9602 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 May 25, 2006 EXECUTIVE SESSION NAYS—30 Mr. Kavanaugh was a deputy, with as Akaka Durbin Levin many as nine other such deputies on Baucus Feingold Menendez his level. Bayh Harkin Mikulski He was candid in some criticism of NOMINATION OF BRETT M. Bingaman Inouye Murray Boxer Jeffords Reed the handling of the matter; the public KAVANAUGH TO BE UNITED Cantwell Johnson Reid release of the report was not the choos- STATES CIRCUIT JUDGE FOR Clinton Kennedy Sarbanes ing of Independent Counsel. He testi- THE DISTRICT OF COLUMBIA Dayton Kerry Schumer Dodd Lautenberg Stabenow fied that he believed that the Inde- CIRCUIT—Resumed Dorgan Leahy Wyden pendent Counsel statute ought to be The PRESIDING OFFICER. Under NOT VOTING—3 changed materially if it was to be re- the previous order, the Chair lays be- vised and that having Mr. Starr both Conrad Rockefeller Salazar fore the Senate the pending cloture on Whitewater and the impeachment of motion, which the clerk will state. The PRESIDING OFFICER. On this the President was too much. The legislative clerk read as follows: vote, the ayes are 67, the nays are 30. He wrote a law review article on the Three-fifths of the Senators duly cho- CLOTURE MOTION issue of peremptory challenges for sen and sworn having voted in the af- Black jurors and took the position that We the undersigned Senators, in accord- firmative, the motion is agreed to. ance with the provisions of rule XXII of the it was inappropriate, should not be Standing Rules of the Senate, do hereby The PRESIDING OFFICER. The Sen- done, and displayed in that scholarly move to bring to a close debate on Executive ator from Pennsylvania. aptitude on the journal. Calendar No. 632, the nomination of Brett M. Mr. SPECTER. Parliamentary in- One of the objections raised to Mr. Kavanaugh, of Maryland, to be United States quiry: Is it appropriate now to begin Kavanaugh involved how close he was Circuit Judge for the District of Columbia debate on the confirmation of Brett to the President. But it is hardly a sur- Circuit. Kavanaugh? prise that Brett Kavanaugh would be Bill Frist, Arlen Specter, Saxby Cham- The PRESIDING OFFICER. It is ap- close to the President because the bliss, Larry Craig, Mel Martinez, Eliza- propriate. beth Dole, Johnny Isakson, Pat Rob- President selects people in whom he erts, Ted Stevens, Craig Thomas, Thad Mr. SPECTER. Mr. President, I sup- has confidence and who share his ap- Cochran, Chuck Grassley, Judd Gregg, port the confirmation of Brett proach to jurisprudence, to strict con- Tom Coburn, Richard Shelby, Lindsey Kavanaugh to the Court of Appeals for struction, and to not legislating from Graham, Orrin Hatch. the District of Columbia because of his the bench. That prerogative of the The PRESIDING OFFICER. By unan- academic achievements, professional President is what Presidential elec- imous consent, the mandatory quorum work, and potential to be an out- tions are about. call has been waived. standing Federal judge. Some of Mr. Kavanaugh’s answers The question is, Is it the sense of the Brett Kavanaugh was an honors grad- were hesitant, and I think he was very Senate that debate on the nomination uate from Yale University, was a grad- concerned about being very precise in of Brett M. Kavanaugh, of Maryland, to uate of the Yale Law School, and a what he had to say. He might have be United States Circuit Judge for the member of the Law Journal there. been a little forthcoming, but in a con- District of Columbia Circuit shall be That is a strong indication of intellec- text where there is a question about brought to a close? tual achievement. He then clerked for subsequent investigations, if the con- The yeas and nays are mandatory Judge Walter Stapleton of the Court of trol of the Senate changes, in the con- under the rule. Appeals for the Third Circuit and then text of witnesses appearing before The clerk will call the roll. Judge Alex Kozinski of the Court of grand juries on five occasions, looking The assistant legislative clerk called Appeals for the Ninth Circuit and then for inconsistencies, it is understand- the roll. clerked for Justice Kennedy on the Su- able that he was very cautious in his Mr. DURBIN, I announce that the preme Court of the United States. comments. Those are really outstanding creden- Senator from North Dakota (Mr. CON- I believe that on this record, Brett M. tials, academically and for the begin- RAD), the Senator from West Virginia Kavanaugh ought to be confirmed, and ning career of a young lawyer. He then (Mr. ROCKEFELLER), and the Senator I urge my colleagues to vote in the af- worked in the Solicitor General’s Of- from Colorado (Mr. SALAZAR) are nec- firmative. essarily absent. fice, argued a case before the Supreme I yield the floor. Court of the United States, and then The PRESIDING OFFICER. Are there The PRESIDING OFFICER. The Sen- worked as associate White House coun- any other Senators in the Chamber de- ator from Texas. sel and has been Secretary to President siring to vote? Mr. CORNYN. Mr. President, I have Bush. The yeas and nays resulted—yeas 67, some remarks I would like to make on He had a second hearing which was nays 30, as follows: this nomination. requested by the Democrats so that he Mr. LEAHY. Will the Senator yield [Rollcall Vote No. 158 Ex.] could respond to questions which had for just a moment? He does have the YEAS—67 arisen in the 2-year interim since his floor, I fully understand. I assume we Alexander Dole McConnell first hearing, and he responded by al- would follow the normal order that Allard Domenici Murkowski laying any concerns about any involve- after the chairman spoke, the ranking Allen Ensign Nelson (FL) Bennett Enzi Nelson (NE) ment which he may have had on the member would be allowed to speak. Biden Feinstein Obama subject of interrogation of detainees. Mr. CORNYN. I will be glad to defer Bond Frist Pryor He was asked about any potential to the ranking member. Brownback Graham Roberts participation in the administration’s Mr. LEAHY. The Senator from Texas Bunning Grassley Santorum Burns Gregg electronics surveillance program. He has the floor. He does have the floor. Sessions Burr Hagel Shelby answered that in the negative. Mr. CORNYN. Mr. President, I recog- Byrd Hatch Smith He responded to questions with re- nize I have the floor and the right to Carper Hutchison Chafee Inhofe Snowe spect to the subject of rendition, again the floor, but I will be glad to accom- Chambliss Isakson Specter with no knowledge on his part of any of modate the ranking member and, if I Coburn Kohl Stevens that. can, by unanimous consent, request Cochran Kyl Sununu Coleman Landrieu Talent He was subject to close questioning that I be recognized after he speaks, I Collins Lieberman Thomas about his work with Kenneth Starr on would be happy to relinquish the floor Cornyn Lincoln Thune the impeachment proceeding, and he to him. Craig Lott Vitter was not in a position of leadership. He Mr. LEAHY. I certainly have no ob- Crapo Lugar Voinovich DeMint Martinez Warner was one of several down the tier, with jection to that. I assume what we will DeWine McCain Mr. Starr being Independent Counsel. probably do for the rest of the evening,

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00061 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE May 25, 2006 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 9603 and I suspect we probably will do the under ‘‘Statements on Introduced Bills election year, then we have to go to same thing tomorrow—hopefully by to- and Joint Resolutions.’’) controversial, polarizing judicial nomi- morrow night or early Saturday we The PRESIDING OFFICER. The Sen- nations. will finish—we will go back and forth. ator from Vermont is recognized. This nomination, like the difficult I make a request I be recognized, and Mr. LEAHY. Mr. President, I thank and controversial nominations of upon the completion of my remarks, the Senator from Minnesota and the Judge Terrence Boyle and Michael the distinguished Senator from Texas Senator from Mississippi, and I thank Wallace, signifies that the Bush-Che- be recognized. again the distinguished Senator from ney administration and those who sup- Mr. DURBIN. Reserving the right to Texas, who has shown his usual and port it here in the Senate, are more in- object. normal courtesy in allowing me to go terested in playing partisan election- The PRESIDING OFFICER. The Sen- next. year politics by heeding the siren call ator from Illinois. The Senate has just passed bipartisan of special interest groups rather than Mr. DURBIN. Only for the purpose of comprehensive immigration reform. I tackling the pressing issues facing being in the queue after the Senator think that is an achievement for all Americans today. from Texas, if I can amend the unani- Americans, present and future, who Local and national law enforcement mous consent request. want to keep our country safe, and it have called upon the President to with- Mr. LEAHY. I ask unanimous con- fixes what most will acknowledge is a draw the nomination of Judge Boyle, sent that Senator DURBIN follow the broken system. I mention that because as I have, and he would be well advised Senator from Texas. the Senate, Republicans and Demo- to do so. The nomination of Michael The PRESIDING OFFICER. Is there crats, worked together to speak about Wallace received the first ABA rating objection? one of America’s top priorities, and it of unanimously ‘‘not qualified’’ for a Mr. LOTT. Reserving the right to ob- worked. I think the American public circuit court nominee in more than 20 ject, Mr. President, and I do not wish understands that. We ought to con- years. The last one to get that rating to object, I presume this is a discussion tinue that. We ought to continue that didn’t go through. And the nomination on the nominee. Senator DAYTON and I on the path of addressing Americans’ before us today of Brett Kavanaugh is have a bill we want to introduce. It top priorities. one of the few judicial nominations to will take just 3 or 4 minutes to com- We ought to be debating the war in be downgraded over time by the ABA. ment on the introduction. Iraq. None of us can go home without The Senate’s job is to fulfill our duty Mr. LEAHY. Mr. President, I ask hearing a debate on the war in Iraq, ei- under the Constitution, not to advance unanimous consent that before I am ther for or against it. We ought to be a political agenda. No matter what our recognized—the Senator from Texas debating it on the floor of the Senate. political affiliation, we are supposed to still has the floor—before I am recog- We are, after all, the conscience of the consider the interests of all Americans. nized and the Senator from Texas is Nation. We should be debating the war We have to be able to assure the Amer- recognized and then the Senator from in Iraq. ican people that the judges confirmed Illinois is recognized and then the Sen- We should debate the rising gas to lifetime appointments to the highest ator from Idaho is recognized, that 10 prices. You can’t go into a diner in courts in this country are being ap- minutes be divided between the Sen- America without hearing a debate on pointed fairly to protect their inter- ator from Mississippi and the Senator that. They ask the same thing: Why ests, rather than to be a rubberstamp from Minnesota. aren’t you debating it on the floor of for whichever President nominated Will that give Senator LOTT and Sen- the Senate? them. Mr. Kavanaugh is a nice young ator DAYTON enough time? How about the health care costs, man who was nominated for the U.S. Mr. LOTT. That will be more than which are going up at a time when sen- Court of Appeals for the District of Co- enough time. That is very generous. iors are faced with what for many of lumbia Circuit after working for most Mr. LEAHY. That upon yielding back them is an incomprehensible prescrip- of his career in behalf of the Bush-Che- of the time of the Senator from Mis- tion medicine plan. We ought to be ney administration and the Republican sissippi and the Senator from Min- talking about that. You can’t go to the Party in partisan, political jobs. Since nesota, the Senator from Vermont be senior center anywhere in the country helping to author the Kenneth Starr recognized following the chain we without hearing that being debated. Report, he has worked in the office of talked about. What is wrong with the Senate, the the White House Counsel and as staff The PRESIDING OFFICER. Is there conscience of the Nation, debating it? secretary to the Bush-Cheney adminis- objection? How about stem cell research? So tration. He was involved in the admin- Mr. CORNYN. Reserving the right to many parents of children with diabe- istration’s use of 750 Presidential sign- object. tes, those who have had paralyzing in- ing statements to try to reserve to the The PRESIDING OFFICER. The Sen- juries, they say: Why aren’t you at President the power to pick and choose ator from Texas. least determining a way to have stem which laws passed by Congress he Mr. CORNYN. May I just add to that cell research? wanted to follow. In other words, he al- unanimous consent request that Sen- What about the reauthorization of lowed the President to sign a bill but ator HATCH be added as the next speak- the Voting Rights Act? Not only has then say: This law may apply to others, er on our side of the aisle in the queue? the Voting Rights Act worked to help but it is not going to apply to the Mr. LEAHY. I have no objection to those minorities in this country who President or anybody else to whom I that. I think it is quite appropriate. were denied the right to vote before, don’t want it to apply. It is the first The PRESIDING OFFICER. Without but let us make sure that it works in time in my lifetime a President has objection, it is so ordered. the future for children today, Hispanic stated so emphatically, 750 times: I am Mr. LOTT. Mr. President, I believe children today, African-American chil- above the law. He has helped the Presi- Senator DAYTON will actually intro- dren today, the children of all races? dent pack the Federal bench with duce the legislation, and I join as a co- How will we guarantee they will have right-wing ideologues. sponsor. He will lead off with his re- the right to vote? We should reauthor- He has helped design the White marks, and then I will be honored to ize the Voting Rights Act. House’s overbearing secrecy policy. So follow. These are all things on which the now we are spending billions of dollars THE PRESIDING OFFICER. The Senate could come together in a bipar- in marking things ‘‘top secret,’’ some Senator from Minnesota is recognized. tisan fashion. We could have a bipar- of which were on Government Web Mr. DAYTON. I thank the Chair. tisan debate. The country would ben- sites for long periods of time until they (The remarks of Mr. DAYTON and Mr. efit by it. We would be a better body. realized it was pointing out embar- LOTT pertaining to the introduction of The country would be better. But in- rassing mistakes in the Bush-Cheney S. 3239 are printed in today’s RECORD stead, it appears that because it is an administration. So they yanked it off

