E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 109 CONGRESS, SECOND SESSION

Vol. 152 WASHINGTON, FRIDAY, MAY 26, 2006 No. 68 House of Representatives The House was not in session today. Its next meeting will be held on Tuesday, June 6, 2006, at 2 p.m. Senate FRIDAY, MAY 26, 2006

The Senate met at 8:45 a.m. and was EXECUTIVE SESSION This vote will go forward, unlike the called to order by the President pro votes for two far more qualified people tempore (Mr. STEVENS). nominated by President Clinton who NOMINATION OF BRETT M. were pocket-filibustered by the Repub- PRAYER KAVANAUGH TO BE UNITED lican leadership of the Senate, along The Chaplain, Dr. Barry C. Black, of- STATES CIRCUIT JUDGE FOR with 59 other judges nominated by fered the following prayer: THE DISTRICT OF COLUMBIA President Clinton who were pocket-fili- May we pray. CIRCUIT bustered by the Republican leadership. Eternal, sovereign Lord, supply our The PRESIDENT pro tempore. Under What I worry about with this nomi- needs for today. the previous order, the Senate will pro- nation of Mr. Kavanaugh, whose ABA Give strength to the weak as they ceed to executive session and resume shoulder heavy responsibilities. Give the consideration of Calendar No. 632, rating has been downgraded—it is al- rest to the weary, that their tired which the clerk will report. most unprecedented to see that hap- hands will find new vigor. Give comfort The legislative clerk read the nomi- pen—is that he is a man who in all his to the sorrowful and compensate them nation of Brett M. Kavanaugh, of statements spoke of making rulings for every joy that life takes away. Give Maryland, to be United States Circuit that would make President Bush all of us the presence of Your love, that Judge for the District of Columbia Cir- proud. This is an independent branch of we may find the peace of sins forgiven cuit. Government. He is not supposed to and the power to break the chains of The PRESIDENT pro tempore. The make any President—Republican or temptation. distinguished minority leader is recog- Democratic—proud. He is not supposed Use our Senators today for Your nized. to be a rubberstamp for anybody. glory. Uphold them when they reach Mr. REID. Mr. President, the distin- I think when you have a Republican- the limits of their strength. guished ranking member of the Judici- We pray in Your powerful Name. ary Committee wishes to speak on the controlled Congress which has refused Amen. nomination of . I also to be a check on the Bush-Cheney ad- wish to do that. ministration, whether it is the war in f I ask that the Senator from Vermont Iraq, the lack of weapons of mass de- be recognized. struction, the failures of Homeland Se- PLEDGE OF ALLEGIANCE The PRESIDENT pro tempore. The curity with Katrina, or this latest fi- The PRESIDENT pro tempore led the Senator from Vermont is recognized. asco in the Veterans’ Administration, Pledge of Allegiance, as follows: Mr. LEAHY. Mr. President, we are there is no accountability. We at least I pledge allegiance to the Flag of the concluding the debate on the con- should be able to speak to our courts United States of America, and to the Repub- troversial nomination of Brett and to expect our courts to be account- lic for which it stands, one nation under God, Kavanaugh to a seat on the Court of able. indivisible, with liberty and justice for all. Appeals for the District of Columbia Circuit. This is an administration that has f I spoke last evening, and I shall not been secretly wiretapping Americans speak longer today except to again ex- for years without warrants, despite the RESERVATION OF LEADER TIME press my concern that we are putting a requirements of the law. This is an ad- The PRESIDENT pro tempore. Under person with no judicial experience on ministration that refused to allow the the previous order, leadership time is the second most powerful court in the Justice Department’s own Office of reserved. land. Professional Responsibility to proceed

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

S5303

.

VerDate Aug 31 2005 03:08 May 27, 2006 Jkt 049060 PO 00000 Frm 00001 Fmt 4637 Sfmt 0634 E:\CR\FM\A26MY6.000 S26MYPT1 ycherry on PROD1PC64 with SENATE S5304 CONGRESSIONAL RECORD — SENATE May 26, 2006 with an investigation into whether Now we are considering a nominee by the fact that he has been nominated Justice Department lawyers violated today, Brett Kavanaugh, who is a to the DC Circuit, a court which the their responsibilities or the law in es- young and relatively inexperienced, Republicans have spent more than a tablishing and justifying programs to but ambitious member of the White decade trying to pack. They spent spy on Americans. This is an internal House’s inner circle. He is the Presi- President Clinton’s second term block- government investigation that is being dent’s pick to put another ally and ing his highly-qualified nominees, stymied by the administration. trusted vote on the DC Circuit. He has Elena Kagan, now Dean of Harvard Law This is an administration that has spent most of his legal career in par- School, and Allen Snyder, a former operated behind a wall of secrecy and tisan political positions. As Staff Sec- clerk to Chief Justice Rehnquist and that has issued secret legal opinions retary to the President, Mr. highly respected litigator. Nonetheless, justifying the use of torture and ren- Kavanaugh has been involved in Presi- I voted to confirm Judge John Roberts dition of prisoners to other countries, dent Bush’s use of 750 Presidential to be a member of the DC Circuit and ignoring the dangers such tactics pose signing statements designed to reserve later supported his nomination to be to our own soldiers and Americans for the President alone the power to Chief Justice of the Supreme Court. around the world. This is an adminis- choose whether to enforce laws passed tration that is talking about pros- by Congress. As an Associate White After the Senate last year confirmed ecuting reporters and newspapers for House Counsel, Mr. Kavanaugh worked two of President Bush’s nominees that trying to inform the American people with Karl Rove on the President’s plan I strongly opposed—Janice Rogers about their government. This is an ad- to pack the Federal bench with Brown and Thomas Griffith—Repub- ministration that says the law is what ideologues such as William Pryor, Jan- lican appointees now comprise a two- the President decides the law should be ice Rogers Brown and others. He helped to-one majority on this important not what Congress passes. justify the wall of secrecy that has court. This is not a court that needs What is desperately lacking through- shrouded so many of the White House’s another rubberstamp for the Presi- out this administration and this Re- activities. dent’s political ally. publican-controlled Congress is ac- At his hearing Mr. Kavanaugh em- The Senate Republican leadership is countability. I will give you one exam- phasized, as if a qualification, that he catering to the extreme rightwing and had ‘‘earned the trust of the President’’ ple. special interest groups agitating for a Yesterday, those responsible for and his ‘‘senior staff.’’ All that may be fight over judicial nominations. With a Enron’s collapse, which caused so useful for advancement within this number of judicial nominees ready for many employees and investors to lose President’s administration or Repub- bipartisan confirmation, the Senate their savings, were held accountable in lican circles, but those are hardly a court of law. Precious little was done qualities or qualifications for an inde- Republican leadership would rather by the Republican-controlled Congress pendent judge of this President and concentrate on this controversial and to look into that. It required an inde- this administration’s actions. Indeed, divisive nominee. That this nomination pendent court of law. Of course, Enron when pressed at his confirmation hear- has not moved forward for 3 years is in- had been very generous to the Presi- ing to provide answers about his quali- dicative of the fact that even Repub- dent and to others and to many among fications for this lifetime appointment lican Senators know what a poor nomi- the Republican leadership in the House and how he would fulfill his respon- nation this is. They have made no se- and Senate in their contributions. sibilities as a judge, Mr. Kavanaugh cret of the reason for rushing this nom- I compliment the President, who yes- sounded like a spokesman and rep- ination through the Senate now, after terday expressed some regrets over the resentative for the administration. it has languished for 3 years under Re- disastrous course he charted in Iraq; he Over and over he answered our ques- publican control, and after the nomi- began to acknowledge the harm done tions by alluding to what the President nee admitted to slow-walking his re- to this country in Abu Ghraib—far dif- would want and what the President sponses to this committee. They want ferent than during his campaign when would want him to do. We heard from to stir up a fight. They want to score he said he could not think of a mistake a nominee who parroted the adminis- cheap political points at the expense of he had ever made except for some of his tration’s talking points on subject another lifetime appointment to the nominations. after subject. Rather than answer our courts. Well, the President’s picks for impor- questions, he referred us to the bland The Senate Republican leadership is tant judicial nominations continue to explanation offered by a former Presi- apparently heeding the advice of the fare no better than his picks to head dential spokesman. I do not think editorial page, the CIA or FEMA or the VA. But bad Senate should confirm a Presidential which wrote, ‘‘[a] filibuster fight would judicial nominations will continue for spokesman to be a judge on the second be exactly the sort of political battle lifetimes, not just the 2 years left to highest court in the land. I do not be- Republicans need to energize conserv- the Bush-Cheney administration. In lieve that Mr. Kavanaugh dem- just the past few months, we have ative voters after their recent months onstrated that he has left his role as a of despond.’’ Rich Lowery, editor of the learned that Judge Terrence Boyle, member of the President’s administra- conservative National Review, listed a President Bush’s pick for the Fourth tion or that he will. Circuit and a sitting U.S. district The reasons for the downgrading of fight over judges as one of the ways judge, has ruled on multiple cases in- Mr. Kavanaugh’s ABA rating also raise President Bush could revive his polit- volving corporations in which he held concerns about his independence. Not ical fortunes, writing that he should, an interest. The President’s nominee to only did those who have seen Mr. ‘‘[p]ush for the confirmation of his cir- the Tenth Circuit, Judge James Payne, Kavanaugh in his limited legal practice cuit judges that are pending. Talk was withdrawn after it was revealed describe him as ‘‘less than adequate,’’ about them by name. The G.O.P. wins that he, too, sat on many cases where but those who were interviewed re- judiciary fights.’’ Republican Senators he held stock in one of the parties. An- cently raised concerns about Mr. are relishing this chance for a political other of President Bush’s nominees to Kavanaugh’s ability to be balanced fight. Senator THUNE has said, ‘‘A good the Fourth Circuit, Claude Allen, who given his many years in partisan posi- fight on judges does nothing but ener- would be a sitting Circuit Judge now if tions working to advance a political gize our base. . . . Right now our folks Democrats had not opposed his nomi- agenda. They described him as ‘‘insu- are feeling a little flat.’’ Senator nation, is now the subject of a criminal lated,’’ ‘‘sanctimonious,’’ and ‘‘immov- CORNYN has said, ‘‘I think this is excel- prosecution for charges akin to steal- able and very stubborn and frustrating lent timing. From a political stand- ing from retail stores. And Michael to deal with on some issues.’’ These point, when we talk about judges, we Wallace, President Bush’s pick for the may be good qualities for a partisan win.’’ On May 8, 2006, the New York Fifth Circuit, recently received the political operative, but they are not Times reported: ‘‘Republicans are first unanimous not qualified rating qualities that make for a good judge. itching for a good election-year fight. from the ABA for a Circuit Court nomi- My concerns about Mr. Kavanaugh’s Now they are about to get one: a re- nee in nearly 25 years. judicial independence are heightened prise of last year’s Senate showdown

VerDate Aug 31 2005 03:08 May 27, 2006 Jkt 049060 PO 00000 Frm 00002 Fmt 4637 Sfmt 0634 E:\CR\FM\G26MY6.001 S26MYPT1 ycherry on PROD1PC64 with SENATE May 26, 2006 CONGRESSIONAL RECORD — SENATE S5305 over judges.’’ re- has given the Senate no reason to be- administration where Mr. Kavanaugh ported on May 10: ‘‘Republicans had re- lieve he has the capacity for independ- works during the interval between his vived debate on Kavanaugh and an- ence. hearing in May 2004 and the hearing other Bush appellate nominee, Ter- I am prepared to vote on Mr. earlier this month. That is one of the rence Boyle, in hopes of changing the Kavanaugh right now unless others on reasons a second hearing was nec- pre-election subject from Iraq, high the other side would wish to talk, essary. So it was a mistake for the gasoline prices and bribery scandals.’’ which, of course, would lead others to chairman of the Judiciary Committee We should not stand idly by as Re- talk. As I said to the two leaders last to short-circuit the process by simply publicans choose to use lifetime Fed- night, I would be willing to go to a vote decreeing that written questions would eral judgeships for partisan political soon. not be permitted. advantage. In a May 11, 2006, editorial Mr. FEINGOLD. Mr. President, I wish Since the leader has decided to press The Tennessean wrote: to first note my concern about the pro- forward on this nomination, I will vote [T]he nation should look with complete cedure followed in the Judiciary Com- no. I do not think Mr. Kavanaugh is dismay at the blatantly political angle on mittee to report out this nomination the right choice for this vacancy. He is nominations being advocated by Senate Re- precipitously to the floor. Our practice a very bright young lawyer and he has publicans now. . . . Republicans are girding on nominations in the committee has some impressive credentials. He may for a fight on judicial nominees for no reason been first to hold a hearing. Next, Sen- well be ready for appointment to a dis- other than to be girding for a fight. They ators are given the opportunity to re- trict court judgeship. But his record have admitted as much in public comments. . . . In other words, picking a public fight view the transcript of the hearing and does not give me confidence that he is over judicial nominees is, in their minds, the submit written questions. Normally, ready to serve on the District of Co- right thing to do because it’s the politically we are given a week to do that, which lumbia Circuit, widely seen as the sec- right thing to do. . . . Now, Republicans are is a reasonable length of time. Then, ond highest court in the land. advocating a brawl for openly political pur- once a nominee answers any written Mr. Kavanaugh has written almost poses. The appointment of judges deserves questions, the nomination can be no- nothing that we can look to for a sense far more respect than to be an admitted elec- ticed, and we have the right to hold of his judicial philosophy, of his judg- tion-year ploy. . . . It should be beneath the that nomination over for 1 week. That ment, of his temperament. In addition, Senate to have such a serious matter sub- so much of his career after clerking has jected to nothing but a tool for political is not an extraordinary amount of gain. time, but it is at least sufficient for the been spent in partisan political posi- Senators on the committee to do their tions that it is certainly legitimate to On May 3, 2006, jobs and have confidence that the nom- wonder whether he can be fair and im- wrote in an editorial: ination has been considered with due partial in a judicial role. Partisan po- The Republicans have long used judicial diligence. litical work does not necessarily dis- nominations as a way of placating the far right of their party, and it appears that with There is no good reason that we qualify someone from taking the President Bush sinking in the polls, they couldn’t follow that schedule in this bench. As has been pointed out, many now want to offer up some new appeals court case. Mr. Kavanaugh’s situation is un- very good appellate or Supreme Court judges to their conservative base. But a life- usual because he was first nominated judges held political posts. But most time appointment to the DC Circuit is too several years ago, but his first nomina- held other positions as well that dem- important to be treated as a political re- tion was essentially abandoned when onstrated the capacity for independ- ward. he decided not to respond to written ence. The Senate is entitled to ask for Our job in the Senate should not be questions for a full 7 months after his evidence that the nominee can be non- to score political points or advance hearing in April 2004. Senators on the partisan and impartial, not just assur- partisan agendas. Our job is to fulfill Democratic side requested a new hear- ances. In Mr. Kavanaugh’s case, there our duty under the Constitution for the ing for him over a year ago, after he is simply no record to examine to give American people. We must be able to was renominated. His nomination lay comfort on that score. Furthermore, assure the American people that the dormant until just a few weeks ago. we know from the latest ABA evalua- judges confirmed to lifetime appoint- Then, all of a sudden, there was a full tion that at least some people who ments to the highest courts in this court press to get this nomination have come in contact with him in his country are fair to those who enter done. Why is that? The rush to judg- work do not think that he is prepared their courtrooms and to the law. ment in the committee, as far as I can to be an appellate judge. We have heard from many who are tell, was based on nothing more than Of the currently serving judges on concerned about the nomination of Mr. the majority leader’s desire to have a that court, only one—Judge Douglas Kavanaugh: The AFL–CIO, United Auto floor vote on the nomination before our Ginsburg—had less legal experience Workers, and Service Employees Inter- next recess. There was no reason for when he or she was confirmed than national Union have all written to us the rush except for the majority lead- Brett Kavanaugh now has. Ginsburg opposing this nomination. The Leader- er’s political timetable. There is no cri- had 13 years of legal experience, includ- ship Conference on Civil Rights, sis in the District of Columbia Circuit, ing a year as a Senate-confirmed As- NARAL PRO-Choice American, and the which has the lowest caseload of any sistant Attorney General and 8 years as National Council of Jewish Women circuit in the country. All we were ask- a professor at Harvard Law School. He have all written to us opposing this ing on the Democratic side in the