well. And I’ve written in my law journal article about the problems with prosecutorial 

reports, the way people’s reputations are damaged. So I’ve proposed 

some real reforms there. 

I also know that it was a very serious matter in terms of the underlying issue in 1998 in terms of the things that members of this 

body weighed and members of the House of Representatives 

weighed and that Judge Wright dealt with in terms of the contempt motion that she dealt with. So there was a serious underlying matter there; I believe that. I believe that there was—that 

Judge Starr tried to do it thoroughly. But again, to go back to the 

core problem, I think there was too much jurisdiction added to 

Judge Starr that created a mistaken public impression that 

harmed the credibility of the investigation. 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Feinstein. 

The next questioner on the Republican side is Senator Sessions. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Mr. Kavanaugh, thank you for your thoughts 

on Senator Feinstein’s question about the Starr investigation. I 

think you have provided some good insight and I think that probably is a reason why your reputation as a member of that prosecutorial team was very high, and people had a clear impression that 

you were a cool head and a wise member of that team. And that 

is the reputation I have heard, and I can see why you had that. 

I would note that Ken Starr was a former Solicitor General of the 

United States, a man of impeccable integrity, extraordinary legal 

skill, and anyone would have been proud to answer his call to serve 

him. 

Looking at the ABA evaluation, I think, first of all, you did extremely well, extraordinarily well to be rated well qualified by 

them, in the sense that you were relatively young and were working in the Bush administration. You were given the highest possible rating by them. And you have been there now in a less legal 

capacity and a few new members decided to give you the qualified 

rating instead of well qualified rating, but I do not think that is 

a big issue. 

In fact, I would quote Mr. Tober, Stephen Tober, the Chairman 

of the Committee on the Judiciary. This is what he said to me in 

a telephone conversation. He said this: ‘‘Let me underscore, we did 

36

not find him unqualified. There’s not a breath in that report or any 

earlier report. We found him qualified; minority, well qualified. 

What I said at the end is what in fact many people said, that he 

has a solid reputation for integrity, intellectual capacity—a lot of 

people refer to him as brilliant—and an excellent writing and analytical ability. Those are great skills to bring to the court of appeals. There’s no question about that.’’ 

You wouldn’t object to them saying that about you, would you? 

Mr. KAVANAUGH. As I said, Senator— 

Senator SESSIONS. We will pass over that. 

Then he went on to say this: ‘‘He is found to have high integrity. 

He is found to be brilliant. He is a very skilled writer and legal analyst. He has those components. He has those skills that will serve 

him well, certainly on a Federal court.’’ 

And then he goes on to say: ‘‘It is true’’—I think maybe to Senator Hatch’s question—‘‘it is true there’s not a single not-qualified 

vote in the picture.’’ 

So I think the ABA rating, whether it is as high as it could be, 

and all of them did not vote you well qualified, the highest possible 

rating, but they did rate you qualified and the Chairman of the 

Committee gave some very interesting insights, I think. 

I would just like to note on the age question that you are 6 years 

older, I believe, than Judge Stapleton when he was appointed to 

the bench, the court of appeals, and 6 years older than Judge 

Kozinski when he was appointed to the bench, both of whom you 

clerked for. I think the Chairman made that earlier. And Justice 

Kennedy was appointed to the Ninth Circuit 3 years younger than 

you are today. I think those are qualities that—I think other qualities are at stake here. 

Let me just say this about my thinking of how you evaluate a 

nominee, that is, you consider the entire breadth of the gifts and 

graces they bring to the job. And if a person has less—I like a person who has been in private practice. I think that is fine. But if 

a person does not have private practice or a lot of—you were a 

partner in one of the country’s best law firms; that ought to be 

some private practice experience. But whether you had a great deal 

of that experience or not, other factors are considered in here. You 

were editor of the Yale Law Journal, one of the editors of that. You 

clerked for two circuit judges, both of whom have testified for you. 

The first one said you should be a judge, he saw that in you when 

you first clerked for him and advised you of that as a career path. 

So you worked for two court of appeals judges. You sat at the 

right hand of two judges who hold the very position you will be 

holding today. And then you were given the rare honor of clerking 

for a justice on the U.S. Supreme Court, Justice Kennedy, a judge 

who is considered a moderate, middle-of-the-road judge, I guess. 

You served under his leadership. So those are things that I think 

are extraordinarily important. 

And you served in the Solicitor General’s Office of the United 

States. That is the greatest law office in the world, where you represent the United States before the Federal appellate courts in the 

country arguing cases before the very court that you would sit 

upon, as well as arguing cases before the U.S. Supreme Court, an 

honor very few lawyers have. 

37

So I think it is a good experience and extraordinary academic 

record, Mr. Chairman, and I believe he should be confirmed. 

Chairman SPECTER. Thank you very much, Senator Sessions. 

Senator Feingold arrived earlier but has departed. Senator 

Leahy arrived later and is ranking, and Senator Leahy has agreed 

he will yield to Senator Feingold. 

Senator LEAHY. Go ahead. After these tough, tough questions 

that Senator Sessions has been asking, where the nominee just sits 

there and is canonized, I am overwhelmed by that. So I yield to 

Senator Feingold. 

Chairman SPECTER. You should have been here earlier to hear 

Senator Hatch’s tough questions. 

[Laughter.] 

Chairman SPECTER. Senator Feingold? 

Senator LEAHY. He only asks tough questions of Democrats. He 

coordinates the others. 

Senator SESSIONS. Well, this is the second time around. 

STTEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. I thank both the Chairman and the Ranking 

Member. And I thank you, Mr. Chairman, for holding this hearing. 

It was obviously the right thing to do, given that it has been nearly 

2 years since the first hearing and, frankly, in light of Mr. 

Kavanaugh’s incomplete responses to written questions, even 

though he delayed providing those responses for 7 months. 

Among those written questions were several questions that I submitted concerning ethical issues that came up in connection with 

the nominations of three judges who I believe Mr. Kavanaugh assisted as part of his duties in the White House: Charles Pickering, 

who received a recess appointment and subsequently retired; and 

D. Brooke Smith and Ron Clark, who are currently on the bench. 

In his November 2004 responses, Mr. Kavanaugh essentially refused to answer my questions. I wrote him a letter on Friday explaining why I believe these questions are appropriate and asking 

him to supplement his responses. Late yesterday I received a response, not from Mr. Kavanaugh but from Mr. Moschella at the 

Justice Department, that said the following: ‘‘As you know, Chairman Specter has scheduled a hearing on Mr. Kavanaugh’s nomination on May 9, 2006. At that time, Mr. Kavanaugh will be available 

to respond to questions from all Senators on the Committee.’’ 

Mr. Chairman, first, I would like to put in the record a copy of 

my letter and Mr. Moschella’s response. 

Chairman SPECTER. Without objection, it will be made a part of 

the record. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Now, Mr. Kavanaugh, I assume you were consulted and approved 

of Mr. Moschella’s response. I hope that you will now respond to 

my questions. Here is the first one for which I sought an additional 

response. 

During the Senate’s consideration of Judge Charles Pickering’s 

nomination to the Fifth Circuit, the Judiciary Committee learned 

that he solicited and collected letters of support from lawyers who 

had appeared in his courtroom and practiced in his district. It later 

38

became apparent that some of these lawyers had cases pending before him when they wrote the letters that Judge Pickering requested. Professor Stephen Gillars of NYU Law School has written, 

‘‘Judge Pickering’s solicitation creates the appearance of impropriety in violation of Canon 2 of the Code of Conduct for U.S. 

Judges. The impropriety becomes particularly acute if lawyers or 

litigants with matters currently pending before the Judge were solicited.’’ 

So, sir, my first question is this. Did you know that Judge Pickering planned to solicit letters of support in this manner before he 

did so? And if not, when did you become aware that Judge Pickering had solicited these letters of support? 

Mr. KAVANAUGH. The answer to the first question, Senator, is no. 

This was not one of the judicial nominees that I was primarily handling. I became aware of suggestions of this sort, I assume, at some 

time during the proceedings, probably when it was raised. I don’t 

know if it was raised in the media or raised by the Senate in the 

first instance. Without commenting on the facts and circumstances 

of that matter, because I really don’t know the facts and circumstances, when a judge asks a lawyer who’s got a case before 

him or her to do something, that does put the lawyer in a very 

awkward position and makes it difficult for the lawyer to say no. 

So just in terms of a hypothetical situation, there is a situation 

there. Again, I don’t know the facts and circumstances of what was 

going on there. I only heard about it, really, from either the media 

or from when the members of this Committee were talking about 

that issue. 

Senator FEINGOLD. Well, I would like to know if you think that 

Judge Pickering’s conduct was consistent with the ethical obligations of a Federal judge. 

Mr. KAVANAUGH. Senator, I don’t know if there’s been fact finding on what his conduct was. In terms of the hypothetical situation 

of a judge asking a lawyer who has a case before him or her to do 

something, I know that raises some questions. Again, I don’t know 

the facts and circumstances of what Judge Pickering did. I’ve given 

you my general principle. 

Senator FEINGOLD. Well, it’s a good general principle, but the 

facts are pretty clear. I don’t think he denied that he solicited these 

letters and that these were individuals that appeared before him. 

There was some debate about the significance of it, but— Am I off 

track in suggesting that it looks like at least those set of facts, 

whether you think they occurred in this case, would be a violation 

of the Code of Ethics? 

Mr. KAVANAUGH. I hesitate to comment on another judicial nominee. Again, Senator, I’m happy to state a general principle that I 

believe in. Again— 

Senator FEINGOLD. Let’s go with the general principle, then. If a 

judge is up for nomination and he solicits letters from lawyers who 

have cases before him, is it not the general principle that that 

would be a violation of the Code of Ethics? 

Mr. KAVANAUGH. I think that raises some questions that warrant 

some further questions to find out what happened. 

Senator FEINGOLD. Mr. Kavanaugh, I—my time is up. Thank 

you. 

39

Chairman SPECTER. Thank you very much, Senator Feingold. 

The next questioner is Senator Cornyn. 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. 

Welcome back, Mr. Kavanaugh. 

Mr. KAVANAUGH. Thank you, Senator. 

Senator CORNYN. This is the second hearing 2 years, roughly, 

after your first hearing, and we have learned a lot has changed in 

your personal life. 

Mr. KAVANAUGH. Yes, sir. 

Senator CORNYN. But I do not think a lot has changed in terms 

of your professional record as it would relate to your qualifications 

to serve on the D.C. Circuit. 

Mr. Chairman, I have a statement that I would like to make part 

of the record, without objection. 

Senator HATCH. [Presiding.] Without objection. 

Senator CORNYN. Thank you. 

I want to ask a little bit about some of the questions that you 

have been asked here today. The rationale given for a second hearing that was requested is that there might be some new information that would be revealed that might change the minds of some 

of those who have previously expressed some skepticism as to 

whether you should be confirmed or not. But I think—this is my 

observation, not yours, but I think what we have seen is part of 

what has become a fairly common practice in the course of these 

hearings, and that is to ask you questions, the nominee questions 

that they cannot or should not ethically answer. And that, coupled 

frequently with demanding documents which are not in your possession and which you cannot produce because they are the subject 

of a privilege. And then of course there is, of course, then the claim 

that you are somehow too extreme, out of the mainstream. 

Unfortunately, I do not think those are the kinds of questions or 

the kind of approach that is designed really to reveal very much 

in the way of information that is helpful to us to make decisions, 

but rather part of a plan to try to damage your nomination and to 

justify a No vote, or perhaps even a filibuster of your nomination 

on the Senate floor. You have been asked about everything from 

the Clinton impeachment to torture to rendition policy to Judge 

Pickering. It strikes me that, rather than finding out about your 

experience and background and your qualifications as an individual, that there has been some attempt to associate you with 

other issues with which you have no knowledge and perhaps, as 

you say, have not had any contact. 

So I know that Chairman Specter had agreed to do this second 

hearing based on the representation that there might be some bona 

fide attempt to elicit information that would actually change some 

votes and attitudes, but unfortunately I do not see that happening 

in the course of this hearing so far. I guess one can always hope. 

Of course, as you know, I met you a number of years ago when 

I was Attorney General of Texas and had the honor to represent 

my State in an argument before the U.S. Supreme Court. That was 

Santa Fe Independent School District v. Doe, which involved a 

40

question of whether school children could voluntarily offer a prayer 

or an inspirational saying before school football games in Texas. 

And as you know, the Court ultimately ruled against that voluntary student prayer in the case. Chief Justice Rehnquist, in dissent, said that the Court’s ruling exhibited hostility to all things 

religious in public life. And I am very concerned about that because 

I do believe that the Founders thought that the posture of the Government with regard to religious expression should be one of neutrality, not hostility. 