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00062 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE 9604 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 May 25, 2006 the Web sites and marked it ‘‘top se- packing this court. They want this up- her legal philosophy. They would meet cret.’’ We even have now the FBI going or-down vote even though they didn’t on an off-the-record basis with the to a dead journalist—to a dead jour- apply that standard or anything near it press and say what a terrible nomina- nalist, Jack Anderson—and pressuring to President Clinton’s nominees to the tion this was for President Bush to his elderly widow to give up his notes DC Circuit. As I say, they denied 61 of make. of 20 and 30 years ago because it might President Clinton’s nominees an up-or- I said: At least let her have a hear- prove embarrassing to some in their down vote. When they stalled the nom- ing. All Democrats on the committee party. ination of Merrick Garland to the DC said: Out of fairness to the President, So my question for this nominee, Circuit beyond the 1996 election, even we ought to let his nominee have a which is the same question I have Senator HATCH as chairman of the hearing. The Republicans said: She is asked of all nominees of either party, committee became frustrated. He not going to get a hearing, and they is whether you will be an independent claimed the way the Republicans were forced the President to withdraw her check and balance. opposing judicial nominees was playing nomination. I recall recommending to President politics with judges, was unfair, and he Despite the political battle, as I said Clinton a well-known Republican from was sick of it. I wish he had followed when I moved through 100 of President my State for a seat on the Second Cir- through instead of joining with his fel- Bush’s nominees, I approached the cuit Court of Appeals. I did that even low Republicans in denying 61 judges nomination of Mr. Kavanaugh with an though the man is certainly more con- an up-or-down vote. We did finally get open mind. I gave him the chance that servative than I and belonged to the Merrick Garland through, but he was Elena Kagan and Alan Snyder never re- other party. I did it because I knew he the last one the Republicans were will- ceived. In fact, he has had more oppor- would be independent; he would not be ing to consider for confirmation to this tunities than they. He has had an op- a rubberstamp for any President, Re- important circuit. portunity to demonstrate at not one publican or Democratic. Here we have a person with no real but two hearings that he could be an Regrettably, Mr. Kavanaugh has experience other than being willing to independent nominee who deserved to failed through two hearings to estab- take political orders. be confirmed. lish that he has the capacity to be an Let me tell you about two of the The Washington Post noted in 2003, independent check on his political pa- nominees of President Clinton whom when President Bush nominated Mr. tron, in this case a President who is as- the Republicans would not allow to Kavanaugh, that he had nominated serting extraordinary claims of power. have a vote, a so-called pocket fili- somebody ‘‘who will only inflame fur- In fact, despite his close ties to the buster. One was Elena Kagan. They ther the politics of confirmation to one White House’s inner circle, he wouldn’t wouldn’t allow her to come to a vote. of this country’s highest-quality courts’’ and concluded that it was ‘‘too even tell us what issues he would Some even said: We are not sure of her bad Mr. Bush is too busy playing poli- recuse himself from hearing as a judge. qualifications. She is now dean of the tics to lead.’’ I agree. Instead of being We asked him specifically: Here is a Harvard Law School. These are the an uniter, he is being a divider. case where you designed the legal basis same people pushing a nominee for the I kept an open mind, even though for something, and now it comes before Fifth Circuit, as I mentioned earlier, only 1 of the 22 judges appointed to the you as a judge; would you recuse or who is rated unanimously unqualified. D.C. Circuit since the Nixon adminis- rule on work you have done? He And they pocket filibustered Alan Sny- tration, Kenneth Starr, had even less wouldn’t even acknowledge that he der. He had served as a clerk to Justice legal experience at the time of his would. Instead we heard from a nomi- Rehnquist—no screaming liberal he, nomination than Kavanaugh. Through- nee who parroted the Bush-Cheney ad- God rest his soul. Mr. Snyder was an out all Republican and Democratic ministration’s talking points on sub- experienced and respected litigator, Presidents, only Kenneth Starr had ject after subject. I don’t think the but he was pocket filibustered. The less experience since President Nixon’s Senate should confirm a Presidential fact is, for the rest of President Clin- time than Mr. Kavanaugh. spokesperson to be a judge of the sec- ton’s second term, they blocked all I even kept an open mind after Mr. ond highest court in the land. nominees to the DC Circuit, pocket Kavanaugh’s nomination was one of After carefully evaluating Mr. filibustered them all with impunity. the few to be downgraded by the ABA. Kavanaugh’s record and his answers at I will give a little background. Dur- I can’t recall anyone being confirmed two hearings, it is clear that he is a po- ing the 17 months I was chairman of after such a development. litical pick being pushed for political the Judiciary Committee, I tried to But after I saw Mr. Kavanaugh at his reasons. His nomination is a continu- stop the poisonous pocket filibustering. recent hearing, I could appreciate one ation of the Republicans’ decade-long I am a Democrat, and the Bush-Cheney judge interviewed by the ABA peer re- attempt to pack the DC Circuit. administration is Republican. In 17 view subcommittee describing Mr. You can go all the way back to Presi- months, I moved through, and the Kavanaugh as ‘‘less than adequate’’ dent Clinton’s first term when the Re- Democratic-controlled Senate moved and someone who ‘‘demonstrated expe- publicans started playing politics with through, 100 of President Bush’s nomi- rience on the level of an associate.’’ the DC Circuit. They blocked President nees. We actually moved them faster Others interviewed recently raised con- Clinton’s nominees so they could make than the Republicans had moved them cerns about Mr. Kavanaugh’s ability to sure they had a majority of Republican for a Republican President. be balanced and fair, given his years in appointees on the court. They were But I don’t want to say they partisan positions, working to advance among the 61 of President Clinton’s rubberstamped everybody. They, the a particular partisan political agenda. nominees that the Republicans pocket Republicans, actually did treat one He was described by interviewees as filibustered. And their plan succeeded. nominee the same way they treated ‘‘sanctimonious,’’ ‘‘immovable and After confirming two other nominees President Clinton’s. It is the way they very stubborn and frustrating to deal last year whom I strongly opposed— treated White House Counsel Harriet with on some issues’’—not the qualities Janice Rogers Brown and Thomas Grif- Miers when the President nominated that make for a good judge. fith—Republican nominees now com- her. Despite the word put out falsely by prise a 2-to-1 majority on the second She is a woman who has not gone to the Bush-Cheney defenders, it was not most important court in the land. This Ivy League schools but has a more im- a change in membership in the ABA is not a court which needs another pressive background and experience peer review committee that led to his rubberstamp for this President’s asser- than this nominee—certainly much downgrading. Three-quarters of those tions of Executive power. more legal experience than this nomi- who previously reviewed this nomina- The Republican majority who chose nee. Republicans questioned her quali- tion, and continued on the committee, to shrink the court when there was a fications. They demanded answers voted to downgrade the rating based on Democratic President is now bent on about her work at the White House and the recent interviews and review.

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00063 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE May 25, 2006 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 9605 His response to one very simple ques- who, when invited by the chairman to ing: Whoops, we don’t. It is a heck of a tion I asked during his most recent introduce his family, began his re- job. It is just one more heck of a job by hearing spoke volumes. I asked the marks not by introducing the family this administration. nominee why he had taken 7 months to but by thanking the President for Maybe we should have a ‘‘heck of a answer the written questions sub- nominating him and later empha- job’’ medal to give to all of these peo- mitted to him following his initial sized—as if that was a qualification— ple who get fired for incompetence— hearing in 2004. He repeated the mean- that he had ‘‘earned the trust of the give them a ‘‘heck of a job’’ medal— ingless phrase that he ‘‘took responsi- President’’ and his ‘‘senior staff.’’ great big thing, you have done a heck bility’’ for such dismissive and irre- I have no problem with the President of a job. It is a heck of a job on sponsible conduct and, implicitly, for nominating Republicans—although Katrina; it is a heck of a job on his lack of seriousness about the con- that seems to be all he will nominate, rubberstamping nominees for the firmation. When he did that, it actu- unlike other Presidents of both parties courts; it is a heck of a job when you ally elicited laugher from the hearing who have nominated people from both lose 26 million records and put these room but not laughter from me because parties—but I expect him to nominate veterans at great risk. Oh, wait a I felt it was not the first time he ‘‘dis- somebody who can be independent and minute. They did say they would have sembled’’ in response to my questions. will not have his strings pulled by the an 800 number. If you are 1 of the 26 I suspect the truth is, he made a po- White House. It may be useful for ad- million now facing identity theft, litical calculation and decided to ex- vancement within the Bush-Cheney ad- maybe lose your car, maybe lose your pend his time and effort at his bene- ministration in Republican circles, but house, maybe lose your pension, maybe factor’s reelection campaign during the they are not qualifications for a judge lose your life savings, we have an 800 spring, summer, and fall of 2004 rather who can be independent if he is asked number for you. than answering the questions legiti- to rule on this President’s or the Bush- Anybody try to get through to that mately asked by Senators on the Judi- Cheney administration’s policies. 800 number? If you do, they tell you go ciary Committee. He may be brilliant Senator GRAHAM put the question out and buy protection. Whatever hap- at politics and have powerful sup- this way during the course of the hear- pened with ‘‘the buck stops here’’? It porters, but that doesn’t mean he will ing: ‘‘There is a fine line between doing has to be more than photo-ops when be a good judge. This is, after all, a your job as a White House counsel and you run operations. vote to determine not who your sup- being part of the judicial selection What is desperately lacking through- porters are or not how good you have team and being a judge yourself. There out this administration is account- been at partisan politics but how good is a line between being an advocate and ability. The attack on 9/11 happened on a judge you will be. being a judge.’’ I don’t believe he their watch. You don’t see account- In my opening statement at his hear- showed he knows that line. The DC Cir- ability. The faulty intelligence, the ing, I raised a key question regarding cuit is too important to pack with years of fundamental mistakes in Iraq, this nomination: Will he demonstrate those who would merely rubberstamp hundreds of billions of dollars spent in his independence and show he can serve the Bush-Cheney administration or any the war in Iraq, and we were told that in the last independent branch of the administration, Democratic or Repub- we were going to be greeted as lib- Government? One party controls the lican. We can’t rubberstamp an admin- erators and that it would be over in a White House, the Senate, the House of istration’s policies. matter of days. The lack of prepara- Representatives. There is only one We had the sudden and basically tion, the horrific aftermath of Katrina, body left to be independent. That is the forced resignation of the President’s and on and on—billions spent on home- courts. Can we look to him to be a handpicked head of the CIA, Porter land security. check and balance on the President, Goss. America witnessed another First, a crony of the President was who is asserting extraordinary claims ‘‘heck of a job’’ accolade to an adminis- going to be put in to run the Depart- of power, or on any President? tration insider leaving a critical job ment of Homeland Security until they He could have told us something undone. This administration insider— found out the very disturbing things about his responsibilities as staff sec- we saw what a great job he did. So, like about his personal life; found out retary or as an associate White House administration insiders who ran FEMA things that the administration knew counsel, giving us examples when he right after Hurricane Katrina, the about, that they were trying to keep showed independence and good judg- President said they had done a heck of secret. But when the press found out ment, but he didn’t. Instead, he ap- a job. I think virtually all Americans, about it, somebody had an excuse not peared at his confirmation hearing to Republican and Democratic, would dis- to go there. be a spokesman and representative for agree. In fact, for that matter, this Be ready on a moment’s notice if we the administration. Instead of speaking week we learned that the President’s are ever attacked again, like we were about how independent he would be, he Secretary of the Veterans’ Administra- attacked early on in the Bush-Cheney basically over and over again acted tion was in charge when there was the administration. Well, with Katrina, we like a spokesman for the administra- largest theft of private information had days and days and days of notice. tion. from the Government ever—the largest It didn’t do any good. Courts are not supposed to be owned theft ever, the loss of information on I think, speaking in behalf of the by the White House. I don’t care which more than 26 million American vet- President for a moment, it is not all administration is in control of the erans. his fault. He has not been helped by the White House, they are not supposed to Compounding the incompetence is Republican-controlled Congress that control the courts. Over and over he the misguided decision by the Vet- won’t provide any checks and balances. answered our questions by alluding to erans’ Administration for secrecy in The Republican controlled Congress what the President would want and trying to cover it up for the last 3 won’t raise the questions that might be what the President would want him to weeks. Boy, if we don’t talk about it, if asked, and that, had they been asked, do. We are going to confirm somebody we cover it up, maybe nobody will might have forced the administration who, in sworn statements, talks about know that we lost the critical private to do a better job. But the Republican- how he would try to make sure he information of 26 million veterans. controlled Congress won’t serve as a ruled as the President would want him This is falling on the heels of last check and balance, when there are co- to rule? Have we really sunk that low year’s debacle of the $1 billion shortfall lossal failures of homeland security, or in the Senate on judicial nominations? in the VA’s budget for veterans health at the VA, or anywhere else. Can we at We heard from a nominee who re- care by the same leadership, who said: least ask for the courts to be a check sponded not with independent answers Oh, we have plenty of money when and balance to preserve our rights and but with the administration’s talking they want to make political points, our way of life? If our Government points. We heard from a young man then quietly to the Congress after, say- overreaches, at least we can count on