com- had a record that the Senate could nomination. The Society of American mittee was that we follow the regular much more easily evaluate. Other Law Teachers, National Employment order—a timely hearing and the oppor- judges on that circuit had much longer Lawyers Association, and the Alliance tunity to ask written questions. careers when they were appointed. for Justice have all written to us op- I do want to note that I finally re- Judge Sentelle had 19 years of experi- posing this nomination. Earthjustice ceived answers the day before the com- ence, including 10 years of private prac- and Community Rights Counsel have mittee vote to some of the questions tice and 5 years as a judge; Judge Hen- written to us concerned about this that I first asked back in April 2004. I derson had 18 years, including 4 as a nomination. was not entirely satisfied with those U.S. district judge; Judge Randolph The Senate’s job is to fulfill our duty answers, but they were certainly more had 21 years of legal experience; Judge under the Constitution, rather than act complete than those the nominee pro- Garland, 20 years; Judge Edwards, 15 as a rubberstamp for the President’s vided when he first answered my ques- years, including 10 years as a law pro- attempt to pack the courts with polit- tions in November 2004. The fact that fessor at Michigan and Harvard; Judge ical allies. We must be able to assure these questions were finally answered Tatel, 28 years; Judge Judith Rogers, 30 the American people that the judges just completes the record from 2004. I years, including 11 years as a judge; confirmed to lifetime appointments to believe Senators deserved a chance to Judge Janice Rogers Brown, 28 years, the highest courts in this country are review the transcript of the hearing including 11 years as a judge; Judge being appointed to be fair and protect held on May 9, 2006, and ask further Griffith, 20 years. their interests, rather than those of a questions if they wanted to. A lot has The District of Columbia Circuit is Presidential patron. Mr. Kavanaugh happened in this country and in this not a place to learn the judicial ropes,

VerDate Aug 31 2005 03:08 May 27, 2006 Jkt 049060 PO 00000 Frm 00003 Fmt 4637 Sfmt 0634 E:\CR\FM\G26MY6.002 S26MYPT1 ycherry on PROD1PC64 with SENATE S5306 CONGRESSIONAL RECORD — SENATE May 26, 2006 nor is it a place to reward a loyal em- Kavanaugh does not have a judicial my tenure here in the Senate, I have ployee. It is a court that makes deci- record to review, evaluating his fitness supported the vast majority of presi- sions every day that have a huge effect for the bench is not easy. We do not dential nominees—regardless of the on the lives and livelihoods of Amer- have written opinions from him that party to which a president has be- ican citizens and American businesses. would reveal whether he looks objec- longed. With regard to the current ad- It has a caseload that demands not tively at both sides of an issue before ministration, I have joined with my only a good legal mind but judgment, making a decision. Therefore, we must colleagues in voting to confirm the wisdom, and experience. Brett judge his temperament on how he has overwhelming majority of its judicial Kavanaugh has impressive credentials, conducted himself in interviews before nominees—including those with whom but his limited record makes it impos- the American Bar Association Stand- I differed on matters of legal and pub- sible for me to be confident that he will ing Committee on the Federal Judici- lic policy. I had assumed that, when be the fair and impartial judge that ary and how he answered questions nominated, Mr. Kavanaugh would like- this country needs on such an impor- posed by the Senate Judiciary Com- ly be among this large group of judicial tant court. So I will vote no. mittee. Neither assessment gives me nominees to receive broad bipartisan (At the request of Mr. REID, the fol- the confidence necessary to vote to support. After all, he has a commend- lowing statement was ordered to be confirm Mr. Kavanaugh to the DC Cir- able academic background, and served printed in the RECORD.) cuit. as a law clerk to two Circuit Court ∑ Mrs. BOXER. Mr. President, I oppose In its 2003 assessment of Mr. judges and one Supreme Court Justice. the nomination of Brett Kavanaugh to Kavanaugh, the ABA record noted con- However, it appears—that after be U.S. Circuit Judge for the District cerns with the breadth of Mr. emerging from a confirmation process of Columbia. Kavanaugh’s professional experience. It where his conduct can be described as disappointing at best, and dismissive at Mr. Kavanaugh’s lack of experience, was noted that he had never tried a worst—Mr. Kavanaugh has practically partisan ideological leanings, lack of case to verdict or judgment; that his invited opposition to his nomination. judicial temperament, and refusal to litigation experience over the years In my view, there are few duties more adequately answer questions posed by was always in the company of senior important to the Senate than the con- the Judiciary Committee make him counsel; and that he had very little ex- sideration of the nomination of article unqualified to sit on the second highest perience with criminal cases. Specifi- III jurists. Other than considering a court in the country. cally, the committee said: ‘‘Indeed, it declaration of war or an amendment to Mr. Kavanaugh is a young lawyer is the circumstance of courtroom expe- the Constitution, nothing is more im- who has spent most of his career in rience that fills the transcripts that portant than deciding on a judicial partisan positions. He lacks sub- make the record before the Court of nominee. The reasons for that view are stantive courtroom experience and has Appeals, and concerns were expressed practically self-evident: article III never tried a case to a verdict. In fact, about the nominee’s insight into that judges are appointed for life, and they a judge before whom he appeared char- very process.’’ are appointed to lead and populate an acterized Mr. Kavanaugh work as ‘‘less In its report on its recent reassess- entirely separate branch of govern- than adequate’’ and at the experience ment of Mr. Kavanaugh, the ABA’s ment. Our entire constitutional frame- level of an associate. Standing Committee on the Judiciary work rests on an act of faith, first Nor is Mr. Kavanaugh a noted legal down-graded its rating of his qualifica- taken by our Founders, that is in some scholar. The highlight of his career has tions. The report states that one judge respects as audacious as it is vital: been working with Kenneth Starr in who saw Kavanaugh’s oral presentation that the President will nominate, and the Office of the Solicitor General and in court said that Kavanaugh was ‘‘less the Senate will confirm, only those ju- at the Office of the Independent Coun- than adequate,’’ and that he had been dicial nominees who demonstrate the sel, where he spent 4 years and coau- ‘‘sanctimonious,’’ and had dem- temperament, intellect, experience, thored the infamous Starr Report. onstrated ‘‘experience on the level of and character to stand independent of Upon further review the nonpartisan an associate.’’ A lawyer in a different the executive and legislative branches American Bar Association panel down- proceeding said: ‘‘Mr. Kavanaugh did of government and hold those branches graded Mr. Kavanaugh’s rating from not handle the case well as an advocate accountable to the law. If a nominee ‘‘well-qualified’’ to ‘‘qualified.’’ He was and dissembled.’’ does not demonstrate those qualities described by interviewees as ‘‘sanc- According to the report, the 2006 during the nomination process, if he or timonious,’’ and ‘‘immovable and very interviews of Mr. Kavanaugh raised a she does not show a capacity to render stubborn and frustrating to deal with new concern involving his potential for independent judgments and uphold the on some issues.’’ These are not quali- judicial temperament. Interviewees principle of equal justice under law, ties that make for a good judge. His characterized Mr. Kavanaugh as, ‘‘insu- then the outcome of a vote on that low rating and nonjudicious demeanor lated,’’ which one person commented nomination is, in this Senator’s view, a put him in stark contrast to the major- was due to his current position as Staff foregone conclusion: the nomination ity of appointments to the DC Circuit Secretary to the President. Another must be opposed. who received ‘‘well-qualified’’ ratings interviewee questioned Mr. During Mr. Kavanaugh’s two con- and respectful reviews from the Amer- Kavanaugh’s ability ‘‘to be balanced firmation hearings, he failed to dem- ican Bar Association review panel. and fair should he assume a federal onstrate the requisite qualifications The President can and should do bet- judgeship.’’ And another said that for the high position to which he has ter than this. The country deserves Kavanaugh is ‘‘immovable and very been nominated. He failed to provide better than this.∑ stubborn and frustrating to deal with meaningful responses to many of the Mr. LEVIN. Mr. President, although I on some issues.’’ questions put to him. After his first may not agree with a judicial nominee A judge needs to be able to balance hearing, he delayed providing any an- on policy matters, I will support that competing viewpoints and objectively swers at all to written questions for nominee as long as his or her values determine a fair and equitable out- seven months. It was not until after are consistent with the fundamental come. Mr. Kavanaugh’s lack of judicial the 2004 elections that he finally de- principles of American law and there is or courtroom or scholarly experience cided to provide those answers. When no indication that the nominee is so added to my doubts about his impar- asked the reason for this delay, he of- controlled by ideology that ideology tiality and lead me to vote no. fered only a feeble rationale, saying he distorts his or her judgment. Regard- Mr. DODD. Mr. President, I rise to took responsibility for what he termed less of their political views, I will sup- briefly state my reasons for opposing a ‘‘misunderstanding’’. I found this ex- port a nominee who demonstrates fair- the nomination of Brett Kavanaugh to planation to be implausible, to say the ness and openmindedness and whose serve as a judge on the Court of Ap- least. As Associate White House Coun- reasoning is straightforward, clearly peals for the District of Columbia Cir- sel, one of Mr. Kavanaugh’s respon- expressed, and worthy of respect. cuit Court. sibilities was to prepare judicial nomi- Brett Kavanaugh is, unfortunately, I must say at the outset that I regret nees to successfully navigate the con- not such a nominee. Because Mr. having to cast this vote. Throughout firmation process. So for him to say he