I realize as a lower court judge you are going to be bound by the 

Supreme Court’s precedents, but I wonder if you would address the 

issue of religious liberty and religious speech insofar as how you 

believe in your position as a circuit court judge, how you would approach those issues. 

Mr. KAVANAUGH. Senator, if I were confirmed to be a D.C. Circuit judge, I would of course follow the precedent of the Santa Fe

case. That case addressed a question that had been left open in the 

Lee v. Weisman case in 1992. In that case, there was a school-sponsored prayer at a graduation ceremony where the Government was 

actually involved, and one of the questions that was left open was 

what happens if a student or a private speaker participates in a 

school event as a private speaker. And in the Santa Fe case, I 

think the Court concluded, based on the facts and circumstances of 

the case, that it could be attributed to the school and so was a violation of the Establishment Clause. 

I think the overall area represents a tension the Supreme Court 

has attempted to resolve throughout the years in terms of facilitating the free exercise of religion without crossing the Establishment Clause lines that the Court has set out for many years now. 

I know that the Court in recent years has made clear in a number 

of cases that private religious speech, religious people, religious organizations cannot be, or should not be, discriminated against and 

that treating religious speech, religious people, religious organizations equally—in other words, on a level playing field with nonreligious organizations—is not a violation of the Establishment Clause. 

In past years there had been some suggestion that treating religious organizations the same way in the public square as nonreligious organizations could sometimes be a violation of the Establishment Clause. I think the Court’s really gone to a principle of equality of treatment does not ordinarily violate the Establishment 

Clause—again, equality of treatment of religious speech, religious 

people, religious organizations; equality in the public square. That’s 

been something we’ve seen over the last, I’d say, decade or a little 

more. 

The Santa Fe case, again, the issue there was that although it 

was a private speaker, the Court found, based on all the facts and 

circumstances, that it was attributed to the school and therefore 

fell within the prohibition in Lee v. Weisman. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Mr. Kavanaugh, we are almost to the 2-hour mark. Would you 

care to take a break? 

Mr. KAVANAUGH. I’m OK, Mr. Chairman. 

Chairman SPECTER. Senator Leahy. 

41

Senator LEAHY. Thank you, Mr. Chairman. Mr. Chairman, I have 

an opening statement, which I will not make, but I would like to 

put in the record. 

Chairman SPECTER. Without objection, your opening statement 

will be made a part of the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator LEAHY. I would also note for the record, in that, I realize 

we have—the President wants to move forward Judge Terrence 

Boyle, and I have suggested, in fact, call on the President to withdraw Terrence Boyle’s name. The North Carolina Police Benevolent 

Association, North Carolina Troopers Association, Police Benevolent Associations, South Carolina, Virginia, the National Association of Police Organizations, many other civil rights groups and 

others have opposed it. I can think of an awful lot of reasons why 

he should withdraw it. That is not in the province of what Mr. 

Kavanaugh has to worry about, but I would hope, rather than go 

through a needless exercise, that Terrence Boyle’s name be withdrawn, especially in light of the recent allegations of unethical conduct. 

Mr. Kavanaugh, you are aware of the somewhat unique—we 

originally understood there would be ABA to testify here today. 

That had been agreed to, but apparently that was done by a phone 

call Monday while most of us were out of town. Are you aware of 

what transpired in that phone call? 

Mr. KAVANAUGH. Senator, I’m— 

Senator LEAHY. You have seen the transcript? 

Mr. KAVANAUGH. I have not read the whole transcript. I have 

seen some excerpts of the transcript that were reported in news articles, as well as other excerpts that I’ve seen. 

Senator LEAHY. I’d ask that the transcript be made part of the 

record if it’s not already. 

Chairman SPECTER. Without objection, it will be made part of the 

record. 

Senator LEAHY. They spoke of you as not having handled a case 

to verdict; is that right; you never tried a case to verdict, or have 

you? 

Mr. KAVANAUGH. That is correct, Senator. I have not been a trial 

lawyer. I think I’m in the same boat there with people like Chief 

Justice Roberts and Justice Breyer. 

Senator LEAHY. I am asking about you. We had a hearing on 

Chief Justice Roberts. I voted for him for Chief Justice, and I voted 

for him for the D.C. Circuit. I know Chief Justice Roberts. You are 

not Chief Justice Roberts. You have your own qualities, so let’s just 

talk about you, if that is all right, if you do not mind. 

Mr. KAVANAUGH. Senator, I have not tried a case to verdict. I 

have been an appellate lawyer. 

Senator LEAHY. That was my question. They also said your litigation experiences over the years was in the company of senior 

counsel; is that correct? 

Mr. KAVANAUGH. I’ve argued many cases on my own, Senator 

Leahy. I’ve argued in the Supreme Court of the United States. I’ve 

argued in the Fifth Circuit. I’ve argued twice in the D.C. Circuit 

Court of Appeals. 

42

Senator LEAHY. Did you do those as the sole person arguing? 

Mr. KAVANAUGH. Yes, Senator. 

Senator LEAHY. Thank you. 

Mr. KAVANAUGH. Senator, let me just add one thing. In one D.C. 

Circuit case there were two counsel that argued on our side, so I 

just want to be clear on that, but I also—I argued for myself on—

it was a Government attorney client privilege case. 

Senator LEAHY. I was going to ask you about that, but you clarified it. Thank you. 

Why did you take 7 months to answer the written questions you 

were given after your hearing last time? 

Mr. KAVANAUGH. Senator, I take responsibility for that, and I’m 

happy to answer any additional questions. 

Senator LEAHY. Why did you take 7 months? 

Mr. KAVANAUGH. Senator, again, I take responsibility for that, 

and— 

Senator LEAHY. Of course you take responsibility for it. Obviously, they are your answers. But why 7 months? 

Mr. KAVANAUGH. Senator, if there was—I take responsibility for 

that. I think I had a misunderstanding, which is my responsibility. 

I’m happy to answer additional questions today that you may have, 

or other members of the Committee may have. Again, I take— 

Senator LEAHY. What was the misunderstanding? 

Mr. KAVANAUGH. Senator, I take responsibility for that. 

Senator LEAHY. Mr. Kavanaugh, we are not playing games. I am 

just asking you a question. 

Mr. KAVANAUGH. Yes, Senator. 

Senator LEAHY. One of the—I will not go into one of the ways 

one judge described your conduct in court. I began to think that 

perhaps he was right. But I take responsibility, fine. That is kind 

of a catch-all. Everybody says that. I just asked you why? I mean 

is it that difficult? 

Mr. KAVANAUGH. Senator, my understanding was that the 

timeline for the questions was to make sure they were in before the 

end of the Congressional session because there was going to be no 

further action on my nomination in the Committee. I met that 

timeline. From a later letter that members of the Committee, that 

you signed, it appears that I had a misunderstanding of that, and 

I take responsibility for that, and I’m happy to answer any questions you have. 

Senator LEAHY. What was your reaction—as Staff Secretary, you 

see virtually every piece of paper that goes to the President; is that 

correct? 

Mr. KAVANAUGH. On many issues, yes, Senator. Not everything, 

but on many issues. 

Senator LEAHY. Did you see documents relating to the President’s NSA warrantless wiretapping program? 

Mr. KAVANAUGH. Senator, I learned of that program when there 

was a New York Times story—reports of that program when there 

was a New York Times story that came over the wire, I think on 

a Thursday night in mid December of last year. 

Senator LEAHY. You had not seen anything, or had you heard 

anything about it prior to the New York Times article? 

Mr. KAVANAUGH. No. 

43

Senator LEAHY. Nothing at all? 

Mr. KAVANAUGH. Nothing at all. 

Senator LEAHY. What about the documents relating to the administration’s policies and practice on torture; did you see anything 

about that, or did you first hear about that when you read about 

it in the paper? 

Mr. KAVANAUGH. I think with respect to the legal justifications 

or the policies relating to the treatment of detainees, I was not 

aware of any issues on that or the legal memos that subsequently 

came out until the summer, sometime in 2004 when there started 

to be news reports on that. This was not part of my docket, either 

in the Counsel’s Office or as Staff Secretary. 

Senator LEAHY. I have more questions. My time is up, and I will 

save them for the next round. 

Mr. KAVANAUGH. Thank you. 

Chairman SPECTER. Thank you, Senator Leahy. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

Just on that last point, I gather that in the briefings to the President by the CIA and other members of the intelligence agency, 

there were a lot of things that did not come across your desk, that 

they were given directly to the President; is that correct? 

Mr. KAVANAUGH. That’s correct. 

Senator KYL. I was not here, unfortunately, to hear the introduction of you, but I was impressed by what was said. It was written 

down for me, and I am very impressed that these judges for whom 

you clerked would have such a high opinion of you. Judge Kozinski, 

who is one of the finest judges that I know, said that you were one 

of the finest clerks he has had, and a breadth of mind and breadth 

of vision, and a great sense of humanity. And I think Judge 

Stapleton, a judge’s dream as a law clerk, and that you understand 

the rule of precedent, exceptionally well qualified in terms of experience, superb candidate, and so on. 

I think those are important because they represent the opinion 

of someone for whom we have a great deal of regard, as sitting appellate judges, of you, and I think that is an important qualification. 

There have been a couple of questions raised about this matter 

of qualification, one, the ABA rating, and two, your relative age. I 

just want to talk about a couple of those here. As I understand it 

from Mr. Stephen Tober’s statement, that this entire difference between qualified and well qualified boils down—and I will quote it 

from his statement, page 7, ‘‘It is, at its most basic, the difference 

between the highest standard and a very high standard.’’ And so 

it seems to me that for us to try to make some distinction, and 

somehow deem you not qualified based upon that very fine distinction, is to establish a standard that we have never applied in this 

Committee in the past. 

May I just ask you, how many of the people that rated you were 

there again who either rated you qualified or well qualified, and 

was there anyone who dissented from either of those two rankings? 

Mr. KAVANAUGH. Senator, from the ABA ratings, there were 42 

individual reviews conducted over the course of 3 years, and all 42 

found me well qualified or qualified to sit on the D.C. Circuit. 

44

Senator KYL. So this seems to me, in terms of making a decision 

on this Committee, a distinction without a difference. I will just 

quote from page 9 and then move on to the next point. After talking about your breadth of experience, consistently praiseworthy 

statements, and so on, here is what Mr. Tober said: ‘‘The nominee 

enjoys a solid reputation for integrity, intellectual capacity, and 

writing and analytical ability.’’ And it seems to me that that pretty 

well answers that point. 

Now, this matter of age is something that perhaps we should 

take a look at. As was noted, several important nominees—Justice 

Kennedy, appointed to the Ninth Circuit when he was 38; Judge 

Kozinski, 35; Judge Stapleton, 35. I also note the current chief of 

the Ninth Circuit, my circuit, Marie Schroeder, 38 when she was 

appointed. Judge Sam Alito, age 40, all younger than you are. But 

it seems to me that we could actually take some solace from your 

age based upon the experience in this Committee, Mr. Chairman. 

We have to look no further than the distinguished Ranking Member of the Committee and the senior Senator from Massachusetts 

and the second-ranking member of this Committee to note that in 

all three cases of Senator Biden, Senator Kennedy, and Senator 

Leahy— 

Senator LEAHY. We were elected. 

Senator KYL. Elected at the age of 30, 30, and 34. And look what 

great things each of them accomplished from those early beginnings. 

[Laughter.] 

Senator SCHUMER. May I interrupt? Each of them has almost a 

lifetime appointment. 

[Laughter.] 

Senator KYL. Well, we did not have any say in that. 

Senator LEAHY. My Republican State did. 

Senator KYL. And it certainly makes the point that at the constitutional age, that is, the age at which the Constitution says one 

must be qualified, we have elected to the U.S. Senate and confirmed to the courts of appeals and even the U.S. Supreme Court 

some incredibly qualified individuals who have acquitted themselves very well, and I count all of the colleagues whom I have 

mentioned here in that category. And, therefore, it seems to me 

that if that is any precedent, we have nothing but the greatest expectations for your service on the court of appeals, and I am very 

proud to add my voice to those who are in support of that nomination. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Kyl. 

Senator Brownback? 

Senator BROWNBACK. Thanks, Mr. Chairman, and welcome, Mr. 

Kavanaugh. I appreciate your meeting with me. I think I am only 

one of two people on the Committee now that were not on the Committee when you previously—or the first time you came in front of 

the Committee, and I appreciated your time that you spent with 

me answering my questions. I appreciate the information you provided to my staff, and that has been very helpful in my decisionmaking process with you. 