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00064 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE 9606 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 May 25, 2006 the courts to be there to check and bal- uniters. And the leadership is ready to to confirmation votes on a President’s ance. cater to the extreme right-wing and nominees. In fact, now that the administration special interest groups agitating for a The fight over Justice Samuel Alito’s is raiding congressional offices, the Re- fight on judicial nominations. They nomination is the first example that publican leadership in Congress is fi- made no secret of the reason for push- comes to people’s minds, but there are nally protesting. When ordinary Amer- ing nominations to the Senate. They many others. You will recall that dur- icans’ telephone calls and Internet use are even willing to hold up confirma- ing the Alito debate, one of his oppo- is being wiretapped without warrants, tion of the new Director of the CIA to nents said, ‘‘You name it, we’ll do it,’’ that same Republican leadership vote now instead of a week from now to defeat the Alito nomination. Sadly, looked the other way. I guess they had on a nomination that has waited 3 that statement captured the tone of to tread on the toes of Members of Con- years anyway. They just want to stir the Alito confirmation debate—where gress before the Republican Congress up a fight. we saw a distinguished public servant will say anything. Mr. Kavanaugh is a young, relatively subjected to unwarranted, baseless at- Last year, when the President nomi- inexperienced but ambitious person tacks. nated Harriet Miers, Republicans ques- who, in two hearings, has failed miser- Fortunately, a bipartisan Senate re- tioned her qualifications and demanded ably to demonstrate his capacity for jected the attempt to filibuster Samuel answers about her work at the White independence. I have voted for an awful Alito. Any attempt to filibuster Brett House and her legal philosophy. They lot of Republican nominees, and I ex- Kavanaugh would surely meet the defeated her nomination without a pect I will in the future. I am not going same fate. hearing. Now it appears that they are to vote for any nominee—Republican I don’t think that I am going out on back to their rubberstamping routine or Democrat—who has failed to dem- a limb when I say that neither the with every Senate Republican ready to onstrate his capacity for independence. Alito nor the Kavanaugh confirmation approve this nomination without ques- This nominee has not, and I cannot in debates could be considered the Sen- tion or pause. good conscious support action on this ate’s ‘‘finest hour.’’ Taken together Then we ask the question: The Presi- nomination to one of the Nation’s with many others, these confirmation dent’s counsel, the staff secretary, did highest courts. battles have the potential to paint for that nominee act as a check and bal- The PRESIDING OFFICER. The Sen- the public a distorted picture of our ance, or will he continue, as he said at ator from Texas. Federal judiciary—and further erode his hearing, to do whatever the Presi- Mr. CORNYN. Mr. President, almost the confidence in our legal system. dent wanted? 3 years have passed since Brett The U.S. Senate should take the lead At his hearing, Senator FEINSTEIN Kavanaugh was nominated to the U.S. and give the public a more accurate un- and I gave him another opportunity to Court of Appeals for the DC Circuit. I derstanding of the judge’s role in our answer concern about his loyalty to am glad that the time has finally come constitutional democracy. To achieve the President. We asked about recusal. for an up-or-down vote on his nomina- that, the judicial confirmation process He could have said he would not hear must be more civil, respectful, and free any matter that raised questions about tion. Despite the threats of a filibuster and of partisan politics. the President’s claims of executive the unwarranted attacks on the nomi- There are many reasons I support power insofar as was involved with the this fine nominee. development of the policies and prac- nee’s qualifications and character, Brett Kavanaugh is, by any reason- tices of the Bush-Cheney administra- Brett Kavanaugh will soon be con- able measure, superbly qualified to join tion. It is almost judicial ethics 101 in firmed by a bipartisan majority of this the Federal bench. His legal resume is the first year of law school. The easy body. as impressive as they come—one with a answer is: Of course, I will not rule on I fully support his nomination, and demonstrated commitment to public that. Of course, I would recuse myself believe that he will be a valuable addi- service. After law school at Yale, where on something I have developed in the tion to the Federal bench. In just a mo- he was an editor of the Yale Law Jour- White House. He could have walled off ment, I will outline the reasons why. nal, Kavanaugh held prestigious clerk- matters covered by the Presidential But, first, I must say I am troubled signing statement—750 of them. This that his confirmation has been need- ships for three Federal appellate President has shown unchecked Execu- lessly protracted and contentious. It is judges—including U.S. Supreme Court tive power exceeding that of Richard the contentiousness that concerns me Justice Anthony Kennedy. He also Nixon. He could have said that given most. served in the Solicitor General’s office, his role in the development of this ad- Brett Kavanaugh’s nomination has the Office of Independent Counsel, and ministration’s secrecy policies he routinely been described in the press as was a partner at Kirkland & Ellis, one would recuse himself from those ques- ‘‘controversial’’—not because of any le- of the Nation’s elite law firms. Most re- tions regarding the right of the Amer- gitimate quality or characteristic of cently, he was Associate White House ican people to know about their Gov- the nominee, but simply because my Counsel, and is currently Staff Sec- ernment. It would not only be the right colleagues on the other side have de- retary to President Bush, a job whose answer, but it would be an easy answer. clared it so. title belies the very serious and impor- After all, the administration stacked These individuals have demeaned tant responsibilities that that indi- that court with so many Republicans, Kavanaugh as a ‘‘crony,’’ a ‘‘partisan vidual performs. he should feel comfortable, but even warrior,’’ and have characterized his Earlier this month, the Judiciary there he didn’t say he would follow nomination as ‘‘among the most polit- Committee had the good fortune of basic judicial ethics. ical in history’’ and ‘‘judicial payment hearing from Kavanaugh’s mentors, At a time when the Senate should be for political services rendered.’’ Yet, a two men who know him best. Neither addressing America’s top priorities, the leading Democrat critic during a re- of these men recognized the critics’ de- President and his Senate allies instead cent hearing conceded that Brett meaning description of Brett are trying to divide and distract from Kavanaugh has ‘‘blue-chip creden- Kavanaugh as a partisan or as someone fixing real problems by pressing for- tials.’’ I don’t understand how these with an agenda. ward with this controversial unquali- comments can be squared with one an- Ninth Circuit Judge Alex Kozinski fied nomination. other. told the Committee that he ‘‘never We showed in the recent debate that Mr. President, I have deep concerns sensed any ideology or agenda’’ when at least among senior Members—Re- about the tenor of many recent debates Kavanaugh served as his law clerk— publican and Democratic Members—we over this President’s judicial nominees. perhaps the most important job other could be uniters and not dividers. I fear that this confirmation battle is than the job of the judge in judicial Unfortunately, in this case, the just the latest in a series of bad prece- chambers. Third Circuit Judge Robert White House wants to be dividers not dents set in recent years when it comes Stapleton urged Kavanaugh to consider

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00065 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE May 25, 2006 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 9607 the judiciary as a career because, in ad- not your normal Federal court. The has ever taken a deposition. I don’t dition to this young clerk’s legal acu- United States Court of Appeals for the know if he has ever filed a motion in men, he displayed ‘‘no trace of arro- DC Circuit is the second highest court court. There is no evidence that he has gance and no agenda.’’ in America. It has been the launching any understanding, basic under- Judge Stapleton praised the nominee pad for Supreme Court Justices. They standing, of trial practice in civil or for appreciating the ‘‘crucial role of consider some of the most complex and criminal courts in America. precedent in a society that is com- technical litigation that faces the Fed- Think of that for a moment. Though mitted to the rule of law.’’ eral bench. It is not just another court. this man has graduated from out- Brett Kavanaugh clearly understands Second, Brett Kavanaugh is not just standing schools, he has clerked for im- the impartiality and independence re- another judicial nominee. Brett portant judges, he has never had to roll quired of an article III judge. At his Kavanaugh comes to this nomination up his sleeves and represent the client first hearing in April of 2004, Mr. with not the weakest credentials in the or represent the United States of Kavanaugh described it best when he history of this bench, but the second America or any State or local jurisdic- said: ‘‘I firmly disagree with the notion weakest credentials. tion at a trial. that there are Republican judges or Earlier this month, Senator KENNEDY He has very little experience, of Democrat judges. There is only one called the Kavanaugh nomination a tri- course, on the issues that come before type of judge. There is an independent umph of cronyism over credentials. Un- this court. Nearly half of the cases in judge under our Constitution. And the fortunately, I must agree. The nomina- the DC Circuit Court involve Federal fact they may have been a Republican tion of Brett Kavanaugh is a political agencies dealing with the environment, or a Democrat or an independent in a gift for his loyal service to this Presi- electricity, labor unions and tele- past life is completely irrelevant to dent and his political party. Mr. communications. Mr. Kavanaugh was how they conduct themselves as Kavanaugh is not being given an en- asked: Now, in this field of expertise judges.’’ graved plaque for his fine service; he is that you want to be a judge in, tell us, The independence of our Federal ju- being given a lifetime appointment to what kind of cases have you handled? diciary is, again, using Brett the second highest court in the land. What kind of experience do you have? Kavanaugh’s words, ‘‘the crown jewel’’ By every indication, Brett Kavanaugh What did you bring to this? What kind of our constitutional democracy. But I will make this judgeship a gift that of wisdom as a judge will you bring to worry that the Senate—perhaps inad- keeps on giving to his political patrons this? He could identify only one case in vertently—is giving the American peo- who have rewarded him richly with a his entire life that he had ever been in- ple a distorted view of our system. I re- nomination coveted by lawyers all over volved in that related to any of those gret that at the root of these harsh and America. four important agencies. unfair attacks may be a deep-seated In light of his thin professional During the 113-year history of the DC cynicism, namely, that Federal judges record, Mr. Kavanaugh bears a particu- Circuit Court there has only been one are somehow just another branch of larly high burden of proof. I have sat judge, only one in its history, who has the legislature, that they are merely through the hearings with Mr. been nominated who had fewer years of politicians in black robes who are Kavanaugh. In my estimation, he has legal experience than Brett somehow able to inject their own pol- not met that burden. He has so little Kavanaugh. That judge was a man by icy agendas into court decisions, there- experience as a practicing lawyer, no the name of Ken Starr. No other DC by rendering the popular phrase ‘‘legis- experience as a judge. He had a special Circuit Court judge in the past 113 lating from the bench.’’ obligation when it came to these nomi- years has had less experience than But nothing could be further from nation hearings to tell us what he be- Brett Kavanaugh. the Founders’ vision of our judiciary lieves and what he would do on this im- Is that the best we can do? Is that under the Constitution; Federal judges portant judicial assignment. He failed. the best the President and the White are given life tenure without salary re- As I said about the DC Circuit, it is House can do for the people of Amer- duction, precisely because we want to not just any court of appeals. It is the ica? Give us young men who may have ensure they will decide each case, big first among equals. It is based in Wash- great promise, but little experience? or small, on its own merit according to ington, but its rulings affect Ameri- People who may be right on the polit- the law, according to the facts and not cans from coast to coast. It is the court ical issues for this White House but with any agenda. of last resort in some cases involving have not demonstrated the wisdom or Judicial independence requires faith- the air that every American breathes, life experience that qualify them to ful application of the Constitution and the water that we give our children, stand in judgment on critical issues the law to each case. I supported Chief the right of labor organizations to col- that affect the lives of every single Justice John Roberts and Justice Sam lectively bargain, whether Americans American? Alito because I believe they will re- will have access to telecommuni- At his second hearing Mr. Kavanaugh spect our Constitution and respect our cations, and even the price we pay for tried to assure us that his career in laws. And I believe Brett Kavanaugh electricity. government service was similar to oth- will do the same. The significance of the DC Circuit is ers who have served in the DC Circuit. Brett Kavanaugh is a dedicated pub- seen in the way it has become the farm He compared his background in govern- lic servant who will serve this Nation team for the Supreme Court. Over half ment service to a former DC Circuit with distinction as a Federal judge. I of all the Supreme Court nominees dur- judge by the name of Abner Mikva, urge my colleagues to confirm him. ing the past quarter century were who served with distinction on the DC I yield the floor. judges on the DC Circuit where Presi- Circuit Court from 1979 to 1995. It was The PRESIDING OFFICER. Under dent Bush wants to send his staff sec- truly a Lloyd Bentsen/Dan Quayle mo- the unanimous consent, the Chair rec- retary, Brett Kavanaugh. If Mr. ment that Brett Kavanaugh would sug- ognizes the Senator from Illinois. Kavanaugh is confirmed for the DC Cir- gest that he was in Abner Mikva’s Mr. DURBIN. Mr. President, we are cuit, it would not surprise me if the league. That comparison is such a considering the nomination of Brett Republicans would try to elevate him stretch. Kavanaugh to the United States Court to the highest court in America. Judge Mikva had 28 years of legal ex- of Appeals for the DC Circuit. Why are Let’s take a look at his experience perience before he was nominated to we taking extra time on this nomina- for this job. Compared to others who the DC Circuit. Abner Mikva served for tion? Why are Members coming to the have served on this important court, 9 years in Congress, 10 years in the Illi- Senate on both sides, some expressing Mr. Kavanaugh’s track record just does nois legislature. He had worked for support and others opposition? Why is not stand up. He has never had a jury over 12 years in private practice. As this different from any judicial nomi- trial in his life. And he has never had the late Senator Lloyd Bentsen, who nation? There are two reasons. This is a trial before a judge. I don’t believe he just passed away, said, to paraphrase, I

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00066 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE 9608 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 May 25, 2006 know Abner Mikva; Abner Mikva is a The real question is whether Judge been prepared by my staff analyzing friend of mine, and Brett Kavanaugh is Kavanaugh would be fair and open- issues, analyzing nominees. Mr. Mi- no Abner Mikva. minded. And there are new concerns randa stole these documents and then Because of his thin track record as a that have been raised about Mr. turned them over to organizations that lawyer, Mr. Kavanaugh had a special Kavanaugh’s judicial temperament. I were sympathetic with his political burden of proof to be candid and forth- saw him at the last hearing with his point of view. There was some question coming with the committee, to tell us wife and baby. He looks like a fine fa- as to whether those documents some- who he is and what he stands for. He ther—a beautiful young family. To all how migrated to the White House deci- did not meet that burden. Every time appearances, a good person coming sion process—legitimate questions be- he came close to answering a hard from a good family. But those who cause those were times when many of question, he quickly backed away. But have watched him in the courtroom these nominees were very controver- he was well-schooled in the process be- have come to different conclusions. sial. cause he spent his time in the White Last month the American Bar Asso- When Mr. Kavanaugh was asked House coaching judicial nominees not ciation downgraded Mr. Kavanaugh’s about these things, he was not that in- to answer questions. Well, he learned rating after conducting additional terested—either when the ABA asked as a teacher, and he demonstrated it interviews with judges and lawyers the questions or when the questions before the Senate Judiciary Com- who had actually seen him in the were asked in the Senate Judiciary mittee. courtroom and worked with him in the Committee. Those questions went to For example, he would not tell us his limited exposure he has had to Amer- the integrity of the process of naming views on some of the most controver- ica’s courtrooms. A judge who was men and women to our Federal judici- sial policy decisions of the Bush ad- interviewed by the American Bar Asso- ary for lifetime appointments. You ministration—like the issues of torture ciation stated that Mr. Kavanaugh’s would believe that Mr. Kavanaugh, in and warrantless wiretapping. He would oral presentation at the hearing was his capacity as White House Counsel, not comment. He would not tell us ‘‘less than adequate’’ and that he had would have taken that issue much whether he regretted the role he played been ‘‘sanctimonious.’’ That is not a more seriously than he obviously did. in supporting the nomination of some great send-off if a person who is being This nominee is not the best person judicial nominees who wanted to per- nominated for a lifetime appointment for an important job. Michael mit torture as part of American foreign to the bench, a person who will now Kavanaugh does not deserve a lifetime policy, who wanted to roll back the stand in judgment not only of other appointment to the second highest clock on civil rights and who wanted to judges but of the counsels and attor- court in the land. weaken labor and environmental laws. neys that appear before him. I believe he has a bright future in It would have been so refreshing and A lawyer interviewed by the Amer- some other setting. I think after prac- reassuring if Brett Kavanaugh could ican Bar Association also said: ‘‘Mr. ticing law, actually finding out what it have distanced himself from their ex- Kavanaugh did not handle the case well means to represent a client, perhaps treme views. But a loyal White House as an advocate and dissembled.’’ That going into a courtroom someday, counsel is not going to do that. And doesn’t sound very promising for some- maybe sitting down before a judge, that is how he came to this nomina- one seeking a lifetime appointment to maybe taking a deposition, under- tion. That is how he addressed the Sen- the second highest court in the land standing what it means to file a mo- ate Judiciary Committee with his loy- with some of the most technical and tion in court, and what that means to alty to the President. go to argue for a hearing, maybe to He would not tell us what role he difficult arguments and issues to con- played in the White House’s unprece- sider. prepare a legal brief, to argue a point dented efforts to give the President vir- One interviewee called Mr. of view, maybe win a few or lose a few, tually unchecked power at the expense Kavanaugh ‘‘insulated.’’ Another per- actually go into a courtroom with a of congressional oversight. son said Mr. Kavanaugh is ‘‘immovable client, pick a jury in a civil case, be a In light of Mr. Kavanaugh’s failure to and very stubborn and frustrating to prosecutor in a criminal case, watch as open up to the committee, we have to deal with on some issues.’’ the case unfolds before the judge and just guess about his brief career. He co- Is that what we are looking for in a the jury, watch it go through to ver- authored the Ken Starr Report; he rep- judge, an insulated person, immovable dict, consider whether or not to launch resented Elian Gonzales; he worked in and stubborn, who dissembles when he an appeal—the things I have just de- Florida on the Bush 2000 recount; he is in the courtroom and has a sanc- scribed are not extraordinary. worked with Karl Rove and the Fed- timonious way about him? I can tell This is the ordinary life of practicing eralist Society to pick ideological judi- you, as a practicing lawyer, that is a attorneys across America. But my life cial nominees. He has been the go-to judge I would avoid, and most people experience, as limited as it was in prac- lawyer time and time again for the far would avoid nominating that kind of ticing law, included all of these things. right in American politics. And now he lawyer to become a judge. They helped me to understand a judge’s is being handsomely rewarded for his The ABA also stated they were dis- responsibility—a trial court judge, loyalty, for his service to his political appointed that Mr. Kavanaugh seemed even an appellate court judge. This is party. to have a ‘‘lack of interest’’ in the like sending Mr. Kavanaugh into a set- Other than his judicial clerkships, Manual Miranda ‘‘memogate’’ scandal ting where he has no familiarity and no Mr. Kavanaugh has only worked for and that he failed to conduct an inter- experience. two people during his entire legal ca- nal White House investigation as to You might say: Well, maybe he will reer: President George Bush and Ken whether the scandal had tainted the learn on the job. Maybe he will turn Starr. Bush administration’s judicial nomina- out not only to be a good law student Given this background, I asked Mr. tion process. but a heck of a judge. Well, it is not a Kavanaugh if he would agree to recuse This issue is one I know pretty well. question of trial and error here. It is a himself in cases involving the Repub- I was one of two Senators whose com- question of lifetime appointment. We lican Party or the Bush administra- puters were hacked into by Mr. Manny do not get a makeover on this decision. tion. Clearly, he has a conflict of inter- Miranda, who at the time was a Repub- If this Senate approves Brett est, at least the appearance of a con- lican staff member, who worked at var- Kavanaugh for the second highest flict of interest, from all of the years ious times for the Senate Judiciary court in the Federal judiciary in Amer- he spent as a loyal Republican attor- Committee and for the Senate Repub- ica, he is there for life. ney. I asked him, Would you step away lican leadership. Mr. Miranda hacked Maybe he will learn on the bench. from cases that directly impact the Re- into my computer, my staff computer, Maybe he will turn out to be objective publican Party and the Bush adminis- and stole hundreds if not thousands of on the bench. Maybe he will move away tration policies? He refused. legal documents—memoranda that had from a solid legal political background

