Department of Defense Appropriations Act, 2019--Continued
Floor Speech
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Mr. CRAPO. Mr. President, I rise to speak about the President's nomination of appellate judge Brett Kavanaugh to serve as an Associate Justice of the U.S. Supreme Court. On July 9, President Trump announced his selection of Judge Kavanaugh to be the 114th Justice in our Nation's proud history.
For a practicing lawyer, serving on our highest Court is the pinnacle of achievement, and nomination to the Bench is testament to a distinguished legal career. When we imagine a Supreme Court Justice, we think of respected jurists, well-steeped in legal questions, rigorous in attention to detail, respectful of traditions, faithful to the law, awed by the recognition of the proud and profound responsibility wielded, and fair to all involved. Our legal system requires it, and the American people value it among their highest ideals of government.
Throughout our history, the central tension of our Republic can be defined as the exercise of government power versus liberty. Each expands at the expense of the other. Finding a way for both central authority and individual freedom to coexist and support each other remains our biggest challenge and will remain so long into the future.
To preserve the limits on an ever-expanding Federal Government, our Founding Fathers conceived of a system of interlocking powers that support each other but serve as a necessary restraint against tyrannical behavior of any. We all know it as the principle of separation of powers, with each of the three branches acting as a check on the others.
The Constitution's appointments clause defines one of the most consequential duties of our Federal Government, and it illustrates the working application of the checks and balances dynamic.
Article II, section 2, clause 2 of the Constitution provides that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court'' and others. This provision interlocks the executive branch with the legislature. Neither can succeed without the other. At its best, this is a partnership functioning well. At its worst, either side can deny the other's success.
One popular but misguided criticism made of Judge Kavanaugh centers around his academic study of the separation of powers in our Federal system. In one scholarly writing, he explores the legal structures of our government and the dangers presented by over-politicizing the relationship between the branches. He describes the enormous challenges faced by President Clinton and President Bush in carrying out their constitutional duties while political difficulties swirled about them and the impact that had on the efficient administration of government.
Much hyperbole has been spoken about Judge Kavanaugh's keen observations. Whether you find yourself on the political right or the left, few would dispute his central point--that a government system rendered inoperative benefits no one. To quote Alexander Hamilton in Federalist Paper No. 70, ``A feeble Executive implies a feeble execution of the government.'' Judge Kavanaugh offers a number of options for the political branches of government to explore and points out the pros and cons of them. The opposite view held by Judge Kavanaugh's critics is, then, by extension, the status quo of Washington's dysfunction.
As a jurist, in his legal opinions, Judge Kavanaugh has consistently demonstrated a willingness to reign in both Congress and the Executive when they overstep their constitutional bounds. In a town where acquiring power seems ingrained, having a judge committed to preserving the constitutional function of each branch cannot be overstated. Yet some would have you believe that Judge Kavanaugh's understanding of the proper operation of our system of government is a threat to the very Republic and disqualifying to serve on our highest Court. I disagree. His analysis is insightful and should be eagerly embraced by civic students throughout the country.
In the weeks since President Trump nominated Judge Kavanaugh for the Court, special interests have kicked into overdrive, peddling one imagined conspiracy after another. Variously, I have heard people suggest that Judge Kavanaugh is a threat to the people of every race, creed, gender, and age. Some have even unleashed prophecies of biblical gloom and doom awaiting the confirmation of a Justice Kavanaugh. Still others have called on opponents of Judge Kavanaugh's to use every possible tool to stop his confirmation, including the extreme step of shutting down the government should things not go their way. So, facing a nominee with impeccable credentials, opponents must imagine a boogeyman. Fortunately, people see past those attacks because they are the same attacks they lobbed when President Bush nominated Justice Souter and when President Reagan nominated Justice Kennedy.
Failing at that, some opponents of Judge Kavanaugh's are hoping to demand an endless stream of documents to delay confirmation proceedings indefinitely. These opponents claim that the process is unfair and lacks transparency, when in reality the opposite is true.
As Chairman Grassley of the Judiciary Committee so eloquently pointed out at a recent Senate Judiciary meeting, none of these criticisms hold any weight.
