S. HRG. 108–878 CONFORMATION HEARING ON THE NOMINATION OF BRETT M. KAVANAUGH TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIR- CUIT HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED EIGHTH CONGRESS SECOND SESSION APRIL 27, 2004 Serial No. J–108–69 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 24–853 PDF WASHINGTON : 2005 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC COMMITTEE ON THE JUDICIARY ORRIN G. HATCH, Utah, Chairman CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas JOHN EDWARDS, North Carolina BRUCE ARTIM, Chief Counsel and Staff Director BRUCE A. COHEN, Democratic Chief Counsel and Staff Director (II) VerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared state- ment ...................................................................................................................... 146 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1 prepared statement .......................................................................................... 148 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 11 prepared statement .......................................................................................... 151 Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 7 prepared statement .......................................................................................... 155 PRESENTER Cornyn, Hon. John, a U.S. Senator from the State of Texas presenting Brett M. Kavanaugh, Nominee to be Ciruit Judge for the District of Columbia Circuit ................................................................................................................... 4 STATEMENT OF THE NOMINEE Kavanaugh, Brett M., Nominee to be Circuit Judge for the District of Colum- bia Circuit ............................................................................................................. 13 Questionnaire .................................................................................................... 14 QUESTIONS AND ANSWERS Responses of Brett M. Kavanaugh to questions submitted by Senators Leahy, Kennedy, Feingold, Schumer and Durbin .......................................................... 93 SUBMISSION FOR THE RECORD National Association for the Advancement of Colored People, Hilary O. Shelton, Director, Washington, D.C., letter ....................................................... 152 (III) VerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC VerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC NOMINATION OF BRETT M. KAVANAUGH, OF THE DISTRICT OF COLUMBIA, TO BE CIR- CUIT JUDGE FOR THE DISTRICT OF COLUM- BIA CIRCUIT TUESDAY, APRIL 27, 2004 UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 10:10 a.m., in room SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, Chairman of the Committee, presiding. Present: Senators Hatch, Kyl, Sessions, Cornyn, Leahy, Kennedy, Feinstein, Schumer, and Durbin. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Chairman HATCH. Good morning. I am pleased to welcome to the Committee today members, guests, and our nominee, Mr. Brett Kavanaugh, who has been nominated by President Bush to be United States Circuit Judge for the District of Columbia Circuit. We also welcome members of his family. I would note his father, Mr. Ed Kavanaugh, a long-time president of CTFA. We all know Ed. We know what a fine person he is and what a great individual he is, and we all respect him. So we want to welcome you, Judge, Ed’s wife, the mother of Brett, who is a renowned judge, and we appreciate having both of you here. Before we turn to the nomination, I want to tell members of the Committee that I remain hopeful that we can continue to complete the work of the Committee on both legislation and nominees. I was disappointed that we were not able to accomplish more at the markup last week. Earlier this month, we did report five district judges and two circuit judges. So I do appreciate the Committee’s efforts in that regard. Now, I remain concerned about the executive calendar and floor action. I remain hopeful that an accommodation on nominees can be reached and that floor action can be scheduled for those judges. The Senate has confirmed only four judges this year—all district court judges. By comparison, in the last Presidential election of 2000, with a Democratic President and a Republican Senate, seven judges had been confirmed by this point in the year, including five circuit court judges. Furthermore, we are way behind the pace of that election year, which saw a total of 39 judges confirmed. And (1) VerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC 2 we remain well behind President Clinton’s first-term confirmation total of 203. So while we have made some progress in reporting nominees to the full Senate, the work of confirming judges remains. We pres- ently have 29 judges on the executive calendar. Five circuit court nominees remain from last year on the executive calendar in addi- tion to the six reported this year. Eighteen district nominees are available for Senate confirmation, including two holdovers from the last session. But we are making progress, and I thank all members for their support and ask for their continued cooperation. Now, today we will consider the nomination of Mr. Brett M. Kavanaugh. He is an outstanding nominee who has been nomi- nated to the Circuit Court of Appeals for the District of Columbia. He comes to us with a sterling resume and a record of distin- guished public service. Mr. Kavanaugh currently serves as Assist- ant to the President of the United States and Staff Secretary, hav- ing been appointed to the position by President George W. Bush in 2003. He previously served in the Office of Counsel to the Presi- dent as an Associate Counsel and a Senior Associate Counsel. After graduating from Yale Law School in 1990, Mr. Kavanaugh served as a law clerk for three appellate judges, so he has exten- sive judicial experience as well: Justice Anthony M. Kennedy of the Supreme Court, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, and Judge Walter K. Stapleton of the United States Circuit Court of Appeals for the Third Circuit. He served for 1 year as an attorney in the Office of the Solicitor General, where he prepared briefs and oral arguments. Mr. Kavanaugh served in the Office of Independent Counsel under Judge Starr, where he conducted the office’s investigation into the death of former Deputy White House Counsel Vincent W. Foster, Jr. He also was responsible for briefs and arguments re- garding privilege and other legal matters that arose during inves- tigations conducted by the office. Mr. Kavanaugh was part of the team that prepared the 1998 report to Congress regarding possible grounds for impeachment of the President of the United States. In addition to this extensive public service, Mr. Kavanaugh was also in private practice. As a partner at the distinguished firm of Kirkland and Ellis, one of the great firms in this country, he worked primarily on appellate and pre-trial briefs in commercial and constitutional litigation. Mr. Kavanaugh, as I have said, received his law degree from Yale Law School, where he was notes editor for the Yale Law Jour- nal. He is a cum laude graduate of Yale College, where he received his B.A. degree. The American Bar Association has rated Mr. Kavanaugh as ‘‘Well Qualified,’’ its highest rating. Let me remind everyone what that rating means. According to guidelines published by the Amer- ican Bar Association Standing Committee on Federal Judiciary, ‘‘To merit a rating of ‘Well Qualified,’ the nominee must be at the top of the legal profession in his or her legal community, have out- standing legal ability, breadth of experience, the highest reputation for integrity and either have demonstrated, or exhibited the capac- ity for, judicial temperament.’’ VerDate 0ct 09 2002 15:04 Dec 12, 2005 Jkt 022785 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24853.TXT SJUD4 PsN: CMORC 3 I want to turn now to a few of the arguments which I have heard raised by a number of Mr. Kavanaugh’s opponents and address some of the concerns I expect to hear today. First, is that Mr. Kavanaugh is too young and inexperienced to be given a lifetime