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00067 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE May 25, 2006 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 9609 to understand the law. Maybe he will rent sitting Governors of the States of egy to increase the health of America’s have some on-the-job training as a the United States. I am not quite sure forests. Out of that collaborative proc- judge in the second highest court in I have ever seen that before, that 40 ess, and working with us here, we cre- the land. But is that the best we can Governors—Democratic and Repub- ated the Healthy Forests Act, with the do? Doesn’t that harken back to other lican—would step up and say, in behalf guidance and the assistance of the things in this administration that have of one of their colleagues, that he is Bush administration, working coopera- troubled us—people being appointed to qualified and they support him without tively with public land timber State positions they clearly were not quali- condition to become the new Secretary Senators. fied for because they were well con- of the Interior. Governor Kempthorne It was one of the first major pieces of nected, they knew the right people? developed a close working relationship legislation passed to manage our for- That should not be the test for the with these Governors as he served as ested lands of the Nation in a right and Federal judiciary. It certainly should chairman of the National Governors appropriate fashion, to restore health- not be the test for the second highest Association just a few years ago. damaged ecosystems, and to protect court in the land. I have watched Governor Kemp- and promote the collaborative commu- I believe the White House, I believe thorne for two terms, or 8 years in my nity effort where community water- the Republican party, could have done State of Idaho, take very difficult situ- sheds were involved and at risk as a re- better. There are so many quality ations and sometimes competing sides sult of fire. So I was pleased to work judges across America who are Repub- and bring them together to resolve a with the Governor in his capacity at licans, in my home State of Illinois and problem and to come out whole and that time as chairman of the Forestry in Federal district courts, who could smiling in behalf of their interests and Subcommittee here in the Senate, and have been nominated for this impor- in behalf of the State of Idaho. It is we were able to successfully bring that tant and prestigious position. Instead, with that kind of style and capacity to conclusion. That is the law of the this nominee falls short. It is no sur- that Governor Kempthorne comes to land today. prise to me that the American Bar As- the position of Secretary of the Inte- Knowing the West, as I said earlier, sociation downgraded his nomination. rior. is critically important to the Secretary I hope if he is approved that in the Dirk Kempthorne has successfully re- of the Interior because he is the land- years to come he will prove me wrong. solved one of the largest tribal water lord for much of the western landscape At this point, there is little evidence to disputes in Idaho history, if not in the of our Nation, let alone our crown jew- base that on. But I hope for the sake of West—a tribal dispute we dealt with els, our national parks and all that this court and for the Federal judiciary here on the floor, just a year ago, after they bring for the citizens of our coun- that is the case. he and others had spent well over 5 try. Mr. President, I yield the floor. years working through all the fine and When he was nominated and we had The PRESIDING OFFICER (Mr. difficult points of negotiation between our first visit, he said: Larry, what HATCH). The Senator from Idaho. very opposing and sometimes con- should some of our priorities be? And I Mr. CRAIG. Mr. President, we are in flicting parties as they dealt with that. said: You come at a unique time to the a kind of a unique procedure this When you live in the arid West, as I Department of Interior. Because there evening as we debate three nominees and the Senator from Utah do, you is no question, in my mind, at least, who will be voted on tomorrow morn- know how important water is. We find this Senator—and in looking at the ing, obviously, the nomination of Brett it, obviously, life-sustaining. And if it new energy policy we passed a year ago Kavanaugh being one of them. But an- is not managed well, it can create and all that we have done to get this other one that is critical to the United great conflict or it can change the Nation to producing energy once States and critical to the public lands whole character of an environment or a again—the Governor is the landlord of domain of our United States and crit- State. And certainly for the wildlife of one of the largest storehouses of en- ical to this western Senator and to the our great States, it is critically impor- ergy in this Nation. western Senator who is presiding at tant habitat. this moment is the nominee for the Here in the East, we worry about too The kind of drilling for gas in the new position of Secretary of the Inte- much water. Out in the arid West, we Overthrust Belt in the West today that rior. worry about not enough water. And it we are now reengaging in, with new en- Tonight, I stand to support the nomi- is with that kind of experience that the vironmental standards, to bring bil- nation of Governor Dirk Kempthorne Governor comes to the Secretary’s po- lions of cubic feet of gas on line in the of my State of Idaho, who will be con- sition to become one of the Nation’s upper Rocky Mountain States, is pre- sidered and voted on tomorrow by the largest water landlords, presiding over sided over by the Secretary of the Inte- Senate. I was extremely proud that our the Bureau of Reclamation and all that rior. President would recognize, as Sec- they do in the Western States and A debate that has gone on here, retary Gale Norton stepped down, that across the Nation in the management somewhat quietly, on the floor of the it would be right and appropriate to of critical water resources and the in- Senate but will take shape in the very nominate another westerner with the frastructure that sustains those re- near future dealing with the drilling of kind of experience westerners uniquely sources. gas down in the Gulf of Mexico, off the have in the capacity that Governor As a U.S. Senator, both the Presiding coast of Florida, in lease sale 181, once Kempthorne has had to serve not only Officer, the Senator from Utah, and I again, dealing with offshore resources, as a U.S. Senator but as a Governor in served with Governor Kempthorne. He is in part if not in whole the responsi- a very large public lands State. introduced and won passage of S. 1, the bility of the Secretary of the Interior. The Department of Interior, of Unfunded Mandates Reform Act, crit- The oil shales of Colorado that we course, is the largest landlord in my ical and necessary as we work on legis- are working to develop now—a lot of it State, as is true in the State of Utah. lation here to make sure we do not im- on our public lands West—is the re- It is through that experience, and pact States and create and demand cer- sponsibility of the Bureau of Land working with the Federal Government tain things from States that are, if you Management and the Secretary of Inte- and working with the Department of will, demanded but unfunded as a part rior. Interior, that I believe Dirk Kemp- of a Federal jurisdiction or responsi- I believe in the next 21⁄2 years Dirk thorne, as our new Secretary of the In- bility. That is the law of the land Kempthorne presides over the Depart- terior, will do extremely well. today, and it certainly showed his ment of Interior as the second Sec- When he came before the Energy and skills as a legislator. retary of the Interior of this Bush ad- Natural Resources Committee, on Under the leadership of Governor ministration, he will, by his presence which I serve, he came with the sup- Kempthorne, the Western Governors’ and the efforts currently underway, ac- port, the bipartisan support, of 40 cur- Association developed a 10-year strat- tually produce more energy for this

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00068 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE 9610 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 May 25, 2006 Nation and our Nation’s energy con- was nominated. Due in large part to He went on to not one but two circuit sumers than will the Secretary of En- the delay tactics employed by some court clerkships. You don’t get those ergy. It is that kind of uniqueness and earlier this month, Mr. Kavanaugh was clerkships unless you are one of the the domain over which he presides that the subject of a highly unusual second best. A judge really gets to know his makes this position tremendously im- hearing on his nomination. Interest- clerks. They work in close quarters to- portant. ingly, when he was the nominee for the gether. The judge has a true oppor- (Mr. MARTINEZ assumed the Chair.) same court, Chief Justice Roberts was tunity to get the measure of the man. Mr. CRAIG. Lastly, the Governor also subjected to a second hearing be- Brett Kavanaugh’s former employers, leaves Idaho with a legacy of growing fore the Judiciary Committee. Frank- these judges, his mentors, thought so and expanding the Idaho State park ly, it may be the case that in each of much of Brett that they came to Wash- system that I know he is very proud of, these two circumstances, the second ington to testify at his confirmation as am I. And now he steps into the role hearing tells us more about the par- hearing earlier this month. That is the of really being the caretaker of all of tisan nature of the judicial confirma- second confirmation hearing. They did our National Park System. That is so tion process than it reveals about the not mince their words. phenomenally important to our coun- qualifications of the nominees. This is what Judge Walter Stapleton, try. I might add that in both second hear- one of most respected judges in the The parks we have oftentimes called ings, both of these people, now Chief Third Circuit Court of Appeals, had to the crown jewels of the great outdoors Justice Roberts and Brett Kavanaugh, say about his former clerk: of our country. And they truly are came off very well, without one touch- I am confident that Mr. Kavanaugh’s per- that. Whether it is Yellowstone in the ing by anybody who was trying to do spectives on both life and the law will result West or whether it is the Great Smok- away with them. in his becoming what I regard as a ‘‘judge’s ies south of us here and slightly to the I hope that the 14-year time period judge.’’ His personal confidence is matched west or whether it is down in the Ever- between Chief Justice Roberts’ first by his humility, and his legal acuity by his glades of Florida—of which the Pre- nomination and confirmation to the good, common sense judgment. When he served as my clerk, no case was too small to siding Officer is so proud of that great DC Circuit is not matched or exceeded deserve his rapt attention and, without ex- park system—Dirk Kempthorne, as by the Kavanaugh nomination. Since ception, he initiated his evaluation of a case Secretary of Interior, will have a tre- he was nominated almost 3 years ago, with no predilections. His ultimate rec- mendous responsibility over that do- Mr. Kavanaugh has become a husband ommendation resulted from a careful case- main. and father. Let us pray that he does by-case analysis of the facts and an objective Tomorrow, we will vote on Governor not become a grandfather before he application of the relevant precedents. He is Kempthorne, and he will become the gets a vote in the Senate. firmly committed to the proposition that next Secretary of the Interior for the This is a good day because not only there must be equal justice for all and that this can be a reality only if all of our courts Bush administration and for the United can we see the light at the end of the faithfully and objectively apply the statu- States of America. My guess is that tunnel, but we can actually get tory declarations of Congress and the teach- vote will be a resounding vote because through the tunnel and complete ac- ings of the Supreme Court. when he left here as a Senator, he left tion on this nomination that has lan- That is what I would call a ringing in a tremendous state of good will with guished for nearly 3 years. Now that endorsement, a refutation of every- his colleagues. He has returned as a Mr. Kavanaugh has once again an- thing that has been said by the other nominee to visit with, I believe, nearly swered questions at the unusual second side—and by a great judge, by the way, all of us to assure us that he will be hearing—and as was the case with his who knows a lot about judging and here to listen and to work with us in first hearing, some of the questions knows a lot about character. his role and responsibility as our new were not posed to him in the most civil Judge Alex Kozinski on the Ninth Secretary of the Interior. fashion—and now that he has been re- Circuit Court of Appeals had a similar So as an Idahoan and as a U.S. Sen- ported to the floor by the Judiciary experience during Mr. Kavanaugh’s ator, I am tremendously proud that our Committee, it is my hope he will soon time with him. This is what he had to President has nominated and we, to- have the up-or-down vote he deserves say at his hearing: morrow, will confirm Dirk Kempthorne on the floor of the Senate. I must tell you that in the times that I had as our next Secretary of Interior. I commend the manner in which Brett clerk for me, I found him to be a posi- I yield the floor. Chairman SPECTER has brought this tive delight to have in the office. Sure . . . The PRESIDING OFFICER. The Sen- nomination through the Judiciary he is really bright, and he is really accom- ator from Utah. Committee and on to the floor. In the plished, and he is a really excellent lawyer. Mr. HATCH. Mr. President, I rise in sunshine of the hearing room, it be- But most, virtually all, folks who qualify for strong support of the confirmation of came ever more apparent that there a clerkship with a circuit judge these days Brett Kavanaugh to serve on one of the are no serious objections to this nomi- have those qualities. . . . Brett brought something more to the most important courts in our judicial nation. Brett Kavanaugh is a highly table. He, first of all, brought what I thought system, the U.S. Court of Appeals for qualified nominee and a proven public was a breadth of mind and a breadth of vi- the District of Columbia Circuit. Brett servant. Mr. Kavanaugh’s education, sion. He didn’t look at the case from just one Kavanaugh is an extremely bright, employment history, and record of pub- perspective . . . hard-working, ethical lawyer. I have lic service should speak for themselves. Brett was very good in changing perspec- known him for many years. Brett Kavanaugh is a local guy. He tive. Sometimes I’d take one position and His father Ed Kavanaugh served as went to high school at Georgetown he’d take the opposite, and sometimes we’d head of a major trade association here Prep in Bethesda, MD, where he was switch places. He was very good and very flexible that way. I never sensed any ide- in Washington for many years, and he educated by the Jesuits. From what I ology or any agenda. His job was to serve me is known by my colleagues in Congress can tell, he heard the call of St. Igna- and to serve the court, and to serve the peo- as a straight shooter. In this case, the tius to be a true man for others. I sus- ple of the United States in achieving the cor- apple did not fall far from the tree. pect that many of my colleagues, espe- rect result at the court. He always did it Brett’s mother Martha served for many cially those Jesuit-educated Members, with a sense of humor and a sense of gentle years as a State court judge in Mont- appreciate that background. self-deprecation. gomery County, MD, and I am sure He went to Yale University for col- These are strong words of support serves as a great model of judicial tem- lege. Having excelled there, he went on from another great circuit court of ap- perament and jurisprudential excel- to Yale Law School, where he was edi- peals judge on the Ninth Circuit Court lence and fairness for her son. tor of the ‘‘Law Review.’’ That is no of Appeals which is on the far west of Brett Kavanaugh was nominated to small achievement. It shows that he this country. And these words describe the DC Circuit Court of Appeals in July was an excellent student, one of the precisely the type of qualities we want of 2003. That is almost 3 years since he best. in members of the Federal judiciary.