There will have been 57 days between the announcement of Judge Kavanaugh's nomination and the date of his confirmation hearing--a longer period than Senators had for Justices Sotomayor, Kagan, and Gorsuch. Judge Kavanaugh has submitted more than 17,000 pages with his bipartisan Judiciary Committee questionnaire, which is the most extensive questionnaire ever sent a nominee. The committee has also received hundreds of thousands of pages of documents from Judge Kavanaugh's service in the executive branch. This, too, is already more than any Supreme Court nominee before him, and documents are continuing to be sent to the committee for review. Chairman Grassley is working tirelessly to make the vast majority publicly available as quickly as possible, and I appreciate and applaud his transparency.
I recognize the politics and the purpose behind these creative but misguided attacks, and so does the American public.
Judge Kavanaugh's experience and legal background are not in dispute. His readiness for the Supreme Court is not contested. His law clerks vouch for him. Lawyers who argue before him commend him for his judgment, his fairness, and his temperament. His peers admire and respect his intellect and draw regularly from his opinions. In short, he is a judge's judge. In fact, nearly every one of his former clerks signed a letter extolling the qualifications that he has, his virtues, and his temperament. So widespread was the support of their former mentor that only those who were prohibited by their employer from signing were left off.
Newspaper editorial boards from across the country have endorsed his nomination. Here are just some of the dozens of glowing testimonials about Judge Kavanaugh:
The Wall Street Journal:
Judge Kavanaugh has an exemplary record that suggests he will help to restore the Supreme Court to its proper, more modest role in American politics and society. . . . He has the experience and intellect to be a leader on the Court, not merely a predictable vote on this or that issue.
The Detroit News:
Brett Kavanaugh's credentials, his commitment to judicial independence, his unassailable character, his record as a judge dedicated to the Constitution and his likability should overwhelm the Senate skeptics who will be tempted to oppose him simply because he was appointed by Trump.
The Richmond Times-Dispatch:
If one were to create an ideal resume for the position of Supreme Court justice, it would not look terribly different from Brett Michael Kavanaugh's curriculum vitae. President Trump's nominee to replace Justice Anthony Kennedy is more than qualified for the job. . . . Indeed, Kavanaugh's qualifications are impeccable--unfortunately, that won't stop him from being lambasted by the opposition on the left concerned about his conservative values.
The Las Vegas Review-Journal:
Judge Kavanaugh is imminently accomplished. . . . Judge Kavanaugh is firmly in the judicial mainstream, although Democrats will no doubt try to twist him into a rabid, dangerous extremist. He is, in fact, a constitutionalist who believes that judges should follow the nation's founding document rather than interpret law to achieve desired ends.
The Lowell Sun in Massachusetts:
What Democrats cannot question is Brett Kavanaugh's credentials. . . . After all the drama and histrionics, sensible Democrats should put politics aside and vote to make him the ninth member of the Supreme Court.
Judge Kavanaugh is one of the most qualified nominees ever for the Supreme Court. He has been nominated to succeed Justice Kennedy, a man for whom he once clerked and called a ``mentor.'' With over 300 authored opinions and 12 years of service on the bench, he is a judge with a clear record demonstrating that he applies the law as written and enforces the Constitution. He values precedent and wrote, along with Justice Gorsuch and others, ``The Law of Judicial Precedent,'' a scholarly piece on the importance of stare decisis.
Many critics argue that a Justice Kavanaugh would likely be the key to unlocking any number of Supreme Court precedents. I wonder, though, how many have actually read this book and understand that he is someone who has given exhaustive and weighty consideration to important legal questions. But we should take him at his own words:
The judge's job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don't make up new constitutional rights that are not in the text of the Constitution. Don't shy away from enforcing constitutional rights that are in the text of the Constitution.
Judge Kavanaugh is a respected jurist with a sterling reputation for intellectual rigor and attention to legal detail. He understands the proper role of a judge in our legal system--to fairly interpret the law, not create it. He thinks deeply about the legal questions before him and strives to build consensus on the court.
As stated by his former law clerks, ``Judge Kavanaugh never assumes he knows the answers in advance and never takes for granted that his view of the law will prevail.'' He actively solicits views from all sides of the argument--all the better to form a lasting and well- reasoned opinion.
I look forward to the Senate Judiciary Committee's upcoming hearings, when the public can hear directly from Judge Kavanaugh, in his own words, the proper role of a judge in our legal system. I am confident Judge Kavanaugh will demonstrate the rigorous intellect, the fealty to law, and the judicial temperament that have long defined his career on the bench.
Thank you.
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