VerDate Aug 31 2005 03:08 May 27, 2006 Jkt 049060 PO 00000 Frm 00004 Fmt 4637 Sfmt 0634 E:\CR\FM\G26MY6.003 S26MYPT1 ycherry on PROD1PC64 with SENATE May 26, 2006 CONGRESSIONAL RECORD — SENATE S5307 had a ‘‘misunderstanding’’ about the the DC Circuit often have the final that he demonstrated skills ‘‘on the need to promptly answer questions put word on laws that affect the lives of level of an associate’’—a young lawyer to him by Senators strains credulity. millions of Americans, at home and in at a law firm. Lawyers familiar with Mr. Kavanaugh also failed to provide the workplace. his work raised additional questions full and candid answers to important Unlike most of the members of the about his impartiality and partisan- questions about his role and views in DC Circuit. Brett Kavanaugh is not a ship. One attorney specifically ques- helping to shape some of the adminis- judge, an experienced litigator, or a tioned whether Mr. Kavanaugh was ca- tration’s most controversial policies— legal scholar. Far from it. Mr. pable of being ‘‘balanced and fair from the development of legal ration- Kavanaugh is a political operative, a should he assume a Federal judgeship.’’ ales for torture to the drafting of Exec- man whose ambition has placed him at But Mr. Kavanaugh’s lack of quali- utive orders to reduce the public’s ac- the center of some of the most politi- fications goes beyond years of experi- cess to presidential records. He also re- cally divisive events in recent memory. ence or individual interviews. More im- fused to tell the committee on what He is not qualified for this position. If portant, Mr. Kavanaugh is almost com- types of matters, if any, he would his nomination is approved, I can say pletely unfamiliar with the substantive recuse himself if such matters came be- with confidence that Mr. Kavanaugh issues of law that consistently arise in fore him as a judge. would be the youngest, least experi- the DC Circuit. This refusal to be forthcoming with enced and most partisan appointee to These aren’t arcane concerns. The DC the Judiciary Committee—and by im- the court in decades. Circuit has a key role in upholding the plication, with the Senate as a whole— Mr. Kavanaugh blatantly lacks the rights of American workers. That court bespeaks a dismissive attitude toward broad legal experience that is the hall- decides far more appeals than any the confirmation process that I find mark of Federal judges—particularly other circuit of decisions by the Na- highly troubling. We have seen in re- those at the highest levels. He has tional Labor Relations Board on unfair cent years a growing tendency of can- never tried a case to verdict or to judg- labor practices. Usually, these cases didates to treat the confirmation proc- ment. In fact, Mr. Kavanaugh has only are filed by employers across the coun- ess more as a game of hide-and-seek practiced law for 10 years. Even count- try attempting to overturn unfair than a profoundly serious process de- ing his time as a law clerk, he still has labor practice findings against them by signed by the Senate to provide Sen- only half of the average legal experi- the Board. Recently, almost one in ators with the information that they ence of nominees to the DC Circuit. To three such appeals have been heard by need to make careful, reasoned deci- put this in context, Mr. Kavanaugh the DC Circuit. sions about nominees. If candidates do would be the least experienced member During our hearings, I asked Mr. not provide vital information about of the DC Circuit in almost a quarter Kavanaugh whether he had any experi- their background and their views, they century. ence handling labor law matters. He make it impossible for Senators to ade- His lack of experience is underscored couldn’t provide a single example of quately discharge their constitutional by his responses to questions from Ju- work in this area—not one. Instead, he duty to advise and consent with re- diciary Committee members. When he made vague reference to his work as a spect to article III nominees. was asked to name his 10 most signifi- law clerk and his brief time in the Jus- I would be remiss if I did not also cant cases, Mr. Kavanaugh could only tice Department. mention two other facts about this cite five cases for which he actually ap- The DC Circuit is also important to nomination that make it highly un- peared in court, and only two cases in anyone who breathes our air or drinks usual. One is that the American Bar which he was lead counsel. He even our water. It is the only Federal appel- Association, ABA, downgraded its rat- cited two cases for which he merely late court that can hear appeals on ing of the nominee, from ‘‘highly quali- wrote a friend-of-the-court brief for rules to protect the environment under fied’’ to ‘‘qualified’’. Six of the eight someone who was not a party to the the Clean Air Act and the Safe Drink- members of the ABA committee who lawsuit. ing Water Act. It is the only Federal voted previously on this nomination I am not alone in my judgment that court that can grant a remedy when voted to downgrade his nomination Mr. Kavanaugh is not qualified for this the executive branch fails to follow based on new information about his position. Aside from my seven col- congressional mandates to protect the ability to act independently and his leagues on the Judiciary Committee environment under these laws. sparse record as a judge and legal prac- who voted against his appointment, or- Nothing in Mr. Kavanaugh’s record titioner. It also bears mentioning that ganizations from around the country suggests that he would be willing to this nominee, if confirmed, would be are united in their opposition to his keep the executive branch in compli- one of the least experienced judges to nomination. The AFL–CIO, the Leader- ance with the law on these matters. have served on this particular court. ship Conference on Civil Rights, the More generally, nothing in his record Only former Judge Kenneth Starr had NAACP, the National Urban League, suggests that he would be able to avoid less experience. the United Auto Workers. The list the partisanship and politics that have For these reasons, I must oppose this reads like a who’s who of citizen rep- marked his brief career. nomination. I hope that, if confirmed, resentatives. In fact, partisan politics is the only this nominee will prove me wrong by Most troubling, however, is the luke- area in which Mr. Kavanaugh’s quali- growing into a wise, independent, and warm evaluation of the American Bar fications cannot be questioned. He has fair-minded jurist. But regrettably, at Association, which has now conducted been deeply involved in some of the this time, he has given the Senate pal- three separate evaluations of Mr. most bitterly divisive political events try and insufficient facts on which to Kavanaugh. On the latest and perhaps in the last decade—and always on the believe he is prepared for the high of- closest evaluation, the ABA took the same side. fice to which he has been nominated. unusual step of downgrading its rating At the Office of the Independent Mr. KENNEDY. Mr. President, the of Mr. Kavanaugh. Today, a majority Counsel, Mr. Kavanaugh authored the Court of Appeals for the DC Circuit is of that committee does not believe infamous Starr Report, wrote the arti- the second-highest court in the Nation. Brett Kavanaugh can meet their high- cles of impeachment against President As such, its judges bear a unique re- est standard for Federal nominees. Clinton, and investigated the tragic sponsibility. Why did the ABA downgrade its rat- suicide of . By law, the DC Circuit has exclusive ing? It did so after confidential inter- As an Associate White House Coun- jurisdiction over many issues that views with judges and lawyers familiar sel, Mr. Kavanaugh worked to support other appellate courts cannot deal with his work, when numerous ques- the nomination and confirmation of with. Only the judges of the DC Circuit tions were raised about Mr. , the author of the noto- can hear appeals under many critical Kavanaugh’s ability as an attorney and rious—but then still secret—torture laws that affect our economy, our envi- potential appellate judge. memo. He also was personally respon- ronment, and our election system. Be- A judge who heard Mr. Kavanaugh’s sible for drafting the executive order cause the Supreme Court only hears a oral arguments found that his presen- that made presidential records less ac- limited number of cases, the judges of tation was ‘‘less than adequate,’’ and cessible to the public and the press.

