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24–853 PDF 2005

S. HRG. 108–878

CONFORMATION HEARING ON THE NOMINATION

OF BRETT M. KAVANAUGH TO BE CIRCUIT

JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

APRIL 27, 2004

Serial No. J–108–69

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

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 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, 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

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 146

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 148

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 11

prepared statement .......................................................................................... 151

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 7

prepared statement .......................................................................................... 155

PRESENTER 

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

M. Kavanaugh, Nominee to be Ciruit Judge for the District of Columbia 

Circuit ................................................................................................................... 4

STATEMENT OF THE NOMINEE 

Kavanaugh, Brett M., Nominee to be Circuit Judge for the District of Columbia Circuit ............................................................................................................. 13

Questionnaire .................................................................................................... 14

QUESTIONS AND ANSWERS 

Responses of Brett M. Kavanaugh to questions submitted by Senators Leahy, 

Kennedy, Feingold, Schumer and Durbin .......................................................... 93

SUBMISSION FOR THE RECORD 

National Association for the Advancement of Colored People, Hilary O. 

Shelton, Director, Washington, D.C., letter ....................................................... 152

(1)

NOMINATION OF BRETT M. KAVANAUGH, OF 

THE DISTRICT OF COLUMBIA, TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT 

TUESDAY, APRIL 27, 2004 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:10 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Kyl, Sessions, Cornyn, Leahy, Kennedy, 

Feinstein, Schumer, and Durbin. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Good morning. I am pleased to welcome to the 

Committee today members, guests, and our nominee, Mr. Brett 

Kavanaugh, who has been nominated by President Bush to be 

United States Circuit Judge for the District of Columbia Circuit. 

We also welcome members of his family. I would note his father, 

Mr. Ed Kavanaugh, a long-time president of CTFA. We all know 

Ed. We know what a fine person he is and what a great individual 

he is, and we all respect him. So we want to welcome you, Judge, 

Ed’s wife, the mother of Brett, who is a renowned judge, and we 

appreciate having both of you here. 

Before we turn to the nomination, I want to tell members of the 

Committee that I remain hopeful that we can continue to complete 

the work of the Committee on both legislation and nominees. I was 

disappointed that we were not able to accomplish more at the 

markup last week. Earlier this month, we did report five district 

judges and two circuit judges. So I do appreciate the Committee’s 

efforts in that regard. 

Now, I remain concerned about the executive calendar and floor 

action. I remain hopeful that an accommodation on nominees can 

be reached and that floor action can be scheduled for those judges. 

The Senate has confirmed only four judges this year—all district 

court judges. By comparison, in the last Presidential election of 

2000, with a Democratic President and a Republican Senate, seven 

judges had been confirmed by this point in the year, including five 

circuit court judges. Furthermore, we are way behind the pace of 

that election year, which saw a total of 39 judges confirmed. And 

2

we remain well behind President Clinton’s first-term confirmation 

total of 203. 

So while we have made some progress in reporting nominees to 

the full Senate, the work of confirming judges remains. We presently have 29 judges on the executive calendar. Five circuit court 

nominees remain from last year on the executive calendar in addition to the six reported this year. Eighteen district nominees are 

available for Senate confirmation, including two holdovers from the 

last session. But we are making progress, and I thank all members 

for their support and ask for their continued cooperation. 

Now, today we will consider the nomination of Mr. Brett M. 

Kavanaugh. He is an outstanding nominee who has been nominated to the Circuit Court of Appeals for the District of Columbia. 

He comes to us with a sterling resume and a record of distinguished public service. Mr. Kavanaugh currently serves as Assistant to the President of the United States and Staff Secretary, having been appointed to the position by President George W. Bush in 

2003. He previously served in the Office of Counsel to the President as an Associate Counsel and a Senior Associate Counsel. 

After graduating from Yale Law School in 1990, Mr. Kavanaugh 

served as a law clerk for three appellate judges, so he has extensive judicial experience as well: Justice Anthony M. Kennedy of the 

Supreme Court, Judge Alex Kozinski of the United States Court of 

Appeals for the Ninth Circuit, and Judge Walter K. Stapleton of 

the United States Circuit Court of Appeals for the Third Circuit. 

He served for 1 year as an attorney in the Office of the Solicitor 

General, where he prepared briefs and oral arguments. 

Mr. Kavanaugh served in the Office of Independent Counsel 

under Judge Starr, where he conducted the office’s investigation 

into the death of former Deputy White House Counsel Vincent W. 

Foster, Jr. He also was responsible for briefs and arguments regarding privilege and other legal matters that arose during investigations conducted by the office. Mr. Kavanaugh was part of the 

team that prepared the 1998 report to Congress regarding possible 

grounds for impeachment of the President of the United States. 

In addition to this extensive public service, Mr. Kavanaugh was 

also in private practice. As a partner at the distinguished firm of 

Kirkland and Ellis, one of the great firms in this country, he 

worked primarily on appellate and pre-trial briefs in commercial 

and constitutional litigation. 

Mr. Kavanaugh, as I have said, received his law degree from 

Yale Law School, where he was notes editor for the Yale Law Journal. He is a cum laude graduate of Yale College, where he received 

his B.A. degree. 

The American Bar Association has rated Mr. Kavanaugh as 

‘‘Well Qualified,’’ its highest rating. Let me remind everyone what 

that rating means. According to guidelines published by the American Bar Association Standing Committee on Federal Judiciary, ‘‘To 

merit a rating of ‘Well Qualified,’ the nominee must be at the top 

of the legal profession in his or her legal community, have outstanding legal ability, breadth of experience, the highest reputation 

for integrity and either have demonstrated, or exhibited the capacity for, judicial temperament.’’ 

3

I want to turn now to a few of the arguments which I have heard 

raised by a number of Mr. Kavanaugh’s opponents and address 

some of the concerns I expect to hear today. 

First, is that Mr. Kavanaugh is too young and inexperienced to 

be given a lifetime appointment to the Federal bench, particularly 

to the important Circuit Court of Appeals for the District of Columbia. Now, there are many examples of judges who were appointed 

to the bench at an age similar to Mr. Kavanaugh, who is 39 years 

old, and have had illustrious careers. For example, all three of the 

judges for whom Mr. Kavanaugh clerked were appointed to the 

bench before they were 39, and all have been recognized as distinguished jurists. Justice Kennedy was appointed to the Ninth Circuit when he was 38 years old; Judge Kozinski was appointed to 

the Ninth Circuit when he was 35 years old; and Judge Stapleton 

was appointed to the district court at 35 and later elevated to the 

Third Circuit Court of Appeals. 

I think many of my colleagues would agree that age is not a factor in public service, other than the constitutional requirements. I 

would note that many in this body began their service in their 30s, 

if not barely age 30. Through successful re-elections, we have been 

benefited from a lifetime of service from such members of this body 

and members of the judiciary as well. 

With regard to judicial experience, I would reiterate that Brett 

Kavanaugh has all of the qualities necessary to be an outstanding 

appellate judge. He has impeccable academic credentials with extensive experience in the appellate courts themselves, both as a 

clerk and as counsel, having argued both civil and criminal matters 

before the Supreme Court and appellate courts throughout this 

country. 

As I have pointed out with previous nominees, a number of highly successful judges have come to the Federal appellate bench without prior judicial experience. On this particular court, the D.C. Circuit, only three of the 19 judges confirmed since President Carter’s 

term began in 1977 previously had served as judges. Furthermore, 

President Clinton nominated and the Senate confirmed a total of 

32 lawyers without any prior judicial experience to the U.S. Court 

of Appeals, including Judges David Tatel and Merrick Garland to 

the D.C. Circuit. 

I would mention that I think the work in the Supreme Court and 

the Circuit Courts of Appeals that Mr. Kavanaugh has had, do 

qualify him highly, in addition to all the other qualifications that 

he has. 

Opponents will attempt to portray Mr. Kavanaugh as a rightwing ideologue who pursues a partisan agenda. I have to tell you 

this allegation is totally without merit, and a careful scrutiny of his 

record will demonstrate otherwise. He is an individual who has devoted the majority of his legal career to public service, not private 

ideological causes. Within his public career, he has dedicated his 

work to legal issues, always working carefully and thoroughly in a 

professional manner. 

In short, Mr. Kavanaugh is a person of high integrity, of skilled 

professional competence, and outstanding character. He will be a 

great addition to the Federal bench, and he has the highest rating 

4

that the American Bar Association can give. And all of that stands 

him in good stead. 

So I look forward to hearing your testimony and any responses 

that you might make to questions from the esteemed members of 

this Committee. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

Now I will turn to our acting Ranking Member at this time, Senator Schumer, for any remarks that he would care to make, and 

then we will turn to Senator Cornyn, who will introduced Mr. 

Kavanaugh. But first I would like to introduce your fiancee. I will 

have you do that for us. Why don’t you do it right now? 

Mr. KAVANAUGH. My fiancee, Ashley Estes, from Abilene, Texas, 

is here, as well as my parents, Ed and Martha Kavanaugh. 

Chairman HATCH. Ashley, Ed, and Martha, we are so grateful to 

have all of you here. Ashley, don’t let this affect you, this meat 

grinder that we go through around here. Just understand, okay? 

We will turn to Senator Schumer. 

Senator SCHUMER. Mr. Chairman, I will defer to Mr. Cornyn first 

to introduce him, and then I will speak. 

Chairman HATCH. That will be fine. 

PRESENTATION OF BRETT M. KAVANAUGH, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, 

BY HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE 

OF TEXAS 

Senator CORNYN. I appreciate that very much, Mr. Chairman 

and Senator Schumer, that courtesy. I do just have some brief comments I want to make by way of introduction. 

It is my honor to introduce to the Committee, to supplement 

those remarks already made by the Chairman, about a distinguished attorney and devoted public servant, Brett Kavanaugh. I 

have known Brett for several years and had the privilege of working with him on a case that I argued to the United States Supreme 

Court, so I have had the chance to observe his legal skills from up 

close. And I have every confidence that he would be an exceptional 

jurist on the United States District Court of Appeals for the D.C. 

Circuit. 

His distinguished academic and professional record confirms beyond all doubt that he possesses the intellectual ability to be a Federal judge. His temperament and character demonstrate that he is 

well suited to that office. Indeed, I can think of no better evidence 

of his sound judgment than the fact he has chosen to marry a good 

woman from the great State of Texas, who has just been introduced 

to the Committee. Brett deserves the support of this Committee 

and the support of the United States Senate. 

As you know, Mr. Chairman, one-fourth of the active D.C. Circuit 

Court is currently vacant, and as you know, Mr. Chairman, the 

D.C. Circuit is unique among the Federal courts of appeals. Of 

course, it is an appellate court, not a trial court, and appellate 

judges do not try cases or adjudicate factual disputes. Instead, they 

hear arguments about legal issues. But unlike the docket of other 

courts of appeals, the docket of the D.C. Circuit is uniquely focused 

on the operations of the Federal Government. Accordingly, attorVerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC
5

neys who have experience working with and within the Federal 

Government are uniquely qualified to serve on that distinguished 

court. 

Brett Kavanaugh is an ideal candidate for the D.C. Circuit. He 

has an extensive record of public service. For over a decade, he has 

held the most prestigious positions an attorney can hold in our 

Federal Government. He is, as you pointed out, a graduate of Yale 

College and Yale Law School. He served as law clerk to three distinguished Federal judges, including United States Supreme Court 

Justice Anthony Kennedy. 

Brett has also served in the Office of the Solicitor General representing the U.S. Government in cases before the United States 

Supreme Court. He served as a Federal prosecutor in the Office of 

Independent Counsel under Hon. Kenneth Starr. And as you pointed out, he personally has argued civil and criminal cases in the 

United States Supreme Court and courts of appeals throughout the 

country. 

And he has been called upon for his wisdom and counsel by the 

President of the United States, first, by his service as Associate 

Counsel and Senior Associate Counsel to the President, and now as 

Staff Secretary, one of the President’s most trusted senior advisers. 

Mr. Chairman, I can think of few attorneys at any age who can 

boast this level of experience with the inner workings of the Federal Government. It is no wonder then that the American Bar Association has raised him ‘‘Well Qualified’’ to serve on the D.C. Circuit, the gold standard, as you observed. 

Ordinarily, a nominee possessing such credentials and experience 

would have little difficulty receiving swift confirmation by the 

United States Senate. Unfortunately, observers of this Committee 

will know that we are not living under ordinary circumstances 

today. 

I hope that this distinguished nominee will receive fair treatment. His exceptional record of public service in the Federal Government will serve him well on the D.C. Circuit bench. His wisdom 

and counsel have been trusted at the highest levels of Government. 

Yet I fear that it is precisely Brett’s distinguished record of experience that will be used against him. I sincerely hope that will not 

happen. After all, it would be truly a shame to use one’s record of 

service against a nominee, especially with respect to a court that 

is so much in need of jurists who are knowledgeable about the 

inner workings of the Federal Government. 

Indeed, many successful judicial nominees have brought to the 

bench extensive records of service in partisan political environments. I have often said that when you place your hand on the 

Bible and take an oath to serve as a judge, you change. You learn 

that your role is no longer partisan, if it once was, and that your 

duty is no longer to advocate on behalf of a party or a client but, 

rather, to serve as a neutral arbiter of the law. 

The American people understand that when your job changes, 

you change, and that people are fully capable of putting aside their 

personal beliefs in order to fulfill their professional duty. That is 

why this body has traditionally confirmed nominees with clear 

records of service in one particular party or of a particular philosophy. 

6

For example, Ruth Bader Ginsburg served as general counsel of 

the ACLU. Of course, it is difficult for me to imagine a more ideological job than general counsel of the ACLU, yet she was confirmed by an overwhelming majority of the U.S. Senate, first by 

unanimous consent to the D.C. Circuit and then by a vote of 96–

3 to the United States Supreme Court. 

Stephen Breyer was the Democrats’ chief counsel on the Senate 

Judiciary Committee before he, too, was easily confirmed to the 

First Circuit and then to the United States Supreme Court. 

Byron White was the second most powerful political appointee at 

the Justice Department under President Kennedy when the Senate 

confirmed him to the Supreme Court by a voice vote. 

Abner Mikva was a Democrat Member of Congress when he was 

confirmed to the D.C. Circuit by a majority of the Senate. 

Indeed, as many as 42 of the 54 judges who have served on the 

D.C. Circuit came to the bench with political backgrounds, including service in appointed or elected political office. All received the 

respect that they deserved and the courtesy of an up-or-down vote 

on the floor of the U.S. Senate, and all received the support of at 

least a majority of Senators, as our Constitution demands. 

So, historically, this body and this Committee have exercise the 

advise and consent function seriously and appropriately by emphasizing legal excellence and experience and not by punishing nominees simply for serving their political party. It would be tragic for 

the Federal judiciary and ultimately harmful to the American people who depend on it to establish a new standard today and declare 

that any lawyer who takes on a political client is somehow disqualified for confirmation, no matter how talented, how devoted, or 

how fit for the Federal bench they may truly be. 

Brett Kavanaugh is a skilled attorney who has demonstrated his 

commitment to public service throughout his life and career. He 

happens to be a Republican, and he happens to be close to the 

President. This is a Presidential election year, but the rigorous 

fight for the White House should not spill over to the judicial confirmation process any more than it already has. Last year, it was 

wrong for close friends of the President, like Texas Supreme Court 

Justice Priscilla Owen, to be denied the basic courtesy and Senate 

tradition of an up-or-down vote simply to score political points 

against the President. And this year, it would be terribly wrong for 

Brett to be denied confirmation or at least an up-or-down vote simply because he has ably and consistently served his President, his 

party, and his country. 

And, with that, I thank you, Mr. Chairman. 

[The prepared statement of Senator Cornyn appears as a submission for the record.] 

Chairman HATCH. Thank you, Senator. Normally we would defer 

to the Democrat leader on the Committee, Senator Leahy, but he 

has asked that I first go to Senator Schumer, and then the last 

statement will be made by Senator Leahy, and then we will turn 

to you for any statement you would care to make, Mr. Kavanaugh. 

Senator Schumer? 

7

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

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. And, first, I want 

to welcome Brett Kavanaugh, his parents, and his fiancee to today’s hearing. Something tells me this won’t be the easiest or the 

most enjoyable hearing for them or for us. But I know that Brett 

appreciates what an important position he has been nominated to 

and how important this process is, and I know how proud his family is of him. 

Now, Mr. Chairman, it is really unfortunate we have to be here 

again on another controversial nomination. It is unfortunate because it is so unnecessary. We have offered time and time and time 

again to work with the administration to identify well-qualified, 

mainstream conservatives for these judgeships, especially on the 

D.C. Circuit. Instead, the White House insists on giving us extreme 

ideological picks. 

In this instance, the nomination seems to be as much about politics as it is about ideology, and I am sometimes a little incredulous. 

The President makes the most political of picks, and then my colleagues tell us not to be political. Tell the President, and maybe we 

could come to some agreement here together. While the nominations of William Pryor and Janice Rogers Brown and Priscilla 

Owen may be among the most ideological we have seen, the nomination of Brett Kavanaugh is among the most political in history. 

Mr. Kavanaugh is a tremendously successful young lawyer. His 

academic credentials are first-rate. He clerked for two prestigious 

circuit court judges and a Supreme Court Justice. And he has been 

quickly promoted through the ranks of Republican lawyers. Some 

might call Mr. Kavanaugh the Zelig of young Republican lawyers, 

as he has managed to find himself at the center of so many highprofile, controversial issues in his short career, from the notorious 

Starr Report to the Florida recount, to this President’s secrecy and 

privilege claims, to post-9/11 legislative battles, including the victims compensation fund, to controversial judicial nominations. If 

there has been a partisan political fight that needed a good lawyer 

in the last decade, Brett Kavanaugh was probably there. And if he 

was there, there is no question what side he was on. 

In fact, Mr. Kavanaugh would probably win first prize as the 

hard-right’s political lawyer. Where there is a tough job that needs 

a bright, hard-nosed political lawyer, Brett Kavanaugh has been 

there. 

Judgeships should be above politics. Brett Kavanaugh’s nomination seems to be all about politics. If President Bush truly wanted 

to unite us, does anyone believe he would have nominated Brett 

Kavanaugh? If President Bush wanted to truly unite us, not divide 

us, this would be the last nomination he would send to the Senate. 

Anyone who has any illusion that President Bush wants to change 

the tone in Washington ought to look at this nomination. You could 

not think of another nomination, given Mr. Kavanaugh’s record, 

more designed to divide us. 

Brett Kavanaugh’s nomination to the D.C. Circuit is not just a 

drop of salt in the partisan wounds, it is the whole shaker. 

The bottom line seems simple: This nomination appears to be judicial payment for political services rendered. There is much that 

8

many of us find troubling about this nomination. I look forward to 

hearing the nominee address our myriad concerns. I would just like 

to take a moment to lay out two areas that will be central to this 

discussion. 

First, for the first 2 years of the administration, when the administration was developing and implementing its strategy to put 

ideologues on the bench, Mr. Kavanaugh quarterbacked President 

Bush’s judicial nominations. He spoke frequently at public events 

defending the President’s decision to nominate such controversial 

jurists as Charles Pickering, Carolyn Kuhl, Priscilla Owen, and 

William Pryor. 

As you all know, many of us have been shocked and appalled by 

the extreme and out-of-mainstream ideologies adhered to by these 

and other nominees. I speak for myself, many of my colleagues, and 

a sizable majority of the American people when I say we do not 

want ideologues on the bench, whether too far right or too far left. 

Judges who bring their own agendas to the judiciary are inclined 

to make law, not interpret law, as the Founding Fathers intended. 

We want fair and balanced judges in the real sense of those words. 

Nonetheless, this administration has repeatedly bent over backwards to choose nominees who defend indefensible ideas and whose 

records are rife and replete with extreme activism. 