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00069 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE May 25, 2006 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 9611 Mr. Kavanaugh went on from those sel in the investigation of the White- eight individuals who served as either clerkships with these great circuit water matter and later to work for counsel or deputy counsel to the Presi- courts of appeal judges to bigger and President Bush. Although I think most dent, this is how they described that better things. He worked in the office fair observers would have to say that role he fulfilled: of the Solicitor General of the United both of these demanding jobs are pro- The importance of this position, as well as States. There is hardly any one in this fessional achievements, some are try- its substantive nature, is not always well body who can claim that experience. ing unfairly to use political innuendo known or understood outside the White He clerked for Supreme Court Justice to tar and feather this fine young law- House. As Staff Secretary, Mr. Kavanaugh is Anthony Kennedy. Only the best and yer. But that dog just won’t hunt. responsible for ensuring that all relevant brightest lawyers win these types of As a lawyer in the Office of the Inde- views are consistently and accurately pre- challenging and prestigious assign- sented to the President. The ability to assess pendent Counsel, an office created by presentations of differing arguments on a ments. Democrats in the wake of Watergate, Mr. Kavanaugh went on to become a wide range of topic areas is a skill that he worked on an investigation initiated would serve him well on the D.C. Circuit. partner in one of the greatest law firms by a Democratic President and his At- in the country, Kirkland & Ellis, a I concur. I ask unanimous consent torney General. Nobody has ever sug- that the full letter be printed in the leading national law firm. That doesn’t gested that his work was anything but happen to somebody who is as de- RECORD. professional. He was not a political There being no objection, the mate- scribed by some of my partisan col- partisan. Yet some people are leagues on the other side. rial was ordered to be printed in the hyperventilating as though the Presi- RECORD, as follows: Brett Kavanaugh left the no doubt fi- dent nominated some partisan hack to WILEY REIN & FIELDING LLP, nancially lucrative practice at a lifetime position on the Federal Kirkland & Ellis and returned to public Washington, DC, May 5, 2006. bench. I know Brett Kavanaugh. I have Hon. ARLEN SPECTER, service. He is a public servant. For the known him for years. I can tell you, he last 6 years, he has worked at the Chairman, Committee on the Judiciary, U.S. will be neither a partisan nor a hack on Senate, Washington, DC. White House, first in the White House the bench. He has all the capacities and DEAR CHAIRMAN SPECTER: We are writing Counsel’s Office—you don’t get there qualities to become a great judge. to offer our strong support for the confirma- unless you are really good—and cur- This false charge of partisanship tion of Brett Kavanaugh to the United rently as staff secretary to the Presi- should be recognized for what it is—an States Court of Appeals for the D.C. Circuit. We have each served as Counsel or Deputy dent of the United States. Pretty im- absolute fabrication. You heard what pressive stuff. Some people say just a Counsel to the President, and believe that two Federal judges for whom he secretary. Come on, this is a person Mr. Kavanaugh has the qualifications and clerked had to say about Mr. who vets the documents the President experience necessary for the D.C. Circuit. Kavanaugh. It doesn’t get much better sees. It is a person you trust, whom the As former Counsel and Deputy Counsel to than that. the President, we understand the importance President trusts. It is a person with Another variation on this attack of judicial appointments, particularly those wisdom and decency and magnanimity. against Brett is the claim that he does to the federal courts of appeals. In our view, Nevertheless, some opponents of this not have adequate judicial experience. Mr. Kavanaugh possesses all of the requisite nomination are suggesting that some- We need to put this in perspective. On qualifications for such an appointment, in- how Mr. Kavanaugh is unqualified to cluding outstanding academic credentials, the DC Circuit, only 4 of the 20 judges serve on the DC circuit. Come on. keen intellect, a calm and thoughtful de- Let us be clear. Mr. Kavanaugh has confirmed since President Carter’s meanor, and exceptional analytical skills. been practicing law for 16 years. He has election served previously as judges. He has extensive relevant professional expe- argued civil and criminal matters be- Then, all of a sudden, it is a bad thing rience, including arguments before the Su- preme Court of the United States and the fore trial courts, appeals courts, and because Brett Kavanaugh has not had experience as a judge. President Clin- federal courts of appeals. even the U.S. Supreme Court. I have We would also like to emphasize the crit- heard Senators on this floor criticizing ton nominated and the Senate con- firmed—this is a Democratic Presi- ical nature of the position that Mr. him for not having been a judge, not Kavanaugh currently holds as Staff Sec- having been on the court, not having dent—32 lawyers with no prior judicial retary. The importance of this position, as argued all kinds of cases. He has. I experience, including Judges David well as its substantive nature, is not always don’t know what they have been read- Tatel and Merrick Garland to the DC well known or understood outside the White ing, but they sure as heck haven’t been Circuit. Good judges. Are we to believe House. As Staff Secretary, Mr. Kavanaugh is reading the transcript or don’t know that those who make these arguments responsible for ensuring that all relevant also believe that Chief Justice Earl views are concisely and accurately presented what is going on here. Very few law- to the President. The ability to assess pres- yers ever argue a case before the Su- Warren, Justice Hugo Black, and even Chief Justice Marshall were somehow entations of differing arguments on a wide preme Court. Mr. Kavanaugh has done range of topic areas is a skill that would so. lacking because they had not been in- serve him well on the D.C. Circuit. The vast majority of his legal prac- volved in politics and had no prior judi- Mr. Kavanaugh would be a fair and impar- tice has been as a public servant. I re- cial experience? tial judge, dedicated to the rule of law. He member a time when public service was I could go on and name a whole possesses the highest personal integrity and applauded and valued, as it should be. bunch of other Supreme Court Justices is exactly the type of individual this country My colleague from Arizona, Senator who never had any prior judicial expe- needs on the federal appellate bench. We urge the Senate to act promptly to confirm MCCAIN, should be commended for re- rience, some of whom are revered as the greatest Supreme Court Justices in him to the U.S. Court of Appeals for the D.C. minding young men and women how Circuit. crucial it is for citizens to transcend history. It is very unfair to use that ar- Sincerely, their own immediate needs and wants gument, as has been used in countless FRED F. FIELDING, and to serve something larger than numbers of cases for President Bush’s On behalf of: Arthur B. Culvahouse, Jr., themselves. That is what Brett nominees and, I might add, President Peter J. Wallison, Phillip D. Brady, Kavanaugh has done with his life. Yet Reagan’s as well. It was not that long Richard A. Hauser, Timothy E. Flani- instead of applauding him, some attack ago that the minority leader publicly gan, David G. Leitch, John P. Schmitz, him. For some, his public service has urged the President to nominate indi- Jay B. Stephens. become a liability. I wish I was kid- viduals with a diversity of experience Mr. HATCH. So with few rounds left, ding, but I am not making this up. You rather than just looking to prior judi- some activist groups opposing this have heard it here tonight. Apparently cial service. Well, Brett Kavanaugh fits nomination claim that Mr. Kavanaugh some believe Mr. Kavanaugh is just too this bill. is too young and too inexperienced. It political. His background as staff secretary really is time for these folks to get a His great, alleged sins were to work may prove to be particularly good judi- grip. Brett was nominated when he was for the Office of the Independent Coun- cial training. In a letter signed by 39 years of age. Today, as a result of

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00070 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE 9612 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 May 25, 2006 several years—actually 3—of delay and Frankly, I have always been skep- clearly because the ABA rating system obstruction, he is 41. All three of the tical of the ABA ratings. We have had generally operates under a principle of judges Brett clerked for were nomi- some great committee ratings and anonymity. It is virtually impossible nated before the age of 39. Justice Ken- some lousy ones. The lousy ones are to find out who said what about whom, nedy was 38, sitting on the Supreme where they allow politics to enter into and try to figure out whether it was Court today. Judges Kozinski and it. Many Democrats consider the rat- fair and objective or with an eye to- Stapleton were 35 when they were put ings of the American Bar Association ward evening up old scores. on the bench. their gold standard. Whenever the While the ABA rating system is Several of my colleagues on the Judi- Democrats have called something their murky in some respects, the bottom ciary Committee were elected in their gold standard, I have found it useful to line with respect to the ABA rating of early thirties. I don’t think they would scratch beneath the surface because Brett Kavanaugh is that he was rated allow others to charge that they were you will find that it is only goldplated. three times and found qualified by ev- too immature for the work. If James Nevertheless, the Judiciary Committee erybody who rated him each time— Madison could be the principal drafter looks to the evaluations of the Amer- even though some of them on the of the Constitution in his midthirties, I ican Bar Association because these present committee are very partisan. think a man in his early forties, with evaluations can often provide useful in- Remarkably, some are trying to dis- 16 years of legal practice, and tough formation. tort Mr. Kavanaugh’s positive ABA legal practice at that, is sufficiently I would like to commend the many rating and recommendation into a neg- mature to serve on the Federal bench. men and women of the ABA who volun- ative rating. As Tom Sawyer remarked I believe it is clear that most of the teer their time and energy to compile in Huckleberry Finn, you can’t pray a arguments marshaled against Mr. these ratings. These are volunteers. In lie. Kavanaugh are nothing more than a my experience, however, the system is This is an important nomination be- combination of hokum and downright not infallible. For example, Judges cause the DC Circuit Court of Appeals hogwash. So it is not a surprise that Richard Posner and Frank Easterbrook is such an important court. It reviews the American Bar Association has re- received mixed qualified/not qualified many matters relating to the actions peatedly found him qualified for this ratings when they were nominated by of powerful Federal agencies. Many of position. Let me explain what that President Reagan. This was a great and its decisions will never be reviewed by the Supreme Court. means. unpleasant surprise to those of us who After an extensive review, the Amer- It is important to have judges on the were confident they would do excellent ican Bar Association gives ratings to DC Circuit Court, like Brett work on the bench, and many were con- all of the President’s judicial nomi- Kavanaugh, who understand the proper vinced that those ratings were issued nees, and the judicial committee fac- role of judges and the judiciary. For for ideological reasons. Today, these tors in these ratings when evaluating too long, some Federal judges have two judges are among the most fre- judicial nominees. A rating of qualified been permitted to run roughshod over quently cited members of the Federal means this from the ABA: the traditions of the American people. judiciary, and their work is widely ad- The nominee meets the committee’s very My colleague from West Virginia, high standards with respect to integrity, mired all over the legal profession and Senator BYRD, recently introduced a professional competence, and judicial tem- all over the Federal courts. constitutional amendment that would perament, and that the committee believes Just recently, to show you how bad it reestablish the Constitution’s tradi- that the nominee will be able to perform sat- can get, Michael Wallace, a nominee to tional meaning on school prayer. In re- isfactorily all of the duties and responsibil- the Fifth Circuit, seems to have fallen cent years, some Federal judges have ities required by the high office of a Federal victim to an ideological review process taken such a radical view of the Con- judge. by the ABA. He graduated at the top of stitution’s establishment clause—one What qualified nominee has dem- his class at Harvard and went on to the that is not only at odds with the views onstrated more professional excel- Virginia Law School, where he distin- of the Founders but with the current lence? Brett Kavanaugh has been re- guished himself. He clerked not only views of a majority of Americans in viewed by the ABA on three separate for the Mississippi Supreme Court but nearly every State—that the Constitu- occasions. On each occasion, he has also for the late Chief Justice tion’s commitment to the free exercise been found qualified to serve in this po- Rehnquist—positions that the average of religion is now endangered. The re- sition. Twice he received a rating of lawyer can only dream about. Yet he sults of this corrupted constitutional majority well qualified, minority was given a unanimously not qualified interpretation were manifest most qualified. In his most recent rating, he rating. I am very curious about the prominently in the decision in Santa received a rating of majority qualified facts surrounding that rating, and I Fe Independent School v. Doe, where and minority well qualified. Much has suspect that part of that comes from the court determined that a voluntary been made of that, some calling it a the fact that he was chairman of one of student-led prayer before a high school downgrade. Come on. Over the last 3 the major legal entities in this country football game somehow violated the years, he received 42 individual ratings and they didn’t like the way he chaired Constitution. A voluntary school pray- by members of the American Bar Asso- it, even though he is a brilliant man. er. We should applaud Senator BYRD ciation, and all, with no exceptions in I also looked at every person on the for seeking to reestablish the Constitu- these 42 ratings, found him—all of rating committee for Brett Kavanaugh, tion’s traditional meaning. them found him qualified for this posi- and all rated him qualified, and most The meaning of our constitutional tion. rated him well qualified, and there and statutory laws has been twisted by Some will try to make hay out of his were a number who were partisan some judges on issue after issue. It most recent rating. Keep your focus on Democrats. There is no question about happened when the Supreme Court dis- the fact that everybody from the ABA it, as shown by their schedule of dona- covered rights to abortion and later to who ever evaluated Kavanaugh’s abil- tions. Maybe that had something to do burn the American flag and completely ity to serve on the Federal bench found with the downgrading that some on the overturned the statutes of almost him fully qualified to do the job. Some other side have talked about, even every State in the Union—certainly 49 of those doing the rating gave him the though he was found qualified by every of them. It can happen again today, as highest rating of well qualified. Nobody one of those 42 raters. liberal activist groups are urging from the ABA ever found him to be not I understand that some are sug- judges to promote same-sex marriage qualified to be a Federal judge. There gesting that past battles over par- in State and Federal courts. That is is good reason for that. They would not ticular public policy issues might have another illustration. dare do that with a person of his abil- something to do with Wallace’s rating Our judges must show a proper re- ity—although they did in one other and also with Kavanaugh’s rating. In spect for the Constitution. The Con- case recently. practice, it is sometimes hard to see stitution is not owned by the courts or