45

I want to ask a couple of questions that I find important. You 

may have answered them in other types of settings, but I wanted 

to look at—and they are general, but I think they are the sort of 

thing that we on the legislative side need to get out in the open 

for our decisionmaking—your view of the Constitution and the 

issue of judicial restraint. These were key items on Judge Roberts’s 

and Judge Alito’s hearings. They are important going to a circuit 

court. 

Just if you would—and you have probably answered this already, 

and I apologize if you have and I have not heard it. But just give 

me your view of the Constitution as a document itself. Can you put 

yourself in a category? Do you have a view that it is established 

as a living document, as a strict constructionist of the Constitution 

itself? 

Mr. KAVANAUGH. Senator, I believe very much in interpreting 

text as it is written and not seeking to impose one’s own personal 

policy preferences into the text of the document. I believe very 

much in judicial restraint, recognizing the primary policymaking 

role of the legislative branch in our constitutional democracy. 

I believe very much, as a prospective inferior court judge, were 

I to be confirmed, in following the Supreme Court precedent strictly and absolutely. Once as a lower court judge, I think that is very 

important for the stability of our three-level system for lower 

courts to faithfully follow Supreme Court precedent, and so that is 

something that I think is very important. 

In terms of the independence of the judiciary, I think that is 

something that is the hallmark of our judiciary, the hallmark of 

our system that judges are independent from the legislative branch 

and independent from the executive branch. I think that is central 

to my understanding of the proper judicial role. 

So in terms of text, precedent, restraint, independence, those are 

the kinds of principles that I think would inform my approach to 

judicial decisionmaking were I to be confirmed. 

Senator BROWNBACK. Let me go specifically to the issue of judicial restraint, if I could, on that particular area. I believe it was 

Judge Roberts who noted that that is the—where a number of us 

are concerned about areas that the court has gotten involved in in 

recent years, and that that has really led to the public’s concern 

about the judiciary in general because it keeps getting into more 

and more areas that many of us thought were the proper purview 

of the legislative process rather than the judicial branch. And so 

the judicial activism charge then gets put forward. 

Several have said, well, the key restraint on the judiciary is the 

judiciary itself. And yet if the judiciary does not show restraint on 

what cases that it brings up or what cases that it takes, you know, 

the Congress is left to try to act on limiting review by the courts 

to try to amend the Constitution, to change the court interpretation, all of which are difficult things to do. 

There was a case recently—we just held the flag-burning amendment that passed through the Subcommittee that I chair, and that 

is in response to the Court saying that you can burn the flag as 

a statement of free speech. And it was as a response to a court that 

overturned a prior court opinion saying you could not do it. 

46

It is those sorts of things that I think really frustrate the public, 

and then the issue of marriage that is coming up that has been a 

longstanding issue for legislative process, coming now, working 

through the court system. 

Do you have a viewpoint on issues, say, as marriage and the determination of the definition of that? Is that something that the 

court should establish or is it left to the legislative bodies? 

Mr. KAVANAUGH. Well, Senator, that is the kind of question that, 

were I to be confirmed, could come before me, so I would hesitate 

to talk about the specific issue. 

In terms of your general principle about judicial activism, I do 

think that some of the worst moments in the Supreme Court’s history have been moments of judicial activism, like the Dred Scott 

case, like the Lochner case, where the Court went outside its proper bounds, in my judgment, in interpreting clauses of the Constitution to impose its own policy views and to supplant the proper role 

of the legislative branch. 

So I think in terms of judicial activism, that is something that 

all judges have to guard against. That is something that the Supreme Court has to guard against. And throughout our history, we 

have seen that some of the worst moments in the Supreme Court 

history have been moments of judicial activism where courts have 

imposed their own policy preferences. 

Senator BROWNBACK. Thank you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Brownback. 

Let me make an assessment here as to a potential second round. 

Senator Leahy, do you care for a second round? 

Senator LEAHY. I do. 

Chairman SPECTER. Senator Schumer? 

Senator SCHUMER. Yes. 

Chairman SPECTER. I infer that all those absent do not. 

Senator LEAHY. I would not infer. We will ask them on this side. 

Chairman SPECTER. Could you find out? 

Senator LEAHY. We are doing that right now. 

Chairman SPECTER. Senator Hatch? 

Senator HATCH. Frankly, I will pass for now. 

Chairman SPECTER. Senator Cornyn? 

Senator CORNYN. Mr. Chairman, my intention would be to pass, 

but if questions come up during the questioning, if you would give 

me an opportunity to followup on that. Otherwise, I will pass. 

Chairman SPECTER. That is a qualified pass. All right. 

Senator HATCH. Same here. Qualified pass. 

Chairman SPECTER. Qualified pass for Senator Hatch. 

Well, we will proceed with the second round. I think we will finish before 5 o’clock, as it appears to me, Mr. Kavanaugh. You declined a break 20 minutes ago. You may reconsider that without 

petition at any time you choose, if you would like a break. 

Mr. KAVANAUGH. Thank you, Mr. Chairman. I am OK. 

Chairman SPECTER. You are OK. OK, then you have established 

a number of qualities without further comment. 

[Laughter.] 

Chairman SPECTER. Mr. Kavanaugh, on the second round, which 

we begin now, I have noticed a reticence on your part to criticize 

47

people, not necessarily a bad habit. You did not want to criticize 

Karl Rove. You did not want to say how you would vote on impeachment to criticize President Clinton. You did not want to criticize Judge Pryor on Roe being an abomination. You did not want 

to criticize Judge Bybee on the Bybee memo. You did not want to 

criticize Mr. Manny Miranda. You did not want to criticize Judge 

Pickering. You did not even want to criticize the American Bar Association. 

Now, I do not consider that—and you did not want to criticize 

Justice Scalia or Justice Thomas. I do not consider that necessarily 

a bad quality. Senators sometimes criticize people. In fact, it is seldom when we do not. That seems to be a stock in trade by the 

United States Senators, and perhaps most people in public office. 

Maybe that is our calling really in connection with our oversight 

responsibilities. 

But let’s take up the values behind your declination to criticize. 

As to what Judge Pickering is alleged to have done—never mind 

the hypothetical—would you ask lawyers to write letters for you? 

If you were a judge sitting on their cases, and you were under consideration for a higher court, would you do that? 

Mr. KAVANAUGH. No, Mr. Chairman. 

Chairman SPECTER. When you were asked about Mr. Manny Miranda, the investigation is still ongoing, but there has been considerable information about his having invaded the Democrats’ computer system and downloaded and used it for partisan political purposes. Now, without characterizing it as larceny, would you engage 

in that kind of a practice? 

Mr. KAVANAUGH. No, Mr. Chairman. 

Chairman SPECTER. Would you sanction or participate in torture? 

Mr. KAVANAUGH. No, Mr. Chairman. 

Chairman SPECTER. Would you accept the principle that you 

could inflict any amount of pain in order to get information, as long 

as you were seeking information, no limit as to the amount of pain 

you would inflict? 

Mr. KAVANAUGH. No, Mr. Chairman. 

Chairman SPECTER. Would you engage in rendition, send a suspect to a foreign country where torture was a practice, in order to 

get information where you would not have to commit the torture 

on U.S. soil? 

Mr. KAVANAUGH. No, Mr. Chairman. I do not want to—no, Mr. 

Chairman. I think that is an issue I have not been involved in. I 

do not know the facts and circumstances— 

Chairman SPECTER. I know you have not been involved in it, but 

now we are trying to find out your values. 

Mr. KAVANAUGH. Right, and I— 

Chairman SPECTER. You have not criticized certain people, and 

somebody may say you have not answered the question, so let’s go 

beyond the hypothetical or let’s go beyond the criticism, and let’s 

take up the values, which is what I am asking you now. 

Now, you did not want to criticize Justice Scalia or Justice Thomas, but when you were asked the question would you consider yourself in their mold, you selected Justice Byron White and Justice 

Robert Jackson. 

48

Now, Mr. Kavanaugh, there may be some implicit criticism there, 

but we will move beyond that. Why do you choose Justice White? 

What are his qualities distinguished from Justice Scalia or Justice 

Thomas that you choose Justice White? 

Mr. KAVANAUGH. I do not want to comment on currently sitting 

Justices. The reason I chose Justice White is for several reasons: 

He was a rock of integrity. His work as Deputy Attorney General 

in the Department of Justice enforcing the civil rights laws in the 

early 1960’s I think was heroic. I think his approach to judging, judicial restraint, in terms of recognizing the primary policy— 

Chairman SPECTER. OK. That is enough. Why did you choose 

Justice Jackson? 

Mr. KAVANAUGH. I chose Justice Jackson— 

Chairman SPECTER. You are not permitted to filibuster, Mr. 

Kavanaugh. 

Mr. KAVANAUGH. Yes, Mr. Chairman. 

Chairman SPECTER. Why did you choose Jackson? 

Mr. KAVANAUGH. I chose Justice Jackson because of, again, his 

leading role in the Department of Justice, being involved in the 

public— 

Chairman SPECTER. That is enough, Mr. Kavanaugh. 

Now, on independent counsel, you have some criticism of the 

structure of independent counsel on the operation you had with 

Judge Starr, and that is why you made some recommendations for 

changes, right? 

Mr. KAVANAUGH. That’s correct, Mr. Chairman. 

Chairman SPECTER. And you have a value not to exclude blacks, 

African Americans, on peremptory challenges. That is your value. 

Mr. KAVANAUGH. Yes, Mr. Chairman, and I believe in proper procedures to make sure that racial bias does not occur in the courtroom in the jury selection process. 

Chairman SPECTER. OK. My red light went on on round two. I 

will yield now to Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

You know, the reason I kept asking about your taking 7 months 

to answer the questions and why I found your answer inadequate, 

you did spend years vetting judicial nominees up here and telling 

them what they were supposed to do and everything else. And it 

is difficult to understand, having told them how they are supposed 

to answer, that you did not understand yourself. 

Be that as it may, tomorrow the White House is finally going to 

release its logs of visitors to the White House, having been forced 

by a Federal judge to do so, something they did not want to do. So 

I ask you this: Do you know Mr. Abramoff? 

Mr. KAVANAUGH. I do not. 

Senator LEAHY. Have you ever met him or seen him at the White 

House? 

Mr. KAVANAUGH. No. 

Senator LEAHY. Have you ever met Susan Ralston, who is Karl 

Rove’s personal assistant at the White House, formerly worked as 

Mr. Abramoff’s secretary? 

Mr. KAVANAUGH. She works in the Deputy Chief of Staff’s office 

today. 

Senator LEAHY. You know her. 

49

Mr. KAVANAUGH. I do know her, yes, sir. 

Senator LEAHY. Thank you. Have you ever met David Safavian? 

Mr. KAVANAUGH. No. 

Senator LEAHY. When did you learn that he was being investigated for receiving illegal payments? 

Mr. KAVANAUGH. Senator, on that matter, I think whatever I 

learned, I learned reading the newspapers. 

Senator LEAHY. So prior to the time it became public that he was 

being charged, you did not know about it prior to that time? 

Mr. KAVANAUGH. That’s correct, Senator. 

Senator LEAHY. Have you ever met Michael Scanlon? 

Mr. KAVANAUGH. No. 

Senator LEAHY. When did you learn that he was being investigated for criminal activities? These are all people from the White 

House. That is why I am asking. 

Mr. KAVANAUGH. I don’t think Michael Scanlon worked at the 

White House. I could be wrong about that. 

Senator LEAHY. He was connected—well, go ahead. When did you 

first learn of his— 

Mr. KAVANAUGH. Again, reading the newspapers is all I know 

about that matter. 

Senator LEAHY. And what about the disclosure of the identity of 

Valerie Plame? 

Mr. KAVANAUGH. I do not know anything about the facts and circumstances of that matter. 

Senator LEAHY. So you did not do anything about it or were not 

required to do anything about it? You did not do anything about 

it? 

Mr. KAVANAUGH. I didn’t know anything about the facts and circumstances of that matter. I know it’s under investigation, of 

course, and it’s not part of my responsibilities nor have I learned 

about it. 

Senator LEAHY. So what you would know about it would be what 

you have gotten from news sources, public sources? 

Mr. KAVANAUGH. What I’ve read in the newspapers, that’s correct. I do not know the facts and circumstances of that matter. It 

is under investigation, of course. 

Senator LEAHY. Did you see documents of the President relating 

to the NSA’s warrantless wiretapping program? 

Mr. KAVANAUGH. No. 

Senator LEAHY. What about documents related to the administration’s policies and practice on torture? Did you see any documents on that whatsoever, according to the President? 