During his time in the White House Counsel’s Office, Brett 

Kavanaugh played a major role in selecting these judges, preparing 

them for hearings, and defending their nominations at public 

events. In the course of defending the administration’s record on judicial nominations, Mr. Kavanaugh routinely cited the five criteria 

used by President Bush in selecting judges. The five criteria he 

cites are: one, extraordinary intellect; two, experience; three, integrity; four, respect in the legal community and the nominee’s home 

State community; and, five, commitment to interpreting law, not 

making law. 

I don’t think I am stepping out on a limb when I say that every 

one of us up here sees those five criteria as outstanding factors to 

consider when choosing judges. But in the same public discussions 

of the President’s judicial nominees where he cited these five criteria, Mr. Kavanaugh has routinely denied that the President considers a nominee’s ideology. The record before us starkly belies that 

claim. It just does not hold water. If ideology did not matter, we 

would see nominations scattered across the political spectrum. 

There would be a roughly equal number of Democrats and Republicans, with a healthy dose of independents thrown in. We would 

see some nominees edge left of center while others tip right, while 

a few outliers would be at each extreme. 

Even a President who wanted to have only some ideological impact on the bench would have some balance. That is not the case 

with the nominations Brett Kavanaugh has shepherded. 

If you were to map the circuit court nominees on an ideological 

scale of 1 to 10, with 10 being very liberal and 1 being very conservative, there is a huge number of 1s and 2s, some 3s, and only 

a smattering of 4s and 5s. Of course, ideology played a role in this 

process. Suggesting otherwise insults our intelligence and the intelligence of the American people. 

9

For the last 3 years, I have been trying to get us to talk honestly 

about our differences over judicial nominees. We have pretty much 

stopped citing minor personal peccadilloes in the nominees’ histories as pretext for stopping nominations that we really oppose on 

ideological grounds. The process is better for the honesty we have 

brought to it. 

Now, I hope we can have an honest dialogue today. Toward that 

end, I look forward to hearing Mr. Kavanaugh explain how it is 

possible that the President who has made some of the most extreme ideological nominations in history does not consider ideology 

when he makes those picks. 

A second area I expect we will get into is closely related to the 

first. As I noted at the outset, there is no question that Brett 

Kavanaugh is a bright and talented young lawyer. There is no 

question that for someone of his age he has an extraordinary resume and that he has achieved in every job he has held. But there 

are serious questions—and it is not the age; it is that he has never 

tried a case; he has a record of service after he clerked almost exclusively to highly partisan political matters—why he is being nominated to a seat on the second most important court in America. 

Why is the D.C. Circuit Court so important? The Supreme Court 

currently takes fewer than 100 cases a year. That means that the 

lower courts resolve the tens of thousands of cases a year brought 

by Americans seeking to vindicate their rights. All other Federal 

appellate courts handle just those cases arising from within its 

boundaries. So the Second Circuit, where Senator Leahy and I are 

from, takes cases coming out of New York and Connecticut and 

Vermont. But the D.C. Circuit doesn’t just take cases brought by 

residents of Washington, D.C. Congress has decided there is a 

value in vesting one court with the power to review certain decisions of administrative agencies. We have given plaintiffs the 

power to choose the D.C. Circuit. In some cases, we force them to 

go to the D.C. Circuit because we have decided, for better or for 

worse, when it comes to these administrative decisions, one court 

should decide what the law is for the whole Nation. 

So when it comes to regulations adopted under the Clean Air Act 

by EPA or labor decisions by the NLRB, rules propounded by 

OSHA, gas prices regulated by FERC, and many other administrative agencies, the decisions are usually made by the judges on the 

D.C. Circuit. To most, it seems like this is the alphabet soup court 

since virtually every case involves an agency with an unintelligible 

acronym—EPA, NLRA, FCC, SEC, FTC, FERC, and so on and so 

forth. The letters, though, that comprise this alphabet soup are 

what makes our Government tick. They are the agencies that write 

and enforce the rules that determine how much reform there will 

be in campaign finance reform. They determine how clean clean 

water has to be for it to be safe for families to drink. They establish 

the rights that workers have when negotiating with corporations. 

The D.C. Circuit is important because its decisions determine 

how these Federal agencies go about doing their jobs. And in doing 

so, it directly impacts the daily lives of all Americans more than 

any other court in the country with the exception of the Supreme 

Court. 

10

So there is a lot at stake when considering nominees to the circuit and how their ideological predilections will impact the decisions coming out of the court and why it is vital for Senators to 

consider how nominees will impact the delicate ideological balance 

on the court when deciding how to vote. 

Perhaps more than any other court aside from the Supreme 

Court, the D.C. Circuit votes, when you study them, break down 

on ideological lines with amazing frequency. People who went to 

same law schools and clerked for the same courts somehow vote almost dramatically differently depending on who appointed them. I 

wonder why. Ideology. And this divide happens in cases with massive national impact. 

It is not good enough just to cite that someone went to a great 

law school and clerked for some very distinguished judges. We have 

an obligation to weigh how the ideological and political predispositions of those who are nominated are going to affect America. So 

we have a real duty to scrutinize the nominees who come before us 

seeking lifetime appointment to this court. And it is no insult to 

Mr. Kavanaugh to say that there is probably not a single person 

in this room, except perhaps Mr. Kavanaugh and his family, who 

doesn’t recognize that there are scores of lawyers in Washington 

and around the country who have equally high intellectual ability 

but who have more significant judicial, legal, and academic experience to recommend them for this post. 

It is an honor and a compliment that, despite his relative lack 

of experience, this administration wants Brett Kavanaugh to have 

this job. But when a lifetime appointment to the second highest 

court in the land is at stake, the administration’s desire to honor 

Mr. Kavanaugh must come into question. 

When the President picked Brett Kavanaugh, he was not answering the question of who has the broadest and widest experience for 

this job or who can be the most balanced and the most fair. He was 

rewarding a committed aide who has proven himself in some tough 

political fights. 

Would we have welcomed the renomination of Alan Snyder or 

Elena Kagan, now dean of Harvard Law School, two extremely 

well-qualified Clinton nominees who never received consideration 

from this Committee? Of course we would have. But we also would 

have welcomed the nomination of a mainstream conservative who 

has a record of independence from partisan politics, who has demonstrated a history of non-partisan service, who has a proven 

record of commitment to the rule of law, and who we can reasonably trust will serve justice, not just political ideology and political 

patrons, if confirmed to this lifetime post. 

Brett Kavanaugh is the youngest person nominated to the D.C. 

Circuit since his mentor, Ken Starr. If you go through the prejudicial appointment accomplishments of the nine judges who sit on 

the D.C. Circuit, you will see that Mr. Kavanaugh’s accomplishments pale by comparison. 

Chief Judge Ginsburg held several high-level executive branch 

posts, including heading the Antitrust Division of DOJ, and was a 

professor at Harvard Law School. 

11

Judge Edwards taught at Michigan and Harvard law schools and 

was Chairman of Amtrak’s Board of Directors and published numerous books and articles. 

Judge Sentelle had extensive practice as a prosecutor and trial 

lawyer, and experience as a State judge and a Federal district 

court judge. 

Judge Henderson had a decade in private practice, a decade of 

public service, and 5 years 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 roughly 30 years of service in both Federal and 

State governments, including a stint as corporation counsel for 

D.C. and several years on D.C.’s equivalent of a State Supreme 

Court. 

Judge Tatel divided his nearly 30 years of experience between 

the public and private sectors, including a partnership at a prestigious law firm and service as general counsel of Legal Services. 

Judge Garland practiced for 20 years, held a law firm partnership, and supervised both the Oklahoma City bombing and the 

Unabomber trial while in a senior position at the Justice Department. 

And Judge Roberts spent nearly 25 years going back and forth 

between his law firm partnership where he ran his law firm’s appellate practice and significant service in the Department of Justice. 

Like Mr. Kavanaugh, many of the nine current judges on this 

court held prestigious clerkships, including clerkships on the Supreme Court. But they all had significant additional experience, 

non-partisan experience, to help persuade us that they merited confirmation. And, of course, they are of widely different ideologies. 

If Mr. Kavanaugh had spent the last several years on a lower 

court or in a non-political position, providing his independence from 

politics, we might be approaching this nomination from a different 

posture. But he has not. Instead, his resume is almost unambiguously political. Perhaps with more time and different experience 

we would have greater comfort imagining Mr. Kavanaugh on this 

court. Suffice it to say, on the record before us Mr. Kavanaugh 

faces a serious uphill battle. 

I look forward to hearing his answers to the difficult questions 

we will pose. 

[The prepared statement of Senator Schumer appears as a submission for the record.] 

Chairman HATCH. Senator Leahy, we will now call on you, and 

then we will turn to Mr. Kavanaugh. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. 

I listened with interest to the Chairman’s comments at the beginning about moving judges quickly or not. I would point out that 

we have confirmed more judges for President Bush so far in his 

term than all of President Reagan’s first term, and President 

Reagan, of course, had a Republican majority throughout that. 

12

Now, I know that sometimes there have been some differences. 

During the 17 months the Democrats controlled the Senate, we did 

confirm 100 of President Bush’s nominees. During the 22 months 

that the Republicans were in control of the Senate, I believe they 

confirmed about 73 or 74. 

One could say, if we just wanted to go by statistics, that the 

Democrats have been a lot better to President Bush on his judicial 

nominees than the Republicans have. 

I would like to pick up on something that Senator Schumer said, 

and it refers to another statement made about whether everybody 

should get votes. We have differing opinions. The Democrats have 

blocked a handful of judges from votes. The Republicans, when 

they were in charge during President Clinton’s time, blocked 61 

judges from having votes. And I will mention a couple of them, and 

Senator Schumer has, too: Alan Snyder and Elena Kagan. 

Alan Snyder was 54 years old when he was nominated to the 

D.C. Circuit. He had 26 years of experience as an appellate specialist at the firm of Hogan and Hartson. He was a graduate of the 

Harvard Law School. He held the prestigious post of president of 

the Harvard Law Review. He clerked with two Justices of the Supreme Court. But he was not allowed to have a vote by the Republican-controlled Senate, and the reason for that, he had represented 

Bruce Lindsey, who was an aide of President Clinton. And so I 

would tell my friend from Texas, he was told that because of his 

representation of a client he had had, he could not have a vote. 

And it was determined that he would not be allowed to have a vote 

by the U.S. Senate, even though I suspect he would have been confirmed had there been a vote. 

Elena Kagan was another one. She, too, went to Harvard Law 

School. She served as a Law Review supervising editor. She supervised 70 student editors, including Miguel Estrada. She went on to 

clerk for a Justice of the Supreme Court, Justice Marshall, and extraordinarily qualified. But she was told, I guess, because she had 

had some association working, I think, a job similar to yours at the 

White House that she should not be allowed to have a vote, and 

this Committee determined she would not be allowed to come to a 

vote. One or two Republicans opposed her, so she was never allowed to even be given a vote. Of course, to point out her qualifications, she now has what is arguably the most prestigious post in 

legal academia. She is dean of the Harvard Law School. 

I have made a suggestion to the White House—I realize that 

they may be disappointed that during Republican control of the 

Senate they have not moved as many of the President’s nominees 

as the Democrats did during their control of the Senate, but I have 

made a suggestion to them of a way to move forward. As you know, 

Mr. Kavanaugh, because you worked in that area, we have the socalled Strom Thurmond rule, which has been followed by this Committee for years, which limits the number of nominees that you get 

within a few months of the nomination of Presidential candidates 

during a Presidential election year. 

I have suggested that the White House do what all six Presidents 

have done since I have been here, and that is to work out, as we 

always have, a list of those who may well be confirmed. Every 

President can determine how they want it. That is what President 

13

Ford did, that is what President Reagan did, what the former 

President Bush did, what President Carter did, and what President 

Clinton did. Maybe President Bush will decide to do the same. That 

is a decision he has to make, not this Committee. 

Senator Hatch and I worked with a number of these other Presidents in doing that. I would hope that we might be able to do it 

again. As we have demonstrated, in the 17 months that the Democrats were in charge of the Senate, we moved 100, both district 

court judges and circuit court judges, President Bush’s nominees. 

During the 22 months that the Republicans were in charge, they 

moved another 70 or 73. I forget what the exact number is. So we 

have demonstrated our good faith. We have done this notwithstanding the 61 of President Clinton’s nominees that were 

blocked—61 of them were blocked by the Republicans. 

Mr. Chairman, I appreciate you and Senator Schumer holding 

this hearing. I appreciate your courtesy, which I might say is typical of the courtesy you always show in having me make a statement. I will hold my time for questions. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman HATCH. Well, thank you, Senator. 

Mr. Kavanaugh, if you will stand and be sworn. Do you solemnly 

swear that the testimony you are about to give will be the truth, 

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

Mr. KAVANAUGH. I do. 

Chairman HATCH. Thank you. Mr. Kavanaugh, we will be happy 

to take any statement you would care to make at this time. 

STATEMENT OF BRETT M. KAVANAUGH, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Mr. KAVANAUGH. Mr. Chairman, I don’t have an opening statement. I am prepared to answer the Committee’s questions. And 

Senator Schumer raised a number of important points. I look forward to answering his questions and the questions of the Committee today. 

I do thank, again, my parents and Ashley for being here and look 

forward to the hearing. 

[The biographical information follows:]

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Chairman HATCH. Well, thank you. Let me begin the questioning. We will have 10-minute rounds, and hopefully we can complete this in a reasonable period of time. 

You have served in both the executive and the judicial branches 

of Government, the Federal Government. You graduated from Yale 

University, one of the finest law schools in the land. You have 

clerked for two separate circuit courts, and you have also clerked 

for the United States Supreme Court. You have tried cases before 

the Supreme Court. You have tried other appellate cases, so I dispute anybody’s argument that you have never tried a case. There 

are appellate lawyers and there are trial lawyers. Some can do 

both. Some do do both. But primarily your experience has been on 

the appellate side, which is generally considered a very sophisticated side of the law. 

But let me just ask you this question: How has your education 

and experience prepared you to be a Federal circuit court of appeals judge? 

Mr. KAVANAUGH. Well, Mr. Chairman, I’ve always had a devotion 

to public service that I’ve had since I was young, and it was instilled in me again at Yale Law School, which has a deep commitment to encouraging its students to pursue public service. My 

mother had been a judge and a State prosecutor. She had instilled 

that and a lot more in me. And I went to become a law clerk after 

graduation from law school, and then after that I’ve chosen a variety of different jobs in public service, in the Independent Counsel’s 

office, in the White House Counsel’s office, as Staff Secretary. I’ve 

had a range of experience in the judicial branch, in the executive 

branch, in difficult matters. Senator Schumer raised a couple of 

them. I’ve clearly been in the arena for a lot of different types of 

matters, and I think I’ve learned a lot from those about the importance of being fair and impartial. And I come to the bench, were 

I to be confirmed, with a broad range of experiences and I think 

a commitment to fairness and impartiality in public service. 

Chairman HATCH. You have been involved in improving the law, 

in the administration of the law, and I am interested in your work 

for the Commission on the Future of Maryland Courts. It is my understanding that this Commission was tasked with discovering 

ways to coordinate and promote fair and efficient criminal justice 

and public safety systems. Could you just tell the Committee a little bit about what lessons you have learned from that type of experience and how that might help you in your job as a circuit court 

judge if you are confirmed? 

Mr. KAVANAUGH. In that Commission, I was asked by a lawyer 

in Rockville, Maryland, whom I knew to participate and help him—

he was Chair of the Commission—and to help find ways to improve 

access to judicial services, access to legal services throughout the 

State of Maryland, which was my home State. So I helped with 

that Commission. The idea was that the justice system, while the 

best in the world, can always be better, and the idea of the Commission was to improve the delivery of legal services and the justice system in the State of Maryland and to look at recommendations of all kinds, whether it was creating a new family court, dealing with drug crimes, or what have you. 

45

Chairman HATCH. As you are aware—I am just going to get into 

one aspect because that is about all the time I have right now. You 

are aware that an investigation was conducted by the Senate Sergeant-at-Arms into the downloading of certain Judiciary Committee 

files by two former Committee staffers. That investigation is complete and has been referred to the Department of Justice, so I want 

to ask you just a few basic questions about that matter. 

Are you generally aware of that incident and that investigation? 

Mr. KAVANAUGH. I am. 

Chairman HATCH. Okay. I understand that as an Associate 

Counsel to the President of the United States, among your responsibilities was to advise the President on judicial nominations. 

Could you briefly outline your responsibilities and procedures you 

followed in fulfilling that duty? 

Mr. KAVANAUGH. I was one of eight Associate Counsels who 

worked for Judge Gonzales. We had different areas of the country 

that we would work on and different nominations that we’d work 

on. I worked on California and Illinois, for example, with Senator 

Feinstein’s office and Senator Durbin’s office. I also worked on certain circuit court nominations. There’s both the selection side and 

then the nominations—the confirmation side, working on the confirmation. 

On the confirmation side, the idea was to help prepare the nominees for their hearings, to coordinate with our press office and 

other press offices in the Justice Department and in the Senate, to 

coordinate with the public liaison in the White House and the Justice Department and the Senate regarding any issues that could 

arise in connection with hearings or votes on nominees. 

Chairman HATCH. As part of that responsibility, you had to meet 

with various staff members of the Senate Judiciary with regard to 

the limited work that you did for certain States, your share of the 

work on judges. And so I think you met with various staff members. 

Now, did any staff member of the Senate Judiciary Committee or 

the Department of Justice ever provide you with information or 

documents that you were led to believe were obtained or derived 

from Democratic files or from my files? 

Mr. KAVANAUGH. No. 

Chairman HATCH. Do you know Manuel Miranda, the former 

Senate staff member? 

Mr. KAVANAUGH. I do know him from his time and service on the 

Committee staff. 

Chairman HATCH. Did you ever meet with him to discuss judicial 

nominations? 

Mr. KAVANAUGH. He was part of the team—yes, he was part of 

the team that worked in your office and then in Senator Frist’s office on judicial nominations. 

Chairman HATCH. What were the circumstances of those meetings? 

Mr. KAVANAUGH. Those meetings were usually to discuss upcoming hearings or upcoming votes, issues related to press interest in 

nominations or public liaison activities that outside groups were interested in. 

46

Chairman HATCH. Now, this is an important question. Did Mr. 

Miranda ever share, reference, or provide you with any documents 

that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee? 

Mr. KAVANAUGH. No, I was not aware of that matter ever until 

I learned of it in the media late last year. 

Chairman HATCH. Did Mr. Miranda ever share, reference, or provide you with information that you believed or were led to believe 

was obtained or derived from Democratic files? 

Mr. KAVANAUGH. No. Again, I was not aware of that matter in 

any way whatsoever until I learned it in the media. 

Chairman HATCH. Do you know if any other Associate White 

House Counsels had access to these type of materials that were improperly taken? 

Mr. KAVANAUGH. I don’t know of anyone who was aware of this 

matter, again, until the media reports late last year. 

Chairman HATCH. But you were not? 

Mr. KAVANAUGH. I was not aware of it. 

Chairman HATCH. Okay. Just one final question. Could you 

please speak about the significance of judicial temperament and indicate what aspects of judicial temperament you consider to be the 

most important? 

Mr. KAVANAUGH. Well, I think it’s critically important, Mr. 

Chairman, for any judge to exhibit the proper temperament on and 

off the bench at all times, and what that means is in dealings with 

one’s colleagues on the bench, having an open mind, being respectful of a colleague’s views, both at oral argument and in writing 

opinions. I think it means being respectful of the lawyers who come 

before the court and not treating them disrespectfully, but to have 

proper respect for the lawyers in the court. And it means having 

a proper respect for the law and a humility, understanding that 

you are just one judge on a panel. There’s a reason you wear a 

black robe. It’s because you lose your individual preferences, your 

individuality when you take a seat on the bench. The black robe 

signifies that you’re part of the judicial system and you’re there to 

interpret the law fairly. 

So I think that’s all encompassed within judicial temperament, 

and it’s something I’ve seen firsthand with Justice Kennedy and 

Judge Stapleton and Judge Kozinski, and it’s something that I, 

were I to be confirmed, would always remember my proper place 

in the system. 