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00071 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE May 25, 2006 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 9613 controlled by judges. No less than Idaho, our neighboring State. He and threat of armed groups from Latin judges, Members of this body take an his wife are two of the best people I America. oath to support the Constitution. The know. I hope everybody will vote What the CIA does today, if the les- judiciary is a creature of the people unanimously in his favor tomorrow, or sons and experience it gathers from its and their Constitution, and the judici- whenever we have that vote. contributions are conveyed to its new ary should not be a forum for wholesale NOMINATION OF MICHAEL V. HAYDEN cadres, will play a key role in man- social changes initiated by special in- Finally, I thank the leadership for aging the conflicts of tomorrow. Let’s terest groups and opposed by ordinary expeditiously scheduling the confirma- hope none of these potential conflicts Americans. tion vote for General Michael V. Hay- become such, and I really don’t believe I have no doubt that Brett den of the U.S. Air Force to be Director we need to allow them to become such. Kavanaugh understands that funda- of the Central Intelligence Agency. In Reform of the intelligence commu- mental distinction between judging particular, I thank Intelligence Com- nity, in which the CIA has and should and lawmaking. Let me read for the mittee Chairman ROBERTS for orga- maintain a central position, is already record what was said by Neal Katyal, a nizing the open and closed hearings well underway, in part due to the cre- Georgetown University Law Center last week before our committee. The ation of the Office of the Director of professor, former attorney to Vice committee has a heavy work schedule, National Intelligence and also due to President Gore, and former Clinton ad- but nothing should be more important the oversight by the Senate Intel- ministration official. Let me read his than moving forward an important ligence Committee in insisting that expressed strong support for Mr. nomination like this one. the flaws in the intelligence process we Kavanaugh. He says: I also recognize the work of my other have revealed be redressed. I do not believe it appropriate to write to colleague, Senator WARNER, for expe- The DNI was created to coordinate you unless I feel strongly about a particular diting this nomination through his nominee. I feel strongly now: Brett the elements of the community, as well Kavanaugh should be confirmed to the committee. Air Force GEN Michael as to advance a reform agenda for the United States Court of Appeals for the DC Hayden has spent his life in the service community as a whole, and in each of Circuit. . . . Mr. Kavanaugh would be a wel- of our great country. I honor his dedi- its elements. come, terrific addition to the United States cation. He has honored us with his Reform, particularly in time of war, Court of Appeals. dedication. is never easy, and it is much more com- He didn’t allow his own partisan feel- In my opinion, he brought enormous plicated than creating a new bureau- ings to be interjected into this very im- distinction to the uniform he wears, cratic structure. It requires creating a portant decision of whom we should and his contributions have served the new culture that brings a common, support for the court. security of this Nation, particularly professional set of doctrines and values I am fully supportive of Brett since the attacks of 9/11. They have to all components of the community Kavanaugh’s nomination. I look for- made a profound difference in our abil- that builds on the extraordinary capa- ward to his long career on the bench. I ity to defend ourselves in a war unlike bilities that exist, while assembling urge my colleagues to give his nomina- any we have been forced to fight. new hybrid excellencies within an enti- tion the support it deserves. He was before us last year, and he is ty whose effectiveness must become well known to this body. When last we NOMINATION OF DIRK KEMPTHORNE greater than the sum of its parts. Mr. President, having spoken about saw him, he was to become the first General Hayden comported himself Mr. Kavanaugh, I wish to take a deputy of an organization formed by with great probity in his confirmation minute or two to speak about my the Congress, the Office of the Director hearing last week and rendered honest friend, Dirk Kempthorne, who will be of National Intelligence. In the legisla- and detailed answers to a great range voted upon tomorrow, as I understand tion that created this office, we tasked of questions in both the open hearing it, as well. it and its first officeholders with the Dirk Kempthorne served with us in enormous job of weaving together the and in the executive hearing. The gen- the Senate. I have been here for 30 disparate but impressive elements of eral’s lifetime experience has prepared years, and I have to say that he was the American intelligence community. him for taking this post, and I have the one of the finest people with whom I Our concept was to create a whole that highest regard for him. have ever served. He was decent, honor- would be greater than the sum of its I might add that one of the first deci- able, and hard-working. He was a per- parts, but we left the work in the hands sions that he will have made will be son who was honest. This is a man who of the first Director, Ambassador choosing Mr. Kappas to be his Deputy. became a great Governor. He did a Negroponte, and his deputy, the man I have been checking with many lead- great job while he was here. He was whom the President now nominated to ers in the CIA and elsewhere, and they only here a short time in the Senate, head the CIA. say Mr. Kappas is an outstanding per- but it was long enough for those of us As a longtime military officer, as one son who can help bring about an esprit who knew him to establish in our who spent most of his life as an intel- de corps that may be lacking. minds and in our experience the fact ligence consumer and a distinct part of Having said all this, I want to praise that he was and is a great human his life in both the human and tech- Director Goss. I served with Porter being. nical practices of intelligence, and now Goss when he was chairman of the In- He is nominated now for Secretary of as an architect of the new intelligence telligence Committee in the House. He the Interior, and I hope everybody in structure, General Hayden is an indi- is a wonderful man. He did a great job this body will vote for him tomorrow. vidual exceptionally prepared to take in helping to change some of the You cannot do better. The man is hon- on the responsibility of transforming mindsets at the CIA. He made a very est, decent, honorable, and will work the CIA. distinct imprint on the CIA for good, with all of us in the Senate, not just It is my hope and expectation that, and we will miss him as well. But it Republicans. And he is from the West. under the leadership of General Hay- should not be construed that General He understands the problems of Fed- den, the talents and capabilities of the Hayden is replacing him because he eral lands. He understands the prob- CIA not only make the difference in didn’t do the job. Porter said he wasn’t lems that confront the West. He under- winning this current war on global ter- going to stay there an excessively long stands the problems of energy. He un- rorism but remain central to facing all time. derstands the problems of the environ- of the challenges that loom before us I have to say that I believe that as ment. He understands the problems of once this particular conflict is won. great as Porter Goss is and was, Gen- national parks. You can go right down We have the very real possibility of eral Hayden will be a good replace- the list. conflicts with Iran and North Korea. ment. He is one of the best people who This man has tremendous experience We must face the fact that the day has ever served this country. He has and has been a wonderful Governor of may come when we are faced with the spent a lifetime in intelligence. He is

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00072 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE 9614 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 May 25, 2006 one of the few people who really under- nomination and the qualifications of When General Hayden takes the helm stands it all, and he is a straight shoot- this man. I think we accomplished at the Agency, he is going to find a er. He tells the truth; he tells it the that. We gave every Senator 20 minutes number of issues that will demand his way it is. He is an exceptionally de- and then another 20 minutes, and then attention. These are the same issues cent, honorable man, and his wife is a in a regular order, additional time. that we touched on and asked the gen- very honorable and good person as I might add, Senator WYDEN cer- eral to respond to during his confirma- well, as are his children. tainly took advantage of that. After tion hearings. So I hope all of us will consider vot- over 8 hours, the general, the chair- First, he must continue to improve ing for General Hayden. He is worth it. man, and other members of the com- the Agency’s ability to provide public We should vote for him. We should be mittee finally concluded. policymakers with high-quality ana- unanimous in the selection of a CIA Di- I think it was a good hearing. I think lytic products. rector, but even if we are not, I hope it was a good open hearing and a good The Senate Intelligence Committee’s the overwhelming number of Senators closed hearing. General Hayden cer- July 2004 report on intelligence related will vote for this great general, this tainly distinguished himself, and he to Iraq’s WMD programs did conclude great intelligence officer, this great showed the committee that he will be that the agencies of the intelligence person who we all know is honest, de- an outstanding choice for CIA Director. community did not explain to policy- cent, and capable. General Hayden entered active duty, makers the uncertainties behind their Mr. President, I yield the floor. in terms of background, with the U.S. Iraq WMD assessments. The PRESIDING OFFICER. The Sen- Air Force in 1969 after earning both his Analysts must also observe what I ator from Oregon. bachelor’s and master’s degree from refer to as the golden rule of intel- Mr. WYDEN. Mr. President, I have Duquesne University in his hometown ligence analysis, and we asked this spe- been waiting some time to talk about of Pittsburgh. cifically of the general: Tell me what He has had a lengthy and diverse ca- General Hayden. I note the presence of you know, tell me what you don’t reer. He has served as Commander of the distinguished chairman of our com- know, tell me what you think and, the Air Intelligence Agency and as Di- mittee, a committee on which I am most importantly, make sure that we rector of the Joint Command and Con- proud to serve. Given the fact we are understand the difference. trol Warfare Center. He has been as- starting a discussion of General Hay- It will be up to General Hayden to signed to senior staff positions at the den to head the Central Intelligence ensure that the CIA analysts adhere to Pentagon, at the headquarters of the Agency, I ask unanimous consent that this rule in the future. U.S. European Command, the National Chairman ROBERTS be allowed to speak Second, General Hayden must im- Security Council, and at the U.S. Em- at this time and that I be able to follow prove the CIA’s ability to collect what bassy in the People’s Republic of Bul- the chairman after he has completed we call humane intelligence. He can garia. General Hayden has also served his remarks. begin by ensuring that the Agency is as the Deputy Chief of Staff for the The PRESIDING OFFICER. Without more aggressive in its efforts to pene- United Nations Command and U.S. objection, it is so ordered. trate hard targets and in the use of Forces in Korea and, more impor- The Senator from Kansas. tantly, he has served most recently at very innovative collection platforms. Mr. ROBERTS. Mr. President, I Third, General Hayden, it seems to the highest levels of the intelligence thank the Senator from Oregon for al- community. From 1999 to 2005, General me, must improve information access— lowing me to go first as chairman of Hayden was Director of the National not information sharing, information the committee. Senator WYDEN is a Security Agency. access. There is a big difference. We on very valued member of the committee Finally, in April of last year, fol- the Intelligence Committee will look with very strong and independent lowing intelligence reform and a great to the general to ensure that appro- views but has always contributed in a deal of committee action in regards to priately cleared analysts community- bipartisan way on behalf of our na- the Intelligence Committee to deter- wide, with a need to know and the tional security. mine the accuracy of our 2002 NIE, Na- proper training have access to the Good evening, Mr. President. The tional Intelligence Estimate, and then CIA’s intelligence information in its hour is a little late. Actually, the night we went through intelligence reform, earliest form, while at the same time is young, but I am not. Nevertheless, I we had the 9/11 Commission, we had the protecting sensitive sources and meth- am going to try to be pertinent on a WMD Commission appointed by the ods. matter that is of real importance, and President, he was unanimously con- No doubt the general will face a num- that is, in fact, the nomination and firmed by this body to serve in his cur- ber of significant tasks, but based on hopefully what we expect to be the con- rent position as the Principal Deputy his record as a manager, his qualifica- firmation of GEN Michael V. Hayden to Director of National Intelligence. He tions, and his demonstrated leadership, serve as Director of the Central Intel- had that kind of background, had that I believe he is the right choice to lead ligence Agency. kind of expertise, had that kind of ex- the CIA. The Senate should expedi- As chairman of the Select Committee perience. tiously confirm him and let him get to on Intelligence, I rise tonight and asso- Given his experience at NSA and the work over at Langley. ciate myself with the remarks made by Office of the Director of Intelligence, I Mr. President, I strongly support the Senator HATCH, who is another very don’t think there is any question Gen- nominee, and I urge my colleagues to valued member of the committee, in eral Hayden is well known to the Intel- do the same. strong support of the nomination of ligence Committee. He has briefed us I yield the floor. General Hayden to be the next Director many times. I don’t know of anybody The PRESIDING OFFICER. The Sen- of the Central Intelligence Agency. in any hearing or briefing who has done ator from Oregon. He is eminently qualified for this po- any better. It is because of his quali- Mr. WYDEN. Mr. President, I am sition. He is a distinguished public fications and my experience working next in line, but I understand the ma- servant, as has been noted, who has with him that I support his nomina- jority leader and the distinguished given more than 35 years of service to tion. Senator from Nevada wish to have a his country. This nomination comes before the brief colloquy. I will defer to them and Senator HATCH referred to our hear- Senate at a very crucial time. We are a pick up when they are finished. ings both open and closed that we held nation fighting a war in which the in- The PRESIDING OFFICER. The ma- last week. It was my goal as chairman telligence community is on the front jority leader is recognized. to ensure that every Senator had lines. The CIA is an integral and very Mr. FRIST. Mr. President, I ask enough time to ask any question they vital part of the intelligence commu- unanimous consent that during this wanted or to express any concern they nity. We need strong leadership in evening’s session, it be in order for had on their mind in regards to this order to protect our national security. Senators to speak in executive session