Mr. KAVANAUGH. No. The only time I have learned of the legal 

memos and have read some of them was after there was public disclosure of some of those memos in the summer of 2004, and I think 

in late 2004 or early 2005 I might have read some of those memos. 

Of course, they had already been publicly released at that point. 

Senator LEAHY. What about the Presidential signing statements 

that indicated reservation on the part of the President regarding 

provisions in law passed by the Congress? You have seen those 

signing statements, have you not? 

Mr. KAVANAUGH. Signing statements come through the staff secretary’s office and also when I was in the counsel’s office before 

50

that, the counsel’s office sometimes has a role in signing statements. So signing statements traditionally for past Presidents and 

this President identified potential constitutional issues such as Appointments Clause, Presentment Clause, or record— 

Senator LEAHY. These signing statements reserving the President’s rights of whether to follow or not follow some parts of the 

law that he is signing, there have been more—you said this has 

been done by past Presidents, but there have been more done by 

this President than all past Presidents put together. So let me ask 

you this: There was a great deal of publicity here on the Hill and 

at the White House when the President signed the so-called 

McCain amendment against torture or inhuman treatment of detainees and prisoners, far less fanfare a couple days later there was 

a signing statement to basically reserve—the President reserved 

the right to determine who is going to have to follow the law. Did 

you see that signing statement? 

Mr. KAVANAUGH. I did see that signing statement, Senator. 

Senator LEAHY. What was your reaction to it? 

Mr. KAVANAUGH. Senator, the President has made clear that the 

United States and this Government does not torture or condone— 

Senator LEAHY. That is not my question. Do you believe that the 

President had a right to reserve the exercise of parts of that law 

that he might not like or to reserve its application to certain people? 

Mr. KAVANAUGH. My understanding of that signing statement, 

which is what the President’s spokesman said a few days after it 

was issued, and questions like the one you are raising were raised 

to him, is that the President intends to follow that law as written. 

He shook hands with Senator McCain in the Oval Office about 

that. He has made clear and the President’s spokesman made clear 

that the administration will follow that law as written, as I understand it. 

Senator LEAHY. Then why the—I mean, you saw the signing 

statement. It passed through your hands. Why have a signing 

statement then that basically reserves the President’s right not to 

follow the law if he does not want to? Why do that? Do you have 

any qualms about these kind of signing statements? 

Mr. KAVANAUGH. Senator, that signing statement, as I recall it, 

identified a number of issues other than the one you are talking 

about. On the specific sentence that relates to the question you are 

raising, I believe the signing statement identified that this fell into 

something that the President has authority on, to go back to Justice Jackson’s Youngstown concurrence that I— 

Senator LEAHY. Well, that also makes it very clear if there is a 

law that the President’s ability to act, as Justice Jackson pointed 

out, is at its absolute minimum. 

Let me ask you this: Does the President, if he is claiming a Commander-in-Chief override or anything else, does he have the authority to authorize or excuse the use of torture in interrogations 

of enemy prisoners despite domestic and international laws prohibiting the practice? 

Mr. KAVANAUGH. Senator, the President under Article II of the 

Constitution has the constitutional responsibility to follow the ConVerDate 0ct 09 2002 15:17 Jun 22, 2006 Jkt 027916 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27916.TXT SJUD4 PsN: CMORC
51

stitution and the laws passed by the Congress of the United States. 

That is part of his responsibility, including— 

Senator LEAHY. In treaties we— 

Chairman SPECTER. Let him finish his answer. 

Senator LEAHY. I want to make— 

Chairman SPECTER. No, no. Let him finish his answer. He is in 

the middle of an answer. 

Senator LEAHY. Go ahead. 

Mr. KAVANAUGH. Including the laws against torture reflected in 

18 U.S.C. 2340 and related provisions, including other statutes 

passed by this body. That is part of his Article II responsibility. 

Senator LEAHY. Including treaties that this country has entered 

into, which have become the law of the land once we have entered 

into them. 

Mr. KAVANAUGH. When the treaty is the law of the land, the 

President has the constitutional responsibility to follow the Constitution of the United States and the laws of the United States. 

Senator LEAHY. So is your answer—and I do not want to interrupt you from answering. Does the President have the authority to 

authorize or excuse the use of torture in interrogation of enemy 

prisoners when there are domestic or international laws that we 

have entered into prohibiting the practice? 

Mr. KAVANAUGH. Senator, the President has said that the administration follows the law, that the United States does not torture, 

that the United States does not condone torture, the United States 

does not participate in torture. The President has said that many 

times. He said he met with Senator McCain in the Oval Office on 

one statute. The President’s spokesman clarified a question you 

raised and said that the President intends to follow that law as 

written. 

Senator LEAHY. You know, it is funny, but I would think differently after Abu Ghraib and after the rendition by Americans 

under the authority of the Commander-in-Chief, renditioning of 

people to countries knowing they would be tortured. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Leahy. 

Senator Hatch, anything further? 

Senator HATCH. Let me take just a few seconds. You know, I do 

not know why we needed this second hearing. In fact, I know we 

did not. Everybody had a shot at the first hearing and, frankly, I 

do not see any reason—and especially when I read through this 

transcript of the ABA. Here is what they say: ‘‘This nominee’’—I 

am just reading a few of the accolades toward you. And, by the 

way, I read the ABA description of each member on the Standing 

Committee. A number of them are Democrats, have very strongly 

supported Democratic Senators and others, but found you not only 

qualified but well qualified. 

Here is what they say: ‘‘This nominee enjoys a solid reputation 

of integrity, intellectual capacity, and writing and analytical ability. The concern has been and remains focused on the breadth of 

his professional experience and the most recent supplemental evaluation has enhanced that concern. Taken in combination with the 

additional concern of whether this nominee is so insulated that he 

should be unable to judge fairly in the future and placed alongside 

52

the consistently praiseworthy statements about the nominee in 

many other areas, the 2006 rating can be seen in context.’’ 

And then he said, when he was asked by Mr. Jensen whether—

you know, you provided a few negative quotes about Mr. 

Kavanaugh in your written statement. He said, ‘‘Let me underscore, Pete, that we did not find him not qualified. There is not a 

breath of bad in this report or the earlier report. We found him 

qualified, minority well qualified. What I said at the end is that, 

in fact, many people said he has a solid reputation for integrity, intellectual capacity. A lot of people refer to him as brilliant and an 

excellent writing and analytical ability. These are great skills to 

bring to the court of appeals.’’ 

Now, these are just a few of the comments. Let me just give a 

couple others. 

Mr. Tober again for the Bar Association: ‘‘The positive factors 

haven’t changed a whole lot. He is found to have high integrity. He 

is found to be brilliant. He is a very skilled writer and legal analyst. He has those components. And I have said this before, but I 

think you were probably doing better things. He has those skills 

that will serve him well certainly on a Federal court.’’ 

Well, I asked him, I said, ‘‘I just wanted to mention that I am 

correct in looking at the record that he has had some 24 people 

evaluate him, and not one has found him not qualified.’’ Mr. Tober 

of the Bar Association: ‘‘I don’t know the number to be 24. I would 

take your word on that. But it is true there is not a single ‘not 

qualified’ vote in the picture.’’ 

I wonder what all the fuss is about. Frankly, to force a second 

hearing—now, I acknowledge our colleagues have a right to do 

that, but the fact of the matter is I have not heard anything here 

today that would cause anybody to vote against you who is fair. I 

have just got to say, you know, I came here expecting to hear some 

bombastic things that might show that they think you might not 

be qualified to sit on the court. My gosh, your experience is virtually, other than the law firm experience where you were a partner in Kirkland and Ellis, one of the greatest law firms in the 

country, your experience has been an experience of service. And everybody with whom you have worked has felt the same way. 

I want to put in the record, Mr. Chairman, a whole list of letters 

from former Attorneys General, former Solicitors General, your 

classmates, bipartisan, both Democrats and Republicans, all of 

whom support you wholly and without reservation. 

Again, I just say, you know, I do not want to question my colleagues. They have a right to ask these questions, and I suspect 

they had a right to call for this second meeting. But I have not 

heard anything here today that justifies having had the second 

meeting. 

Now, all I can say is that I am proud to support you because I 

believe that the Bar Association is right here. 

Thanks, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Hatch. 

Senator Schumer? 

Senator SCHUMER. Thank you, and I would say to my good friend 

from Utah, hope springs eternal. Many of us had hoped that maybe 

53

Mr. Kavanaugh would answer some of the questions he did not answer in the first hearing in the writings, but he has not, in general. 

In your written responses to Senator Durbin, you said—well, let 

me first—you said you were not involved in the nomination process 

either of Mr. Haynes or of Judge Bybee. Is that right? You said 

that in reference to questions asked before? 

Mr. KAVANAUGH. I did not have primary responsibility— 

Senator SCHUMER. I did not ask that. Were you involved? 

Mr. KAVANAUGH. There is a Committee that meets to discuss 

prospective judicial nominees. 

Senator SCHUMER. Were you involved in those discussions? Did 

you voice opinions about Haynes and Bybee at that committee? 

Mr. KAVANAUGH. Senator, I don’t remember the timing of that, 

but if it was when I was in the counsel’s office, it would have come 

through the Judicial Selection Committee when I was part of it, 

and it would have been part of the committee’s— 

Senator SCHUMER. Can you give me a yes or no answer? Were 

you involved in discussions involving the nominations of Haynes or 

Bybee? 

Mr. KAVANAUGH. Senator, I believe those were when I was still 

in the counsel’s office, so the answer would be yes. 

Senator SCHUMER. Thank you. I think before you— 

Mr. KAVANAUGH. I want to— 

Senator SCHUMER. I would just like—I do not have the record in 

front of me, but I would like to look at what you said in reference 

to other people’s questions there. 

Here is what you said in your written questions in response. You 

said, ‘‘It is fair to say that all of the attorneys in the White House 

Counsel’s Office who worked on judges, usually ten lawyers, participated in discussions and meetings concerning all of the President’s judicial nominees.’’ 

Do you remember, were you supportive of the nominations of 

Haynes and Bybee at the time? 

Mr. KAVANAUGH. I don’t remember talking about them, but they 

were members of the administration who people had worked with 

and knew. So I don’t— 

Senator SCHUMER. You don’t remember talking— 

Chairman SPECTER. Let him finish his answer. 

Mr. KAVANAUGH. I assume it would have come up at a Judicial 

Selection Committee meeting, and maybe I should explain how that 

works, Senator. 

Senator SCHUMER. I don’t have that kind—unless I can have a 

little extra time, and I would be happy to let him explain. 

Chairman SPECTER. Well, that is part of the answer to the question, Senator Schumer. 

Senator SCHUMER. OK. Then I will—I will not— 

Chairman SPECTER. You can have an extra 2 minutes. Go ahead. 

Senator SCHUMER. Well, that is very kind of you. Thanks, Mr. 

Chairman. Go ahead. 

Mr. KAVANAUGH. Judge Gonzales, when he was counsel, set up 

a Committee which included members of the White House Counsel’s Office as well as Justice Department officials. Within the 

White House Counsel’s Office, one of the associate counsel—there 

54

were eight of us—would ordinarily be assigned to particular States, 

particular circuit seats, so— 

Senator SCHUMER. I understand that. I am just asking a— 

Chairman SPECTER. Senator Schumer, let him finish his answer. 

Senator SCHUMER. Mr. Chairman, please, we have limited—all 

right. Then I will ask for a third round, because there is limited 

time here, and we know the general structure. It is described in the 

writings. I am asking a specific question. I am asking whether Mr. 

Kavanaugh can recall whether he was supportive in those discussions. He said here, it is fair to say, all of the attorneys participated in the discussions concerning all of the President’s judicial 

nominations. He is brilliant. He went to every law school—or the 

best law schools—Haynes and Bybee, no, he cannot. OK. I am now 

on that. He said so he probably did. 

I am asking if he remembers being supportive of either of those 

nominees, not—you were not in charge of those nominees. We have 

established that three times over. Were you supportive in those 

general discussions, which you say all of the attorneys participated 

in? 

Mr. KAVANAUGH. If both of them were nominated before July 

2003, then the answer is yes. 

Senator SCHUMER. Were you supportive? 

Chairman SPECTER. Now he is right in the middle of an answer, 

Senator Schumer. Let him finish. 

Senator SCHUMER. That was not my question. 

Mr. KAVANAUGH. Then the answer would have been yes, because 

it would have come before the Judicial Selection Committee. 

Senator SCHUMER. Thank you. Now, let me ask you this. 

Mr. KAVANAUGH. Senator, if I may— 

Senator SCHUMER. Please. 