Chairman HATCH. One last question. Would you please explain 

to the Committee why you want to be a Federal judge? 

Mr. KAVANAUGH. I’ve always had, Mr. Chairman, a commitment 

to public service since I was young. Since I got out of law school, 

I’ve always thought that being a judge was the highest form of public service that a lawyer could render because it helps maintain our 

constitutional system, which has been in place for over two centuries, and helps protect the rights and liberties of the people. 

What the courts do every day—and I think Senator Schumer alluded to this—is not always apparent to the people, but it’s critically important, and there’s much of what Senator Schumer said 

about that that I agree wholeheartedly with about how important 

it is. 

47

And so in terms of commitment to public service, a commitment 

to our constitutional form of government, and a commitment to protecting rights and liberties of the people, that’s why I think I would 

want to be a judge. 

Chairman HATCH. Okay. I have a little bit of time left, but I 

think I will turn to Senator Schumer at this point. 

Senator SCHUMER. Thank you, Mr. Chairman. And thank you, 

Mr. Kavanaugh. 

First, I just want to clear up the questions that Orrin asked. You 

had said that Mr. Miranda never provided these documents, you 

know, that were from this. 

Mr. KAVANAUGH. Right. 

Senator SCHUMER. Had you seen them in any way? Did you ever 

come across memos from internal files of any Democratic members 

given to you or provided to you in any way? 

Mr. KAVANAUGH. No. 

Senator SCHUMER. Thank you. 

Okay. Now, as I noted in my opening remarks, you have cited 

the five criteria the President uses in selecting nominees, and at 

the same time you have repeatedly denied the President considers 

ideology when selecting judges. Am I correct to anticipate you 

stand by that claim? 

Mr. KAVANAUGH. Yes, Senator. 

Senator SCHUMER. Thank you. Now, you get high marks for consistency, but this claim raises serious credibility concerns. 

If ideology doesn’t affect the nomination process, how is it possible we have seen so many extreme conservatives and almost no 

progressives? 

Ninth Circuit nominee William Myers thinks the Clean Air Act 

and the Endangered Species Act have harmed the environment. 

District court nominee James Lee Holmes endorsed Booker T. 

Washington’s notion that God brought slaves to America to teach 

white people how to be more Christ-like. 

D.C. Circuit nominee Janice Rogers Brown has praised the Supreme Court’s notorious ruling in Lochner, perhaps the most criticized decision of the 20th century, and has said the New Deal is 

the triumph of America’s socialist revolution. 

Charles Pickering unethically intervened on behalf of a convicted 

cross-burner, and William Pryor has spent a career trying to undo 

Federal laws that have achieved broad consensus in America that 

protect women, workers, and the disabled. 

Carolyn Kuhl has one of the most restrictive views on the right 

to privacy of any judge in the country, ruling that a woman has 

no meaningful right to privacy in her own doctor’s office. 

The list goes on and on, extreme views all from the far right. 

How do you square the reality of these totally ideological nominations with the lack of any nominations that would be the mirror 

image or even close to those people when you say with the rhetoric 

that there is a non-ideological judicial nomination process? 

Mr. KAVANAUGH. Senator, I’d like to answer that in a couple 

ways. First, as you and Senator Leahy pointed out, the vast majority of the President’s nominees have been approved by this Committee and confirmed by the Senate. That’s point one. 

48

Point two is in terms of court of appeals nominees, we’ve worked 

very closely with home State Senators in individual States to find 

nominees that were consensus nominees in that State. We’ve 

worked, including States with two Democratic Senators, we’ve 

worked closely with Senator Leahy on the one nomination, and 

Rena Raggi in New York, Judge Callahan and Judge Bea on the 

Ninth Circuit in California. We have tried to work closely, and in 

each of those cases those nominations— 

Senator SCHUMER. Did you work closely with the Senators from 

Michigan on the Sixth Circuit? 

Mr. KAVANAUGH. The Sixth Circuit situation in Michigan, Senator, is one that goes back many years. I don’t understand that situation to be related to the particular nominees, but to a— 

Senator SCHUMER. But you haven’t consulted either Senators 

Levin or Stabenow on that. Is that correct? 

Mr. KAVANAUGH. My understanding is that Judge Gonzales has 

talked often to the two Senators, but they have not reached an accommodation that’s— 

Senator SCHUMER. What about on the D.C. Circuit? Have you 

talked to any Senators on this side, Senator Leahy or any of the 

members of this Committee, about nominees for the D.C. Circuit? 

Mr. KAVANAUGH. I don’t know who Judge Gonzales talked to before the nominations, the D.C. Circuit nominees. But I know as a 

general proposition we’ve been very careful to consult with the 

home State Senators. 

Senator SCHUMER. So you would say ideology has no factor in the 

nominations you have put forward for circuit court judges? Is that 

correct? Do you truly stand by that statement? 

Mr. KAVANAUGH. We don’t—Senator, I appreciate the question, 

but we don’t ask questions about one’s personal views on— 

Senator SCHUMER. I didn’t ask that. 

Mr. KAVANAUGH. Well— 

Senator SCHUMER. I asked you: Does ideology play a role in who 

you select? And if it does not, why have there not been hardly any 

nominees—I mean, the most you could say are one or two, mainly 

from my circuit, who tend to be a little more moderate. Why are 

there nominees that are almost exclusively conservative? And we 

discussed the degrees of conservative. Many of the nominees I have 

voted for, some of us have voted for, we don’t think are down-themiddle. We voted for them because we feel we have to pick our 

shots and because we give the President some deference. But I 

don’t think anyone in this room, when they look at it fairly, believes that the President is choosing judges without ideology entering into it. And if that is the case, then answer again: Why have 

there been virtually no progressive nominees to circuit courts of appeals if ideology doesn’t play a role? 

Mr. KAVANAUGH. Senator, in terms of ideology, what the President is looking for is nominees who have a respect for the law and 

who understand that the legal system and the role as a judge is 

different from one’s personal views or political views or political affiliation. So you’re looking for someone who understands what the 

judicial function is. 

Senator SCHUMER. You don’t think there are any liberal people 

who feel that way? 

49

Mr. KAVANAUGH. I think there are people of all political 

ideologies, Senator— 

Senator SCHUMER. Well, how come no liberals have been nominated? I am not objecting to the President using ideology. Presidents do. I am objecting to the denial. It seems there is a credibility problem, because you know and I know—and my guess is if 

I was a fly on the wall and you had conversations with your other 

counsels and other things like that, that ideological considerations 

of course were part of the vetting process. 

Mr. KAVANAUGH. Senator— 

Senator SCHUMER. Have you ever used the word to any of the 

counsels when you were vetting judges, ‘‘This one may be too liberal’’? Never? 

Mr. KAVANAUGH. Senator, the important thing that Judge 

Gonzales emphasized to us and that the President has emphasized 

is to find people of experience who have good records and who 

know— 

Senator SCHUMER. Have you ever used the words that someone 

might be ‘‘too liberal’’ to be a good judge—to be nominated by President Bush? 

Mr. KAVANAUGH. I am confident, Senator, that in the course of 

3 years I have thought that some people did not understand the 

proper judicial— 

Senator SCHUMER. Did you ever use those words? 

Mr. KAVANAUGH. I don’t know whether I ever— 

Senator SCHUMER. What do you think? 

Mr. KAVANAUGH. —used the word ‘‘too conservative’’ or ‘‘too liberal’’ to be a—in the sense that they don’t understand the proper 

judicial function. 

Senator SCHUMER. Let me go to the second part of the questioning. It defies belief, in all due respect, sir, for anyone who looks 

at the broad nature of the nominees, particularly the court of appeals, that ideology didn’t play some role as you selected judges. 

The second— 

Mr. KAVANAUGH. Senator— 

Senator SCHUMER. I just want to ask my second, because my 

time is limited. Now, when Ken Starr started his Independent 

Counsel investigation, he was tasked with looking into financial 

improprieties tied to a land deal in Arkansas. When he finished, 

he produced, with substantial assistance from you, a lengthy report 

that frequently dwelt on salacious details from President Clinton’s 

personal life. I am not asking did you—I am asking your personal 

opinion because we have to get your personal opinions here. I am 

not asking did you serve your client well. 

In retrospect, did you go too far? 

Mr. KAVANAUGH. Senator Schumer, in terms of the first part of 

your question, Judge Starr was assigned by Attorney General Reno 

to look into the Whitewater and Madison-related issues. It was 

then her decision to add on other investigations to his original jurisdiction, including the Travel Office matter— 

Senator SCHUMER. But that is not my question, sir. I am asking 

your personal opinion. When the Whitewater commission ended up 

dwelling on the salacious details from President Clinton’s personal 

50

life, do you believe personally that that was the correct thing to do 

or that went too far? 

Mr. KAVANAUGH. I have said publicly before, as has Judge Starr, 

Senator—and I’ve written this publicly—that the way that the 

House of Representatives released the report without reviewing it 

beforehand caused unnecessary harm, combined with the way the 

report was structured— 

Senator SCHUMER. I am not asking you a procedural issue. I am 

asking—you, as the chief cook and bottle washer here, working for 

Starr, came up with a report that focused on the salacious details—

this is the last chance. Did it go too far? Yes or no. 

Mr. KAVANAUGH. I think the way the House of Representatives 

released the report was a mistake, and I’ve said so publicly. 

Senator SCHUMER. Do you think you are being—do you think you 

are giving me an answer to my question? 

Mr. KAVANAUGH. I think given the public release of the report— 

Senator SCHUMER. I am asking your personal views, not on the 

House of Representatives’ procedure. I am asking you, just as a 

person, an observer, and a nominee to an important court, ended 

up with a report that focused on personal detail. Was that the correct thing to do? 

Mr. KAVANAUGH. Senator, this is an important question, so I 

want to take a minute to answer this. 

Senator SCHUMER. I know, but I would like you to answer your 

personal view on it, not what the House of Representatives did, not 

what Ken Starr did, not what Janet Reno did, but what you think 

now, 4 years later? 

Chairman HATCH. Let him answer the question. 

Mr. KAVANAUGH. And this is an important question so I want to 

take a minute to answer this. 

First I worked on the grounds section part of the report, which 

was the part of the report that outlined possible legal grounds consistent with Judge Starr’s statutory obligation under Section 

595(c), so that is the first point I want to make clear. 

Second, I have said publicly, I think I said it in my Committee 

submission, that I regret that the report was released to the public 

in the way it was released. I personally regret how that was released because I don’t think it put the case in the perspective that 

Judge Starr thought about it, as he testified later, and you were 

there, in November of 1998 before the House Judiciary Committee. 

It was a serious legal matter. I think, Senator, you at the time 

made some strong statements about the legalities involved, and I 

regret how the report was released because I think it created a 

misimpression of what we thought and Judge Starr thought were 

the important aspects of the investigation, which he subsequently 

made clear in his House testimony. 

So I personally regret how that report was released because I 

think it was—parts of it that were released were unnecessary to be 

in the public domain. 

Senator SCHUMER. Do you think the President should have been 

convicted by the Senate? If you were a Senator, would you have 

voted aye or nay? And you cannot use Scottish law. 

[Laughter.] 

Senator SCHUMER. How would you have voted, aye or nay? 

51

Mr. KAVANAUGH. Senator, as a— 

Senator SCHUMER. Please answer my question. 

Mr. KAVANAUGH. That is an important question as well, but I 

think I need to explain. 

Senator SCHUMER. Can you give me a yes or no answer and then 

explain it, please? 

Mr. KAVANAUGH. I cannot, because it was exclusively the Senate’s province to make that determination— 

Senator SCHUMER. I am asking you as a— 

Chairman HATCH. Let him answer. 

Senator SCHUMER. He said he cannot answer it, Mr. Chairman. 

Chairman HATCH. He said he can answer it. He just cannot answer it the way you want him to. 

Senator SCHUMER. Yes or no is a pretty simple way to put it. 

Chairman HATCH. This is not a court of law. Let him answer it 

the way he wants to answer it. 

Mr. KAVANAUGH. It would be a simple answer, but it is a complicated question. In our role, in Judge Starr’s role as assigned by 

Attorney General Reno, was to find the facts and to submit any 

evidence to Congress that may constitute grounds for an impeachment based on history and historical practice. As part of the office 

that submitted that report, Judge Starr made it very clear in his 

November testimony—and I have always tried to maintain this as 

well—that it was not our place to say what the House should do 

with that or what the Senate should do with that evidence. There 

is an important reason for that. 

Senator SCHUMER. Sir, I am not asking you as a member working for Ken Starr. I am asking you now as an individual who has 

broad ranges of opinions—we know that—on all sort of things, who 

is before this Committee, where there is a great deal of doubt 

whether how you feel about things or whether you can be fair and 

dispassionate. It is not a question that seals your nomination or 

guarantees a veto. I am asking you as a person, as a nominee, 

would you have voted yes or no, or do you refuse to give me a yes 

or no answer. 

Mr. KAVANAUGH. Senator, again, I think that is an important 

question, and because I worked— 

Senator SCHUMER. That is why I asked it. 

Mr. KAVANAUGH. Right, I understand. And because I worked in 

that office, just as a prosecutor works on a criminal case should not 

be commenting about whether the jury got it wrong or got it right, 

I do not think it is appropriate for me to say whether the House 

got it right in impeaching President Clinton or the Senate got it 

right in declining to convict. I think there was serious legal issues 

involved, as Judge Starr explained, and there was a debate about 

what to do about what everyone agreed were serious issues. I know 

Senator Feinstein authored the censure resolution in the Senate, 

and that many members of the Committee joined her censure resolution, which used very strong language about President Clinton in 

that censure resolution. There was a debate about what sanction 

should be imposed, and having worked in the office that was assigned a narrow legal duty, I just do not think it is appropriate for 

me to say what my personal view is on that issue. 

Chairman HATCH. Certainly not in retrospect. 

52

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Welcome to the pit, Mr. Kavanaugh. 

Mr. KAVANAUGH. Thank you, in the arena. 

Senator SESSIONS. The arena. It is a great country. People have 

a right to express their views, and I appreciate your willingness 

and your consistent dedication to public service. I think it is something to be respected and not denigrated. Your legal skills are extraordinary, and I think the way your background and record has 

been portrayed is not fair, is not accurate, and does not fully reflect 

your contributions to law and what you would do on the bench. 

As a Yale undergraduate, Yale Law School graduate, you came 

out and clerked for three Court of Appeals Judges. As a law clerk 

to a Court of Appeals Judge, and you are being nominated to a 

Court of Appeals position, what do you do? What kind of experience 

do you have in dealing with the cases and how does that help you 

take a position that you might take with the D.C. Circuit? 

Mr. KAVANAUGH. I think, Senator, I was very fortunate to serve 

as a law clerk to three outstanding judges, and serve as a law clerk 

on the Supreme Court. 

Senator SESSIONS. That is correct. Two Court of Appeals Judges 

and one Supreme Court Justice, Anthony Kennedy, you clerked for. 

Mr. KAVANAUGH. Right. I learned a lot from each of them about 

how I should perform my role were I to be confirmed to be a Judge. 

Judge Stapleton, as Senator Biden knows well, in Delaware, is one 

of the most widely respected judges in that circuit or in the country 

because of his judicial temperament, because of his dedication and 

fairness. I do not think there is anyone who has ever said anything 

negative about Judge Stapleton. He treats everyone with complete 

respect. He works hard, and he taught me how to try to get the 

right answer in every case. 

Judge Kazinski has a unbelievable passion for the law, unbelievable passion for getting the right answer, for working and working 

and working, and for his law clerks working and working and 

working, to get the right answer. He is someone who I think has 

proved to be as a judge someone who takes a new angle on a lot 

of different cases. He does not just see a case and say the accepted 

wisdom or the conventional wisdom about an issue is right. He is 

someone who rethinks everything from first principles. That is 

something I learned from him. 

Justice Kennedy has passion for the law, has passion for American history, has devotion to how the Supreme Court fits into our 

constitutional system. Anyone who has heard Justice Kennedy talk 

about the role of the Supreme Court or the history of the Supreme 

Court cannot help but be influenced, and I heard that day in and 

day out for a year and it just had a profound effect on me. 

If I were to be confirmed to be a judge, I would, I think, take 

lessons from each of those three with me, and I hope I could be like 

all three of them. 

Senator SESSIONS. You were just participating and doing the 

very thing you would do now. You were participating with those 

judges and helping them write opinions, to analyze complex legal 

questions and briefs, and to distill that into a principled decision. 

I think that is terrific background for you, and I also notice you 

53

were in the Solicitor General’s Office of the Department of Justice, 

where in that position you represent the United States of America 

in Appellate Courts around the country, which also is extraordinarily good background for an appellate lawyer, and I also notice 

you served a period of time as a partner with the great law firm 

of Kirkland and Ellis, one of the best known law firms I guess in 

the country. 

Senator Schumer and I, we have had—I chair the Courts Committee now. For a while he chaired it. We had a different view 

about this ideology question, and I think he uses the word maybe 

a little differently, people interpret it differently. Let me tell you 

what I think we are dealing with. 

Is it not appropriate, Mr. Kavanaugh, for the President of the 

United States, when he appoints someone to a life term appointment on a bench, to know what that person’s judicial philosophy 

is, his approach to the law, how it should be interpreted and how 

decisions should be made? 

Mr. KAVANAUGH. It is important to know that the person is 

someone who will put aside personal beliefs, prior political affiliations, and will approach the law, follow precedent fairly and impartially, follow the text and the precedent and the history to try 

to reach the right answer that will come to each case impartially. 

All of that is very important and people use different labels to describe those factors that I just described, but the President has 

made clear, and Judge Gonzales to us, those are the things we 

should be looking at, not an individual’s views on any particular 

issues. 

Senator SESSIONS. The President would not be concerned about 

a person’s view on the death penalty or an issue like that. He 

would be more concerned, in making an appointment, as to how he 

would interpret the Constitution’s injunctions or requirements with 

regard to the death penalty; is that correct? 

Mr. KAVANAUGH. I think the President has spoken publicly many 

times about how it is important that a judge or a judicial nominee 

be someone who is going to interpret the Constitution fairly and 

consistent with precedent, and not superimpose his or her personal 

beliefs onto any judicial decision, and it is a very critical function 

of a judge. 

Senator SESSIONS. I think ideology is an entirely different matter. Ideology suggests that judges should in fact, according to Senator Schumer’s arguments, it seems to me, allow their personal ideological views to affect their judicial decisionmaking processes. Let 

me ask you, do you believe that? Do you believe that a person’s political philosophy, whether or not they think a death penalty is 

good or bad, should affect their interpretation of existing Supreme 

Court precedent or the Constitution of the United States when it 

speaks to the death penalty? 

Mr. KAVANAUGH. I do not think one’s personal views on that 

issue or on other policy issues should affect how you go about deciding the cases. I think what Senator Schumer points out on 

pointing out some differences between judges on the D.C. Circuit 

is that judges reach different results in different cases, but I think 

that happens because judges just analyze the cases differently, not 

because of any partisan affiliations. It is critically important for 

54

judges, when they become judges, to recognize that they are entering a new phase, a new role, and political background has been 

very common, Government service background has been very common for judges, not because we want the Judiciary to be an extension of the Congress, quite the contrary, but we want the Judiciary 

to be independent and for the judges on the Judiciary to understand how the Government operates. So that is why political service has been common in judicial nominees’ backgrounds in the past. 

That is why it is important, but it is not because courts are then 

just an extension of the political differences that may exist elsewhere. It is because of that important Government service gives 

you a perspective, whether it is Judge Buckley or Judge Mikva on 

the D.C. Circuit, or Justice Breyer who served on this Committee. 

Senator SESSIONS. I agree with that, and I think that is why the 

American Bar Association, which is certainly a liberal political institution, in my view, has rated you the highest rating, well qualified. They believe that if their members appear before you, your 

demonstrated record of commitment to following the law as written, whether you agree with it or not, is clear. In fact, let me ask 

you, is it a deep personal philosophy of yours that a judge should 

follow the law whether or not he agrees with it, and is that one 

of the most key points of your personal judicial philosophy? 