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00073 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE May 25, 2006 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 9615 on the Kavanaugh nomination No. 632, rorism. Just this past Monday, the long past time to get it right at the or the Hayden nomination No. 672; pro- Washington Post newspaper reported CIA. vided further, that following disposi- that the White House: This will be the second time I have tion of the Kavanaugh nomination, the Seems eager for a battle over the nomina- voted on a Hayden nomination. The Senate proceed to a vote on the Hayden tion of Air Force GEN Michael V. Hayden as first time around, when he was nomi- nomination No. 672; further, if No. 672 CIA Director. nated to serve as Deputy National In- is confirmed, then the Senate imme- The article goes on to say: telligence Director, I voted for the diately proceed to a vote on the con- The White House hopes voters will see the General. In my view, General Hayden’s firmation of Calendar No. 693; I further warrantless surveillance program Hayden technical knowledge is not in question. ask unanimous consent that following started as head of the National Security He has always been personable in any those votes, Senator NELSON of Florida Agency as tough on terrorism rather than a discussions the two of us have had, and be recognized to speak up to 5 minutes, violation of civil liberties. he has always been extremely easy to and the Senate then proceed to a clo- I believe the American people deserve talk to. ture vote with respect to Executive better than the White House agenda of But since I last voted for him, infor- Calendar No. 630, Dirk Kempthorne to false choices. I believe one can fight mation has come to light that has be Secretary of the Interior; provided the terrorists ferociously and protect raised serious questions about whether further, that if cloture is invoked, Sen- the liberties of law-abiding Americans. the General is the right person to lead ator LANDRIEU be recognized for up to I believe the Senate should not be the CIA. There are serious questions 10 minutes, and the Senate then pro- bullied into thinking that security and about whether the General will con- ceed to an immediate vote on the con- liberty are mutually exclusive, and I tinue to be an administration cheer- firmation of the nomination of Dirk believe that millions of Americans leader; serious questions regarding his Kempthorne. share that view. From the days of Ben credibility; serious questions about his The PRESIDING OFFICER. Without Franklin, security and liberty in Amer- understanding of and respect for con- objection, it is so ordered. ica have been mutually reinforcing, stitutional checks and balances, and Mr. FRIST. Mr. President, what all and it is our job to maintain this sa- the important accountability in Gov- this means is that by this agreement, cred balance. ernment that they create. we will allow Senators to speak to- This is harder to do now because Here are the facts: Last December, night on either the Kavanaugh nomina- across America there is less trust and the New York Times reported that tion or the Hayden nomination. We there is more fear. The lack of trust since 9/11, the National Security Agen- will convene tomorrow morning at 8:45. has been fed by the Bush administra- cy, which General Hayden was in It is our hope that we will be able to tion telling the public that they have charge of at the time, initiated a vote on the confirmation of the struck the right balance between secu- warrantless wiretapping program. Gen- Kavanaugh nomination after con- rity and liberty, but then we have had eral Hayden, reported once more in the vening. We will then proceed to the one media report after another that media to be the architect of the pro- votes on the Hayden nomination and contradicts that claim. gram, became the main public spokes- the cloture vote on the Kempthorne When the media reports come out, person in its defense. At a White House nomination. Senators, therefore, can the administration says it can’t say press conference in December of 2005 expect three early rollcall votes during anything because responding would and at subsequent events, including a Friday’s session. help the terrorists, but then the admin- speech at the National Press Club this The PRESIDING OFFICER. The Sen- istration responds in multiple forums past January, the General vigorously ator from Oregon. to get out the small shards of informa- defended the administration’s warrant- Mr. WYDEN. Mr. President, before he tion that they believe is helpful to less wiretapping program. leaves the Chamber, I simply wish to their point of view. Even before the war in Iraq, I was say to the distinguished chairman of The increased fear among our people concerned about politicizing intel- our committee that I thank him for his is nourished by the fact that there are ligence. Since then, I think they are kind and gracious introductory re- no independent checks on the Govern- only additional grounds for concern. marks to me. As he knows, sometimes ment’s conduct, as there have been for At his confirmation hearing, General we agree, as we did in the effort to more than 200 years in America. Law- Hayden said he wants to get the CIA make public the CIA inspector gen- abiding Americans have no reason to out of the news. To me, this was a curi- eral’s report on 9/11. I appreciated be confident that anyone is independ- ous statement, given all the time he working with the distinguished chair- ently verifying reports about the ad- has spent on the bully pulpit defending man on that matter. Sometimes we ministration’s reported surveillance of the President’s warrantless wire- disagree, as we do tonight with respect their personal phone calls, e-mails, and tapping program. Inevitably, any polit- to the nomination of General Hayden, Internet use. ical appointee will have an allegiance but Chairman ROBERTS has always All of this mistrust and fear has to the White House that appointed him been courteous and fair in our com- translated into a lack of credibility. or her. But when it comes to positions mittee and essentially to every mem- The administration has given us, by in the intelligence community, I be- ber. I thank him for that as he leaves words and deeds, a national security lieve that this allegiance, regardless of the Chamber tonight. Clearly, Chair- routine: Do one thing, say another. whether a Republican or a Democrat is man ROBERTS and Senator HATCH, two An absolute prerequisite to running in the White House, should go only so distinguished members of our Intel- intelligence programs successfully is far. ligence Committee, want no part of it, credibility. Despite the scores of tal- It is not good for our great country but there are those who want to turn ented, dedicated, patriotic people to have a CIA Director who jumps into the Hayden nomination into a ref- working at Langley today, the failings every political debate that comes up erendum on who is toughest on ter- of the Agency’s recent leadership have here in Washington, D.C. It is not good rorism, Republicans or Democrats. left the Agency’s credibility dimin- for our great country to have a CIA Di- These people do America a disservice. I ished. rector who willingly serves as an ad- know of no Senator who sympathizes The Agency is now looking at the ministration cheerleader. It is not good with a terrorist. I know of no Senator prospect of its fourth Director since for our great country to have a CIA Di- who wishes to coddle al-Qaida. I know 9/11. The last Director brought par- rector who gets trotted out again and of no Senator who is anything other tisanship and lost talented professional again and again to publicly argue for than a patriot. staff as a result. The Agency’s No. 3 the President’s controversial decisions. Unfortunately, this nomination is man, who resigned this month, is being Politicizing the position renders the being used to divide the Senate and the investigated by the FBI for links to the CIA Director less effective and less American people on the issue of ter- bribing of a former Congressman. It is credible.

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00074 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE 9616 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 May 25, 2006 Inevitably, Americans will begin to rant in 2001. A year later, in 2002, the So far, so good. But then the general see the Director as an administration General testified before Congress’s added: defender rather than a conveyor of the joint 9/11 inquiry that he had no au- As you understand, there will continue to unvarnished truth. And in our next CIA thority to listen to Americans’ phone be very sensitive intelligence activities and Director, we need more truth and we calls in the United States without first operations such as covert actions that, con- need less varnish. obtaining enough evidence for a war- sistent with legislative history and long- standing practice, is briefed only to leader- My second concern rises out of the rant. As conceded by the General him- ship of the committee. On those rare occa- first. Not only has General Hayden self, at the time he made these state- sions, communications with those Members raised questions through his words and ments to Congress, the NSA was in fact will be exhaustive. actions about politicizing intelligence, doing the very thing he led us to be- So once again the bottom line, Gen- but, unfortunately, even when he says lieve it could not: engaging in eral Hayden’s response is ambiguous. If something, you cannot trust, based on warrantless wiretapping on persons confirmed he intends to sometimes in- his words, that what he says is cred- here in our country. form Congress and at other times only ible. When I asked the General to explain inform certain Members, without ex- At the National Press Club speech he these contradictions at his confirma- plaining how this will be decided or gave in January defending the NSA tion hearing, I didn’t get much of a re- what his role in the decision will be. warrantless wiretapping program, the sponse. At best, I got a nonanswer that Read his response from Monday and General repeatedly stated that the pro- reflected the General’s skill in verbal you still can’t determine when he will gram was limited to international to gymnastics, but not the type of candor brief members of the Senate Intel- domestic, or domestic to international that America needs in its next CIA Di- ligence Committee on the activities of calls. For instance, he said: rector. the CIA, and when they will be learn- There is always a balancing between secu- There is another example that I want ing about them by reading the morning rity and liberty. We understand that this is to talk briefly about, Mr. President. newspaper. a more—I’ll use the word ‘‘aggressive’’—pro- When General Hayden came before the As I stated, the CIA is looking at the gram than would be traditionally available Senate Intelligence Committee last prospect of its fourth Director in this under FISA. It is also less intrusive. It deals year in conjunction with his nomina- dangerous post-9/11 world. Serious re- only with international calls. tion to serve as a deputy to Ambas- form is needed to get the Central Intel- Later, General Hayden said: sador Negroponte, I asked him about ligence Agency headed in the right di- That is why I mentioned earlier that the the NSA Trailblazer Program. This had rection. To make this happen, America program is less intrusive. It deals only with been one of the General’s signature needs a CIA Director who says what he international calls. NSA management initiatives, one that means and means what he says. Unfor- He explained: had been again reported as one de- tunately, time and time again, General The intrusion into privacy—the intrusion signed to modernize the Agency’s infor- Hayden has demonstrated a propensity into privacy is significantly less. It is only mation technology infrastructure. In for neither. His words and acts on one international calls. response to my questions—I want to be occasion cannot be reconciled with He added: specific about this because there has words and acts on another. He is a man We are talking about here communications been a lot of discussion about it— with a reputation for taking com- we have every reason to believe are al-Qaida among a variety of other comments the plicated questions and giving simple communications, one end of which is in the General made about the Trailblazer answers. United States. Program, at page 44 of the transcript of Unfortunately and repeatedly, when I At the conclusion of the Press Club that 2005 hearing that was held to ap- have asked him simple questions, he address, he was asked by a reporter: prove General Hayden to be the deputy has given me complicated answers, or Can you assure us that all of these inter- to Mr. Negroponte, the General said nothing at all. cepts had an international component, and with respect to the Trailblazer Pro- Americans want to believe that their that at no time were any of the intercepts gram: Government is doing everything it can purely domestic? A personal view, now—looking back—we to fight terrorism ferociously and to The General said: overachieved. protect the legal rights and civil lib- The authorization given to NSA by the Now, I cannot go into detail here on erties of law-abiding Americans. But President requires that one end of the com- the Senate floor because of the classi- right now millions of Americans are munications has to be outside the United fied nature of the information in- having trouble locating the checks and States. I can assure you by the physics of the volved, but suffice it to say today the balances on Executive power. They intercept, by how we actually conduct our don’t know what the truth is and they activities, that one end of these communica- press is reporting that the program is belly-up and the press is reporting that are very concerned about what is next. tions are always outside the United States of I believe it is time for the Senate to America. it is a billion dollars worth of junk software. break that cycle. I remain concerned With those final words, the speech that what has happened at the Na- and the press conference concluded. I take my constitutional responsi- bility to give advice and consent to the tional Security Agency under General But then, just weeks ago, Americans Hayden will be replicated at the Cen- read in the USA Today newspaper that President’s nominations very seri- ously. Last Monday, after the hearing, tral Intelligence Agency. For that rea- the NSA, according to the paper, was son, I oppose the nomination. also gathering basic information con- I did something that I do not custom- arily do. I reached out to the general I yield the floor. cerning hundreds of millions of inno- The PRESIDING OFFICER (Mr. once more in an effort to try to find cent Americans’ domestic phone calls. DEMINT). The Senator from Illinois. I cannot confirm or deny what was in grounds for supporting his nomination. Mr. DURBIN. Mr. President, let me that article, but I can tell you when I In my office I asked that he keep the commend my colleague from the State opened the paper that morning and Senate Intelligence Committee fully of Oregon, a member of the Senate In- read the article, it raised serious con- and currently informed of all intel- telligence Committee, a committee on cerns for me about whether the Gen- ligence activities other than covert ac- which I served for 4 years. Senator eral had been misleading. tions. WYDEN’s statement is consistent with Unfortunately, this is not a single in- In writing, the general responded: his service on that committee. It shows cident in an otherwise perfect record. Regarding communications with Congress that he takes that assignment very se- There is a pattern of saying one thing on critical issues, if confirmed as Director of the Central Intelligence Agency I intend to riously, he does his homework on a and doing another when it comes to the have an open and complete dialog with the very challenging committee assign- General. For instance, General Hayden full membership of the committee, as indi- ment, and that he has given great said he received legal authority to tap cated by 501(C) 502 and 503 of the National thought and reflection to this impor- Americans’ phone calls without a war- Security Act as amended. tant decision about whether General

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The statements made by the Senate Intelligence Committee, but I America from terrorism and from en- President in his State of the Union Ad- have become convinced, as well, that emies who would inflict great casual- dress that somehow or another Saddam General Hayden, despite his many ties and pain on us. Hussein was obtaining yellowcake or great attributes and good qualifica- Then, a few months later, came a the makings of nuclear weapons from tions, is not the right person for this new challenge, a challenge we had not Africa turned out to be false, and the appointment. anticipated on 9/11. The President and President had to concede that point. When we reflect on America since this administration told us that the Then, in light of it, we decided it was 9/11, there are many things that are real battle was against Saddam Hus- time to take a look. The Intelligence very clear. First, this country was sein in Iraq. I remember sitting in that Committee on which I served decided stricken in a way that it has never Senate Intelligence Committee just to ask two questions: First, did our in- been stricken since the War of 1812, days before the vote on the Senate telligence agencies fail us? Did they when the British invaded the United floor about the invasion of Iraq and come up with bad information when States, invaded this Capitol building, turning to a staffer who said to me: they should have given us good infor- sacked and burned it. We found 3,000 in- Senator, something is unusual here. mation and good advice? Were we, in nocent Americans destroyed on Amer- This is the first time we have ever con- fact, misled into this war by that infor- ican soil—a gut-wrenching experience sidered any kind of effort of this mag- mation? And second: Did any member that we will never forget. It changed nitude without asking the intelligence of this administration misuse that in- America and it called on the President, agencies of the United States to tell us telligence information, use it in a fash- on the leadership in Congress, to sum- what they know so we can gather infor- ion that did mislead or deceive the mon the courage to respond. mation from every source and make a American people? Those were two spe- In the days that followed that hor- conscious and sensible judgment about cific assignments accepted by the Sen- rible event, there were some inspiring what we should do. It is called a Na- ate Intelligence Committee. I served on images. We can recall the videotape of tional Intelligence Estimate, an NIE. the committee while we were in the firefighters ascending the stairway So at my staffer’s prompting, I re- process of meeting that obligation. We into the World Trade Center, to certain quested a National Intelligence Esti- came to learn the first assignment was death, braving what they knew was a mate, as did Senator GRAHAM of Flor- exactly right. The Senate Intelligence terrible disaster to try to save inno- ida. It turned out it was routine to Committee concluded, as did the cent lives. produce them, but no one had taken House, that our intelligence agencies We can recall the President of the the time to do that before the invasion had failed us. Our first line of defense United States going to the rubble of of Iraq. had failed us, giving us information the World Trade Center in New York In very short order, just a few weeks, that was totally flawed, information and in a few brief moments rallying a National Intelligence Estimate was which was not reliable, information America and the world behind our submitted to the Intelligence Com- which never should have resulted in cause. mittee. There were claims in that NIE the invasion of Iraq. We can remember Members of Con- that turned out to be false, but at the The administration had argued that gress standing just a few feet away time we didn’t know it. There were we have a new foreign policy, a pre- from this Senate Chamber, Members of claims about weapons of mass destruc- emptive foreign policy. We can’t wait Congress who hours before had been tion that threatened the safety of the to be attacked, the President said, we locked in partisan combat, who put it United States of America. There were have to attack first if there is a threat. all aside after 9/11, sang ‘‘God Bless claims of capacities and capabilities by It turns out the information used to America,’’ and said: What can we do to Saddam Hussein in Iraq that were measure that threat was wrong, in the save America? greatly exaggerated. There were claims invasion of Iraq. After that, the response around the that Saddam Hussein and the Iraqis Mr. President, 23 of us in the Senate world; this great, giant, the United were producing nuclear weapons which voted against the use of force in Iraq, States of America, having suffered this could be used against the United 22 Democrats and 1 Republican. We be- terrible loss, was able to count its States. Leaders in the White House lieved then, most of us, that the infor- friends and allies very quickly. So were telling us they were fearful of mation being given to the American many nations stepped forward and said: mushroom clouds that could result in a people was misleading, the intelligence We are with you. We will help you. We nuclear holocaust. All of this was given information was not accurate. understand that you must bury your to the American people and the Intel- It turns out that our estimate was dead and grieve your losses, but then ligence Committee. true. It turns out that our invasion of you must defend yourself and your Na- The sad reality was when we sat in Iraq was based on false pretenses and tion for its future, and we will be there. the Intelligence Committee behind on intelligence information that was It was an amazing outpouring of sup- closed doors, we knew that the Amer- fatally flawed. port for our great country. It was a ican people were not getting the full The second investigation to be under- wonderful, encouraging moment. story, that in fact even within this ad- taken by the Senate Intelligence Com- The President came to this Congress ministration there was a dispute as to mittee, promised more than 2 years and gave a speech shortly after 9/11 the truth of these statements, state- ago, was that we would look into the that I will say was one of the best I had ments given every day and every night misuse of this intelligence by members ever heard, summoning us to gather to- by the leaders of this administration. of this administration. That is a tough gether as a nation to defend ourselves We know what happened. We invaded thing to ask a Senate Intelligence against this threat of terrorism. Then, Iraq. Saddam Hussein, in a matter of Committee, led by a Republican chair- of course, we considered the PATRIOT weeks, was gone as their dictator, and man, to do, because it is likely to bring Act. We changed the laws of America we came to learn that all of the claims some embarrassment to the adminis- so our Government would have new about weapons of mass destruction tration of the President. tools to pursue the terrorists. It passed were false, totally false. The American Unfortunately, as I stand here today, with an overwhelming bipartisan vote, people had been misled. the promise of almost 2 years ago to very quickly, and we started to roll up There is nothing worse in a democ- complete this second phase has not our sleeves and take on this task. racy than to mislead the people into been completed. We still don’t know if

