Executive Session
Floor Speech
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Mr. CORNYN. Mr. President, last week I had the chance to reconnect with Judge Brett Kavanaugh, the President's choice to be Associate Justice of the U.S. Supreme Court, succeeding Anthony Kennedy, who has announced his retirement effective at the end of this month. I say reconnect because I actually met Judge Kavanaugh back in 2000, when, as attorney general of Texas, I had the great privilege to represent my State in front of the U.S. Supreme Court in an oral argument.
As part of my preparation for that argument--something that is sort of like the Super Bowl for lawyers--I had a chance to practice that argument in a moot court, as it is called, in front of three distinguished Supreme Court advocates, including Brett Kavanaugh, who at that time was a private lawyer. I am sure I benefitted from his help, as I did from the help of the other two.
I have followed Judge Kavanaugh's career closely in the 18 years since I met him. Of course, in the last 12 years, he has served with distinction on the DC Circuit Court of Appeals, which some have called the second most powerful court in the Nation, since most of the controversial litigation involving the Federal Government tends to come up through that appellate court from the district courts here in the District of Columbia.
Based on what I know of Brett Kavanaugh, I am pleased with the nominee the President has chosen. After talking to him again, I look forward to supporting his nomination and doing everything I can to ensure his bipartisan confirmation.
On the issue of bipartisanship, let me just point out that Justice Gorsuch was confirmed by 54 votes, a bipartisan vote of confirmation. I would expect, based upon his similar qualifications in many ways-- outstanding academic record, outstanding experience, and demonstrated ability on a circuit court of appeals--that I would think and expect that Justice Kavanaugh would get a bipartisan confirmation vote, much as Justice Gorsuch has. Obviously, they are two different individuals, but in terms of their experience, education, preparation, and judicial philosophy, I think it would be difficult to explain why one would vote for Justice Gorsuch's confirmation and vote against Justice Kavanaugh.
I know Members of the Senate take our responsibilities to provide advice and consent very seriously. I know a number of our colleagues who don't have the benefit of 18 years of familiarity with the judge will want to do their homework, and that is exactly as it should be.
A bipartisan questionnaire has now gone out to the judge from the Judiciary Committee. Senator Feinstein, the Democratic ranking member, and Senator Grassley, the Republican chairman, have sent a questionnaire, asking him to answer a litany of questions necessary for the Judiciary Committee to prepare for the hearing, which I hope will occur sometime in mid-August or so. We know also that nominees for judicial office get a very extensive background check, and that will have to be updated. I am sure that will take place as well.
Then, we all will have the chance to meet with Judge Kavanaugh, as I did, and to make our own personal assessment after asking questions and getting his answers to those questions.
Many people have now become familiar with the arc of his career: graduating with honors from Yale College, graduating Yale Law School, clerking for two appellate judges before clerking for Justice Anthony Kennedy on the Supreme Court. From there he went on to work as the Staff Secretary at the White House.
I want to pause and talk about what the Staff Secretary at the White House does. This is kind of an obscure but important position. Basically, you are the last eyes on a document before the President signs it. So what that means is there is a tremendous responsibility to coordinate and to verify the accuracy of the contents of the documents and that they reflect the policies that the President does indeed support before it is presented to him for his signature.
I mention the Staff Secretary position because the last time Judge Kavanaugh was confirmed to the DC Circuit Court of Appeals, there was no discussion about getting the voluminous copies of records that came across his desk as Staff Secretary. No one particularly thought that those were very useful, and that is for understandable reasons. He didn't author those documents. He didn't create them, but he was responsible for their verification and authentication and to see that they got to the President after having been reviewed as they should be. So as for any excuse that we hear along this confirmation process that the thousands--maybe hundreds of thousands, maybe millions--of documents that would have come across his desk as Staff Secretary will have to all be produced before Senators can vote on his confirmation, well, they didn't do that back when he was confirmed to the DC Circuit Court of Appeals. I think it makes no logical sense that documents that came across his desk that he did not create and he did not vouch for are relevant, but, rather, that represents a fishing expedition designed to delay the confirmation process unnecessarily.
After he was Staff Secretary at the White House, he practiced law. Then, of course, he was confirmed to the Federal bench. His resume is really one that speaks for itself, but I want to address some of the character assassinations that have already begun about the judge because it is pretty troubling, knowing him as I have come to know him, to hear these accusations and descriptions, which I think are pure fantasy. They are worse than that. As I said, they are character assassinations. They are conspiracy theories. They are designed to cause good people to doubt this nominee, but there is a good answer to each of them.
First comes one from House Minority Leader Pelosi, who has no role whatsoever in the Supreme Court process. The Senate has the responsibility of providing advice and consent. The House of Representatives is a virtual spectator, like the rest of the American population. She called his nomination ``a clear and respectful assault on the fundamental rights of women.'' It is an outrageous statement.
NARAL Pro-Choice America, the national abortion rights action league, has claimed that any vote to confirm him would be one that would ``punish women.'' This same group also degenerated into a middle-school mocking of his name. I am not sure what relevance that has, but it shows, I believe, how desperate opponents of this nomination are.