Mr. KAVANAUGH. It is critical, Senator, for a lower court judge 

to follow Supreme Court precedent faithfully in all instances. 

Whether you might agree with it, you might have decided differently, you have to follow that precedent faithfully. It is something I learned when I was a law clerk, and I have seen in practice, 

and it is something I can commit to this Committee, were I to be 

confirmed, that I would do. 

Senator SESSIONS. We have a difference of views in America 

today about what judges should be—their philosophy as a judge. 

There is no doubt about it. A number of members of this Committee and this Senate are determined to see judges appointed that 

believe—that are activists, as Senator Hatch described it, and he 

defined very carefully what that word means. It means promoting 

a political, ideological agenda from the bench, which I believe is incorrect, President Bush believes is incorrect, and I believe overwhelmingly the American people believe it is incorrect. The reason 

it is incorrect is judges, if you are confirmed, are not accountable 

to the public. You never stand for election again. You hold your office for life. Many of your decisions are unreviewable ultimately, 

and it leaves the American people subject to decisions in an antidemocratic forum unless that judge restrains him or herself, and 

enforces the law as written or the Constitution as declared by the 

people of the United States. I think that is important. We do not 

need ideology, and as Lloyd Cutler, the White House Counsel 

under President Clinton and Carter, really criticized the idea that 

we should politicize the courts and bring ideology into the courts. 

Chairman HATCH. Senator, your time is up. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman HATCH. We will turn to Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

Let me shift to a slightly different area. I am sure everybody is 

going to ask these questions on some of the other areas. I am 

55

thinking back to right after September 11th, back in 2001. On September 20th, a week later, you came to the Hill as a representative 

of President Bush to offer legislation designed to protect the airline 

business from having to take responsibility for the death and destruction of the attacks in New York and Pennsylvania and Virginia. That is a bill that ultimately became law. It provided victims 

compensation in return for immunizing the airlines from liability. 

When you brought the bill up, it had no compensation for victims. It had immunization for the airlines, nothing for the victims. 

It actually had sort of a wish list of tort reforms that the airline 

industry had punitive damages caps for the airlines, attorney fee 

limits against victims’ lawyers, but not against the airlines’ lawyers. It even reduced victim compensation court by disaster payments that may have been in there. 

I remember the negotiations on this bill. You vehemently opposed any compensation for the victims’ families. You insisted the 

bill only limit the liability of the airline industry. Now, wisely, we 

rejected that approach. We established the September 11th Victims 

Compensation Fund. I happened to write it. And in that bill, while 

we limited liability for the airlines, we did compensate the victims. 

Why were you so opposed to compensating the victims, and why 

were you so singularly fixed on protecting just the airlines? 

Mr. KAVANAUGH. Senator, I do not think the facts as stated in 

the question are accurate. 

Senator LEAHY. How would you state them? 

Mr. KAVANAUGH. They are not consistent. 

Senator LEAHY. How would you state them? Let me ask you this 

then. Let me break it down. Did you not come up with a bill that 

had nothing in it for victims, but did have a list of areas where airline liability would be limited? 

Mr. KAVANAUGH. Senator, I think there were two separate 

issues. One was the airlines, which were going to go bankrupt that 

Monday. 

Senator LEAHY. But I am thinking—I may not have stated my 

question well. I am just a small-town lawyer from Vermont, but let 

me try it one more time. Did you not come up with a bill that had 

a number of different limits of liability for the airlines and nothing 

for the victims? Yes or no? 

Mr. KAVANAUGH. And to answer that question, I need to explain, 

Senator, and the reason is there were two separate issues that 

were in play at that time. One was the airline liability issues because the airlines were potentially going to go bankrupt on that 

Monday unless Congress acted. That is why, as I recall, there 

was— 

Senator LEAHY. They found out afterward they were not going to 

go bankrupt on that Monday, but did the bill— 

Mr. KAVANAUGH. There was bipartisan agreement that the airlines were going to go bankrupt that Monday unless Congress 

acted and the President signed the bill. 

Senator LEAHY. Did you object strongly, or did you object to putting in compensation for victims? 

Mr. KAVANAUGH. No. The question was what kind of precedent 

should be used to compensate the victims. 

56

Senator LEAHY. Mr. Kavanaugh, I was there. You are under 

oath. I am not. But let me ask you again, did you object on that 

legislation—you are under oath—to having compensation for the 

victims? 

Chairman HATCH. Senator, let him answer the question. 

Senator LEAHY. I will. 

Chairman HATCH. He said there were two— 

Senator LEAHY. That is why I made sure he understood it. 

Chairman HATCH. But let him state it. 

Mr. KAVANAUGH. Senator, I was there as a representative of the 

administration, and there were two separate issues that needed to 

be addressed, one which needed to be addressed immediately, as I 

recall, was the question of liability for the airlines. I think there 

was bipartisan agreement. And I participated in a meeting in the 

Speaker’s Office after the President’s speech on Thursday night, 

the 20th, where the Speaker and Senator Lott, Representative Gephardt, and Senator Daschle were all present, as was the Director 

of OMB. 

The question was there at the airlines’ liability. There was a separate question which was important, and the two ultimately got 

linked in the same bill, of compensation for the victims of September 11th. On that separate question there was an issue, what 

precedent do we have for compensation for victims of terrorism? 

There was the Oklahoma City issue, which Senator Nichols raised, 

that they had not received significant compensation. There was the 

Police Safety Officers Benefit Legislation. That was a possible 

precedent. We were looking at those precedents. 

Then there were further discussions including with Mr. Pagano 

and your staff, Senator Leahy, and there was a discussion of if we 

are going to do the limitations on airlines’ liability, we should give 

the victims the same kind of compensation that they would recover 

had they been allowed to litigate the matter in court, but to do it 

more expeditiously. 

Senator LEAHY. What position did you take on that? 

Mr. KAVANAUGH. On that we were concerned about the fact— 

Senator LEAHY. I am not asking what you were concerned about. 

What position did you take? 

Mr. KAVANAUGH. At the ultimate meeting on behalf of the administration, Director Daniels agreed to that. 

Senator LEAHY. Did you oppose that initially? 

Mr. KAVANAUGH. There were discussions about how to do it and 

there was concerns about— 

Senator LEAHY. Did you oppose that initially? 

Mr. KAVANAUGH. The precedent that was on point that we cited 

initially was the Police Safety Officer’s Benefits Fund. That was 

the most relevant precedent. We had not thought, at least I had 

not thought of doing a separate litigation model for—essentially a 

damages model at that point. That was an idea that was raised 

during the discussions with Senator Lott’s staff, as I recall. Senator 

Lott’s staff, I believe, first raised that idea, at least in my presence. 

And the one concern about that at the time that I recall being discussed with your staff, Senator Leahy, was the fact that that would 

mean unequal compensation. In other words, the victims of a relVerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC
57

atively poor family would get a much smaller amount. The family 

of a poor victim would get a much smaller amount. 

Senator LEAHY. Did you oppose linkage of the two? 

Mr. KAVANAUGH. As I recall— 

Senator LEAHY. When the proposal was made to you, okay, we 

will agree on protecting the liability of the airlines—and I was 

meeting with the heads of all the airlines at that time too—we will 

do that, but we are going to take care of the victims and get this 

is. We will Public Service Commission them both. Did you oppose 

that linkage? 

Mr. KAVANAUGH. I remember personally being involved in those 

discussions and saying that it was important, I thought—at least 

this was in the fluid negotiations—of compensating each victim’s 

family equally. That was the principle that I had stated at the 

time. 

Senator LEAHY. Did you oppose linking them? 

Mr. KAVANAUGH. Linking the two bills? 

Senator LEAHY. Yes. 

Mr. KAVANAUGH. I do not remember opposing linkage of the two 

bills. I knew the two had to be—both had to occur. Whether they 

had to occur together I think was a discussion. It was fluid discussions. I was not speaking for the administration either. It was Director Daniels who was. 

Senator LEAHY. So you did not oppose the idea of putting victims’ 

compensation in that airline bill? It is kind of hard to understand 

your answer with all the caveats, and I realize you have not spent 

much time in trying cases, but let me assure you that if you had, 

the judge would be all over you on the way you are answering. 

Mr. KAVANAUGH. Senator, I do not recall opposing the linkage of 

the two. I remember they started as two separate issues and then 

they got linked. Then the second question, which was important, 

was what precedent do we look to for compensation? There were 

precedents out there in terms of Oklahoma City, in terms of the 

Police Safety Officer Benefit Fund. I remember also being concerned about the administrative time it would take for people to 

get compensated through the kind of fund. 

Now I want to say— 

Senator LEAHY. You did not have any problem with the administration trying to wipe out all our liability statutes to help the airlines to make sure that their attorneys were compensated, but to 

put limits on anybody else’s attorneys? That did not bother you. 

Mr. KAVANAUGH. Senator, as I recall, there was bipartisan, I 

think unanimous— 

Senator LEAHY. It did not bother you. I do not care what—I was 

involved in those negotiations, Mr. Kavanaugh. I remember them 

very well. It did not bother you. 

Mr. KAVANAUGH. It was unanimous agreement, as I recall, Senator, that something had to be done for the airlines or they were 

going to go bankrupt that Monday morning. 

Senator LEAHY. Let me go to a different subject because you are 

not going to answer my question, so let me go to another one. 

The question of secrecy in Government, and this administration 

has shown more secrecy than any administration I have served 

with from the Ford administration forward. You were the author, 

58

one of the first indicators of this increase in secrecy, Executive 

Order 13233, that drastically changed the presidential records. It 

gave former Presidents, their representatives, and even the incumbent President, virtual veto power over what records of theirs 

would be released, posed a higher burden on researchers petitioning for access to what had been releasable papers in the past. 

After the order was issued, a number of historians, public interest 

organizations, opposed the change. The Republican-led House Committee on Government Reform approved a bill to reverse this. A 

lawsuit to overturn it was filed by Public Citizen, American Historical Association, Organization of American Historians, and a number of others. Why did you favor an increase in the secrecy of presidential records? 

Mr. KAVANAUGH. Senator, with respect to President Bush’s Executive Order, I think I want to clarify how you described it. It was 

an order that merely set forth the procedures for assertion of privilege by a former President, and let me explain what that means. 

The Supreme Court of the United States in Nixon v. GSA in 

1977, opinion by Justice Brennan, had concluded that a former 

President still maintains a privilege over his records, even after he 

leaves office. This was somewhat unusual because there was an argument in the case that those are Government records. But the 

Court concluded that both the current President and the former 

President have the right to assert privilege to prevent the release 

of presidential records. That is obviously a complicated situation. 

The issue was coming to a head for the first time because there is 

a 12-year period of repose, so 12 years after President Reagan left 

office was when this President Bush came into office, and there 

was a need to establish procedures. How is this going to work, two 

different Presidents asserting privilege or having the right to review? 

No one really had a good idea how this was going to work. The 

goal of the order was merely to set forth procedures. It specifically 

says in Section 9 of the order that it is not designed in any way 

to suggest whether a former President or current President should 

or should not assert privilege over his records. 

You are quite right, Senator Leahy, that there was initial concern by historians about the order. I like to think it was based on 

a misunderstanding, and Judge Gonzales and I undertook to meet 

every 6 months or so with a large group of historians first to discuss the order and to explain it, and then after that, to discuss any 

problems they were having with the order, and to help improve it 

if they suggested ways for improvement. I think those meetings, I 

think the historians who come to see us, have found them useful, 

and I think we helped to explain what we had in mind and what 

the President’s Order meant in terms of the procedure. So that is 

my explanation of that order. 

Senator LEAHY. Thank you, Mr. Chairman. I have other questions for the record, although I suspect they probably will not be 

answered, but I will still submit them. Thank you. 

Chairman HATCH. Thank you, Senator. 

Senator Cornyn. 

Senator CORNYN. Mr. Kavanaugh, as I understand, the objections 

to your nomination go like this. First, you do not have the proper 

59

experience. Alternatively, you have the wrong kind of experience. 

And alternatively, or maybe concurrently, you have represented the 

wrong clients. Could you explain to the Committee how you view 

the role of a lawyer as an advocate, which has been your professional career to this point, and how you view the role of Judge, 

which of course will be your duty and obligation when you are confirmed? 

Mr. KAVANAUGH. Senator, every lawyer has ethical obligation to 

zealously represent his or her client in court or in other matters, 

regardless of whether the lawyer might agree with the position of 

the client. That is true as well as a law clerk for a judge or Justice. 

You have the obligation to give the judge your best advice, but then 

to do what the judge decides, not what you may think is right. 

When you are working in public service in the Independent Counsel’s Office or in the White House Counsel’s Office or in my current 

role as staff secretary, my job is to give recommendations and advice, but ultimately to carry out the direction of my superiors without regard to whether I might have chosen a different path. And 

that is an important function of our legal system, the adversary 

system when I was in private practice, and in Government service, 

and it is something that I feel strongly about. 

As a judge, again, it is not your personal views. It is a similar 

kind of mindset in some ways. It is not your personal views that 

are relevant or your past affiliations that are relevant. It is important to follow the law faithfully, the precedent of the Supreme 

Court, regardless of what those views may be. 

Senator CORNYN. I happen to agree with the distinction of a lawyer as an advocate and a judge as an impartial decider of the law 

and fact as the case may be. Unfortunately, we seem to have—

some seem to be engaging in what I think is a very dangerous 

tendency to associate a lawyer, who is a professional advocate, with 

the views of their client as if they were always inseparable and as 

if they were always one. 

I don’t have any doubt that if you were a criminal defense lawyer 

and represented those accused of crime in courts on a daily basis, 

members of this Committee and others would surely have no trouble distinguished between the views of your client and your duties 

as a criminal defense lawyer to represent that client in court. But 

somehow when it comes to the administration’s policies or lawyers 

representing the President or the Department of Defense in the 

case of Mr. Haynes, who has been nominated to the Fourth Circuit, 

people have trouble making that distinction. But I believe it is a 

very important one, and I appreciate your answer. 

And I have to say that Senator Schumer said no one in the room 

disagrees with him about the role of ideology in judicial selection, 

and I just want to say ‘‘me, too’’ to Senator Sessions who said he 

had disagreed with Senator Schumer on that. 

But as I understand the role of the Committee and the advise 

and consent role under the Constitution, it is to explore qualifications and judicial philosophy, that is, whether you are willing to 

subjugate any personal views that you may have, whether they be 

political, ideological, or otherwise, to what the law is and to faithfully enforce the law as written by the Congress or as determined 

by precedents of the United States Supreme Court. 

60

Do you have a similar understanding of what the role is of a 

judge and how that is different from any personal opinions, philosophical or ideological or others that you may have? 

Mr. KAVANAUGH. Well, I think, Senator, the Founders established an independent judiciary, discussed it in the Federalist Papers, because they wanted people who would be independent of the 

legislative and executive branches to decide cases fairly and impartially, without regard to their personal preferences. 

There was discussion at the time, I think Federalist 81 discusses 

making the judiciary an extension of the legislature, or somehow 

having review by the legislature. But there was a decision made to 

have an independent judiciary, and that is the foundation of our 

system of rule of law. 

The Founders also recognized, I think necessarily and certainly 

at the time, that people with Government service who had served 

in the legislative branch or served in the executive branch would 

become judges—Chief Justice Marshall, for example—would have 

backgrounds that involved Government service or political service. 

But they also had confidence in the ability of people in our system, 

once they became judges and put on the black robes, to decide 

cases fairly and impartially. And that’s the way that system has 

worked for more than two centuries. And I know there has been 

some discussion about that, but that’s the way the system has 

worked in terms of deciding cases fairly and impartially and not 

based on political of personal views. 

Senator CORNYN. In your opinion, did Justice Kennedy in your 

experience, was he able to make the transition from lawyer to 

judge and make that sort of transition you described? 

Mr. KAVANAUGH. Justice Kennedy always decided cases fairly 

and impartially and taught a lot to his law clerks about how to do 

the same. 

Senator CORNYN. And in my introductory comments, I pointed 

out that you are not the only person to come before the Court who 

has represented a client in the arena, for example, Justice Ruth 

Bader Ginsburg. In your opinion, has she been able to successfully 

distinguish between her role as general counsel for the American 

Civil Liberties Union and her role as a judge? 

Mr. KAVANAUGH. In my observation, she’s—yes, she’s an excellent Justice on the Supreme Court. It’s not for me to be commenting too much on Supreme Court Justices, but I think she obviously decides cases fairly and impartially and was a judge on the 

D.C. Circuit before that who was widely respected, as she is on the 

Supreme Court. 

Senator CORNYN. And Justice Breyer, who was the Democrats’ 

chief counsel on the Senate Judiciary Committee, do you think he 

has been able to successfully make the change between that job 

and the role as judge, a circuit judge first and then now as a member of the United States Supreme Court? 

Mr. KAVANAUGH. Yes. 

Senator CORNYN. And Byron White, who was a political appointee at the Justice Department under President Kennedy, 

Abner Mikva, I guess the list could go on and on. But in your experience and in your observation, have others that have had perhaps 

not the same but a similar experience, either in the political arena 

61

or representing clients who were, been able to successfully make 

the transition from advocate to impartial judge? 

Mr. KAVANAUGH. Yes, Senator, absolutely. 

Senator CORNYN. And I guess the problem is, in some instances, 

there are those who just don’t simply believe that is true, that anyone can actually make that transition. There are those, I guess, 

who think that those who come to the bench continue to be advocates for an ideology or political persuasion or see it as appropriate 

to issue judicial edicts or decisions that satisfy only their own sense 

of justice and not what the law is. 

I don’t know how anyone can truly believe that and still say that 

we are Nation of laws and not individuals. Do you have any 

thoughts on that? 

Mr. KAVANAUGH. I agree with that, Senator, very much, and I 

guess I firmly disagree with the notion that there are Republican 

judges and Democrats judges. There is one kind of judge. There is 

an independent judge under our Constitution. And the fact that 

they may have been a Republican or Democrat of an independent 

in a past life is completely irrelevant to how they conduct themselves as judges. And I think two centuries of experience has 

shown us that that ideal which the Founders established can be realized and has been realized and will continue to be realized. 

Senator CORNYN. And I know for all the attempts made during 

the confirmation process to try to predict how an Article III judge 

will act once they have a life-tenured position and have the responsibility of being a judge, we don’t have a particularly good track 

record of making that prediction. I point out Harry Blackmun, who 

I believe was appointed by President Nixon; Justice Souter, appointed by President Bush; and Earl Warren, appointed by President Eisenhower. 

Have you observed judges consciously or unconsciously make 

that transition of judge in your experience, in your clerking experience? Or have you discussed that with Justice Kennedy or Judge 

Kozinski or any other judges you have worked with? 

Mr. KAVANAUGH. I believe that the judges for whom I’ve worked 

and all the judges I’ve observed in my experience understand the 

importance of putting on the robe and understand the importance 

of sitting in the courtroom as a fair and impartial arbiter of cases, 

and I think they all have understood that and helped pass it along. 

Chairman HATCH. Senator, your time is up. Thank you. 

Senator Feinstein? Then we will go to Senator Kennedy and finally Senator Durbin. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Mr. Kavanaugh, while you worked for Mr. Starr in the Office of 

the Independent Counsel, you argued to the D.C. Circuit in an 

opinion entitled In re Bruce Lindsey. There you convinced the D.C. 

Circuit that the Deputy White House Counsel Bruce Lindsey must 

testify to a grand jury despite his claims that the information 

sought was protected by attorney-client privilege. 

Since then, you yourself have worked in the White House Counsel’s Office. There you drafted Executive Order 13233. That order 

significantly limits which documents the administration releases to 

the public. 

62

Do you see any contradiction between the arguments you made 

in the D.C. Circuit in the Lindsey case, which weakened Presidential privilege, and your work on the Executive Order, which 

strengthened Presidential privilege? 