VerDate Aug 31 2005 03:08 May 27, 2006 Jkt 049060 PO 00000 Frm 00005 Fmt 4637 Sfmt 0634 E:\CR\FM\G26MY6.006 S26MYPT1 ycherry on PROD1PC64 with SENATE S5308 CONGRESSIONAL RECORD — SENATE May 26, 2006 This was order was so restrictive that Prior to his Supreme Court clerk- was 35 years old. Judge Stapleton was one observer said it would ‘‘make ship, Mr. Kavanaugh earned a fellow- appointed to the district court at 35 Nixon jealous in his grave.’’ ship in the Office of the Solicitor Gen- and later elevated to the Third Circuit. We gave Mr. Kavanaugh an oppor- eral of the United States. After his There are many other examples of tunity to prove that he was inde- clerkship, Mr. Kavanaugh served as an judges who were appointed to the pendent and impartial in spite of his Associate Counsel in the Office of Inde- bench at a young age and have had il- partisan past. I personally noted that pendent Counsel, where he handled a lustrious careers: this was my chief concern with his number of the novel constitutional and nomination, and I know that my col- legal issues. He was a partner at the Name Circuit Age leagues did the same. Mr. Kavanaugh prestigious Washington law firm of Judge Harry Edwards ...... DC Circuit ...... 39 Judge Douglas Ginsburg ...... DC Circuit ...... 40 refused to specify the issues and poli- Kirkland & Ellis and has argued both Judge Kenneth Starr ...... DC Circuit ...... 37 cies on which he would recuse him- civil and criminal matters before the Judge (now Justice) Samuel Alito ...... Third Circuit ...... 40 Judge J. Michael Luttig ...... Fourth Circuit ...... 37 self—in spite of the fact that he was at Supreme Court and appellate courts Judge Karen Williams ...... Fourth Circuit ...... 40 the center of a number of executive throughout the country. Judge J. Harvie Wilkinson ...... Fourth Circuit ...... 39 Judge ...... Fifth Circuit ...... 35 policy directives in recent years. Besides his obvious academic and Judge ...... Seventh Circuit ...... 36 His answers to our questions resem- professional credentials, I would note Judge Donald Lay ...... Eighth Circuit ...... 40 Judge ...... Eighth Circuit ...... 40 bled political talking points more than that Mr. Kavanaugh believes in giving Judge Mary Schroeder ...... Ninth Circuit ...... 38 they did the answers we would expect back to his community. While in pri- Judge Deanell Tacha ...... Tenth Circuit ...... 39 Judge Stephanie Seymour ...... Tenth Circuit ...... 39 from a nominee to such a prominent vate practice, Mr. Kavanaugh took on Judge J.L. Edmondson ...... Eleventh Circuit ...... 39 lifetime position in the Nation’s Judi- challenging pro bono matters, includ- ciary. He has shown nothing to suggest ing representation of the Adat Shalom Age should not be the sole measure of that he will stand up to the President congregation in Montgomery County, a person’s experience. Many Senators when his duties require it. MD, against an attempt to stop the began their service at a young age. Mr. Kavanaugh is not qualified for construction of a synagogue in the Senators BIDEN and KENNEDY were this job. Even worse, his nomination is county. elected to the Senate at the age of 30, a harsh reminder of the partisan and Those who know Mr. Kavanaugh best and Senator LEAHY was elected at age ideological pressures that have marked strongly praise his intelligence, integ- 34. many recent judicial nominations. His rity, and approach to the law. Mark Some of Mr. Kavanaugh’s critics nomination seems little more than a Touhey III, Mr. Kavanaugh’s super- have suggested that we should hold his crass administration attempt to politi- visor at the Independent Counsel’s Of- service in the White House for Presi- cize the courts and provide a solid vote fice, wrote in his support: ‘‘Mr. dent Bush against him. They seem to in favor of even the most extreme po- Kavanaugh exhibit[s] the highest quali- suggest that Mr. Kavanaugh’s public litical tactics of the administration. ties of integrity and professionalism in service to his Nation is somehow a dis- The Federal courts need experienced, his work. These traits consistently ex- qualifier for later serving on the bench. independent judges who can rise above emplify Mr. Kavanaugh’s approach to I disagree. their partisan beliefs and enforce the the practice of law and will exemplify Public service in the executive or rights and guarantees of our Constitu- his tenure as Federal appellate judge.’’ legislative branches of Government tion and the rule of law. Mr. Kavnaugh Judge Walter Stapleton said of Mr. should not be a disqualifier for judicial is not such a nominee, and I urge my Kavanaugh: ‘‘He really is a superstar. office. This has never been the case, colleagues to oppose his nomination. He is a rare match of talent and per- nor should it be. Justice Stephen Mr. SESSIONS. Mr. President, I rise sonality.’’ After arguing against Mr. Breyer was once the chief counsel to today to urge my colleagues to confirm Kavanaugh in the Supreme Court, the Senate Judiciary Committee before President Bush’s nomination of Brett Washington attorney Jim Hamilton being nominated and confirmed to the M. Kavanaugh to be a U.S. circuit stated, ‘‘Brett is a lawyer of great com- First Circuit by a substantial majority. judge on the U.S. Court of Appeals for petency, and he will be a force in this I hope that none of us believe that his the District of Columbia Circuit. town for some time to come.’’ service on Senator KENNEDY’s staff President Bush first nominated Brett Some of Mr. Kavanaugh’s critics should have disqualified him. Kavanaugh to the DC Circuit on July have tried to argue that he is too Judge Abner Mikvah spent most of 25, 2003. He received a hearing before young to be a Federal appellate judge. his career prior to the bench as a Dem- the Judiciary Committee on April 27, In truth, Mr. Kavanaugh is 41 years old ocrat in elective office. He was a State 2004, but the committee did not vote on and has had a broad range of experi- legislator in Illinois and later a U.S. Mr. Kavanaugh’s nomination. Presi- ence that makes him an ideal can- Congressman. In fact, he was a sitting dent Bush renominated Mr. Kavanaugh didate for the DC Circuit. Congressman when he was nominated on February 14, 2005, and again on Jan- Mr. Kavanaugh’s legal work ranges to the DC Circuit. He, too, was con- uary 25, 2006. It is past time for Mr. from service as Associate Counsel to firmed by a substantial majority. Kavanaugh to receive an up-or-down the President, to appellate lawyer in The Senate has not considered serv- vote on the Senate floor. private practice, to experience as a ice as a Democratic staff member or as Brett Kavanaugh is a well-respected prosecutor. He clerked at two of the a Democratic Congressman a bar to attorney with impeccable academic U.S. Courts of Appeal, the Third and service as a U.S. Circuit Judge, nor credentials and the background and ex- Ninth Circuits, and at the Supreme should it consider Mr. Kavanaugh’s perience necessary to serve as an excel- Court. In private practice and during service in President Bush’s White lent judge on the DC Circuit. He cur- his service as a prosecutor, Mr. House as a strike against him. Sug- rently serves as Assistant to the Presi- Kavanaugh participated in appellate gesting that service in an elective dent and staff secretary. He previously matters in a number of the Federal branch of Government somehow tar- served in the ’s Of- courts of appeal and in the Supreme nishes a lawyer’s reputation would be a fice as Senior Associate Counsel and Court. terrible message for this body to send Associate Counsel to the President. Besides, at age 41, Mr. Kavanaugh is to the legal community and to all citi- Mr. Kavanaugh graduated from Yale considerably older than many of our zens. Mr. Kavanaugh is superbly quali- College, cum laude, and Yale Law Nation’s most distinguished judges fied to serve as a U.S. circuit judge, School where he served as the notes were at the time of their nomination. and he has made clear that he under- editor on the Yale Law Journal. He In fact, all three of the judges for stands the role of a judge is different served as a judicial law clerk for Jus- whom Mr. Kavanaugh clerked were ap- from the role of a member of the White tice Anthony Kennedy on the Supreme pointed to the bench before they were House staff. Court of the United States, as well as 41. All have been recognized as distin- Some of Mr. Kavanaugh’s critics Judge Walter Stapleton of the U.S. guished jurists. Justice Kennedy was have raised concerns about Mr. Court of Appeals for the Third Circuit appointed to the Ninth Circuit when he Kavanaugh’s ABA rating. The ABA’s and Judge Alex Kozinski of the U.S. was 38 years old. Judge Kozinski was Committee on the Federal Judiciary Court of Appeals for the Ninth Circuit. appointed to the Ninth Circuit when he has consistently and unanimously