Mr. KAVANAUGH. What question—the answer is yes, that they 

would have been discussed at the Judicial Selection Committee. 

Senator SCHUMER. I thought you were answering—so, please, answer my question, not the general procedure. Were you supportive 

of the nominations of Haynes and Bybee when they came before 

that committee? Did you dissent? Did you say nothing? Were you 

supportive? 

Mr. KAVANAUGH. With respect to—this is a line that I think 

Judge Gonzales has maintained—with respect to individual deliberations about prospective judicial nominees, that’s something that 

it’s not appropriate for me to disclose in this context. 

Senator SCHUMER. And why is that? 

Mr. KAVANAUGH. Because the President benefits from having 

candid and full discussions of his prospective judicial nominees, 

and for those to be candid, there has to be a guarantee of confidentiality there. 

Senator SCHUMER. Let me ask you this. Do you ever recall having dissented when a name was brought before this Committee in 

the general discussions? Did you ever—to any of them, do you ever 

recall having dissented and saying, ‘‘I don’t think this person 

should be put forward?’’ 

Mr. KAVANAUGH. Senator, in all the deliberations that we’ve had 

on judges and other issues, I’ve never been a shrinking violet. I’ve 

always been—put forward my views, and you can assume I put forVerDate 0ct 09 2002 15:17 Jun 22, 2006 Jkt 027916 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27916.TXT SJUD4 PsN: CMORC
55

ward my views strongly. Once Judge Gonzales or the President 

makes a decision, I also adhere to that decision. 

Senator SCHUMER. I understand. I am asking you did you dissent 

about potential nominees before—when the Committee discussed it 

before the President made a decision? You were the Committee 

that was vetting these people. 

Mr. KAVANAUGH. And I’m giving you an answer that says there 

were a lot of deliberations. A lot of people would debate the merits 

of nominations, and you can assume that various people would disagree about particular nominees. 

Senator SCHUMER. Did you disagree? 

Mr. KAVANAUGH. Senator, I don’t want— 

Senator SCHUMER. To any of these nominees, any of these potential nominees when it came before the committee? You said you are 

a person of strong opinion, which you are. I know that, or my colleague, the Chairman, said you did not criticize this list of people, 

but I have a long list of people you were free to criticize, who happen to be at a different political viewpoint. But that is not what 

I am asking here. I am asking you, did you object and say, ‘‘I don’t 

think this person or that person should be nominated,’’ when you 

were in this committee? 

Mr. KAVANAUGH. Senator, I do not think it’s appropriate— 

Senator SCHUMER. I am not asking about a specific person. 

Mr. KAVANAUGH. I do not think it’s appropriate for members of 

the President’s staff to disclose whether they agreed or disagreed 

with recommendations on particular judicial nominees. 

Senator SCHUMER. Why is it not appropriate? There is no privilege, I presume? 

Mr. KAVANAUGH. Because that would chill the candid discussion 

that the President benefits from in hearing advice about prospective— 

Senator SCHUMER. You mean not to mention a specific name, but 

to simply ask someone whether they dissented on any would chill 

discussion? That if you admitted you dissented on some, then people would be chilled from saying that? I did not ask a particular 

name. 

Mr. KAVANAUGH. I’m saying that there were candid deliberations 

in the judicial selection process. 

Senator SCHUMER. We know that. 

Mr. KAVANAUGH. That there would be particular people that 

would come up for consideration, and there would be debate about 

them. 

Senator SCHUMER. Did you dissent? Did you ever say in the 

meetings, ‘‘I don’t think this particular person belongs on the 

bench?’’ That is not a question that should chill anybody. That, in 

fact, I would argue, sir, is your obligation to answer us. We do not 

have much of a record here. My colleagues here, justifiably, have 

said you have had a lot of Government service and that is what 

justifies you. We try to find out anything about that Government 

service, and we do not get an answer. Now, what is the harm to 

future deliberations of future counsels, deputy counsels, by your 

saying I did or I did not dissent and say certain people should not 

be on the bench, other than you just do not want to answer the 

question for us, and we cannot compel you, particularly when evVerDate 0ct 09 2002 15:17 Jun 22, 2006 Jkt 027916 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27916.TXT SJUD4 PsN: CMORC
56

eryone on the other side is going to vote for you no matter what 

you say. 

Mr. KAVANAUGH. Senator, let me try it this way. On a previous 

question you had, I said I needed to check with the counsel. I went 

back. Karl Rove does participate in the White House Judicial Selection Committee. 

Senator SCHUMER. Thank you. 

Mr. KAVANAUGH. On this question I would like also to go back 

to the counsel, if I could, and I’ll try to provide you a timely answer 

in the same way. 

Senator SCHUMER. But I have some followup questions I would 

then ask you to answer as well. What was the basis of your dissent? I do not want to ask about specific people. I would like to. 

I think it is relevant, but there you might have an argument. I 

would also like you then, if the counsel says that it is OK to answer, that you tell us the basis for the dissent. Was it temperament? Was it ideology? Was it this? Was it that? 

Chairman SPECTER. Senator Schumer, you are 2 minutes over 

the extended time. That means you are 9 minutes plus into this 

questioning. How much longer would you like? 

Senator SCHUMER. I would like another few minutes. I think it 

is important. I cannot tell you. It depends where the questions go, 

but I will not take a half hour. I will not take much time. 

Chairman SPECTER. Well, we are going to go— 

Senator SCHUMER. I think this is— 

Chairman SPECTER. You are almost up to 10 minutes. We are 

going to go to this side for a minute or two, and we will come back 

to you for another round. 

Senator SCHUMER. Thank you. That is just fine. Thank you, Mr. 

Chairman. 

Chairman SPECTER. Senator Schumer, I do not want you to be 

cut short. 

When you say that everybody on this side is going to vote in 

favor of Mr. Kavanaugh, if that raises any suggestion that everybody on this side is not going to vote against him, that might draw 

some raised eyebrows. 

Senator SCHUMER. Mr. Chairman— 

Chairman SPECTER. Now wait a minute. It is my 5 minutes. 

Start the clock. I am on round 3, because Senator Schumer is going 

to have round 3. And I will come back to you too, Senator Coburn. 

I have listened to your testimony very carefully, Mr. Kavanaugh, 

but, frankly, it has been hard because there have been so many 

interruptions. But let me plow this ground again to see if I understand what you have said. 

You have said that when you had a certain job up till 2003, it 

was your responsibility to sit on a panel, a group of people evaluating judges; is that right? 

Mr. KAVANAUGH. That’s correct, Senator. 

Chairman SPECTER. And then when you changed jobs, it was no 

longer your responsibility to sit on a panel evaluating judges? 

Mr. KAVANAUGH. That’s correct, Mr. Chairman. 

Chairman SPECTER. And what date is that? 

Mr. KAVANAUGH. That would be early July 2003. 

57

Chairman SPECTER. And that is when you changed from being an 

Assistant White House Counsel to being Staff Secretary? 

Mr. KAVANAUGH. That’s correct. 

Chairman SPECTER. Now, you said that you are no shrinking violet and you disagreed when you thought that there was somebody 

up whom you disagreed with as to their qualifications. Isn’t that 

what you said? 

Mr. KAVANAUGH. Yes, Mr. Chairman. 

Chairman SPECTER. And you would not specify which individuals 

you disagreed on? 

Mr. KAVANAUGH. No. 

Chairman SPECTER. You are not going to specify which individuals you disagree on because you think that is part of the deliberative process and it would unfairly impinge on freedom of discussion 

there, or a chilling effect. Is that what you have testified to, the 

Senator Schumer? 

Mr. KAVANAUGH. That’s correct, Mr. Chairman. 

Chairman SPECTER. Now, you also testified, as I could de-garble 

it through the interruptions, that you do not remember which people you disagreed on, or do you remember which people you disagreed on? I am not asking you which ones they were, but do you 

recall the specific individuals whom you thought should not be submitted for a judgeship? 

Mr. KAVANAUGH. I think the question here is because there can 

be multiple candidates for a particular judgeship that would come 

up, and you may rank them differently from how the ultimate decision comes out. That doesn’t mean that the final selection is a bad 

decision. 

Chairman SPECTER. Are you saying then that you never said as 

to any, ‘‘I think they’re unqualified,’’ but only that you ranked 

them? 

Mr. KAVANAUGH. Well, Mr. Chairman, I don’t think I should talk 

about that issue, at least without checking. 

Chairman SPECTER. Well, let’s explore that for just a minute. We 

are talking about generalized procedures, and you sit on a panel. 

This is while you are Assistant White House Counsel. And you are 

asked about a number of possible nominees for a judgeship. That 

is the procedure. Do you feel comfortable answering that? 

Mr. KAVANAUGH. Yes. Yes, Mr. Chairman, that’s the procedure. 

Chairman SPECTER. You have said that you are not a shrinking 

violet and you speak your mind. So at some point you either disagreed with the qualification of an individual, or thought that they 

fell behind some others in terms of a ranking system. Is that a fair 

inference or conclusion from your testimony? 

Mr. KAVANAUGH. I think it is, Mr. Chairman. The one thing I 

want to be careful about is talking about the qualifications of an 

individual as opposed to ranking individuals. And that’s, in terms 

of the qualifications of an individual, some people are more qualified than others. You may rank them differently from how some 

other members of the committee, and you may disagree with the 

ultimate selection. I’m sure that happens all the time in any process like that. 

58

Chairman SPECTER. I am sure it does too. That is what you are 

testifying about. How many individuals were you considering, 

many, many, many, were you not? 

Mr. KAVANAUGH. There have been hundreds, Senator, that have 

been confirmed, and that means that there are many hundreds 

more, because you assume for each one of those spots— 

Chairman SPECTER. OK, so we are in the hundreds. 

Mr. KAVANAUGH. It could be over a thousand. 

Chairman SPECTER. I am not asking you whom you disagreed 

with or whom you ranked where. Do you remember among those 

hundreds you confirmed and hundreds more you considered, among 

those hundreds and hundreds of people, can you recall specific individuals and rankings at this time, some 3 years after the fact? 

Mr. KAVANAUGH. I certainly, Mr. Chairman, do not recall the 

specific deliberations. I do recall some, of course, and that is natural. It is also natural for there to be debate and discussion on judicial nominations by the Judicial Selection Committee. That’s 

what we want so that the President gets the best advice, the best 

recommendations of the staff. 

Chairman SPECTER. OK. There are some that you recollect because they stand out for one reason or another, right? Correct? 

Mr. KAVANAUGH. That’s correct, Mr. Chairman. 

Chairman SPECTER. And you are not prepared to identify those 

individuals because you believe that would restrict the candid discussion. We have been through this on Chief Justice Roberts, on 

the Solicitor General’s Office. We have been through it on a lot of 

decisionmaking processes, and I do not want to get into the question about limited privilege here today. I just want to understand 

your thinking as to why, among those whom you remember, you 

will not identify. And as I think you have testified in response to 

Senator Schumer, but I am not sure because of the garbled nature 

with the interruptions, that you will not be specific even as to those 

whom you remember because you do not want to impinge upon 

that deliberative process. Is that right? 

Mr. KAVANAUGH. That’s correct, Mr. Chairman. 

Chairman SPECTER. Senator Schumer, you have five more minutes, and then we are going to wrap up your side. 

Senator LEAHY. I just wanted to respond to something that you 

said, Mr. Chairman, this idea of a closed mind. I spent 17 months 

as Chairman of this Committee. 

Chairman SPECTER. Let’s start the clock if Senator Leahy is 

speaking. 

Senator LEAHY. I spent 17 months as Chairman of this Committee during President Bush’s term. We moved 100 judges. We 

have had two Republican chairmen since. Both are friends of mine. 

Neither one of them have moved President Bush’s nominees 

through as fast as I did. So let’s not talk about closed minds or the 

partisanship. And we did this notwithstanding the fact that the Republicans had pocket-filibustered 64 of President Clinton’s nominees in the few years leading up to that. We Democrats moved 100 

of President Bush’s nominees through in 17 months, an all-time 

record. 

Now, what I want to know is how do you approach recusal? You 

have been a key member of the Bush-Cheney administration. We 

59

have a President making sweeping claims, nearly unchecked executive power. A number of these matters, issues are going to come 

before the D.C. Circuit, assuming we have any check and balances. 

The Congress has not done much in the way—with some few notable exceptions, has not done much in the way of checks and balances. The rest of America waits for the courts to do that. How do 

you determine what you are going to recuse yourself from? What 

about if it is a challenge to the administration’s practice of rendition, of sending people to other countries to be tortured? What if 

it is about the administration’s interrogation practices in detention? What about their wiretapping of Americans without warrants 

through NSA? Where do you recuse yourself? 