Mr. KAVANAUGH. Senator Feinstein, let me explain that in two 

ways. 

First, in both instances, I was representing a client, in the first 

in Judge Starr’s office, and the second working in the White House. 

But, second, let me answer the heart of the question, which is, 

I think, the two positions are consistent in that the Lindsey case 

arose in the context of a criminal investigation, and the Supreme 

Court had said years ago in the U.S. v. Nixon case that the needs 

of a criminal investigation trump any governmental interest in confidentiality, whether it be Everything privilege—and the question 

in the Lindsey case was whether that Nixon case also extended to 

Government attorney-client privilege. And the court concluded that 

it would. 

The Executive Order, as I explained to Senator Leahy in some 

part, was merely designed to set up procedures for the assertion of 

privilege. The order itself didn’t assert any privileges. President 

Bush wasn’t asserting any privileges there. It merely set up the 

procedures to implement the assertion of privilege by a former 

President. And so that’s what the order was designed to do. It 

didn’t address the context of the criminal investigation at all. 

So I think the two are, in fact, consistent. 

Senator FEINSTEIN. Okay. In response to a question by Senator 

Schumer, you indicated that ideology is not—and you were rather 

definite—any kind of a test for a Bush judge. Let me read you from 

a Patriot News editorial. This is a Pennsylvania newspaper, and 

the date is April 30, 2003. The editorial stated, ‘‘Only two things 

apparently guided Bush’s selection: first, that the candidate be sure 

of Senate confirmation; and, second, that he be opposed to abortion.’’ 

The article goes on to add, ‘‘What we find perplexing and more 

than just a little disturbing is that the abortion issue was put forward by the Bush administration as the sole litmus test.’’ 

I would like you to respond to that. 

Mr. KAVANAUGH. Senator, as Judge Gonzales has said before 

publicly, as have I, we don’t ask judicial nominees or candidates 

their positions on issues like that. We don’t know in the vast, vast 

majority of cases, unless there has been a public record before— 

Senator FEINSTEIN. You say you don’t know? 

Mr. KAVANAUGH. Don’t know, correct. We don’t know what someone’s position is. 

Senator FEINSTEIN. Well, let me ask you this: Could you identify 

five pro-choice judges that the White House sent to the Hill? 

Mr. KAVANAUGH. I don’t know whether the nominees are prochoice or pro-life unless— 

Senator FEINSTEIN. Four? Three? Two? One? 

Mr. KAVANAUGH. Senator, I’m sure there are many. I don’t know 

what someone’s—I don’t know and we don’t ask what someone’s position on issues like that is. So I don’t know if there are some, 

many, of any particular viewpoint on any particular issue like that. 

So we don’t ask, and that’s an important part of the process. 

63

Senator FEINSTEIN. Well, let me ask this question: Would you 

agree, then, that most nominees that come up here are politically 

conservative? 

Mr. KAVANAUGH. This goes to a question that Senator Schumer 

asked, and I’m going to answer you directly. Most of the nominees 

of any President share the same political affiliation as the President. That’s been a tradition in our country going back two centuries. Most of President Clinton’s nominees were Democrats. Now, 

that didn’t mean they couldn’t be independent and fair judges. It 

just meant that their prior political affiliation was Democrat. So, 

too, most of President Bush’s nominees—not all by any stretch, but 

most are Republicans. Again, that’s part of the tradition. 

Again, as with President Clinton’s nominees, it doesn’t mean that 

they won’t be—because they will be—fair and impartial judges. It’s 

a difference between political affiliation and political beliefs and 

being a fair and impartial judge. And I believe firmly in the notion 

that there is a strong difference in those two things, and I think 

our system has reflected that for two centuries. 

So they might be mostly Republican, just as President Clinton’s 

might be mostly Democrat. But they’ll be all good judges. 

Senator FEINSTEIN. Well, we take that for a given and that isn’t 

the problem. The problem is where they are on the political spectrum and whether their ideology is so strong that they can’t separate themselves from that ideology to be a fair and impartial judge 

on major questions that come up before an appellate court. And 

what I’m trying to find out is if you’re willing to do that, and thus 

far the indicators are that you are not. 

Mr. KAVANAUGH. Willing to be a fair— 

Senator FEINSTEIN. Willing to separate yourself from the ideology. I think to say that ideology is not any kind of a test, it is 

just that somebody belongs to the Republican Party, really I find 

dismaying because the evidence of the people that come before us 

doesn’t really display that in any way, shape, or form. 

Mr. KAVANAUGH. I understand the question, Senator— 

Senator FEINSTEIN. And what I had hoped you would be is up 

front and direct with this Committee. 

Mr. KAVANAUGH. Well, Senator Feinstein, it’s important that a 

judge understand the proper role of a judge to decide cases based 

on the law before him or her. In terms of the judges that have come 

before the Committee, I know there have been a few that have 

been raised here today and discussed publicly, but the vast majority have been approved by the Committee. We’ve worked closely 

with your office and Senator Boxer’s office. In California, a commission has been set up. The district court judges have moved through, 

Judge Bea and Judge Callahan, Consuelo Callahan and Carlos 

Bea. I talked to your office and Senator Boxer’s office about those 

two nominees, and they were approved. 

So there have been some that have been highlighted, I understand, but I think the vast majority have been approved, and I 

think we’ve worked—tried to work well with the home State Senators. 

Senator FEINSTEIN. Well, let me just set the record straight. I 

don’t review nominees to the district court. We have a screening 

committee, three Republicans, three Democrats, non-partisan. All 

64

the nominees go there. They review them and they make recommendations. I don’t believe Senator Boxer—and I know do not 

interfere in that process. 

With respect to the circuit court, what has happened is, on occasion, I would receive a call from Judge Gonzales. Now, if this is 

conferring, so be it. But it is, ‘‘Do you have an objection to Carlos 

Bea?’’ That is the specific question. It really isn’t conferring in the 

traditional sense. 

However, I must tell you, I welcome even that phone call. So, you 

know, I am not being critical about it. But, you know, for me—and 

I can only speak for myself as to how I judge a nominee. It is my 

interest—because I happen to know that everybody coming out 

here is conservative. Do I believe they can be a fair and impartial 

judge? Do I believe they can interpret the law without a particular 

political bias of any kind? 

Mr. KAVANAUGH. And I agree that should be— 

Senator FEINSTEIN. Now, say something that gives me some assurance that you can do that, because the questions that Senator 

Schumer asked to detect just that you wouldn’t respond to. 

Mr. KAVANAUGH. Senator, I have throughout my career committed myself to public service. When I work in the independent 

counsel’s office, I thought deeply about the issues raised by that investigation and raised by the statute. I wrote an article in the 

Georgetown Law Journal trying to outline a new approach for independent counsel investigations, and I hope, you know, you have it. 

And it’s important because it shows that I took what I thought was 

a fresh look, an independent look at an issue raised by the investigation. I talked about how reports were a problem, how they were 

inevitably perceived as political acts. I wrote that in 1997. I talked 

about some of the problems in the investigation in terms of the 

statute afterwards. I think I was trying to—what I was trying to 

do there was taken an independent look at an issue that I had personally been involved in. When I’ve written other matters—when 

I wrote on Batson procedures when I was in law school, about the 

hearings for Batson v. Kentucky, I tried to take a fresh look at an 

issue on how procedures should work. 

When I was in law practice, I tried to—I represented clients of 

the firm, but I also made sure to do pro bono cases. And I got a 

range of pro bono clients that I worked on for the firm. 

When I was in public service in the Starr office, before the 

Lewinsky matter came to the office, one of the important things 

that I worked on was what was known as the Foster documents investigation. And we received a referral from the Committee about 

a few people, and we concluded in that office not to seek charges 

against any of the individuals named in those referrals from the 

Senate. 

When I was in the Starr office, we prepared a report under Section 595(c)—and Judge Starr has talked about this before publicly—a report on the Whitewater-Madison matter outlining whether there were grounds for an impeachment. And we looked at that 

report, and we decided the evidence was not sufficient under the 

statute to send it to the Senate. 

65

When I worked for Justice Kennedy—and he knows—I gave him 

my independent advice on matters that probably didn’t always fit 

a pre-existing impression of what I would say. 

When I worked in the Justice Department, I represented clients 

on—I represented the United States on a variety of issues, and I 

think the people who worked with me in the Solicitor General’s office know I took an independent looks. The judges I clerked for on 

the court of appeals, the same. 

I think throughout my career in the White House as Staff Secretary, one of my jobs is to be the honest broker for competing 

views that come in on memos to the President. Will those views be 

reflected accurately in the memo? One of my jobs is to make sure 

not to let the memo get slanted, not to let one person dominate the 

memo, to make sure the President is getting the best advice from 

all sides, regardless of what I think is the right answer or the right 

policy position the President should take in a particular case. I was 

selected for that job to be the honest broker for the President in 

making sure he got competing views. 

In the counsel’s office, so too I tried to work very closely with 

home State Senators in Illinois and in California. I might not have 

always agreed with particular recommendations that came from 

Senators. I tried to work closely to do the best job I could for the 

President. 

So I think my record is replete with examples where I’ve been 

independent, where I’ve tried to take a fresh look, where I’ve done 

something because I’m an honest broker. And I think that’s how I 

would serve as a judge as well. 

Chairman HATCH. Senator, your time is up. 

Senator FEINSTEIN. Thank you. My time is up. 

Chairman HATCH. Senator Kyl? 

Senator KYL. Mr. Kavanaugh, I want to get back to the privilege 

issue. You have been criticized on the one hand for attacking the 

Clinton administration’s assertions of various privileges during 

your work in the Office of Independent Counsel, and on the other 

hand helping to draft Executive Order 13233, which establishes 

policies and procedures to govern the processing of requests for 

Presidential records and the assertion of constitutionally based 

privileges. 

Does this Executive Order set forth those circumstances under 

which an assertion of Executive privilege should be made or would 

be successful? Or does anything in the Executive Order purport to 

block prosecutors or grand juries from gaining access to Presidential records in a criminal investigation? 

Mr. KAVANAUGH. Senator, nothing in the order purports to assert 

a privilege at all. It’s up to the individual President, former President or current President, to assert a privilege following the procedures in the order. So nothing blocks anything from a criminal or 

grand jury investigator. And, again, there have been some 

misimpressions about the order when it first came out. Some historians were concerned, and we took proactive steps. Judge Gonzales 

and I met with historians to try to allay their concerns and explain 

the order. We met with people on the Hill also who had questions 

about it, and over time I think we’ve explained what the order was 

designed to do, which is merely to set up procedures. 

66

Senator KYL. And with regard to the criminal aspect, does it 

block prosecutors or grand juries from gaining access to Presidential records in a criminal proceeding? 

Mr. KAVANAUGH. It does not block any access. 

Senator KYL. And your arguments on behalf of the Office of Independent Counsel regarding privilege was that Government attorneys in the Clinton administration could not invoke the attorneyclient privilege to block the production of information relevant to 

a Federal criminal investigation, right? 

Mr. KAVANAUGH. The court ruled that the Government could not 

assert a privilege to block it from a criminal investigation under 

Nixon. It said that it would—yes, that’s correct. 

Senator KYL. So I don’t understand where the inconsistency is 

here. I know some of my colleagues may have tried to assert it, but 

I don’t see it. And correct me if I’m wrong or if I’m missing something here. But the key issue is the assertion of privileges in the 

context of Federal criminal investigations. In fact, you referred to 

your Georgetown Law article in 1998 which was authored during 

the Clinton administration, and didn’t you there specifically recognize the difference between asserting Executive privilege in the 

criminal context versus outside of the criminal context? 

Mr. KAVANAUGH. I did recognize the difference in that article. 

That was a difference that had been also recognized in the cases. 

Senator KYL. And isn’t it further the case that you actually acknowledged or argued a presumptive privilege for Presidential communications—and I have a quotation here that was supplied to me 

by the staff—and that ‘‘it may well be absolute in civil, Congressional, and FOIA proceedings’’? 

Mr. KAVANAUGH. That’s correct. That’s from my Georgetown article. 

Senator KYL. And entirely consistent with this statement, doesn’t 

the Executive Order that I referred to specifically recognize that 

there are situations where a party seeking access to Presidential 

records may overcome the assertion of constitutionally based privileges? 

Mr. KAVANAUGH. Yes. 

Senator KYL. Okay. A few more points here. 

During your service as Associate White House Counsel, have you 

ever worked on a matter where the President invoked or threatened to invoke Executive privilege in a criminal context? 

Mr. KAVANAUGH. Senator, I’d like to answer that question, but 

I don’t think it’s my place to talk about internal discussions of 

privilege claims. 

Senator KYL. Okay. 

Mr. KAVANAUGH. I just want to be careful not to go down a 

road— 

Senator KYL. All right. Well, let me ask you— 

Mr. KAVANAUGH. There’s been no public assertion. I just don’t 

want to go down that road. 

Senator KYL. I appreciate your desire to treat that with confidentiality. 

Did you work on the Bush administration’s assertion of Executive privilege to shield the records regarding the pardons issued by 

Bill Clinton at the end of his Presidency and to withhold from ConVerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC
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gress Justice Department documents related to the investigation of 

alleged campaign fundraising abuses by the Clinton administration? 

Mr. KAVANAUGH. I was involved in that matter working for 

Judge Gonzales, who in turn was providing advice to the President, 

yes. 

Senator KYL. So it seemed, at least I would assert, Mr. Chairman, that Mr. Kavanaugh has been evenhanded and hardly partisan with respect to the privilege issue. And if I have just a little 

bit more time— 

Chairman HATCH. You do. 

Senator KYL. One of the last questions had to do with the Starr 

Report. I understand you were one of several authors for that report, and that that report was actually required as a matter of Federal law. Is that correct? 

Mr. KAVANAUGH. That report was required as a matter of Federal law based on the jurisdiction that Attorney General Reno had 

given Judge Starr. 

Senator KYL. And what part of the report did you help draft? 

Mr. KAVANAUGH. I helped on the grounds section of the report, 

which outlined possible grounds for an impeachment, which was 

the standard specifically in the statute. 

Senator KYL. Did the independent counsel’s report ever state 

that President Clinton should be impeached? 

Mr. KAVANAUGH. It never did. 

Senator KYL. Now, of course, majorities in the House of Representatives determined that information presented by the independent counsel constituted grounds for impeachment, but that report did not state that conclusion. Is that correct? 

Mr. KAVANAUGH. That is correct. And Judge Starr in his November testimony before the House Judiciary Committee emphasized 

over and over again that it was for the House solely to decide 

whether to impeach, that he was making no recommendation. 

Senator KYL. And the House concluded that the evidence was 

sufficient to impeach, and 50 members of the Senate found the evidence compelling enough and acted accordingly. Much of the report 

was criticized for containing extensive details of certain activities 

which some considered sensational. 

What part, if any, did you have in the authorship of that section 

of the report? 

Mr. KAVANAUGH. On the narrative section of the report, I did not 

write or work on the grounds section of the report. I worked on, 

again, how the report was released, I think was an issue I’ve discussed publicly before, and said how it was released by the House 

turned out to be a mistake, but—and I’ve said that publicly before. 

Senator KYL. Is it fair to ask you whether you had an opinion 

on whether or not some of the details in the narrative part of the 

report should have been included? 

Mr. KAVANAUGH. They were relevant to the facts in the case, but 

I’ve said that how the report was released publicly was a mistake 

because some of those facts should not have been necessarily released publicly. 

Senator KYL. Well, again, Mr. Chairman, it seems to me that in 

looking at the entirety of Mr. Kavanaugh’s record and the activities 

68

in which some of have criticized him for participating, in fact, the 

record reveals a very evenhanded, straightforward, honest, forthright, and very non-partisan approach to these issues. And I would 

hope that my colleagues, unhappy about certain historical events, 

would not transfer that unhappiness to a candidate here who is obviously extraordinarily well qualified, has served in a variety of 

public capacities, and in my view would make a tremendous addition to the bench. I hope that they wouldn’t transfer that unhappiness with certain things that occurred in the past to Mr. 

Kavanaugh, who I think has demonstrated that he would not be 

the source of any of the unhappiness if the issue were carefully 

considered. 

Chairman HATCH. I certainly agree. Would the Senator yield his 

last 2 minutes to me? 

Senator KYL. I am happy to do that. 

Chairman HATCH. Because I just want to clarify a few things. 

The editorial referred to by Senator Feinstein, that was not a 

White House statement. 

Mr. KAVANAUGH. I am not sure where that came from. 

Chairman HATCH. I am not either, but let me just say this. The 

Committee questionnaire asks judicial nominees if any specific 

case, legal issue, or question has been discussed in a manner that 

could reasonably be interpreted as asking how a nominee would 

rule on such a case, question, or issue. So I think the question is 

this: Is it a practice of the White House to discuss particular 

issues, like abortion, with the nominees? 

Mr. KAVANAUGH. No, it’s— 

Chairman HATCH. I know that that’s true. You don’t. And one 

reason you don’t is because of the Committee’s requisite there, plus 

it is just you know darn well somebody would make a fuss about 

it if you did up here. Is that right? I may have said it in more blunt 

terms than you would with your finesse, but— 

Mr. KAVANAUGH. Mr. Chairman, the President has said and 

Judge Gonzales has said that one’s personal views on particular 

policy issues is not relevant to how one goes about being a fair and 

impartial judge. 

Chairman HATCH. I agree with that. 

Mr. KAVANAUGH. And so we don’t ask questions about personal 

views on policy issues. 

Chairman HATCH. Or on litmus test issues that have become litmus test issues up here, apparently. 

Mr. KAVANAUGH. We don’t ask questions on that and don’t know 

the answers. 

Chairman HATCH. Now, with regard to the airlines, as I understand it, the proposed legislation did not provide immunity to the 

airlines; rather, it limited their liability to their insurance policy 

limits. Is that correct? 

Mr. KAVANAUGH. That is correct, Senator. 

Chairman HATCH. Okay. Now, the administration did not oppose 

the principle of victim compensation, but wanted to get that issue 

right. The airline liability issue was a more urgent matter in that 

they were facing bankruptcy. And that is why these issues were 

not originally linked. Isn’t that a fair appraisal? 

69

Mr. KAVANAUGH. That’s absolutely right, Mr. Chairman. The two 

issues were separate. 

Chairman HATCH. I just wanted to clarify that because if you 

just listen to one side up here, you might get the wrong impression. 

But that is actually what happened, isn’t it? 

Mr. KAVANAUGH. That’s correct, Mr. Chairman. 

Chairman HATCH. I stated it correctly. 

Mr. KAVANAUGH. They’re two separate issues. The question—ultimately in the discussions, the two became part of the same bill, 

and there were discussions then about what kind of compensation 

fund, we were looking at precedents that were already in place, 

and then ultimately the administration supported the proposal that 

was discussed on the night of September 20th, after the President’s 

speech. 

Chairman HATCH. Senator Kyl was kind enough to give his time 

to me. I appreciate it. My time is up. 

Senator Durbin. 

Senator DURBIN. Thank you, Mr. Chairman. 

Mr. Kavanaugh, thank you for joining us today. 

Mr. KAVANAUGH. Thank you. 

Senator DURBIN. You have many friends in this room, but you 

certainly do not have as many as your mother and father who have 

many friends in Washington on Capitol Hill and many of them 

have contacted me. And it is a testament to your family, and I am 

sure you are very proud of them and the support that they give 

you. 

I listen to the questions that have been asked, and no one has 

questioned your honesty, nor should they. There is no indication on 

the record of any reason to question, but it comes down to two 

areas, repeatedly: your skill and talent, whether you are up to this 

job and, second, whether you can be fair and objective. That is really, all of the questions focus on those two areas. 

I have been a fan of baseball since I was a little kid. If the owner 

of the Chicago Cubs called me and said, ‘‘Listen, we know you follow baseball very closely, and we would like you to be the starting 

pitcher tonight in Arizona,’’ I would say, ‘‘Stop. I know my limitations. I am flattered that you would even consider me.’’ 