VerDate Aug 31 2005 03:08 May 27, 2006 Jkt 049060 PO 00000 Frm 00006 Fmt 4637 Sfmt 0634 E:\CR\FM\A26MY6.004 S26MYPT1 ycherry on PROD1PC64 with SENATE May 26, 2006 CONGRESSIONAL RECORD — SENATE S5309 found that Mr. Kavanaugh has the in- Today’s vote on this nominee is long the immigration debate over the past 2 tegrity, professional competence, and past due. I urge my colleagues to con- weeks. judicial temperament to serve on the firm Brett Kavanaugh to be a U.S. cir- I recently met with Brett DC Circuit. Each year Mr. Kavanaugh’s cuit judge. Kavanaugh. He seems like a bright name has been in nomination the com- Mr. REID. I intend to vote against young man. But he is a 41-year-old law- mittee has rated Mr. Kavanaugh, and the confirmation of Brett Kavanaugh yer who has spent his short legal ca- each year every member of the com- to the DC Circuit Court of Appeals. reer in service to partisan Republican mittee has found him ‘‘qualified’’ or This youthful, relatively inexperienced causes. ‘‘well qualified.’’ nominee lacks the credentials to be ap- His two principal accomplishments According to the ABA: proved for a lifetime appointment to as a lawyer are his work as an aide to To merit a rating of ‘‘well qualified,’’ the the second most important Federal Special Counsel Kenneth Starr during nominee must be at the top of the legal pro- court in the country. the misguided crusade to impeach fession in his or her legal community; have At the outset, let me contrast this President Clinton, and his current duty outstanding legal ability, breadth of experi- nomination with a circuit court nomi- as a political lawyer in the Bush White ence and the highest reputation for integ- nation we recently approved: the nomi- House. Those positions do not dis- rity; and either demonstrate or exhibit the nation of Milan Smith to the Ninth qualify Mr. Kavanaugh from future capacity for judicial temperament. The rat- ing of ‘‘qualified’’ means that the nominee Circuit Court of Appeals. Mr. Smith is service, but they do not constitute the meets the Committee’s very high standards a pillar of the California legal commu- kind of broad experience in the law with respect to integrity, professional com- nity, a distinguished practicing lawyer that we should expect from a nominee petence and judicial temperament and that with 27 years of experience in complex to the District of Columbia Circuit. the Committee believes that the nominee legal transactions. His nomination was The DC Circuit is a uniquely power- will be able to perform satisfactorily all of the product of extensive consultation ful court. It has jurisdiction over chal- the duties and responsibilities required by with Democratic Senators. The Judici- lenges to Federal activities affecting the high office of a federal judge. ary Committee approved his nomina- the environment, consumer protec- In 2004 and 2005 a majority of the tion 18 to 0, and the full Senate gave tions, workers and civil rights. This committee thought Mr. Kavanaugh had its consent unanimously. court hears appeals from the Environ- earned its highest rating, ‘‘well quali- The Smith nomination is an example mental Protection Agency, the Na- fied’’; the rest thought he had earned a of the way the process is supposed to tional Labor Relations Board, the ‘‘qualified’’ rating. This year the bal- work. The Constitution gives the Presi- Equal Employment Opportunity Com- ance changed, with more members of dent and the Senate a shared role in mission, the Occupational Safety and the committee believing he deserved a filling vacancies on Federal courts. Health Administration and other agen- ‘‘qualified’’ rating and the rest think- Working together, we can move highly cies. ing he deserved a ‘‘well qualified’’ rat- qualified nonpartisan nominees As a result, DC Circuit judges sit in a ing. through the process without rancor or unique position to judge Government Despite the fact that the ABA com- delay. actions that affect our lives in funda- mittee has included many committed But when the President uses judicial mental ways. Mr. Kavanaugh’s slim, Democrats, the committee remains appointments as a reward to the ex- partisan record gives me no confidence unanimous that Mr. Kavanaugh is in- treme rightwing of the Republican he is the right person to assume this disputably competent, intelligent, and Party, he invites controversy and con- awesome responsibility. qualified to serve on the DC Circuit. In flict. Regrettably, that may be just the In the 113 years since the Court of response to what some of my Demo- result that the White House wants. Appeals for the DC Circuit was estab- cratic colleagues have said about Cesar Conda, a former domestic pol- lished in 1893, 54 judges have sat on the Kavanaugh’s ABA rating, listen to icy adviser to Vice President CHENEY, court. Only three of those judges came what ABA committee chairman, Ste- recently wrote in the Roll Call news- to the court with less experience than phen Tober had to say: paper: ‘‘For Bush, a renewed fight over Kavanaugh. DC Circuit judges have Let me underscore . . . that we didn’t find conservative judges . . . just might be averaged over 26 years of legal experi- him not qualified. There’s not a breath of the cure to the Republican Party’s cur- ence at the time of their appointment that in this report or any earlier report. We rent political doldrums.’’ to the DC Circuit. Mr. Kavanaugh, in found him qualified/minority well qualified. One of my Republican colleagues is contrast, graduated from law school a What I said at the end is what, in fact, many people said, that he has a solid reputation quoted in the National Review earlier mere 16 years ago. for integrity, intellectual capacity—a lot of this month as saying: ‘‘A good fight on It is not just Mr. Kavanaugh’s youth people refer to him as brilliant—and an ex- judges does nothing but energize our but his lack of practical experience cellent writing and analytical ability. Those base. Right now our folks are feeling a that renders him unfit for this post. In are great skills to bring to the court of ap- little flat. They need a reason to get his 16 years as a lawyer he has never peals. There is just no question about that. engaged, and fights over judges will do tried a case to verdict or judgment. According to Mr. Tober, in all of the that.’’ When questioned about this deficiency ABA’s ratings, Mr. Kavanaugh’s ‘‘posi- At the same time, a lengthy debate at his committee hearing, the nominee tive factors haven’t changed a whole over judges serves to distract attention presumed to compare himself to Chief lot. He is found to have high integrity. from the pressing problems facing the Justice John Roberts. But at the time He is found to be brilliant. He is a very Nation: an intractable war in Iraq, of his appointment to the DC Circuit, skilled writer and legal analyst. He has soaring gas prices, millions of Ameri- Roberts had argued dozens of cases be- those components, and I have said this cans who lack health insurance. In- fore the Supreme Court. Kavanaugh before . . . he has those skills that will stead of addressing these vital issues, has argued just one such case, on be- serve him well, certainly, on a Federal this Senate has been forced to spend half of the Starr investigation. court. days and weeks and months talking There are other kinds of experience Finally, Mr. Tober acknowledged about divisive judicial nominees. one might bring to an appellate court. that ‘‘there is not a single not qualified The nomination of Brett Kavanaugh Some nominees are respected scholars. vote in the picture.’’ is nothing if not divisive. All eight Some are sitting judges. Kavanaugh is Brett Kavanaugh is a highly qualified Democrats on the Judiciary Committee neither. His high-ranking position in attorney who has experience as an ap- oppose his confirmation. Every leading the Bush White House might constitute pellate litigator presenting arguments civil rights, environmental, and labor relevant experience, but we have little in court, and experience as a judicial organization in the country has urged idea what he has accomplished in that law clerk on the other side of the bench that he be rejected. role. He largely refused to answer ques- evaluating appellate arguments. He has This nomination is not the product of tions from the committee about the spent most of his career as a public consensus and consultation—it is a issues he has handled or the positions servant. I am confident that he will poke in the eye to the Senate. It is a he has advocated. perform his duties as a judge in a fair wedge that disrupts the wonderful bi- We know he helped to select many of and even-handed manner. partisanship which has characterized the controversial judicial nominees