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00076 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE 9618 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 May 25, 2006 members of this administration mis- Several weeks ago, USA Today dis- We created the FISA court to issue used the intelligence. closed more information indicating an warrants for such surveillance. If the But there are things that we do invasion of privacy where the tele- administration believes the FISA court know, things that are very clear. It is phone records of innocent American is not sufficient in this age of ter- clear that in the lead-up to the inva- people are being gathered by the same rorism and high technology, the ad- sion of Iraq and afterwards there was a agency, the National Security Agency, ministration should come to Congress separate intelligence agency created in in an effort I cannot describe in detail and ask us to change the laws, as we the Department of Defense by a man because I have not been briefed, but in did with the PATRIOT Act. named Douglas Feith that became vir- an effort to find some intelligence in- In addition to warrantless wiretaps, tually a renegade, independent oper- formation. General Hayden reportedly oversaw a ation. It was not working in concert Now comes the nomination of Gen- program that assembled an enormous with other agencies of our Government eral Hayden to become Director of the database, the largest in the history of gathering intelligence. That is incon- Central Intelligence Agency after all of the world, of literally millions of calls sistent with what we hoped to be a co- this experience. made by Americans to Americans in ordinated intelligence effort in our Let me say at the outset that I re- the United States. Tens of millions of Government. But Secretary Rumsfeld, spect General Hayden. He is a man who Americans appeared to have been in- who enjoyed the confidence of the has served his country with distinction cluded in this database. And most of us President, was able to initiate this in- for over three decades. Many say—and in Congress learned about it on the telligence operation in defiance of I cannot disagree—that he is one of front page of USA Today. many other intelligence agencies. We brightest minds when it comes to intel- I am disturbed about the role that know that for a fact. ligence, and the agencies that he has General Hayden played in overseeing Then we came to learn several other worked with in the past are clear evi- these practices. It is certainly critical things. We learned that after 9/11, the dence of that. that the Director of the CIA protect Bush administration, for the first time I honor and appreciate his service. I our security but also not endanger our in modern history, decided that they know he is a man of considerable liberties. needed to rewrite the standards of in- knowledge and formidable intellect. He Second, I am concerned about the terrogation for detainees. For decades is well versed in the questions of intel- way the CIA will treat detainees. When we had held to the standard of the Ge- ligence, particularly in the most tech- the McCain amendment was pending, it neva code, which basically said that we nical areas. However, I have three pri- was opposed openly by Vice President would not engage in torture, cruel, in- mary reservations about this nomina- RICHARD CHENEY who said that he be- human, or degrading treatment. But tion. lieved intelligence agents—those work- ing for the CIA—should not be bound the infamous Bybee memo, exchanged First, I am concerned about the role by the provisions of the McCain amend- at the time with Alberto Gonzales, of General Hayden in the NSA’s ment. We disagreed. We passed, on the then-White House Counsel, and many warrantless wiretapping of American floor of the Senate, as I said earlier, by others, was at least a suggestion that citizens. a vote of 90–9, clear standards barring we could breach those rules and change Second, I am concerned about how torture, cruel, inhuman and degrading those rules. That conversation, in the CIA will treat detainees in their treatment. I believe that we should closed sections of the White House, custody and how they will implement never engage in that treatment—and took place without the knowledge of the clear prohibition on torture and that is what the McCain amendment the American people. But then the ter- cruel, inhuman, or degrading treat- requires. Senator MCCAIN said it well ment standard that was passed last rible disclosure at Abu Ghraib torture, last year, and I quote him. He said, year in the McCain amendment, which inhuman treatment perpetrated, sadly, ‘‘It’s not about who they are. It’s about I cosponsored, by a vote of 90–9 on the by those who were in the service of the who we are.’’ United States. floor of the U.S. Senate. I believe we should have one clear, It was clear then that the issue of I am also concerned about the issue uniform interrogation standard that torture was one that was front and cen- of the General’s independence, not applies to all United States personnel— ter for us as a Nation to face during merely his independence as an indi- those in uniform and those in a civilian this time of terror. So with this tor- vidual but his ability to stand up to capacity. ture issue before us, we also had other the Department of Defense and the I was disturbed when General Hayden things to consider. likes of Secretary Rumsfeld, and sepa- was meeting with me and did not ap- Not long thereafter came the news rate defense intelligence operations pear to share that view. He was eva- that this administration was engaging under Douglas Feith. I raised these sive. While he said that we must estab- in activities which clearly were beyond concerns when I met with General Hay- lish clear guidelines, he indicated he the law—the so-called warrantless den, and they we were echoed by many might prefer to have one standard for wiretaps of Americans. You see, under members of the committee during the the military and another standard for the laws of the United States and hearings. intelligence personnel. He said he under our Constitution, one cannot in- First, I would like to address the wanted to study the question, but that vade through a wiretap the privacy of issue of surveillance of American citi- two sets of rules might be appropriate. another without court approval. No ex- zens. I disagree. There is only one stand- ecutive branch office, Department of As Director of the NSA, General Hay- ard. It should be clear and unequivocal. Justice, or FBI can engage in a wiretap den presided over a program that car- Finally, there is the question of inde- without the approval of a court order ried out warrantless wiretaps on inno- pendence. The Pentagon controls an es- or, when it comes to questions of inter- cent Americans. Those wiretaps did not timated 80 percent of the intelligence national security, foreign intelligence have judicial approval, nor did they budget. That fact alone makes it crit- gathering, through the FISA court, a have meaningful congressional over- ical for the CIA to vigorously defend special court created for that purpose. sight. Precious few Members of Con- its independence over the Department Those are the two options. gress were briefed about the wiretaps, of Defense. We need an independent But this administration said that it and they were sworn to secrecy about voice at the CIA. was above the law; that it didn’t have this procedure. I note that last year’s intelligence to answer to those courts; that it General Hayden has stated that the authorization bill, as passed by the didn’t have to work through those Attorney General and other legal au- Senate Intelligence Committee, stated courts; it could engage in warrantless thorities within the administration that the Director of the CIA should be wiretaps through the National Secu- had concluded that such actions were appointed from ‘‘civilian life.’’ rity Agency, an agency administered proper and legal. In fact, I have seen no That bill in the end never reached by General Hayden. evidence of that whatsoever. the floor of the Senate for a vote, but

VerDate Sep 11 2014 15:00 Mar 23, 2017 Jkt 000000 PO 00000 Frm 00077 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BOOK 7\DAT FILES\BR25MY06.DAT BR25MY06 ejoyner on DSK30MW082PROD with CONG-REC-ONLINE May 25, 2006 CONGRESSIONAL RECORD—SENATE, Vol. 152, Pt. 7 9619 we should nevertheless consider that Osama bin Laden is still at large; al- in conference with the House, and will recommendation seriously. Qaida has splintered in different and be sent to the President’s desk for sig- General Hayden assured me that he dangerous directions, and North Korea nature. stood up to Secretary Rumsfeld in the is expanding its nuclear arsenal. Mr. President, I was also necessarily FISA operation when he disagreed with All these issues make it extremely absent during the cloture vote on the him, and that he will continue to do so. important that our intelligence com- nomination of Brett Kavanaugh to be a Colleagues on the Intelligence and munity conduct independent, accurate, U.S. Circuit Judge for the DC Circuit. I Armed Services Committee, whom I trustworthy analysis. And it is critical want the RECORD to reflect that had I deeply respect, including Senator that we operate within the bounds of been here, I would have voted in favor LEVIN of Michigan, have concluded our own Constitution and our laws. of invoking cloture.∑ that General Hayden will assert that We should not have one standard for f independence and stand up to the Pen- the military and another for the intel- HONORING OUR ARMED FORCES tagon. I certainly hope he does. ligence community, a position once ar- Within the Bush administration, the gued as high in this administration as LIEUTENANT ROBERT KENNETH THOMPSON question of the independence of intel- Vice President CHENEY. We should not STAFF SERGEANT GREGORY WAGNER ligence agencies is particularly impor- engage in torture or hold detainees in- Mr. THUNE. Mr. President, in the tant. That is because the intelligence definitely without of charging them spirit of Memorial Day, which is fast process has been abused. with a crime. approaching, I rise today to pay tribute This administration clearly politi- Just 2 weeks ago, the President of to two sons of South Dakota who dedi- cized and distorted the use of intel- the United States said it would soon be cated and ultimately sacrificed their ligence to promote the false premise time to close Guantanamo. That cer- lives for their country. These men died that Saddam Hussein was tied to the 9/ tainly is something that many of us be- on battlefields far from home, to pro- 11 attacks and that Iraq was developing lieve is in order. Those who are dan- tect us and to advance the cause of weapons of mass destruction, including gerous to the United States should be freedom. LT Robert Kenneth Thomp- nuclear weapons. We know now that charged and imprisoned. Those who son and SSG Gregory Wagner both died was false. have no value to us from an intel- in service to this great nation at very In 2002, the administration under- ligence viewpoint should be released, if different times in America’s history. mined the independence and credibility they are not a danger to the United They fought in conflicts many years of the intelligence process by creating States. apart, but both understood the impor- the Office of Special Plans at the Pen- We cannot ignore the fundamental tance of preserving and promoting free- tagon under the leadership of Under privacy rights of American citizens and dom. On this Memorial Day, it is ap- Secretary of Defense Douglas Feith. the moral values and rights reflected in propriate to remember not only those Several of us addressed this issue as the treatment of those detainees. who have fallen in the present conflict part of the Intelligence Committee’s General Hayden will be taking charge in Iraq, but those who have fallen in 2004 Report on the Prewar Intelligence of the CIA, by many reports at a time previous conflicts as well. Assessments on Iraq. And Senator when the Agency is demoralized. He LT Robert Kenneth Thompson of LEVIN joined me in this. will have to oversee critical reforms. Flandreau, SD, was inducted into the We wrote: Last December, members of the 9/11 United States Army on December 27, The Intelligence Community’s findings did Commission handed out report cards on 1948. At the time of his death, LT not support the link between Iraq and the 9/ reform for the Bush administration. Thompson was on assignment fighting 11 plot [that] administration policy officials They gave the CIA an ‘‘incomplete’’ in in the Korean conflict. He was killed in wanted [in order] to help galvanize support terms of adapting to its new mission. action on February 12, 1951 north of for military action in Iraq. As a result, offi- cials under the direction of Under Secretary I hope General Hayden can change Hoengsong, Korea while serving as a Feith took upon themselves to push for a that. I hope that he will be the inde- member of Battery A, 503rd Field Artil- change in the intelligence analysis so that it pendent voice that we need. lery. bolstered administration policy statements I yield the floor. Lieutenant Thompson had served in and goals. f the United States Army for just over 2 I asked General Hayden about Doug- (At the request of Mr. REID, the fol- years before his life was cut tragically las Feith and the Office of Special lowing statement was ordered to be short. LT Thompson dedicated his life Plans. To his credit, he was critical of printed in the RECORD.) to his country. He selflessly answered that operation. He said it was not le- when duty called, even though it VOTE EXPLANATION gitimate ‘‘alternative analysis,’’ and he meant leaving his family behind. LT described the troubling pattern in ∑ Mr. SALAZAR. Mr. President, I was Thompson’s patriotism and courage which preconceptions shaped the necessarily absent during the vote on will not be forgotten. search for intelligence. final passage of S. 2611, the comprehen- Lieutenant Thompson is survived by General Hayden reiterated his dis- sive immigration reform bill, because I his wife Doris and daughter Vicki. comfort with the Feith approach in was traveling to Colorado to attend my Today we remember his selfless dedica- testifying before the Intelligence Com- youngest daughter’s high school grad- tion and service to all Americans, and mittee. I hope that when he is con- uation. I want the RECORD to reflect his sacrifice will always have meaning firmed, as I am certain he will be, that that had I been here, I would have to all future generations of Americans, General Hayden will go even further in voted in favor of the bill. The legisla- as long as our Republic exists. opposing efforts to subvert the intel- tion that passed the Senate will help SSG Gregory Wagner of Alexandria, ligence process. this country to reestablish meaningful SD, was a full-time heavy mobile Today, we face even graver dangers control of our borders. It will promote equipment repairer for the National than we did in 2003 when Under Sec- real law and order at ports of entry and Guard in Mitchell’s Battery A, 147th retary Feith was operating his own in- in the interior, improving employer Field Artillery and was deployed with telligence shop. verification mechanisms and estab- the Yankton, SD unit. As a member of The war in Iraq has claimed over lishing a tough but fair path to citizen- the Battery C, 1st Battalion, 147th 2,400 American lives, and there is no ship for qualified immigrants. It re- Field Artillery, he was chosen as the end in sight. jects the idea that America can be the Task Force 519th Military Police Bat- Iran has pursued three different country we wish to be while tolerating talion ‘‘Hero of the Week’’, having dis- methods of enriching uranium and has a permanent underclass, a shadow soci- tinguished himself with his remarkable experimented with separating pluto- ety, within our midst. It is my hope achievements. His mission in Iraq in- nium, moving closer to the possible de- that the most important elements of volved training and educating the Iraqi velopment of nuclear weapons. this comprehensive bill will be retained police force.

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