Mr. KAVANAUGH. Senator, if I am confirmed to the D.C. Circuit, 

I will do the analysis under 28 U.S.C. 455. There are some specific 

recusal obligations in Section 455(b), which I would of course follow. There’s also a more general recusal prescription in Section 

455(a), which talks about when a judge’s impartiality reasonably 

might be questioned. I would do the analysis of that by looking at 

the precedents. There have been other people who have gone from 

the executive branch to the judicial branch, of course. I would do 

it by consulting with my colleagues, and do it by looking at the 

facts and circumstances of each particular case. 

I think it’s hard to make a recusal determination in the abstract 

here— 

Senator LEAHY. Would you think if a question came up about the 

administration’s practice, the Bush-Cheney administration’s practice of rendition of people to other countries, would that at least 

raise a red flag in your mind? 

Mr. KAVANAUGH. Senator, on recusal questions generally, I don’t 

think I can—because I haven’t done the work necessary—identify 

specific cases, and we don’t know what those cases might be where 

I might recuse. I can pledge to you a serious process. I understand 

there could be issues. I would follow the precedents, look at the 

precedents, consult with my colleagues. 

Senator LEAHY. What if it is questioning a policy or practice with 

which you were involved at the White House, either forming the 

policy or making the decisions; would that be a pretty easy one? 

Mr. KAVANAUGH. Well, I think without knowing exactly where 

you’re saying, on 28 U.S.C. 455(b), there’s a specific prohibition 

that applies to Government lawyers who have worked on certain 

matters, and depending on the hypothetical, if that fell within that, 

I would have no hesitation about recusing. And just generally, Senator, I would have no hesitation about recusing. I just want to do 

the work and know the facts and circumstances before I make any 

determination. 

Senator LEAHY. These are not dissimilar to questions I asked 

Judge Roberts both when he was up for D.C. Circuit, and the Supreme Court. In his case, I was satisfied with his answer, and I 

voted for him, in his case. 

I understand, Mr. Chairman, Senator Feingold is not able to return for another round. He has written a followup letter to Mr. 

Kavanaugh. I ask that that letter be made part of the record. 

60

Chairman SPECTER. Without objection it can be made part of the 

record, but he is not seeking followup answers from the witness, is 

he? 

Senator LEAHY. I think that this is—yes, there is a specific one 

to which the nominee has expressed a willingness to respond, so 

that is very specific. Mr. Kavanaugh has been handed this. He has 

not seen it yet. The staff has— 

Chairman SPECTER. I want all the questions for Mr. Kavanaugh 

to be asked because as stated during our Executive last week, it 

is the intention to vote on him on Thursday, and he is going to stay 

here long enough within reason to answer the questions. 

Senator LEAHY. Well, I would hope that he would look at this, 

and I would hope that he might be prepared to answer. I think it 

can be done fairly quickly. 

Chairman SPECTER. Let me take a look at it first, and give him 

a copy, and I will pass it on to him, and meanwhile we will go on 

to Senator Coburn for a round of questions. 

Senator COBURN. Thank you, Mr. Chairman. 

Mr. Kavanaugh, does the president have— 

Chairman SPECTER. But we are coming back to you, Senator 

Schumer. 

Senator COBURN [continuing]. An obligation to try to preserve 

Presidential powers through signing statements? Is that not the 

purpose for them? 

Mr. KAVANAUGH. Presidential signing statements have been used 

throughout our history, Senator, and particularly in the last four 

Presidents that I’m aware of, to identify specific constitutional 

issues that can arise in provisions of statutes. They’re usually focused on things like the Appointments Clause. Suppose there’s a 

new board or commission and there’s an Appointments Clause 

issue. The Recommendations Clause, when reports are required 

that might be inconsistent with the Recommendations Clause. This 

is part of the conversation, the dialog, that the executive and the 

legislative branch have on issues like this through the years. 

Senator COBURN. But it is an important function of the president 

to elicit those areas of potential conflict on a constitutional basis, 

and to put a statement from the sitting President in regards to 

those. Is that not correct? 

Mr. KAVANAUGH. That is correct, Senator, and Presidents have 

been doing that throughout our history. 

Senator COBURN. So a reasonable man could believe somebody 

would not necessarily believe in torture, but might put something 

into the record on a signing statement that might be related to preserve Presidential powers or appointments or some other area, and 

not necessarily believing in torture, but be castigated that they do 

believe in torture because they happened to put that in, not for the 

purpose of torture, but for the purpose of protecting and enhancing 

or—not enhancing—protecting and securing what was there before 

in terms of Presidential powers. Is that not—a reasonable man 

could not think that? 

Mr. KAVANAUGH. Senator, Presidential signing statements, I 

think, the Counsel’s Office in particular in the Department of Justice, seek to rely on the precedents of the executive branch and legislative branch interaction, where there have been issues identified, 

61

and when new legislation comes up, say an Appointments Clause 

issue, a Presentment Clause issue, or Recommendations Clause 

issue, to identify that kind of issue. 

That’s been done throughout our history, and I think it’s very 

traditional. 

Senator COBURN. Would you think much of a President, who if 

they just ignored not doing that, they just decided, well, that is not 

important, I am not going to do that? 

Mr. KAVANAUGH. Senator, I think all the Presidents, at least in 

modern times, have identified issues when they come up. And 

again, it’s part of the conversation, part of the healthy back and 

forth between the executive and the legislative when these kinds 

of issues come up. 

Senator COBURN. But it is also done to preserve a point of view, 

so that when it is looked at in the future, somebody can understand what the debate was at that time; is that not correct? 

Mr. KAVANAUGH. Exactly, Senator. Puts it on the record. People 

know. It’s an open process. Then there can be discussion about 

issues that might be, for example, an Appointments Clause problem with a new board or commission, then there can be discussion 

back and forth. If there is a problem, it can be fixed in a subsequent statute, for example. 

Senator COBURN. Do you believe President Bush’s statements on 

torture? 

Mr. KAVANAUGH. President Bush has said the United States does 

not torture, condone torture— 

Senator COBURN. I know what he said. I am asking you do you 

believe him? 

Mr. KAVANAUGH. Absolutely, Senator. 

Senator COBURN. So you do not have any heartburn over his 

signing statements in regard to anything if they are consistent 

with what he said and what he believes? 

Mr. KAVANAUGH. That’s absolutely correct, Senator. He has stated that the United States will not torture, does not condone torture, follows the laws against torture. He’s made that clear. 

Senator COBURN. Thank you. 

I yield back, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Coburn. 

Senator Schumer, you had a little over 10 minutes on an opening 

statement, 61⁄2 minutes on your first round, a little over 10 minutes 

on the last round. I want to conclude by five o’clock. You have five 

more minutes. 

Senator SCHUMER. Mr. Chairman, it is a lifetime appointment, 

and I think we should be allowed to ask questions. You put people 

in a box. If he goes on, I do not get a chance to ask all my questions. If I try to get to my answer by cutting him short, you take 

some umbrage. I do not think that is a fair way to proceed. OK? 

Chairman SPECTER. Well, I do not cut short. I asked you not to 

cut him short. 

Senator SCHUMER. Well, then just give me the time that I need 

instead of telling me we must end at five o’clock for a lifetime appointment. 

Chairman SPECTER. Well, your questions may exceed the tenure 

of his appointment, Senator Schumer. 

62

Senator SCHUMER. No. My questions are fair questions for somebody who is going to have tremendous power. I think they are relevant. 

Chairman SPECTER. Let’s put the clock back to 5 minutes, and 

start in, and see how we do. 

Senator SCHUMER. Thank you, Mr. Chairman. I appreciate it. 

And I just make a couple of quick comments here. 

First, I did not ask you, Mr. Kavanaugh, although Senator Specter interpreted it that way, to name specific judges. I asked you did 

you ever dissent—and I was explicit—not on specific judges. And 

you said to me you would not be able to answer that question until 

you checked with counsel. Is that correct? 

Mr. KAVANAUGH. That’s correct, Senator. 

Senator SCHUMER. Did you then answer Senator Specter saying 

you did dissent? Did you change that answer? That is what I am 

trying to figure out here. 

Mr. KAVANAUGH. I think it goes, Senator, to whether there was 

a different rank order in particular discussions, or whether you 

thought someone was unqualified for the— 

Senator SCHUMER. I never asked about a rank order. I asked 

you— 

Mr. KAVANAUGH. It just came up. 

Senator SCHUMER. Yes, Senator Specter did, but he was saying 

what I asked you, and he was not interpreting what I asked you. 

I asked you explicitly, was there ever a nominee—you don’t have 

to name him, and I was explicit—that you thought should not go 

forward and you said that? Not where you ranked him, but that 

you said should not go forward and you ranked him. Now, you said 

to me, as I recall—we can check the transcript—that you were not 

sure you could answer that question, although I expressed 

befuddlement as to why because we were not asking a specific 

name. Are you willing to say that you blocked certain—not 

blocked—that you urged that certain potential nominees not go forward, or do you want to go to counsel and see if you can answer 

that question? 

Mr. KAVANAUGH. Senator, I’m sure I, in the course of 21⁄2 years 

of debate over judges, I’m sure that all of us had preferences that 

weren’t reflected in the final decision. Is that your question? 

Senator SCHUMER. My question is did you, do you recall having 

ever stated that you do not think X potential nominee should move 

forward for whatever reason? 

Mr. KAVANAUGH. I’m confident, Senator, that on occasion, I 

would have rank ordered them differently from how the—so that 

the final decision was different from what my recommendation 

would have been. 

Senator SCHUMER. I did not ask that. I asked you did you ever 

express, at these meetings of the 10 counsel, this person should not 

be nominated? Do you want to go back and check your recollection 

and answer in writing before tomorrow? 

Mr. KAVANAUGH. Can I just ask a followup? 

Senator SCHUMER. Please. 

Mr. KAVANAUGH. Which is, do you mean should not go forward, 

period, regardless of who else was in the mix? Is that the— 

63

Senator SCHUMER. I mean, yes, that a person, regardless of who 

is in the mix, there might be certain people who you did not think 

deserved to be on the bench, whether someone else was in the mix 

or not? 

Mr. KAVANAUGH. I think that kind of question goes to the heart 

of the deliberative process that the President relies on for picking 

judges, to talk about whether you disagreed with the final selection, really, that’s something the President— 

Senator SCHUMER. OK. I am not asking an explicit name. I am 

just asking whether that happened. And you cannot recall, you cannot give me a yes or no answer to that? 

Mr. KAVANAUGH. Senator, again, I think that would go to the 

heart of the deliberative process. As I understand it, it’s important 

to protect the deliberative process so that the President gets the 

best advice. When the President makes a decision to nominate 

someone, it defeats the process for members of the staff subsequently to go out and say, ‘‘Well, I disagreed with the President on 

that,’’ or even if you don’t name names, to say, ‘‘I disagreed with 

some of his selections,’’ that’s— 

Senator SCHUMER. I think that is— 

Mr. KAVANAUGH [continuing]. Inconsistent with— 

Senator SCHUMER. Is— 

Chairman SPECTER. Let him finish, Senator Schumer. 

Senator SCHUMER. I have 1:27 left here. Are you going to let me 

ask a few more questions if I might? 

Chairman SPECTER. How many? 

Senator SCHUMER. I do not know. A few. 

Chairman SPECTER. Finish your answer, Mr. Kavanaugh, if you 

can remember where you were. 

Mr. KAVANAUGH. I think that’s inconsistent with the deliberative 

process that the President needs to rely on to pick the best judges 

for the Federal judiciary. 

Senator SCHUMER. I fail to see any reason. I think people are put 

on the Committee to make that very decision, and I have a lot of 

questions. It puts questions in my mind why you refuse to answer 

that question. But let’s move on. 

You did say you would check with counsel earlier, and then you 

came back to me about Karl Rove, and you said he was involved 

in the process. OK. In what capacity was he involved? How often 

did he consult with you and the other counsels about prospective 

nominees? 

Mr. KAVANAUGH. Again, Senator, he’s part of the committee. The 

Committee meets weekly. I’m not sure how often he attended. I 

know he participated though. 

Senator SCHUMER. Was it more than once? 

Mr. KAVANAUGH. He was a regular participant. 

Senator SCHUMER. A regular participant in the Committee of 10? 

Mr. KAVANAUGH. Well, it’s actually much bigger than 10. The 

committee— 

Senator SCHUMER. But he was a regular participant in the decisions? 

Mr. KAVANAUGH. In the committee process there’s many more 

than 10. I’d say it’s about— 

Senator SCHUMER. And what do you recall— 

64

Chairman SPECTER. He is right in the middle of an answer, Senator Schumer. 