VerDate Aug 31 2005 03:08 May 27, 2006 Jkt 049060 PO 00000 Frm 00007 Fmt 4637 Sfmt 0634 E:\CR\FM\A26MY6.008 S26MYPT1 ycherry on PROD1PC64 with SENATE S5310 CONGRESSIONAL RECORD — SENATE May 26, 2006 who have tied the Senate in knots in going to be a judge, you should have Third, the American Bar Association recent years. We know he was the au- some practical experience, at least recently lowered its rating of this thor of a far-reaching government se- picking a jury, arguing to a jury, ap- nominee. Most nominees gain more crecy policy, despite his own role in pearing before a court, making your stature over the course of their legal stripping President Clinton of every views known to the judge. That is careers, but Mr. Kavanaugh is headed vestige of privacy and privilege during largely lacking with this young man. in the opposite direction, and right- the Starr investigation. Other than We have testimony before the Judici- fully so. Lawyers and judges of the that, all we know is that Mr. ary Committee from two judges for nonpartisan ABA committee described Kavanaugh has had a fancy west wing whom he worked. It is unusual that Mr. Kavanaugh as being ‘‘sanctimo- title. people clerk for two separate judges. nious’’ and ‘‘frustrating to deal with.’’ Most nominees gain more stature These clerkships are usually a year That says it all. over the course of their legal careers, long, and you sit back there and you A judge before whom Mr. Kavanaugh but Mr. Kavanaugh is headed in the op- shuffle papers for the judge and you appeared described him as ‘‘less than posite direction. The American Bar As- draft opinions for the judge on the adequate’’ and said he demonstrated sociation recently took the rare step of cases that come before the judge—but experience ‘‘at the level of an asso- lowering its rating of this nominee. that is very different than courtroom ciate.’’ Lawyers and judges interviewed by experience as a practicing lawyer. You A lawyer who observed him during a the nonpartisan ABA Committee de- may go watch a few arguments, but different court proceeding stated that: scribed Mr. Kavanaugh as ‘‘sanctimo- clerking for two judges doesn’t do the Mr. Kavanaugh did not handle the case nious,’’ ‘‘immovable’’ and ‘‘very stub- trick. That doesn’t give you the experi- well as an advocate and dissembled. born and frustrating to deal with on ence to be a judge, especially a judge Needless to say, these are not quali- some issues.’’ A judge before whom Mr. on the District of Columbia Circuit ties which make a good judge. But the Kavanaugh appeared considered him Court of Appeals, the second highest right wing wants him, and he is going ‘‘less than adequate’’ and said he dem- court in the land. to become a judge. I understand that Mr. Kavanaugh has onstrated ‘‘experience on the level of Finally, let me say this: The nomina- argued several appeals. But not very an associate.’’ A lawyer who observed tion of Mr. Kavanaugh is divisive. All many, and in any event that’s not the him during a different court proceeding eight Democrats on the Judiciary Com- same as trying cases in my view. stated: ‘‘Mr. Kavanaugh did not handle mittee oppose his confirmation. Every the case well as an advocate and dis- I am going to vote against confirma- tion of Brett Kavanaugh. I want to leading civil rights, environmental, sembled.’’ make four brief points about this nomi- and labor organization in the country Needless to say, these are not quali- urged that he be rejected. ties that make for a good judge. nation. First, Brett Kavanaugh is a youthful The Constitution gives the President Still others described Mr. Kavanaugh partisan who lacks the credentials to and the Senate a shared role in filling as ‘‘insulated.’’ That is the last quality be approved for a lifetime appointment vacancies on the Federal court. Work- we want in a 41-year-old man who will to the second most important Federal ing together, we can move highly soon begin the cloistered life of an ap- court in our country. He is 41 years old. qualified, nonpartisan nominees pellate judge. Mr. Kavanaugh lacks the He has spent his short legal career in through the process without rancor or wide-ranging experience that breeds service to Republican causes. delay. But when the President uses ju- wisdom and judgment, and he is un- He worked as an aide to Special dicial appointments as a reward to the likely to acquire those qualities on the Counsel Kenneth Starr. I think the extreme rightwing of the Republican bench. work of Kenneth Starr will go down in Party, it invites controversy and con- Mr. Kavanaugh’s thin legal resume history as a blight on this country. flict. And that is what we have. In sum, contrasts with the resumes of the two This partisan investigation disrupted this nominee’s record is too sparse. The Clinton nominees who were blocked by this country and it was aided by the court to which he is nominated is too the Republican-controlled Senate when nominee who is before the Senate at important. I hope we get a lot of votes they were nominated to the same this time. against this nomination. I understand court. Elena Kagan, now the Dean of He has been a lawyer in the White that everyone on the other side of the Harvard Law School, had been both a House for President Bush. The fact aisle will walk over here and vote for practicing lawyer and a leading admin- that he worked for Starr and now this unqualified candidate, but that is istrative law scholar at the time of her works in the White House doesn’t dis- not how it should be. nomination. Allen Snyder, a former qualify him, but these do not add up to If there is no one else wishing to clerk to Justices Harlan and Rehnquist the kind of experience we should have speak, I ask that we proceed to the had been a litigation partner at the law from a nominee to the District Circuit vote on Mr. Kavanaugh. firm of Hogan and Hartson for 26 years. Court. It doesn’t add up. Mr. FRIST. Mr. President, 2 weeks Under what definition of fairness do Second, Mr. Kavanaugh’s lack of ago before the Senate Judiciary Com- my Republican colleagues insist that practical experience renders him unfit mittee, Brett Kavanaugh, the Presi- Brett Kavanaugh is entitled to a Sen- for the post. In his years as a lawyer, dent’s nominee for the DC Circuit ate vote while Elena Kagan and Allen he has never tried a case to a verdict or Court of Appeals, pledged that if he is Snyder were denied a vote? By what to judgment. confirmed: standard do they consider Kavanaugh There are other kinds of experience I will interpret the law as written and not qualified to sit on the DC Circuit when one might bring to an appellate court. impose personal policy preferences; these two other distinguished lawyers Some nominees are respected scholars I will follow precedent in all cases fully were denied that honor? and some are sitting judges. Mr. and fairly, and, above all, [I] will at all times Unlike Kagan and Snyder, Mr. Kavanaugh is neither. maintain the absolute independence of the Kavanaugh will be considered by the His high-ranking position in the judiciary, which, in my judgment, is the Senate. But I will cast my vote against White House might constitute relevant crown jewel of our constitutional democracy. confirmation. This nominee’s record is experience, but we have little idea Listen to the words that Brett too sparse and the court to which he is about what he accomplished in that Kavanaugh used: Fair, independent, nominated is too important to the role. He has largely refused to answer committed to the rule of law. These are rights that Americans hold dear. questions from the committee about the qualities America wants in our fed- I urge the Senate to reject this unac- the issues he has handled or the posi- eral judges. ceptable nomination. tions he has advocated. We need more qualified nominees on Mr. President, even in this Bush The big push for this man comes the bench who practice judicial re- Presidency, I continue to believe that a from partisans who want to push the straint and respect the rule of law, and judge should have experience in a majority in the Senate toward the nu- Brett Kavanaugh fits that description. courtroom. I know that is somewhat clear option. They think it would be a President Bush nominated Mr. heretical in the environment we have, great thing to disrupt the Senate in Kavanaugh on July 25 of 2003. And but I really believe that if you are this way. since this time, he’s endured not one—