Did that thought ever cross your mind when they said it is time 

for the D.C. Circuit Court of Appeals, that it was a flattering offer, 

but frankly your resume just was not strong enough? When you listen to what Senator Schumer says about the people serving on that 

court, Republicans and Democrats, when you consider the fact that 

despite your commitment to public service, you have limited experience when it comes to litigation, and trial work, and things that 

may be very important in decisions that you make, did it ever just 

dawn on you at some point to say, ‘‘Stop. I am flattered, but in all 

honesty, I am not ready to be the starting pitcher on that team’’? 

Mr. KAVANAUGH. Senator, when it was mentioned to me, I was 

humbled and honored to be considered, but I also, based on my 

record and experience, am ready to hit the ground running, were 

I to be confirmed to be a judge, based on my experience as a law 

clerk, in the Justice Department, performing grand jury work, 

working on matters in litigation, arguing before the Supreme 

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ing in the White House Counsel’s Office on difficult matters, several of which we have discussed here today that were difficult matters, working now as staff secretary for the President and anticipating a lot of conversations with senior staff and with the President at the White House. 

Senator DURBIN. But, Mr. Kavanaugh— 

Mr. KAVANAUGH. I think that record means that I think I can hit 

the ground running. 

Senator DURBIN. It is a good record. It is a great record, but it 

does not avoid the obvious, and that is that you come to this position, the second-highest court in America, the second-highest court 

in America, the training ground for the U.S. Supreme Court, with 

less legal experience than virtually any Republican or Democratic 

nominee in more than 30 years. Of the 54 judges appointed to this 

court in 111 years, only one—Kenneth Starr—had less legal experience. That is a fact. 

And you have made it your professional life now, for some time 

now, to look closely at the qualifications of nominees. Were you 

able to look at your own qualifications in this context? Would it not 

have been better for you to have started off at a District Court or 

some other appointment and work your way up? But to start at 

this level is—I do not think it is warranted. 

Mr. KAVANAUGH. Senator, I think the President made the decision to nominate me. I know the American Bar Association, which 

many in this Committee have relied on for years, rated me wellqualified for a seat on this bench at this time. And so I look to 

other evaluations of me—the American Bar Association conclusion—and based on my own record in appellate law, and my experience in a wide range of difficult issues, which I have not shied 

away, but have tackled the best I could, I think I am prepared to 

be a judge on the circuit. 

Senator DURBIN. Let us talk about that wide range of issues. Of 

course, the fear is, if you hit the ground running, are you only 

going to be running to the right, and that is a legitimate fear. 

As I look through all of the different issues that you have been 

involved in as an attorney in public service and the private sector, 

it seems that you are the Zelig or Forrest Gump of Republican politics. You show up at every scene of the crime. You are somehow 

or another deeply involved, whether it is Elian Gonzalez or the 

Starr Report, you are there. 

And it strikes me as worrisome, as Senator Schumer and others 

have noted, that you have been in this position consistently and 

raises the question in my mind, would you not understand that an 

attorney coming before the D.C. Circuit Court, looking at your resume, has to assume—just assume—where you are going to end up. 

There are so few exceptions, if any, in your legal career that point 

to objectivity. 

Give me a good example of where you just flat out disagreed with 

the Republican Party and leadership and said, ‘‘I am going to do 

the right thing, even if my party elders do not agree with me on 

this.’’ Give me an example of that. 

Mr. KAVANAUGH. Well, Senator, my background has not been in 

party politics. I have been a lawyer for clients, working for judges, 

Justice Kennedy, working in the Justice Department, working in 

71

the Independent Counsel’s Office. I guess I cited to Senator Feinstein an example where the Senate had referred some people over 

for possible violations. We declined to seek charges in those cases. 

In private practice, again, my clients were not Republican clients 

or Democratic clients. They were just clients, whether institutional 

clients of the firm or pro bono clients that I worked on at the firm. 

So my background and experience is one where I have been in 

the law, primarily. And then in the White House Counsel’s Office 

and as staff secretary, as in any White House, there is the mix of 

law and policy that goes with it to be sure, but my background has 

been one where I have been involved in legal issues. 

Senator DURBIN. Well, I would disagree. I think your high-profile 

work has all been on one side, but I want to go to one area that 

is particularly personal to me. 

I was victimized by Manny Miranda and the computer theft more 

than any other member of this Committee. We believe over 2,000 

documents were stolen from my computer. At the time, Mr. Miranda served first on the Republican staff of the Senate Judiciary 

Committee and then in Senator Frist’s office, involved in judicial 

nominees. And, clearly, you had a working relationship with him. 

You have conceded that point. 

He, also, we believe, distributed the memoranda, which he stole 

from my computer and other computers, to organizations such as 

C. Boyden Gray’s operation—I am going to get these names wrong, 

so I better read them—something called the Committee for Justice, 

a fellow named Sean Rushton. Do you happen to know Sean 

Rushton? 

Mr. KAVANAUGH. I have met him, yes. 

Senator DURBIN. In what context did you meet him? 

Mr. KAVANAUGH. I think I met him where the people from the 

administration and from the Senate would speak to outside groups 

who were supporting the President’s nominees, and he is a member 

of a group that supports the President’s nominees. I think I have 

met him at those meetings. 

Senator DURBIN. And so the horror that has been expressed by 

the right-wing press about members of the Senate meeting with 

outside groups to speak of nominees turns out to be a sin committed by the administration, as well. 

Mr. KAVANAUGH. I think it is quite proper, and certainly we did 

it, and appropriate for anyone to speak to members of the public 

who are interested in public issues. That is one of the important 

functions of anyone in Government, and we certainly do it. 

Senator DURBIN. How about Kay R. Daly, president of a group 

called the Coalition for a Fair Judiciary, do you know her? 

Mr. KAVANAUGH. I have met her as well and do know her. 

Senator DURBIN. In what context? 

Mr. KAVANAUGH. Same context. 

Senator DURBIN. She published on her website the stolen memos. 

Were you aware of that? 

Mr. KAVANAUGH. I was not aware of that until I read it in some 

stories in the media or on the Internet, I guess. 

Senator DURBIN. I guess what it boils down to is this. Since 

you’ve worked up here for so long. You had to be able to spot things 

that were being said that looked revealing. When Manny Miranda 

72

has a revelation about questions that might be asked of a nominee 

or what the schedule is going to be under a Democratic Chairman, 

did that ever come up, and did it ever raise a question in your 

mind that perhaps he knew just a little bit too much for a staffer 

on Capitol Hill? 

Mr. KAVANAUGH. There was—I have thought about this, Senator—there was nothing out of the ordinary of what Senate staffs 

would tell us or what we would hear from our Legislative Affairs 

folks. That said, I cannot tell you whether something that he said 

at some point, directly or indirectly, derived from his knowledge 

that may have come from these documents. I just cannot speak to 

that at all. I can say, in direct response to your question, that, no, 

I never suspected anything untoward. Had I suspected something 

untoward, I would have talked to Judge Gonzalez about it, who I 

know would have talked to Senator Hatch about it, but I never did 

suspect anything untoward. 

Senator DURBIN. One last brief question. One percent of the lawyers in America are members of the Federalist Society, a third of 

the Circuit Court nominees you have sent to the Judiciary Committee have been members of that society. Coincidence? 

Mr. KAVANAUGH. I think the Federalist Society is a group that 

brings together lawyers for conferences and legal panels. I guess 

others would have to make a judgment about that. The Federalist 

Society does not take position on issues. It does not have a platform. It brings together people of divergent views. Many of them 

may share a political affiliation, I do not know that, but they do 

not take a platform on particular issues. 

Senator DURBIN. Just a coincidence. 

Mr. KAVANAUGH. I think a lot of them are members of the American Bar Association and of the Federalist Society because—and I 

have been a member of both—because, for me at least, both organizations put on conferences and panels that you can attend or speak 

at to learn more about legal issues you are interested in and meet 

some of your colleagues. So I have always found both organizations 

helpful to me in my legal practice. 

Senator DURBIN. Thank you, sir. 

Chairman HATCH. Senator, your time is up. 

Senator Kennedy? 

Senator KENNEDY. Thank you very much. 

There is a very definite philosophical common view with regard 

to members of the Federalist Society, is there not, though, Mr. 

Kavanaugh? You are not trying to suggest that this is just some 

social group that they are getting together. 

Mr. KAVANAUGH. No. And I agree with that, Senator Kennedy. 

I do think there is wide disparity in views, for example, on some 

might call it libertarian versus conservative, whether the text of 

the Eleventh Amendment or the sovereign immunity principle behind the Eleventh Amendment should govern, I have heard debates 

on that by people who are members of the Federalist Society. So 

I think that within the group that are members, there are wide 

views. 

And the panels they put on, and the ones I have worked on, are 

designed to bring together divergent views. I was responsible for 

putting on a Federalist Society panel one time on First Amendment 

73

cases. And on it, I recruited the people to be on the panel, and it 

was Judge Starr, Mr. Dellinger and Nadine Strossen, the head of 

the ACLU, to talk about the Supreme Court’s First Amendment jurisprudence. I thought that was a representative panel of diverse 

views to discuss the Supreme Court. That is what the— 

Senator KENNEDY. Well, I had not planned to go down this, but, 

as I understand, you were co-chair of one of the practice groups? 

Mr. KAVANAUGH. Yes, I was co-chair of the School Choice Practice Group. 

Senator KENNEDY. And do you agree with the following statement from the Federalist Society’s mission statement that ‘‘law 

schools and the legal professions are currently strongly dominated 

by a form of orthodox liberal ideology which advocates a centralized 

and uniform society’’? 

Mr. KAVANAUGH. I can only speak to Yale Law School, where I 

attended, and the professors I attended there— 

Senator KENNEDY. Well, that is not what I am asking you. That 

is in the, that is part of the— 

Mr. KAVANAUGH. But I cannot— 

Senator KENNEDY. You can answer the question in any other 

way, but I am just telling you what we are trying to find out here. 

You can say anything you want to, but I mean that is the—you 

have the right, obviously, to do it. 

But I am just asking you whether you agree. That is the mission 

statement. If you want to answer what happened at Yale, that is 

fine, too, but if you want to answer it with regard to that question, 

that is what I would like to hear. 

Mr. KAVANAUGH. There is a common perception that law school 

faculties are more Democratic than the population as a whole, but 

I do not know if that is—I have not done my own survey at Yale 

Law School. My mentors, and the people I looked up to, and the 

people who wrote my recommendations were Harold Koh, Paul 

Gewirtz, and George Priest, three people with different views, who 

recommended me for my initial clerkships out of law school. I think 

I will leave it at that, Senator. 

Senator KENNEDY. I am going to come back. I just wanted—I am 

sorry Senator Cornyn is not here because I want to make a brief 

comment. He mentioned about Byron White being a political appointee. Of course, Byron White was a Rhodes Scholar. Byron 

White was the leading law partner at one of the prestigious law 

firms in Denver. Byron White was a deputy attorney general. 

Byron White was a Silver Star winner. I know that some are disparaging about people who fought in wars recently, but he was a 

hero in World War II, in the Navy. Plus, he was a leading groundgainer when he was in his first year at Yale Law School, and he 

served with great distinction in the Justice Department. 

So I resent, very deeply—I am sorry Senator Cornyn is not here. 

I will make sure he knows. I did not have a chance because others 

wanted to question—and I will just talk about Byron and about 

Judge Breyer was probably one of the leading antitrust and deregulation professors in the country. And to somehow, I guess it is 

meant to be in a disparaging way, that they are nominated by political individuals to serve in this part, and was extraordinarily 

thoughtful, and his record can speak for itself. 

74

Mr. KAVANAUGH. Senator, can I say one thing there? 

Senator KENNEDY. Yes. 

Mr. KAVANAUGH. I think the question there was about prior Government service in the administration with Justice White, and I 

just want to say— 

Senator KENNEDY. It was generally about the, the question about 

legal experience. I mean, the fact is, on the average, judges appointed to the D.C. Circuit in the past three decades have over 20 

years of experience—Justice Scalia, 22 years; Rogers, 30 years; 

Tatel, 28 years. 

You have had just over 13 years of legal, counting your service 

as a law clerk. You have been a practicing attorney for only 10 

years, and you have never tried a case. 

Mr. KAVANAUGH. I have been— 

Senator KENNEDY. I think the record is, when people were talking about or characterizing some of the concerns that people have 

up here about that background and experience and comparing 

them to the others, I just wanted to make—you can make whatever 

comment you want to make. 

Mr. KAVANAUGH. I was going to say that Justice White is one of 

the justices—and people who know me know this well—who I have 

the most admiration for, in terms of his background, and his 

record, and how he conducted himself as a Supreme Court justice. 

He is one of the ones, maybe with Chief Justice Marshall, if you 

put aside the current Court, that I really think did a tremendous 

service to the Court. 

And so when you mentioned Justice White, I just wanted to underscore that people who have known me for years know how much 

I talk about him, and I have read a lot of his— 

Senator KENNEDY. Well, I appreciate that. I appreciate that. He 

was an extraordinary individual. 

Let me come at this in a somewhat different way, and that is 

about the District Court, the D.C. Circuit Court and its importance 

to the millions of Americans. This court draws the opinions on the 

air we breathe, and the water, the cleanliness of the water the children are going to drink, whether workers will be safe on the job, 

can join unions without fear of reprisal, minorities will be free to 

work in the workplace without harassment. 

So, for me, the nominees to this important Court must demonstrate a commitment to the core constitutional issues, but also 

to the statutory principles that protect these basic rights. Many of 

us have worked long and hard to get these rights, and we are not 

going to support, at least this Senator is not going to support someone that is going to undo them or vote to undo these parts. 

And as you are familiar, in the sixties and seventies, the D.C. 

Circuit expanded public access to administrative proceedings, protected the interests of the public against big business. The Court 

enabled more plaintiffs to challenge agency decisions. It held that 

a religious group, as a member of the listening public, could oppose 

the license renewal of a television station accused of racial and religious discrimination. It held that an organization of welfare recipients was entitled to intervene in proceedings before Federal agencies, and these decisions empowered, at least from this Senator’s 

75

point of view, individuals and organizations to shine a brighter 

light on the governmental agencies. 

Then, we have over the same period of time, for example, with 

the NLRB, which, as you know, guarantees a worker’s right to join 

a union without discrimination or reprisal from employers, and the 

NLRB interprets the act, and those are appealable to the Circuit 

Court. 

As a result, the D.C. Circuit is available as a forum to challenge 

the decision. In 1980, the D.C. Court fully enforced the Board’s decision 83 percent of the time, at least partly enforced the Board’s 

decision in all other cases. By the year 2000, when the Court had 

a 5–4 Republican majority, including a solid majority of Reagan 

and Bush appointees, the D.C. enforced it only 57 percent of the 

time and enforced at least part of the Board’s decision just 70 percent of the time. 

These enforcement statistics puts the D.C. Circuit significantly 

below the national average of 83-percent enforcement for the Board 

in all of the Courts of Appeals. 

Now, I am concerned about your own kind of background, experience, commitment in these areas that affect working families and 

the national labor protections that are protected in this, and ask 

you what is your experience involving labor law? 

Mr. KAVANAUGH. Senator, if I were to be confirmed as a judge, 

I would follow and enforce the laws passed by the Congress, signed 

by the President, faithfully, regardless of what position they took, 

faithfully enforce the environmental laws of this country and the 

workers’ rights laws of this country, absolutely. 

In terms of my background, it has been primarily in public service, in Government positions. In those positions, I have tried to 

work for the benefit of all of the people. I have had specific assignments in those and tried to do them to the best of my ability. 

In private practice, I have represented a few institutional clients 

of the firm and also made sure that I did pro bono work and also 

did outside activities. 

So I have not been involved in some of the areas that you have 

mentioned, but I have a range of experience, and I can commit to 

you that I will faithfully interpret all of the laws passed by this 

Congress. 

Senator KENNEDY. Well, this is important. I mean, we passed the 

Americans With Disabilities Act. It took a long time to get there, 

a long time to make progress. 

Mr. KAVANAUGH. That is right. 

Senator KENNEDY. And we are seeing, at least for many of us 

who were very much involved in the passage of that, the gradually 

whittling away in terms of the rights and protections and this kind 

of—as someone who was very much involved in the shaping of that 

legislation, interpretations that are far beyond what was—in restricting these rights. 

This is a very deep concern, since this is the Court. The Supreme 

Court, obviously, number one. This is the number one court in 

terms of interpreting Americans With Disability, the wide range of 

environmental acts. Many of us are deeply concerned by judgments, 

and decisions, and orders that this administration has taken with 

76

regards to environmental, and these are going to be directly appealed to the District Court. 

I see this red light on. 

And the real concern that many of us have is what, in your background and experience, could give us at least some indication or 

show some sensitivity to these kinds of concerns, to these interests, 

to the issues on clean air and clean water, to the issues in terms 

of affecting the disabled in the society, to the concerns in terms of 

working families that they are going to get a fair shake. And that 

is, with all respect to it, I give great respect to a brilliant background, academic background, and I admire your commitment to 

public service, but this is something that is of concern. 

My red light is on. 

Mr. KAVANAUGH. I appreciate that, Senator. What the Committee 

is entitled to expect from a judge on the D.C. Circuit or any court 

is that that judge will follow the law passed by the Congress and 

signed by the President faithfully, and independently, and impartially. And I can commit to you, my public service has been in different areas than the few that you have mentioned, but I can commit to you that I will faithfully follow the law, and enforce the law 

in all respects were I to be confirmed to sit as a judge. And I think, 

although it has been in different areas, I have background with a 

wide range of experiences that I could bring, and it shows that I 

would do that, but I commit to you that I would. 

Chairman HATCH. Thank you, Senator. 

Senator Schumer, we will turn to you. 

Senator SCHUMER. Thank you, Mr. Chairman. I appreciate the 

witness staying for a second round. 

First, Senator Sessions described you as nonpartisan. Do you believe you are nonpartisan? 

Mr. KAVANAUGH. I am a— 

Senator SCHUMER. I do not mean how you will be as a judge. I 

mean, in your life, up to now, have you been nonpartisan? 

Mr. KAVANAUGH. Let me explain that. I am a registered Republican. I have been a Republican. I have supported Democrats for office. I have contributed to Democrats for office. My background, 

family background, shows bipartisanship, I would say. But anyway, 

in my personal life, I have supported Democrats. 

Senator SCHUMER. I am asking you do you consider yourself nonpartisan? 

Mr. KAVANAUGH. I consider myself someone who, as a judge, 

would be independent— 

Senator SCHUMER. I am not asking that. 

Mr. KAVANAUGH. I know, and I am going to answer the question. 

Senator SCHUMER. You are never answering my questions, sir, I 

have to tell you. 

Mr. KAVANAUGH. Senator— 

Chairman HATCH. I think he does. I mean, he said he is a Republican. 

Senator SCHUMER. We will have to disagree. 

I asked him if he considered—Jeff Sessions, Senator Sessions described as nonpartisan. I think that defies, I mean, we are in ‘‘Alice 

in Wonderland’’ here. I do not think anybody, I would say even you, 

77

yourself, do not consider yourself nonpartisan. You treat the two 

parties equally. You are not involved. 

I mean, let us talk, frankly. 

Mr. KAVANAUGH. I am a Republican, and I work for President 

Bush— 

Senator SCHUMER. You consider yourself nonpartisan? 

Mr. KAVANAUGH. I consider myself— 

Senator SCHUMER. If you are a Republican, and you have worked 

mainly for Republican causes, 99,999 people out of 100,000 would 

say you cannot consider yourself nonpartisan. Now, why is it so 

hard for you to say that? 

Mr. KAVANAUGH. I guess I am concerned with how the term is 

being used. I am a Republican— 

Senator SCHUMER. I am not asking are you unfair or fair. I am 

asking are you nonpartisan? Most of the judges we have voted for 

I doubt would say that they are or some of them, at least—you cannot go through all of them—would say some of them are partisan. 