Senator SCHUMER. Go ahead. 

Mr. KAVANAUGH. I just want to be careful to make sure you understood that the committee, at least when I was on it—I don’t—

haven’t gone since 2003—but included all the people in the White 

House Counsel’s Office plus several Justice Department lawyers, 

plus people from other White House offices like the Legislative Office on occasion it would attend. So it’s many more than 10. I don’t 

know the exact number though. 

Senator SCHUMER. And did he ever discuss politics relevant to 

why this judge should go forward or that one should not, like it is 

am important State to us, it is an important reason, so-and-so 

wants him? Did that ever come up? 

Mr. KAVANAUGH. Senator, I think it’s important not to disclose 

the internal deliberations that might occur. Of course we worked 

very closely with the Senators in each State. We’ve worked closely 

in New York with you and Senator Clinton on judicial nominations, 

and Judge Raggi, and many district court nominations. We’ve 

worked well together with you, and so that’s of course part of the 

process, is, OK, the Senators in this home State are suggesting soand-so. Is that person the best person? And then a back and forth 

of the home State Senators. That’s part of the process, and those 

discussions would often occur at the—those kinds of discussions 

would often occur. And so I think that’s— 

Senator SCHUMER. And Karl Rove was involved in those? 

Mr. KAVANAUGH. Karl Rove participated in the process. 

Senator SCHUMER. OK. Let me ask you this. Who else was on 

that—you said Karl Rove was a regular participant. Who else who 

was not in the Counsel’s Office was a regular participant? 

Mr. KAVANAUGH. Senator, I would think the Counsel’s Office, if 

the Counsel thought this was appropriate, could provide you a list, 

if she thought it was appropriate, and I don’t know the answer to 

that question. 

Senator SCHUMER. But you said you consulted her and it was OK 

to mention that Karl Rove was part of the process? 

Chairman SPECTER. Mr. Kavanaugh, answer the questions within the scope of your recollection, not referencing anybody else who 

can provide a list. I do not want to have any strings outstanding. 

You are here today to answer questions. 

Senator SCHUMER. I thank you, Mr. Chairman. 

Chairman SPECTER. You answer the questions as to what you 

know. 

Mr. KAVANAUGH. Mr. Chairman, Senator Schumer, I don’t know 

that it’s appropriate for me to list everyone who’s on the committee. 

I can tell you the offices that are in it, the White House Counsel’s 

Office, the Department of Justice, offices that work closely with the 

committee, Office of Legal Policy on Judges, Karl Rove was involved. Chief of Staff’s Office on occasion. I think those are the people—if I’m leaving anyone out, Senator Schumer, I’ll make sure 

to— 

Senator SCHUMER. Was there ever anyone outside of Government 

who participated in these groups? 

Mr. KAVANAUGH. No. 

65

Senator SCHUMER. And if you told us that Karl Rove participated, is there any legal, imaginable, legal reason that you couldn’t 

tell us who else participated by name, not by their offices? 

Mr. KAVANAUGH. Senator Schumer, I think I was saying that I 

could tell you the offices. I don’t know that I could remember all 

the names, sitting here, of who was at the particular meetings, but 

I told you the offices. 

Senator SCHUMER. Anyone from outside those three offices that 

you mentioned, the White House Counsel, the Office of Legal Council, the Justice Department, anyone else from—Rove was not part 

of those—anyone else from outside of those offices? 

Mr. KAVANAUGH. Office of Legal Policy. Again, going back, it was 

Office of Legal Policy at Justice, just to be clear. 

Senator SCHUMER. Right, thank you. 

Mr. KAVANAUGH. Going back to my own time, from 2001 to 2003, 

and keeping in mind what the Chairman told me to testify what 

I remember— 

Senator SCHUMER. Well, the Chairman is trying to move your 

nomination forward as quickly as possible. That is why he did that. 

Chairman SPECTER. Senator Schumer and I finally found an 

agreeable point. 

[Laughter.] 

Senator SCHUMER. There are more than you think, but not on 

judges. 

Mr. KAVANAUGH. If I’m leaving anyone out, I’ll send it in later, 

but Legislative Affairs, of course, on occasion because we deal with 

the Senate staffs; the Chief of Staff’s Office on occasion— 

Chairman SPECTER. When you send it in later, Mr. Kavanaugh, 

anything you are going to send in later has got to be in by tomorrow. 

Mr. KAVANAUGH. It will be in this evening, Mr. Chairman. 

Chairman SPECTER. OK. 

Mr. KAVANAUGH. I just want to make sure I’m not leaving anyone out, so the offices that I’ve mentioned, Deputy Chief of Staff’s 

Office on occasion would participate. 

Senator SCHUMER. OK. Just one final line of questioning, Mr. 

Chairman. 

And this involves what you said last time, which is that you testified that what the President is looking for is nominees who have 

respect for the law and who understand the legal system, and the 

role as a judge is different from one’s personal views. Do you believe that Justice Ginsburg and Justice Breyer have a respect for 

the law? 

Mr. KAVANAUGH. Absolutely, Senator. 

Senator SCHUMER. Why then do you believe the President keeps 

talking about judges in the mold of Scalia and Thomas, if the methodology, the rationale is respect for the law? 

Mr. KAVANAUGH. Senator, I think the President has talked about 

a general judicial philosophy that he’s looking for in prospective judicial nominees. 

Senator SCHUMER. But you indicated to me in the first hearing 

that you did not think ideology played a role at all in the selection 

of nominees, which I found incredulous. 

66

Mr. KAVANAUGH. Senator, in the first hearing, there was—I don’t 

think I explained clearly what ideology could entail. To my mind, 

the President considers, of course, one’s judicial approach, whether 

someone believes in interpreting the law and not imposing their 

own policy views. We do not ask your views on specific cases or 

issues. 

Senator SCHUMER. Understood. 

Mr. KAVANAUGH. Do not ask your views on policy issues that 

might exist. The President looks and wants his staff to look for people who share the kind of judicial approach he’s outlined, and of 

course, with this President, as with past Presidents, most judicial 

nominees are of the same party— 

Senator SCHUMER. So let me ask you this. If you believe that 

Justice Ginsburg and Justice Breyer have a respect for the law, as 

well as Justice Scalia and Justice Thomas, why are there so few 

nominees who seem to have the judicial philosophy of Justice Ginsburg and Justice Breyer, and many, many, many, who have the judicial philosophy of Justice Scalia and Thomas if ideology does not 

play a role in the selection? I am not saying it is wrong that it 

does, and I am not saying that it—but I was surprised that you, 

at your initial hearing, said it did not. If respect for the law is the 

judicial philosophy, that is what the President is looking for, then 

theoretically, the panoply of nominees should be much broader in 

terms of all kinds of things, their political affiliation, their judicial 

philosophy, their views on a variety of issues, and you are saying 

it did not play any role when you were there or others were there. 

I find that hard to believe, given who the President has sent before 

us. 

And one other point I would make just parenthetically. The reason I mentioned I sort of had an idea that that side of the Committee would vote one way, was because they voted yes on every 

single nominee the President has sent forward thus far. There has 

not been one single dissent of the 240 nominees, where on our side 

there have been a lot of yeses and a lot of noes. So it would be 

harder, at least by past experience, to judge that. That is why I 

said that. 

But anyway, go ahead. 

Mr. KAVANAUGH. Senator, I want to be very clear that the President has said that one’s judicial philosophy does play a role, does 

in fact play a role in the types of judges he’s looking for. Your approach to judging, whether you’re someone who believes in interpreting the law and not legislating from the bench. He’s made it 

very clear that does matter. What doesn’t matter is your view on—

and what we do not ask— 

Senator SCHUMER. I understand. You have said that, and I accept that, that you do not ask about specific issues like are you prochoice or pro-life. 

Mr. KAVANAUGH. Correct. 

Senator SCHUMER. But still, do you think that, for instance, Justice Breyer and Justice Ginsburg have any less respect for the law 

or are less likely to try to interpret the law than say Justice Thomas or Justice Scalia? 

Mr. KAVANAUGH. Well, Senator, as a nominee for an inferior 

court, I don’t think I should be talking about the Supreme Court 

67

Justices and trying to assess them. What I will say is the President 

has— 

Senator SCHUMER. How about between— 

Chairman SPECTER. What he will say is? Let him finish his answer. 

Senator SCHUMER. He did not answer my question. That is why 

I am trying to get an answer. 

Chairman SPECTER. Well, that is his answer. 

Senator SCHUMER. Go ahead. As long as we have time. 

Chairman SPECTER. And you may have a followup question. 

Senator SCHUMER. Thank you. 

Mr. KAVANAUGH. What I will say is the President has made it 

very clear that he does believe in appointing judges who will interpret the law as written, who will not legislate from the bench, who 

will not seek to impose their own policy views. He’s made that very 

clear. So judicial philosophy is a part of the judicial selection process. He said that many times, and I just want to be clear on that. 

Senator SCHUMER. Do you think that former Justice, the last 

Justice Thurgood Marshall, and say, Robert Bork, have a different 

view of what interpreting the law is, as opposed to imposing their 

own views, or do you think they each do it the same way? 

Mr. KAVANAUGH. I think Judge Bork has made clear that he has 

a different interpretive approach than say, Justice Marshall. For 

example, both in his testimony before this Committee, and in books 

he’s written since, Judge Bork made clear he had a different type 

of approach than Justice Marshall. 

Senator SCHUMER. Even though both have a respect for the law 

and understand the legal system? 

Mr. KAVANAUGH. Senator, I think— 

Senator SCHUMER. Those were your words. 

Mr. KAVANAUGH. Respect for the law is a necessary qualification, 

of course, but it does not encompass judicial philosophy. That’s a 

separate issue to look at in terms— 

Senator SCHUMER. The reason I ask you this is we rarely get an 

opportunity to question somebody who has sat on the Committee 

in this administration who does this. But it is obvious to me in 

what you say that clearly judicial philosophy and ideology make a 

difference here, and you have more or less said that. Nothing 

wrong with it. Democratic Presidents might do it too. But that is 

clearly happening. Would you disagree with that? 

Mr. KAVANAUGH. Judicial philosophy is part of what the President looks at because he’s made clear he wants to appoint judges 

who interpret the law. 

Senator SCHUMER. How is that different than the word ‘‘ideology’’ 

which I used to you at the first hearing? 

Mr. KAVANAUGH. Because I think ‘‘ideology’’ can encompass four 

different things, and we need to be very clear what we’re talking 

about so there’s no confusion. Ideology could encompass political affiliation. It could encompass your general approach to judging. It 

could encompass your specific view on particular cases, and it could 

encompass your policy views. The first two are the factors that are 

looked at in the final— 

68

Senator SCHUMER. But if what you mean by ideology is differing 

judicial philosophies, then clearly the President—if you mean 

that—then clearly ideology enters into the selection process, right? 

Mr. KAVANAUGH. Judicial philosophy matters, and if that’s how 

you’re defining it, then judicial philosophy matters. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Schumer. 

Mr. Kavanaugh, I do not want the record to be incomplete in any 

way. Senator Feingold, rather, Senator Leahy handed to me a letter that Senator Feingold purportedly wrote to you, dated yesterday, marked ‘‘hand delivery,’’ relating to answers to questions 3 

through 7, which he had asked you before. Did you get this letter? 

Aside from what was just handed to you, Mr. Kavanaugh—look at 

me—did you get this letter? 

Mr. KAVANAUGH. Yes, sir. 

Chairman SPECTER. Hand him the letter, would you, please? 

Mr. KAVANAUGH. I think this is a copy, sir. I was told about this 

letter and that— 

Chairman SPECTER. Now, never mind what you were told about. 

Just answer my question. Did you get this letter? 

Mr. KAVANAUGH. I don’t believe I got this letter, Senator. I’m just 

making sure. 

Chairman SPECTER. OK. Well, it is dated yesterday. Senator 

Feingold was here. He could have handed you the letter, or he 

could have asked you these questions. But he says he did not ask 

you questions 3 through 7, so I am going to take his part and ask 

his questions, although he should have. I do not want any loose 

threads hanging out of this hearing. I will ask them as best I can 

because his questions are not, with all due respect, self-explanatory. The staff has marked up the record on his written questions, 

saying that he had asked you all of the parts of question 3. 

Mr. KAVANAUGH. That’s correct. 

Chairman SPECTER. And moving on to question 4, he asked you 

about Judge D. Brook Smith’s not resigning from a club which he 

promised during a Senate hearing he would resign from. If you 

promised to resign from a club, Mr. Kavanaugh, would you keep 

that promise and resign from the club? 