VerDate Aug 31 2005 03:08 May 27, 2006 Jkt 049060 PO 00000 Frm 00008 Fmt 4637 Sfmt 0634 E:\CR\FM\A26MY6.011 S26MYPT1 ycherry on PROD1PC64 with SENATE May 26, 2006 CONGRESSIONAL RECORD — SENATE S5311 but two—hearings before the Senate Mr. MCCONNELL. The following Sen- mitment to the Constitution, and inde- Judiciary Committee. ators were necessarily absent: the Sen- pendence. Based on what I know about He has been candid and forthcoming ator from North Carolina (Mrs. DOLE) General Hayden after working closely in answering countless oral and writ- and the Senator from South Dakota with him for more than 5 years, and ten questions from the Judiciary Com- (Mr. THUNE). based on his testimony last week, I will mittee. And he has met one-on-one Further, if present and voting, the support his nomination to be Director with numerous Members—both Repub- Senator from North Carolina (Mrs. of the Central Intelligence Agency, lican and Democrat. DOLE) and the Senator from South Da- CIA. I have no question about his com- And now it’s time that Brett kota (Mr. THUNE) would have voted petence or personal integrity and ex- Kavanaugh gets the fair up-or-down ‘‘yea.’’ pect him to remain an independent vote that he’s been waiting on for 3 Mr. DURBIN. I announce that the voice, committed to the Constitution years. Senator from California (Mrs. BOXER), not just with words but with deeds. Later this morning, the Senate will the Senator from North Dakota (Mr. My confidence in General Hayden give him that vote. We will fulfill our CONRAD), the Senator from Hawaii (Mr. should not be interpreted as confidence constitutional duty of advice and con- INOUYE), the Senator from West Vir- in this administration. I have flashing sent. ginia (Mr. ROCKEFELLER), and the Sen- yellow lights about the Bush adminis- Over the last few weeks, we’ve heard ator from Colorado (Mr. SALAZAR) are tration’s willingness to politicize this a lot about his sterling credentials and necessarily absent. important intelligence agency. I am professional experience. The PRESIDING OFFICER. Are there also concerned that this administra- He is a graduate of Yale College and any other Senators in the Chamber de- tion sometimes pays lip service to the Yale Law School and was awarded a siring to vote? law of the land, as we have seen with prestigious Supreme Court law clerk- The result was announced—yeas 57, recent revelations about the ship. nays 36, as follows: warrantless surveillance program. He has an extraordinary range of ex- [Rollcall Vote No. 159 Ex.] In more than 35 years as military in- perience in both the public and private telligence officer, General Hayden has YEAS—57 sectors. clearly demonstrated his competence, He has dedicated more than 16 years Alexander Crapo Martinez both in his work as Director of the Na- Allard DeMint McCain to public service—as an appellate law- Allen DeWine McConnell tional Security Agency, NSA, and as yer, a prosecutor, and an Assistant to Bennett Domenici Murkowski Deputy Director of National Intel- the President. Bond Ensign Nelson (NE) ligence. He led NSA at a critical time He has argued both civil and criminal Brownback Enzi Roberts Bunning Frist Santorum in the Agency’s history, as the United matters before the U.S. Supreme Court Burns Graham Sessions States took the offensive against those and appellate courts throughout the Burr Grassley Shelby who had attacked us. He inherited an country. Byrd Gregg Smith agency that needed to be transformed: And he has received the American Carper Hagel Snowe Chafee Hatch Specter from its Cold War orientation, from Bar Association’s stamp of approval to Chambliss Hutchison Stevens analogue to digital, from concen- serve on the Federal bench on three Coburn Inhofe Sununu trating on the Soviet threat to looking separate occasions. Cochran Isakson Talent at multiple threats and nonstate ac- Brett Kavanaugh is respected in the Coleman Kyl Thomas Collins Landrieu Vitter tors. He accomplished this trans- legal community for his keen intellect Cornyn Lott Voinovich formation at breathtaking speed. As and legal prowess. And he has earned Craig Lugar Warner Deputy Director of National Intel- the reputation as a man of integrity, NAYS—36 ligence, General Hayden helped stand- fairness, and honesty. up a brand new intelligence organiza- In a larger sense, today’s vote is Akaka Feinstein Menendez Baucus Harkin Mikulski tion, recruiting a top-notch team, about more than just Brett Kavanaugh Bayh Jeffords Murray breaking down ‘‘stove pipes’’ between as an individual nominee. Today’s vote Biden Johnson Nelson (FL) agencies, and helping to unify the en- is another sign of progress for the judi- Bingaman Kennedy Obama Cantwell Kerry Pryor tire intelligence community. cial nominations process. Clinton Kohl Reed I have known and worked closely The Senate is continuing on a path Dayton Lautenberg Reid Dodd Leahy Sarbanes with General Hayden since 1999, when we began a little more than a year ago. he came to NSA. I have no question At that time, the Senate turned away Dorgan Levin Schumer Durbin Lieberman Stabenow about his personal integrity. He has al- from judicial obstruction and advanced Feingold Lincoln Wyden ways been a candid reformer. But re- the core constitutional principle that NOT VOTING—7 cent revelations about the warrantless every judicial nominee with majority surveillance program have raised seri- support deserves a fair up-or-down Boxer Inouye Thune Conrad Rockefeller ous questions: questions about the in- vote. Dole Salazar tegrity of surveillance programs that I am proud of the Senate for con- The nomination was confirmed. may have side-stepped the law; ques- tinuing on this path—for fairness, for The PRESIDING OFFICER. The tions about a decision at the highest principle, for the Constitution. And I urge my colleagues to support President will be immediately notified level to keep most members of the Sen- the nomination of Brett Kavanaugh. of the Senate’s action. ate Select Intelligence Committee in Mr. LEAHY. Mr. President, have the f the dark about these programs; and questions about whether a candid re- yeas and nays been ordered? GENERAL MICHAEL V. HAYDEN TO The PRESIDENT pro tempore. The former has become a cheerleader for BE DIRECTOR OF THE CENTRAL this administration. I discussed my yeas and nays have not been ordered. INTELLIGENCE AGENCY Mr. LEAHY. Mr. President, I ask for concerns with Hayden during the con- the yeas and nays. The PRESIDING OFFICER. Under firmation hearing, and he promised to The PRESIDING OFFICER (Mr. the previous order, the Senate will pro- ‘‘speak truth to power.’’ I take him at ISAKSON). Is there a sufficient second? ceed to a vote on Executive Calendar his word, but the proof will be in his There is a sufficient second. No. 672, which the clerk will report. deeds. The question is, Will the Senate ad- The legislative clerk read the nomi- I have no question about General vise and consent to the nomination of nation of General Michael V. Hayden, Hayden’s commitment to the mission Brett M. Kavanaugh, of Maryland, to United States Air Force, to be Director of the intelligence community. He has be United States Circuit Judge for the of the Central Intelligence Agency. worked in almost every aspect of col- District of Columbia Circuit? Ms. MIKULSKI. Mr. President, there lecting and analyzing intelligence. But The yeas and nays have been ordered. are five criteria I use to evaluate all his expertise is technical intelligence, The clerk will call the roll. executive branch nominees: com- known as signals intelligence, SIGINT, The assistant legislative clerk called petence, integrity, commitment to the and the CIA is our Nation’s lead agency the roll. core mission of the department, com- for human intelligence, HUMINT.

VerDate Aug 31 2005 03:08 May 27, 2006 Jkt 049060 PO 00000 Frm 00009 Fmt 4637 Sfmt 0634 E:\CR\FM\A26MY6.012 S26MYPT1 ycherry on PROD1PC64 with SENATE