You have had a more partisan record than any single nominee who 

has come before us, Democrat or Republican. You have been more 

active in more political causes, hot-button issues than anyone. 

Now, I am asking you to be, you know, to give a straight answer 

with this Committee. Do you consider yourself nonpartisan? 

Mr. KAVANAUGH. I consider myself a Republican, and I support 

President Bush, and I have worked for him, and others can attach 

labels to it. 

Senator SCHUMER. Let me ask another question. 

The Committee for Justice, Boyden Gray’s group, which very few 

consider nonpartisan, they have a distinct point of view; is that correct? 

Mr. KAVANAUGH. I know that they support the President’s judicial nominees. Beyond that, I do not know what they might do. 

Senator SCHUMER. How often—did you go to a fund-raiser for 

them? 

Mr. KAVANAUGH. I attended it was a party where I think it cost, 

and it might have been a fund-raiser, I do not know, but I think 

it cost $20 or something. 

Senator SCHUMER. Did you make a contribution? 

Mr. KAVANAUGH. I do not think I did. I think I just went. 

Senator SCHUMER. You just went, okay. 

Mr. KAVANAUGH. It was a— 

Senator SCHUMER. Do you think that was, if somebody is trying 

to be down the middle— 

Mr. KAVANAUGH. Senator, can I say I will try to check on that, 

but I am pretty sure I just went to that. It was a Friday afternoon. 

Senator SCHUMER. How often do you speak to Boyden Gray? 

Mr. KAVANAUGH. I— 

Senator SCHUMER. Once every 6 months? More than that? 

Mr. KAVANAUGH. Less than that. 

Senator SCHUMER. Less than that. 

Mr. KAVANAUGH. He is, since— 

Senator SCHUMER. How about Sean Rushton. 

Mr. KAVANAUGH. Since I have been staff secretary, he would 

come—Boyden Gray—would come at times to meetings where 

78

members of the administration would talk to outside groups, and 

he would be there at times. 

Senator SCHUMER. How often have you—you have had a conversation with him less than once every 6 months? 

Mr. KAVANAUGH. Well, since I have been staff secretary, I do not 

think I have talked to him at all, not since July of last year. 

Senator SCHUMER. How about Sean Rushton? 

Mr. KAVANAUGH. I am pretty sure I have not talked to him since 

July of last year either, and I— 

Senator SCHUMER. How about before that? 

Mr. KAVANAUGH. I do not think I talked to him much. I think, 

again, he was in the groups sometimes, but not often. He would 

come to those meetings where we would talk about the President’s 

judicial nominees. There were people who would come, and we 

would provide information about them. 

Senator SCHUMER. How often, over the 4 years, say, you have 

been in the White House? 

Mr. KAVANAUGH. On the phone or in person? 

Senator SCHUMER. Either one. I did not qualify it. 

Mr. KAVANAUGH. Very rarely. 

Senator SCHUMER. Even by signals. Signals would be included. 

[Laughter.] 

Mr. KAVANAUGH. Rarely. I think the one thing I want to be careful, the one caveat I will say, is I think he has a mass e-mail list 

or had one that would sent out these mass e-mails of newsletters. 

So, if those are counted, then that would be more, but not in terms 

of personal communication. 

Senator SCHUMER. Now, I asked you another question, and you 

are under oath, I asked you had you ever in your course in vetting 

judges used the word ‘‘too liberal.’’ You said you could not recall. 

Have you ever heard others use the word ‘‘too liberal’’ who were 

White House employees? 

Mr. KAVANAUGH. Senator, I think with respect to discussions of 

nominees, it is not my place to go into internal discussions of character— 

Senator SCHUMER. You do not want to answer the question? 

Mr. KAVANAUGH. I do not think it is my place to talk about— 

Senator SCHUMER. Why not? You have maintained— 

Mr. KAVANAUGH. I think it is Judge Gonzalez’s— 

Senator SCHUMER. —and we have heard maintained that ideology does not enter into any discussions or vetting. So, counselor, 

you have opened this line of questioning up. I am asking you something that would prove that one way or the other, and that is because liberal is an ideological term. 

Have you heard people use the term ‘‘too liberal,’’ yes, no or you 

do not want to answer? 

Mr. KAVANAUGH. I think that is—I am going to answer that in 

part—but I think it is a question that is not my place to answer, 

but it should be directed to Judge Gonzalez. But in terms of—I 

want to say this, though. 

Senator SCHUMER. You are the nominee, not Judge Gonzalez. 

This is the first time that you are sort of stepping out on your 

own, in a certain sense, you know, except when you did maybe 

those pro bono activities that you volunteered for. So we want to 

79

know your views, not Judge Gonzalez’s, not George Bush’s. You are 

going to have a lifetime appointment should you get this nomination, okay? So I am not asking—if Judge Gonzalez were here, I 

would ask him the same question. You are the nominee. Now, have 

you heard the words used? 

Mr. KAVANAUGH. Senator, it is not my place to disclose the internal communications— 

Senator SCHUMER. Okay. You do not want to answer. 

Mr. KAVANAUGH. —but there are people who have been too political in the judgment— 

Senator SCHUMER. I did not ask that question. I asked you have 

you heard the term used by others or used yourself ‘‘too liberal’’? 

Mr. KAVANAUGH. And I was going to say I have heard, and I 

know that there have been people who have been judged to be, who 

could not shed, in the judgment of people there, personal beliefs to 

be fair and impartial judges, and shorthand could have been used 

to describe those— 

Senator SCHUMER. Did you ever use it? 

Mr. KAVANAUGH. —on either way. 

I do not recall using it. 

Senator SCHUMER. Next question: We have talked about judicial 

activism here. Would you like to define what you think is judicial 

activism? 

Mr. KAVANAUGH. Yes, Senator. I think judicial activism is when 

a judge does not follow the law before him or her, but instead superimposes his personal beliefs on the decisionmaking process. 

Senator SCHUMER. Fair enough. When Judge Brown says that 

she believes Lochner was correctly decided and when she says that 

San Francisco should not have any zoning laws, is she being an activist? 

Mr. KAVANAUGH. I am not familiar with all of her statements, 

but I will say— 

Senator SCHUMER. You said you vetted judges for California. You 

didn’t vet her? 

Mr. KAVANAUGH. I wasn’t involved in— 

Senator SCHUMER. Well, let me tell you she said repeatedly both 

in court decisions and in conversation that Lochner was correctly 

decided. I think it is about 70 years ago that that doctrine was discarded. It meant you couldn’t pass any kinds of labor laws because—is that being an activist, yes or no? 

Mr. KAVANAUGH. Can I take a minute to answer the question? 

Senator SCHUMER. Yes, surely. 

Mr. KAVANAUGH. Senator, first of all, I want to clarify that I am 

familiar with Judge Brown’s judicial record. I am not familiar with 

her speeches. So I just want to clarify that. 

Senator SCHUMER. It was in one of the decisions—I don’t remember the name of the decision—it was in one of the decisions she dissented from. You are not familiar with it? 

Mr. KAVANAUGH. I don’t remember that phrasing. I am familiar 

with her judicial record, although it has been a while, but I am familiar with some of her judicial record. 

As to your question of examples of judicial activism, I think 

Lochner is often cited as a classic example of judges superimposing 

their personal views on the decisionmaking process in an improper 

80

manner. The case has been discredited. The case isn’t followed any 

longer. 

Senator SCHUMER. So that means it would seem that that is 

being an activist to want to undo Lochner, undo zoning laws. 

Now, I want to ask you this. I don’t like activists on either side. 

Mr. KAVANAUGH. Right. 

Senator SCHUMER. Your administration and you in this process 

seem to say that activism on the right is just fine. After all, Judge 

Brown was sent here. And activism on the left is activism. How can 

you discourage us from believing that? 

Clearly, many of the judges you have set forward do not believe 

in what is established law. And, again, it is not that they wouldn’t 

as judges—every judge who comes before us says, I will be fair. We 

all have to take that with a grain of salt, obviously. We have to 

make our own judgment, not just their assertion. 

Yet, we see a nominating process skewed hard to the right. And 

then when Jeff Sessions, whom I enjoy bouting with here, says, 

well, I am talking about activist judges, activist means nothing 

more than conservative because Judge Brown is as activist as they 

come. She wants to turn the clock back a hundred years. 

Did you have any dissent in the office when they nominated her? 

How do you square the view that it is okay to nominate Justice 

Brown and she is okay, but others are activists whose views are 

more to the left? I mean, I would just like some understanding here 

because I think it is code words. Activist means liberal; strict interpretation means conservative. The nominees we have had before us 

are clearly not interpreting the law. They believe they should interpret the law as it was 100 years ago or 200 years ago. 

I will give you a few minutes to elucidate on this. It seems to me 

the whole process is a subterfuge, basically. 

Mr. KAVANAUGH. Senator, the President’s nominees, the majority 

of them, the vast majority, have been approved by this Committee 

and supported by both sides of this Committee, and confirmed by 

the Senate. There have been some examples where that hasn’t occurred and there have been debates about their records. But in 

terms of the description of the nominees as a general class, it is 

important to make that point. 

They are also, as I understand it, the highest rated nominees 

ever under the ABA’s rating standards. 

Senator SCHUMER. Do they look at activism or non-activism when 

the ABA judges? No. You know that. 

Mr. KAVANAUGH. They look at the traditional criteria for— 

Senator SCHUMER. Right, law school, right. Many of us have broken with that tradition. The President has forced us to because he 

has nominated judges through an ideological prism. It is obvious. 

So I want to ask you again, why is it, if ideology doesn’t matter 

and the President is just—do you think Democrats or liberals are 

less likely to interpret the law fairly—just interpret the law, than 

conservatives? 

Mr. KAVANAUGH. Senator, I think this is an important question. 

And I mentioned earlier, but I am not sure you were here, it is tradition since the founding of our country for Presidents to select judicial nominees from the party of the President. 

Senator SCHUMER. That is not the question I asked. 

81

Mr. KAVANAUGH. But I want to help explain. And so President 

Bush—most of his nominees, not all by any stretch, are Republicans. President Clinton—most of them were Democrats, their 

backgrounds, their political affiliations. That has been the way. It 

doesn’t have to be that way, but it has always been that way, and 

that is the tradition that has— 

Senator SCHUMER. And do you think there were ideological differences as a whole between the Clinton nominees and the Bush 

nominees? 

Mr. KAVANAUGH. I think there were policy differences in their 

backgrounds. I don’t know in terms of ruling on the bench. I do 

know on the Ninth Circuit, for example— 

Senator SCHUMER. Well, have you seen Cass Sunstein’s study? 

You don’t know that study? 

Mr. KAVANAUGH. I do. 

Senator SCHUMER. Okay. Doesn’t it show that Democratic nominees, particularly on economic and environmental and other issues, 

decide things quite differently than Republicans, and that the difference is stark? 

Mr. KAVANAUGH. Senator, I know that that study has been challenged as to its accuracy, as well. 

Senator SCHUMER. Can you give me a yes or no answer to any 

question? I apologize, but you haven’t answered it. I asked you simply is that what Sunstein’s study shows? 

Mr. KAVANAUGH. I am told— 

Senator SCHUMER. If you said, yes, but let me say that it has 

been challenged, I would appreciate that a lot more than refusing 

to answer just about a single question that any of us have asked. 

Mr. KAVANAUGH. Yes, but it has been challenged. 

Senator SCHUMER. Thank you. 

Mr. KAVANAUGH. And it has been challenged because the sample 

was under-representative, and I think the Ninth Circuit is a good 

example, Senator. My understanding—and I am familiar only at 

the margins with this now—is that the range of President Clinton’s 

nominees, for example—there is a wide range of views represented 

in his nominees and in President Reagan’s nominees on that court, 

and that some of President Reagan’s nominees joined with some of 

President Clinton’s nominees. 

And the reason for that, Senator—and it is something I firmly 

believe and I think it is important—is there should be no such 

thing, and there hasn’t been such a thing as a Republican judge 

or a Democrat judge. And I think it is very important that we 

maintain that in our system. 

Senator SCHUMER. So why do we see virtually very few—if ideology doesn’t matter and if we are just nominating people on legal 

qualifications and their ability to interpret the law—and when I 

asked you the question, you basically acknowledged that Democrats 

and Republicans could interpret the law equally. 

Mr. KAVANAUGH. Yes, I agree firmly with that. 

Senator SCHUMER. Why is it that one-third of the nominees here 

are from the Federalist Society, one of the most conservative 

groups in town? And everyone knows that. You are telling me 

Judge Scalia is no more conservative than Justice Ginsburg if you 

82

don’t acknowledge that the Federalist Society is an extremely conservative group. 

Chairman HATCH. Senator, I have been very lenient on the time. 

Senator SCHUMER. Yes, you have, Mr. Chairman. 

Chairman HATCH. You are way over. 

Answer that question, and then we will turn to Senator Kennedy 

and then I will sum up. 

Mr. KAVANAUGH. Well, I think there were two questions there. 

One, in terms of why most of the nominees of a President are of 

the same party, that is the tradition. 

Senator SCHUMER. I didn’t ask party; I asked ideology. 

Mr. KAVANAUGH. Okay, but then the study refers to Democrat 

judges and Republican judges, which is party. So I think the study 

you cited as evidence of ideology actually is party. 

Senator SCHUMER. So you don’t think ideology enters into President Bush’s selection of judges, particularly at the court of appeals 

level, at all? 

Mr. KAVANAUGH. I think it is critical to have people who have 

demonstrated experience and— 

Senator SCHUMER. I didn’t ask that question. Can you answer 

yes or no? 

Chairman HATCH. Senator, this isn’t a court of law. He ought to 

be able answer the question. 

Senator SCHUMER. He ought to be able to. 

Chairman HATCH. And if you don’t like the answer, rephrase another question. 

Senator SCHUMER. Okay, I will. 

Mr. KAVANAUGH. It is important that the judge or judicial candidate demonstrate both in the interview process and in his or her 

record an ability to follow the law fairly, and you judge that based 

on an assessment of the entire record. 

Senator SCHUMER. And so ideology has not entered one iota into 

President Bush’s selection of court of appeals nominees. Is that correct? Do you believe that? 

Mr. KAVANAUGH. I am not sure how you are defining ideology. 

Senator SCHUMER. I am not asking you whether people can judge 

the law fairly. We have been through that part of this discussion. 

I am asking you as someone intimately involved with the process, 

has ideology at all entered into the nomination of judges by President George Bush to the court of appeals? 

Mr. KAVANAUGH. Can I ask you how you are defining ideology in 

that question? 

Senator SCHUMER. I am defining ideology by their predispositions 

on the issues that face the day. And I am not asking you whether 

you asked them or not. It is plain as the nose on your face, sir, that 

the nominees don’t come from across the political spectrum; they 

come from one side of the political spectrum. Everyone in this room 

would admit that. 

Chairman HATCH. Not I. That isn’t true. That is not true. 

Senator SCHUMER. How many ACLU members have been nominated by President Bush? 

Chairman HATCH. There have been a few, I have got to say. 

Senator SCHUMER. I disagree with the ACLU on a whole lot of 

things. 

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Chairman HATCH. Well, so do I. 

Senator SCHUMER. But the Federalist Society has one-third and 

the ACLU probably has none. You are denying the obvious, I guess 

is what I have said. 

Chairman HATCH. Senator, come on. We have got a conservative 

President. He naturally is trying to find people who agree with his 

philosophy. 

Senator SCHUMER. Orrin, thank you. I was trying to get Mr. 

Kavanaugh to say that for the last 15 minutes. 

Chairman HATCH. I think he has been saying it. He just hasn’t 

said it in the words you want to hear. That is all. 

Senator SCHUMER. Okay. 

Mr. KAVANAUGH. But in terms of judges who will apply the law 

without their personal predisposition on the issues, that is exactly 

what the President has said he is looking for, and that is your definition. 

Senator SCHUMER. It seems to me—and I will conclude, Orrin, 

thank you. 

Chairman HATCH. Okay. 

Senator SCHUMER. It seems to me and to just about everyone 

else, not judging whether they would apply the law despite their 

predisposition on the issues, that predisposition on the issues, for 

one reason or another, has greatly influenced who the nominees 

are because they come from a rather narrow band of political 

thinking by and large. 

With that, Mr. Chairman— 

Chairman HATCH. Well, with that, I just have to make this comment before I turn to Senator Kennedy. I have been here for the 

Carter judges, for the Reagan judges, the Bush I judges, the Clinton judges, and now George W. Bush’s judges. Every one of those 

Presidents tried to find people who shared their philosophy. 

I have got to say Carter appointed basically all Democrats, with 

very few exceptions. Reagan basically appointed all Republicans, 

very few exceptions, and the same with the others. The fact of the 

matter is, of course, they are trying to find people who share their 

philosophy. That is why they ran for President. 

This is the third of the separated powers of Government. It is 

one of the biggest issues there is, whether we are going to have liberals on the courts throughout the country or conservatives, or a 

mixture of both. 

Having sat here through all of the George W. Bush’s 173 confirmed judges, 29 that are on the executive calendar reported out 

of this Committee sitting there vegetating, I have to say that there 

is a wide variety—yes, more on the moderate to conservative side, 

but a wide variety of judges. 

Now, look, I think where you have had trouble is with the word 

‘‘partisan,’’ and I would, too, if I were in your shoes. 

Senator Kennedy. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Just quickly, I will mention, since this topic has come up, President Clinton nominated several individuals to both the circuit and 

district courts with no close ties to him or other Democrats who 

were championed by Republican Senators because they were either 

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registered Republicans or close friends of Senators of the other 

party. 

For example, Richard Talman was nominated to the Ninth Circuit and confirmed at the urging of Republican Senator Slade Gorton. Judge Barry Silverman was nominated to the Ninth Circuit 

and confirmed at the request of Jon Kyl. Judge William Traxler 

was put on the district court by President Reagan and was nominated to the Fourth Circuit and confirmed at the request of Republican Senator Strom Thurmond. Judge Stanley Marcus was nominated to the Eleventh Circuit and confirmed at the urging of 

Connie Mack. 

Did you ever consider that some nominees who were Democrats 

should be nominated? 

Mr. KAVANAUGH. I think, Senator, President Bush has chosen to 

nominate some Democrats for a variety of seats, as I understand 

it. I know in his first group of nominees, Roger Gregory was nominated, along with others. I know that in Pennsylvania—I just know 

more of the States that I worked on at the district court level—

there were several Democrats, and some very strong Democrats, 

nominated for district court seats in Pennsylvania that I worked on 

and helped through the process. So there have been some Democrats. I am sure there are others, but I can’t recall them all here. 

Senator KENNEDY. Let me, if I could, ask you about your role in 

the vetting process, and particularly with regard to William Pryor. 

The requirement that appellate judges follow the Supreme Court is 

a bedrock principle, but Mr. Pryor repeatedly criticized decisions of 

the Supreme Court in ways that raise serious questions about 

whether he would follow those decisions. 

He called Roe v. Wade the worst abomination of constitutional 

law in our history. He criticized the Supreme Court’s decision in 

Miranda v. Arizona. He referred to the members of the Supreme 

Court as nine octogenarian lawyers. 

When you recommended Mr. Pryor for nomination to the Eleventh Circuit, were you aware that he had made these extreme 

statements? And if so, do they cause you any concern? 

Mr. KAVANAUGH. Senator Kennedy, I know President Bush nominated Mr. Pryor. And Judge Gonzales, of course, chairs the judicial 

selection committee. That was not one of the people that was assigned to me. I am familiar generally with Mr. Pryor, but that was 

not one that I worked on personally. 

Senator KENNEDY. Well, did you know those remarks had been 

made prior to the time that he appeared before the Judiciary Committee? 

Mr. KAVANAUGH. Senator, can I answer that this way? It is not 

my place to discuss our internal deliberations, but it is safe to assume that we have done a thorough vet of the nominee’s records. 

Senator KENNEDY. Well, if you agree it is important that judges 

obey the precedent, why didn’t you recommend against Pryor’s 

nomination? Why take the chance that he might seek to undo an 

important legal precedent such as Roe v. Wade? 