Mr. KAVANAUGH. Yes, Mr. Chairman. 

Chairman SPECTER. On to question 5. This also refers to Judge 

Smith, but the relevant question is your values. And you probably 

already covered this in connection with other questions, but I will 

ask it to be sure that everything Judge Feingold wants asked is 

asked. Would you conform to the Judicial Disqualification Statute, 

28 U.S.C. Section 455, and recuse yourself if it is called for by that 

statute? 

Mr. KAVANAUGH. Yes, Mr. Chairman. 

Chairman SPECTER. On to Number 6. There was a question 

about whether Judge Smith complied with Advisory Opinion No. 

67, which sets forth the standards for free trips to educational seminars sponsored by, as he put it, ideological organizations, such as 

the Montana-based Foundation, et cetera. Will you comply with the 

requisite ruling with respect to acceptance of free trips? 

Mr. KAVANAUGH. Yes, Mr. Chairman, I certainly will. 

69

Chairman SPECTER. Would you go further, and decline to go on 

free trips? There are quite a few of us around here who decline to 

go on free trips because of the conflicts question involved and the 

reporting. I made a speech at NYU several years ago on a legal 

issue, took the train up and back, and read about it in the newspaper forever. Would you consider declining going on free trips? 

Mr. KAVANAUGH. That’s my intention, Mr. Chairman, for the reason you identify, that I would not go on any trips, and, you know, 

basically would go by a pay my own way philosophy. That’s my intention. 

Chairman SPECTER. Senator Feingold’s last question, No. 7, was 

related to a district judge, after confirmed by the Senate to a district judgeship in Texas, he told the New York Times that despite 

his confirmation, right now he is running for State representative. 

If you are confirmed, will you run for any other office? 

[Laughter.] 

Chairman SPECTER. Would that articulate a value that you 

would avoid? 

Mr. KAVANAUGH. I will not run for any other office, Mr. Chairman. 

Chairman SPECTER. Wise answer. Now, back to a revisit on dissenting and ranking. We played a tennis game here with Senator 

Schumer questioning you and my trying to clarify it, and Senator 

Schumer going back and asking some more questions, some might 

say not clarifying it, but Senator Schumer would not agree with 

that, so I will not press it. But let me review the bidding here very 

briefly. 

You engaged in a system where you ranked prospective nominees 

where there were a number of people for a single judgeship, correct? 

Mr. KAVANAUGH. That’s correct, Mr. Chairman, through a process. It may not be as formal as you’re describing, but, yes, basically. 

Chairman SPECTER. In that process, were you ever called upon 

to dissent, in Senator Schumer’s terms, that is to say, ‘‘Candidate 

X is unqualified as far as I am concerned,’’ or did you pursue the 

ranking, which you have already testified to? 

Mr. KAVANAUGH. Well, certainly with respect to candidates, of 

course there would be certain candidates you’d say, ‘‘I don’t think 

this person is suitable for the bench,’’ when you’re talking about 

candidates. I think Senator Schumer was talking about whether ultimate nominees, if there was dissent on ultimate nominees. 

Senator SCHUMER. If I might, Mr. Chairman? 

Chairman SPECTER. I will yield to you, Senator Schumer. 

Senator SCHUMER. Thank you. 

Chairman SPECTER. For one question. 

Senator SCHUMER. I was asking about potential nominees. Were 

there potential nominees that you said, as it came before this committee—not the ranking system, I have said it three times. I think 

it is clear as a bell, even if my colleague does not want to say that 

is true. 

Chairman SPECTER. Are you saying who came before the committee? 

70

Senator SCHUMER. Who were discussed at this committee, who 

you said—I am not asking names—who said, ‘‘This person does not 

belong on the bench, and I don’t think we should recommend to the 

President that that person be nominated.’’ It is a very simple, clear 

question that I have asked three or four times. 

Chairman SPECTER. I do not— 

Senator SCHUMER. Can I— 

Chairman SPECTER. Go ahead. 

Senator SCHUMER. And at one point you said to me that you 

would have to ask counsel if you could answer that question, and 

at another point I believed you said that you did not think it was 

appropriate to answer that question, and now, in reference to Senator Specter’s question—maybe you did not know it was potential 

nominees—you said—well, why don’t you answer it? 

Mr. KAVANAUGH. If it’s talking about— 

Chairman SPECTER. If you understand that question, go ahead. 

[Laughter.] 

Mr. KAVANAUGH. If we’re talking about— 

Senator SCHUMER. I think everybody understands that question. 

Mr. KAVANAUGH. If we’re talking about the general— 

Chairman SPECTER. I do not care about everybody. I care about 

him. Do you understand that question? 

Mr. KAVANAUGH. I now do. I think there might have been some 

confusion. Of course, when there’s a list of candidates that come before the committee, you might say someone’s not qualified, of 

course, before the Judicial Selection Committee. Some people just 

are not suitable for the bench. They might be recommended by 

someone. For example, they get on a list of recommended people 

that come from a Senator, from a Governor, from a Member of Congress, and you might assess that person’s record and say, ‘‘You 

know what? That person is just not suitable for the Federal bench.’’ 

Of course that happens. 

Senator SCHUMER. Then may I ask a followup question, Mr. 

Chairman? 

Chairman SPECTER. Yes. 

Senator SCHUMER. Give us some of the reasons. Did you ever invoke the notion that their judicial philosophy was not appropriate 

for a judge? 

Mr. KAVANAUGH. The President’s made clear that judicial philosophy matters, so if someone did not share the judicial philosophy 

that the President has articulated, of course, that would be a reason, yeah. Also— 

Senator SCHUMER. And you would say that? You would say, ‘‘I 

don’t think Mr. X or Ms. X shares the President’s judicial philosophy?’’ 

Mr. KAVANAUGH. I think the President’s made clear that he will 

not appoint judges who seek to use the bench to impose their own 

personal— 

Senator SCHUMER. I understand. So you would say that on occasion when a nominee came before the committee? 

Mr. KAVANAUGH. Well, that’s what the President wanted, so we 

work for the President. 

Chairman SPECTER. Can you give him a simple yes? 

Mr. KAVANAUGH. Yes. 

71

Senator SCHUMER. Thank you. Thank you, Mr. Chairman. I 

think the question was pretty clear. 

And do you recall—and again, I do not need the name of the 

nominee—an example of why this person was not appropriate in 

terms of judicial philosophy? 

Mr. KAVANAUGH. If someone in our judgment or the assessment 

of the committee or the assessment of the interviewers, concluded 

that this person, in either direction, had policy views that they 

couldn’t separate from their judicial views, who didn’t seem to understand the difference that I think I’ve articulated today between 

the judicial role and the legislative role—and there are such people 

who sometimes get interviewed—if someone doesn’t understand 

that role, then that person would be—could be deemed not suitable 

for— 

Senator SCHUMER. And how often did that happen? And I do not 

need an exact number or anything like it. 

Mr. KAVANAUGH. I think most of the candidates that members of 

the Senate recommend, that Governors recommend, usually come 

with the proper appreciation of the judicial role, but there are occasions where people share a different philosophy, or where people 

simply do not—someone might be interviewed who simply does not 

seem to recognize the distinction, which is critical in my judgment, 

between the policymaking role and the judicial role, but that— 

Senator SCHUMER. But you would never use the words, too liberal or too conservative, or would you? 

Mr. KAVANAUGH. Well, I think too activist. 

Senator SCHUMER. Would you? You would say too activist? 

Mr. KAVANAUGH. If someone doesn’t understand the judicial role 

and you would say that person believes in judicial activism and not 

judicial restraint, and the President’s made clear to us and made 

clear to the American people, that he’s looking for people who believe in judicial restraint to be judges. And, of course, that person 

wouldn’t fit what the President told us to look for. 

Senator SCHUMER. So you would occasionally say somebody 

would be too activist, in your opinion, to meet the President’s criteria? 

Mr. KAVANAUGH. Well— 

Chairman SPECTER. That is what you are saying, Mr. 

Kavanaugh. Can you give him another yes? 

Mr. KAVANAUGH. I’ll give him a yes, and say that’s what the 

President said to the American people— 

Senator SCHUMER. I understand. 

Mr. KAVANAUGH. —twice— 

Chairman SPECTER. OK, Senator Schumer. 

Senator SCHUMER. Just one more question. Were there ever people who were too activist from the conservative side as opposed to 

the liberal side? 

Mr. KAVANAUGH. Yes. 

Chairman SPECTER. This is your last question, Mr. Kavanaugh. 

Did you say yes? 

Mr. KAVANAUGH. Yes. 

Chairman SPECTER. Atta boy. 

[Laughter.] 

72

Senator SCHUMER. You can see why the Senator from Pennsylvania was a very fine prosecutor. He is very good at helping his 

witness. 

[Laughter.] 

Chairman SPECTER. All out in the open, all out in the open, all 

transparent. 

Senator Graham, you have been waiting patiently. I have tabulated Senator Schumer’s questions were 423⁄4 minutes, so you are 

limited now to 373⁄4 minutes. 

[Laughter.] 

Senator GRAHAM. I really do not have much to add, but that will 

not stop me. I found it actually fascinating. I mean you seem no 

worse for the wear. Senator Kennedy’s staff has a good question I 

think. Maybe I should not have said that, but I think it is a good 

enough question I will make it my own. 

Mr. Bybee, Judge Bybee, if you had known—well, you repudiated 

the memo, you thought it was not good legal reasoning; is that correct, the Bybee memo? 

Mr. KAVANAUGH. Yes. The administration has repealed that 

memo, and I stated my own personal agreement with repealing the 

memo. 

Senator GRAHAM. Would that have disqualified him, in your 

opinion, from being a judge if you had known it? 

Mr. KAVANAUGH. Senator, I’ve drawn a line here today which I 

think is important for maintaining the integrity of the judicial selection process, not to talk about people who are currently sitting 

judges or other judicial nominees by name. I don’t think that is appropriate for me to do. 

Senator GRAHAM. I will just end it and take my time. There is 

a fine line between doing your job as a White House counselor, 

being part of the judicial selection team and being a judge yourself. 

There is a line between being advocate and being a judge. I think 

you understand that line. And I think the questions have been 

very, very good, to be honest with you. And I expect President 

Bush to live up to his campaign promise of picking strict constructionist, non-judicial activists as he sees it. That is what the election 

was about. And if you have been part of that weeding-out process 

to make sure somebody in the conservative movement or the liberal 

movement does not get on the court, then I think not only have you 

done a good job in the White House, you fulfilled your obligation 

to the President. 

Now, your obligation is no longer to President Bush. Your obligation is to those people that come before you like they came before 

your mother. You are going to have a lot of characters come before 

you in a courtroom where their case is on appeal. And some of 

them you won’t like, and some of them you may feel close to philosophically. 

If you could, just in a very short statement, tell me what your 

job, what you will do with that responsibility, no matter who the 

person is that comes before you. What is your job now? 

Mr. KAVANAUGH. Senator, if I were confirmed, I believe in the 

absolute sanctity of ensuring the integrity of the—sanctity and integrity of the judicial process, which means treating all parties who 

come before the court equally. I think I did that as a law clerk for 

73

the two Court of Appeals judges and Justice Kennedy. I understand 

that function. That’s really central to the whole judicial role, equal 

justice under law. It doesn’t matter where you come from, it doesn’t 

matter what you look like, doesn’t matter what your background is. 

When you come into that courtroom, you have the right to present 

your case, and if you’re right on the law, you should prevail in your 

case. It doesn’t matter. 

And that’s the genius of our system. It’s been part of our system 

throughout our history, and if I were confirmed, I pledge to you 

and to all the members of the Senate that I would absolutely fall 

within that tradition. 

Senator GRAHAM. I look forward to voting for you. Thank you. 

Chairman SPECTER. Thank you very much, Mr. Kavanaugh. As 

previously announced, we will proceed to a vote on Mr. Kavanaugh 

on Thursday. I believe at this date—and I have checked with staff, 

who have been listening attentively, as have I—there are no outstanding questions for you to answer. Gone over what Senator 

Feingold’s letter said, and I believe you have responded on the Karl 

Rove answer, and I believe all the issues have been responded to. 

I want to compliment you on your stamina. I will reserve comments on your testimony until we meet on Thursday, when we will 

discuss your nomination, Mr. Kavanaugh, but I do not think there 

will be any disagreement in 3 hours and 27 minutes, without having moved from the witness chair, of your stamina, which is a tribute to your age and good health. 

[Laughter.] 

Chairman SPECTER. That concludes the hearing. 

[Whereupon, at 5:27 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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