If you don't have anything substantive to offer as criticism or if you don't have policy differences that you want to debate, engage in name calling. That is all this is.
A Yale Law professor, Amy Chua, wrote last week in the Wall Street Journal about how Judge Kavanaugh had been a mentor to young female lawyers whom he has engaged with over his legal career. The professor wrote that since he joined the Court of Appeals for the DC Circuit in 2006, a quarter of the judge's law clerks, the most valued members of his staff, have been members of a minority group--one or the other--and more than half, 25 out of 48, have been women. Years ago, when I was a member of the Texas Supreme Court, it seemed as though I also had a similar proclivity to hire female clerks.
I asked one of them one day: Why is it you think I hired you to be my law clerk?
She said: It is easy, Judge--women are smarter, and they work harder.
Perhaps that is what Judge Kavanaugh discovered during his experience too.
These women, these former clerks, have spoken glowingly about Judge Kavanaugh's mentorship and his personal decency and support and encouragement for their careers. It is absurd and hyperbolic to call Judge Kavanaugh anti-woman. It is so ridiculous. You would wonder why anybody would feel as if they needed to respond. Here in Washington, DC, in the echo chamber inside the beltway and with all the special interest groups and the mainstream media unfortunately many times repeating these falsehoods over and over again, it is necessary for some of us to stand up and say: This is blatantly false.
The women who know Judge Kavanaugh best and worked alongside him in his chambers would take issue with Ms. Pelosi's characterization.
A second line of conspiracy theories regarding Judge Kavanaugh relates to Presidential power. Some have claimed that Judge Kavanaugh believes that a President cannot be indicted for a crime and that that should be an automatic disqualification for Supreme Court consideration. Well, this arises out of a misreading and a misunderstanding of a 2009 Minnesota Law Review article he wrote that explored a gray area of the law and suggested that Congress consider legislation that would defer civil lawsuits and criminal charges until after the President leaves office.
As people will remember, Judge Kavanaugh worked for a while for the independent counsel who was investigating then-President Clinton. He said he learned from that experience that a President is busy doing so many things, it really makes sense not to provide immunity but, rather, to defer litigation of those criminal indictments, should there be any, and civil cases until after the President leaves office. He was quick to note that if the President ever engaged in serious misconduct, there was always the option of impeachment, which is very different from a criminal case. It is one where Congress expresses its view on the suitability of an office holder to continue holding office, and that is always a last resort.
As one fact checker found, his position is different from saying that Presidents can't ever be indicted. Professors like Noah Feldman at Harvard Law have agreed. The Fact Checker from the Washington Post concluded by calling these claims ``an extreme distortion'' of Judge Kavanaugh's views and I believe gave it two Pinocchios for being false and misleading.
A third and final line of bogus arguments I want to address this afternoon hinges on his views regarding the Affordable Care Act, sometimes called ObamaCare, with the senior Senator from Massachusetts saying that he is ``hostile to healthcare.'' That is as preposterous as saying he is hostile to women. Who is hostile to healthcare? Well, that was also fact-checked by the New York Times, which found hers and other claims to be highly exaggerated.
The reality is that Judge Kavanaugh, in his official capacity, has issued two dissenting opinions and legal challenges to the Affordable Care Act, both highly technical in nature. Clearly, he is not against healthcare. That is really just a dumb comment. He is simply a judge, who has no role in evaluating the wisdom or efficacy of policies. His job is to call balls and strikes, as an umpire would, to decide whether something is within the law or outside of the law. I believe he will continue to do that when confirmed as a Justice on the Supreme Court.
I agree with the majority leader, Senator McConnell, who last week said Judge Kavanaugh's qualifications are ``so obvious, and his reputation so excellent, that unhinged attacks are all that remains in the far left's arsenal.'' I agree with him, but that doesn't mean we won't continue to hear these unhinged, ridiculous charges against a good man. Judge Kavanaugh, by all accounts, is a fair and thoughtful judge who approaches each judicial decision with precise reasoning and careful analysis. That is why the conspiracy theories will not work. They are doomed to fail, and the cracks are already beginning to show.
As I said, the Judiciary Committee will conduct a thorough and timely hearing, and then we will follow with an up-or-down vote in the committee and then on the Senate floor this fall, prior to the time the Supreme Court's new term begins in October. The eventual outcome from this process should be that Judge Kavanaugh will be easily confirmed. That is what he and I believe the American people deserve.
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Mr. CORNYN. The following Senators are necessarily absent: The Senator from Arkansas (Mr. Boozman), the Senator from South Carolina (Mr. Graham), the Senator from Nevada (Mr. Heller), the Senator from Oklahoma (Mr. Inhofe), the Senator from Georgia (Mr. Isakson), the Senator from Louisiana (Mr. Kennedy), the Senator from Arizona (Mr. McCain), the Senator from Kansas (Mr. Moran), and the Senator from Alabama (Mr. Shelby).
Further, if present and voting, the Senator from Arkansas (Mr. Boozman) would have voted ``yea.''
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