Mr. KAVANAUGH. Senator, again, the President nominated Bill 

Pryor. I know he has got a lot of Democrat and Republican support 

in Alabama, support in his home State community. In terms of inVerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC
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ternal discussions, I don’t think it is my place to talk about those 

here. 

Senator KENNEDY. Well, I know you are talking here about the 

background discussions, but once you have the nominee and you 

are involved in the process where he calls a case the worse abomination of constitutional law in our history, criticizes the Miranda

case and refers to the Supreme Court as nine octogenarian lawyers—you are involved in the vetting process. Whether you did 

anything at all about it, I gather you say that you did not. 

Mr. KAVANAUGH. No, I was not involved in handling his nomination. I do know he explained that in his hearing, and I will leave 

it at that. 

Senator KENNEDY. After the Supreme Court decision of five-tofour in Bush v. Gore, Mr. Pryor said that he—this is Mr. Pryor—

wanted the decision to be decided five-four so that President Bush 

would have a full appreciation of the judiciary and judicial selection so that we can have no more appointments like Justice Souter. 

Did you know about Pryor’s criticism of Souter? 

Mr. KAVANAUGH. Senator, again I think it is safe to assume that 

the record was fully vetted and fully known. 

Senator KENNEDY. So you weren’t involved in any of the vetting, 

as I understand it, of Mr. Pryor. Is that right? 

Mr. KAVANAUGH. No. I know him and I have met him before, but 

it wasn’t one of the—the way the work is divvied up, that wasn’t 

one of the ones I— 

Senator KENNEDY. Well, did you know about his involvement 

with the Republican Attorney Generals Association? 

Mr. KAVANAUGH. I actually—I think I heard that for the first 

time the day before his hearing, but that doesn’t mean it wasn’t 

known. I am just talking about what I—you asked me about my 

personal knowledge. 

Senator KENNEDY. Did you ever discuss that subject with Mr. 

Pryor or anyone before his hearing? 

Mr. KAVANAUGH. Again, Senator, it is not my place, I think, here 

to disclose internal communications, but the background record of 

someone is vetted before nomination. 

Senator KENNEDY. So your response with regard to the Attorney 

Generals Association is that you didn’t know anything about it 

prior to the time of the hearing? 

Mr. KAVANAUGH. Yes. Again, it is not for me to discuss internal 

deliberations. The record, I am sure, was fully known. Someone’s 

background is fully vetted before nomination, and so it is safe to 

assume that people knew about involvement in various organizations. 

Senator KENNEDY. Well, did you prepare him for his testimony 

on that subject? 

Mr. KAVANAUGH. I don’t remember preparing for his testimony 

on that subject. I might have attended a moot court session, but 

I don’t know—that subject might—I don’t know. I might have attended a moot court session. Oftentimes, we will go to moot courts 

to prepare nominees for hearings to prepare them for this process. 

Senator KENNEDY. Well, I think you just said that you didn’t 

know about this until the day before his testimony. Did that come 

up during the moot court session? 

86

Mr. KAVANAUGH. I think there were news articles, I think, if I 

recall. But I want to be careful, Senator. I don’t recall precisely 

when— 

Senator KENNEDY. Well, I am just wondering whether this did 

come up during the preparation of the nominee. 

Mr. KAVANAUGH. Again, Senator, it is not for me here, I think, 

to disclose internal discussions and deliberations. Someone’s record 

is thoroughly vetted before nomination. In terms of internal discussions, what I was referring to by that is I remember a news article 

at some point reading, but I can’t place it in time. If I saw the news 

article in relation to his hearing, I might be able to place it better. 

Senator KENNEDY. Well, the Washington Post had reported that 

RAGA was founded by Pryor and the Republican National Committee, with the explicit aim of soliciting funds from the firearms, 

tobacco and paint industries and other industries facing State lawsuits over cancer deaths, lead poisoning, gunshot wounds and consumer complaints, according to statements by Pryor and other officials. That was in the newspaper. 

I am trying to find out, if you knew about this, what you did 

about it, if you did anything about it. And if you didn’t do anything 

about it, then you didn’t do anything about it, but once you found 

out about it, whether you thought that it was important enough to 

do anything about it. Did you ask the FBI to check it out or do anything further about it? Did you ask the FBI to investigate, or did 

you discuss it with Pryor or anyone else? That is what we are trying to find out. These are serious charges, obviously. 

Mr. KAVANAUGH. Senator, I think that issue was explored at his 

hearing, as I recall, and that probably would be the best record of 

the issue. 

Senator KENNEDY. Well, I know he was here, but I am just trying 

to find out the information that you all had about it. He was asked 

if he ever solicited funds from corporations with business before the 

State and he replied he did not think so. He told the Committee 

that the RNC had all the records regarding corporate contributions 

raised by RAGA. 

So the question is you must have had, or someone or prepped 

him must have had the conversation and know about those records 

before he came to the Committee. The evidence received by the 

Committee indicated that Mr. Pryor had repeatedly been assigned 

to make RAGA fundraising solicitations of the type he denied making. That is the issue. 

So did you or anyone you were working with receive copies of the 

evidence before it was leaked to an Alabama columnist friendly to 

Mr. Pryor? And did you or anyone you were working with leak any 

of the material, or do you know of anyone who did? 

Mr. KAVANAUGH. Senator, I know very little about this. You 

know far more than I do about it, and I think it was explored at 

the hearing. I don’t know enough to give you much of an answer 

on that. I don’t know much of anything specific about that. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Chairman HATCH. Well, let me just say with regard to that the 

materials were leaked by a former employee of the organization 

who basically, according to the record, stole the materials. By the 

way, the Democrats set up their own Democrat Attorney Generals 

87

Association to compete with the Republican one. So, you know, you 

can find fault on both sides as far as I am concerned. 

I think what you have had trouble with here is the word ‘‘partisan’’ and the word ‘‘ideology.’’ I wouldn’t have answered those 

questions either, to be honest with you. What bothers me about 

this hearing is that much of the hearing has been spent attacking 

other Republican nominees, not you, other Republican nominees. 

And in every case, I think their records have been distorted. 

When General Pryor was asked why he said the Roe v. Wade

case was an abomination, I mean he answered it very forthrightly. 

He said, if I recall it, because of the millions of unborn children 

who were killed. Now, people may not agree with that assessment, 

but it was a sincere statement and certainly a matter of fact, 

whether you agree with the nature of it. 

With regard to Lochner and Janice Rogers Brown, I certainly 

don’t remember it the way Senator Schumer does. As a matter of 

fact, she gave a speech and it was tremendously distorted here in 

this Committee. It bothered me a great deal, to be honest with you. 

Now, let me just say a few other things here with regard to ideology, and Professor Sunstein’s study has been brought up. Let me 

just make a few basic observations. First, there is no doubt that 

in the vast majority of cases there is a unanimous result from the 

court throughout the country. 

You agree with that, don’t you? 

Mr. KAVANAUGH. And especially in the D.C. Circuit. 

Chairman HATCH. Well, that is right. The law is clear and the 

application of the law is straightforward. Professor Sunstein attempts to explain the context in which Democratic and Republican 

appointees largely agree by noting that in many areas the law is 

clear and binding, and that judges appointed by different Presidents largely agree on the appropriate principles. Ideology apparently doesn’t matter in those cases. 

We don’t hear much about these cases, probably, because they 

don’t lend themselves very well to charged political speeches or 

questions, or emotional fundraising appeals from the usual suspects. But the fact remains that these cases make up the lion’s 

share of Federal court jurisprudence. 

Do you agree with that? 

Mr. KAVANAUGH. Excuse me, Senator? 

Chairman HATCH. The cases that basically both sides agree on? 

Mr. KAVANAUGH. Absolutely, Senator. In the D.C. Circuit, I 

think, in response to the Sunstein article, there were some responsive articles that both, number one, attacked the methodology that 

Mr. Sunstein used, and, number two, pointed out how many cases 

were unanimous in the D.C. Circuit. And I think that is because 

the culture of the D.C. Circuit and the people who are on that court 

are outstanding judges. 

Chairman HATCH. That collegially work together. 

Mr. KAVANAUGH. Right. 

Chairman HATCH. Which you would do, as well, once confirmed. 

Mr. KAVANAUGH. Absolutely. 

Chairman HATCH. Now, Professor Sunstein is a brilliant professor. I have a lot of respect for him, but there is no question he 

is a brilliant liberal professor. His study does not examine large 

88

areas of case law, including torts, bankruptcy, labor law and civil 

procedure. Those are serious liabilities to the study, and I think 

anybody who is fair would say that. 

Second of all, it is difficult to understand several of the methods 

used in Professor Sunstein’s study. For example, he counts a vote 

as pro-life if the judge voted at all to support the pro-life position. 

Why this is done is certainly not clear. 

Thus, if a judge votes to strike down part of an injunction 

against demonstrations near an abortion clinic, his or her vote is 

pro-life. Well, we know there are different issues there. Of course, 

a judge casting such a vote is likely relying on First Amendment 

principles of free speech, but the study takes no apparent accounting of that fact. Instead, it simply counts as pro-life. I would suggest that such a vote may be better counted as pro-free speech or 

pro-civil liberties, but that isn’t the way he did it. 

Third, it may come as a surprise to some that Professor 

Sunstein’s study reports that ideology does not matter where some 

might like to see it. For those who would like to argue that ideology, which Professor Sunstein’s study crudely, and I think simplistically derives from, the political party of the appointing President, is especially important in the D.C. Circuit because of the 

types of cases it hears. 

The study shows something else. We hear a great deal from the 

liberal interest groups about Republican appointees casting extremist anti-environmental votes in taking cases. Unfortunately, Professor Sunstein’s study shows no differences between Republicanand Democratic-appointed judges in terms of how their votes are 

cast. 

We also hear so much about how Republican appointees threaten 

to, quote, ‘‘roll back the clock,’’ unquote, or, quote, ‘‘take us back 

to the 19th century,’’ unquote, on civil liberties. But I don’t expect 

these groups to cite Professor Sunstein’s study on this point. He examined criminal appeals cases in the D.C. Circuit, the Third Circuit and the Fourth Circuit. Again, there was no difference in how 

Republican-and Democratic-appointed judges cast their votes either 

for the Government or for the criminal defendant. And I suspect 

there is not going to be much more difference when you get on the 

court. 

I also don’t expect the usual interest groups to cite Professor 

Sunstein’s study to argue that Republican appointees are striking 

down Federal statutes on federalism grounds left and right, day 

and night. Again, there was no difference in Republican- and 

Democratic-appointed judges in the way that they voted. Both 

groups have upheld challenged statutes against federalism or Commerce Clause challenges more than 90 percent of the time. 

You are aware of that; I know you are. 

Those who would like to argue that Republican- and Democraticappointed judges vote differently in race discrimination cases will 

also be severely disappointed by Professor Sunstein’s study. There 

is no such evidence. It seems that ideology matters, except when 

it doesn’t. 

So I don’t blame you for being wary of questions that say yes or 

no on ideology. Give me a break. 

Mr. KAVANAUGH. Mr. Chairman— 

89

Chairman HATCH. Now, let me just finish here because I want 

to make a couple of these points before we finish here today because I don’t think you have been treated very fairly with some of 

the questions. In fact, I think you have been treated anything but 

fairly, and you have had patience, have showed good judicial temperament. You have taken all this stuff and answered as best you 

can back, and I think you have answered very well. 

Now, objections to your nomination based on a supposed lack of 

experience ring pretty hollow to anybody who is fair. First, there 

is no doubt in my mind that if you had worked in the Clinton 

White House defending the former President in the various legal 

battles surrounding the impeachment proceedings, you would be 

the toast of the national media. And, of course, my Democratic colleagues would be falling all over themselves to support your nomination. That is just a matter of fact. 

They would point out that Mr. Kavanaugh has achieved their, 

quote, ‘‘gold standard,’’ unquote. They were the ones who said the 

ABA rating was the gold standard, the ‘‘well qualified’’ highest rating by the American Bar Association standard given to you. 

They might observe that Mr. Kavanaugh has argued both civil 

and criminal matters before the United States Supreme Court—

something that almost none of these other judges that have been 

put on the bench have done, in both civil and criminal matters before the Supreme Court and appellate courts throughout the country. You have had that experience. 

I would just further note your extensive experience in the appellate courts both as a clerk and as a counsel. Those are important 

positions. Very few people have that opportunity to serve in those 

areas. You have got to be really somebody special to get those positions. I know it, you know it, my colleagues know it. 

They would say that it is remarkable that Mr. Kavanaugh served 

as a law clerk to not one, but two Federal judges—Judge Walter 

Stapleton, of the U.S. Court of Appeals for the Third Circuit, and 

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

Circuit. 

And then I think any respectful, honest person would praise you, 

Mr. Kavanaugh, for your service as a law clerk to the United 

States Supreme Court for Justice Anthony Kennedy, the author of 

last year’s Lawrence v. Texas decision, with which I am sure most 

all of our Democrat friends agreed. 

Now, if any Republicans were to question Mr. Kavanaugh’s qualifications for the D.C. Circuit, if you were their nominee and you 

had worked in the Clinton White House, they would certainly point 

out that only 3 of the 18 judges confirmed to the D.C. Circuit since 

President Carter’s term began in 1977 previously had served as 

judges. 

You have had more judicial experience than them by having been 

a clerk on major courts, having watched how judges operate, having helped them write the opinions, having done the research for 

them. Democrat-appointed D.C. Circuit judges with no prior judicial experience include Harry Edwards, Merrick Garland, Ruth 

Bader Ginsburg, Abner Mikva, David Tatel and Patricia Wald. 

Judge Edwards, by the way, was 39 years of age when I helped 

to confirm him, the same age as you. He didn’t have quite the same 

90

experience as you do, but he is a fine man and he has been a good 

judge there. And I don’t think any of us can really legitimately find 

a lot of fault. We may disagree with some of his decisions, but he 

is a good man. 

Also, the current Chief Judge of the Ninth Circuit, Judge Mary 

Schroeder, was nominated by President Carter and confirmed at 

the age of 38. So let’s not pretend that the expressed concerns 

about Mr. Kavanaugh’s age or experience are anything more than 

thin pretexts veiling purely political objections. Democrats would 

never raise such concerns about a nominee of similar age and experience if he or she had litigated across the courtroom aisles from 

Mr. Kavanaugh. 

Finally, let me just point out that President Clinton nominated 

and the Senate confirmed without a single filibuster, which is what 

we are putting up with right now—I know; I was Chairman during 

much of President Clinton’s term—a total of 32 lawyers with any 

prior judicial experience to the Federal appellate courts. Some of 

these have turned out to be very good judges, and I would be the 

first to say it. 

I have to admit that I get tired of the partisanship in this body. 

The very people who are trying to use the terms ‘‘partisanship’’ and 

‘‘ideology’’ are the ones who are filled with it. Frankly, they have 

a right to be. I don’t have any problem with that. But to try and 

impose that on you just because you belong to the Federalist Society—I do, too. I am on the board of whatever it is, and all I can 

say is that I know that it puts on the best seminars in the country 

right now. 

The Board of Advisers. I guess I had better be clean on this. I 

might be held to account to that someday. 

Senator SCHUMER. Only if you are nominated. 

Chairman HATCH. Don’t worry. I am not so stupid that I would 

go through this. 

See how dumb you are? I just can’t believe it. 

My point is this: Every President tries to appoint persons who 

share that President’s political philosophy. That is why these presidential elections are so important. Frankly, those who are very liberal naturally will want a liberal President. Those who are conservative are going to naturally want a conservative President in this 

country. 

And you can expect when you get that liberal President that that 

liberal President, as was the case with Jimmy Carter, in particular, 

and in the case of President Clinton, will nominate primarily people who agree with his liberal philosophy. And that is going to be 

true of President Reagan, President Bush I and President Bush II. 

They are going to try and nominate people of quality, hopefully 

people like you who have ‘‘well qualified’’ ratings or ‘‘qualified’’ ratings, which is no small thing, who then will serve with distinction 

on the bench. 

Now, let me just close with this final remark. I think you have 

handled yourself very well here, when you consider some of the 

tough questions. And my colleagues have a right to ask these questions. I am not finding fault with them. I disagree with the way 

some of these questions have been asked and I disagree with some 

of the fairness, because I think some of it was not fair. 

91

I disagree with Senator Kennedy when he brings up Justice 

White. We all know Justice White was a great Justice. Nobody was 

saying that he wasn’t a great Justice, or not qualified. It is just 

that he didn’t have some of the experience that they claim you 

don’t have, although you have had a lot of experience in the courts 

that I don’t think they are giving you much credit for. 

Take Ruth Bader Ginsburg, or take Justice Breyer. Yes, he was 

one of the leading authorities on antitrust in the country. He 

served as chief counsel of this Committee when Senator Kennedy 

was Chairman. I recommended him to President Clinton, but I 

don’t think he had ever tried a case in his life. I am not sure he 

would know how to try one, had he had a chance. He is smart 

enough and I am sure he would have figured it out, but he hadn’t 

had any experience in that area. 

I happen to really admire him. I happen to think he is a great 

man; I thought he was when he was chief of staff. He was fair, he 

was honest, he was decent. That is one of the reasons why I recommended him to President Clinton, and everybody knows that 

who knows anything about it. 

The point is some of these straw issues are brought for only one 

reason, to try and make nominees look bad or to try and make 

nominees look like they are not qualified, when, in fact, you are 

eminently qualified. The fact that you are 39 years of age—you 

know, that is not exactly young anymore in the eyes of some people. In my eyes, it is very young. In Senator Kennedy’s eyes, it is 

very young. But to other young members of the Senate, you are 

pretty old. 

Hardly anybody who has been nominated to these courts has had 

the experience that you have had. Now, to sit here and say that 

you have got to have every aspect of experience to serve on the 

courts that nobody really has had is a little bit unfair and smacks 

a little bit of, should I use the word ‘‘partisanship?’’ 

I want to say I think you have done very well. I hope my colleagues on the other side will give you a fair shake. If they will, 

they will pass you out of this Committee and they will confirm you 

to the Circuit Court of Appeals for the District of Columbia, where 

I suspect you will become one of the great judges. I suspect that 

they will find that you will be one of the most fair judges ever to 

sit on that court, and I suspect you will be one of those judges who 

will understand those very complex and difficult issues that Senator Kennedy has so eloquently described. 

If I didn’t think that, I wouldn’t be for you. It is just that simple. 

I wouldn’t, because this is in one respect the most important court 

in the country because it does hear cases that the Supreme Court 

will never hear, thousands of cases the Supreme Court will never 

hear, because of the limited number of cases the Supreme Court 

takes. 

The Supreme Court naturally is the more important court, but 

the fact of the matter is this court is extremely important. And I 

have every confidence, knowing you—and I have known you for a 

long time—that not only can you do this job, but you can do it in 

an honest, fair way, and that you know the difference between an 

activist judge, one who just ignores the law and does whatever his 

or her personal predilections dictate, and a real judge who does 

92

what is right and who looks at the law and lives within the law, 

as defined by the legislative body, and perhaps through executive 

orders of the President and, of course, by prior decisions by the 

United States Supreme Court. 

I admire my colleagues on this Committee. They are a tough 

bunch. I love my friend from New York. There is no question about 

it. He gets on my nerves terribly from time to time with some of 

this stuff that he comes up with, but the fact of the matter is I care 

a great deal for him. And he is sincere on this; he really believes 

in what his position is. He is nuts, but he believes it. 

[Laughter.] 

Chairman HATCH. All I can say is that I respect him and I respect the other members of this Committee, but I hope they will 

be fair and give you this shot that you really deserve. And I will 

guarantee you I will be watching just like they will to make sure 

that you are one of the best judges in the country, and I believe 

you will be. 

With that, we will adjourn until further notice. 

[Whereupon, at 1:22 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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24853.089
152


24853.090
153


24853.091
154


24853.092
155


24853.093
156


24853.094
157


24853.095
158


24853.096
159

Æ


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