Speeches

Mr. President, 

I come before this body this evening after having heard several remarks from a number of my distinguished colleagues, whom I like, whom I respect, whom I admire, and with whom I greatly and substantially disagree on many matters discussed tonight.

Just in the last little while, I have heard arguments presented first by the Senator from Maine, a good friend of mine, who made some arguments that he put into roughly four categories. He opposes Judge Kavanaugh on the basis of judicial philosophy, on the basis of his refusal to agree anticipatorily to certain types of recusals, to the absence of documentation he claims was available to the committee, and to Judge Kavanaugh on issues of demeanor. I would like to address each of these allegations in turn.

First, with regard to judicial philosophy, my friend from Maine--who truly is a friend--explained that, in his view, Judge Kavanaugh was unacceptable because, among other things, he counts among those he admires, among his judicial role models, the late William Rehnquist, Chief Justice of the United States. The reason that is apparently a bad thing, according to my colleague from Maine, is that this somehow indicates that he would view himself sort of as an umpire, calling the balls and the strikes, reading the law on the basis of what it says rather than on the basis of what he or anyone else might wish were the law.

Jurists, you see, are not philosopher kings, not even when they get onto the Supreme Court of the United States. They are not there to impose will but judgment.

You see, as Alexander Hamilton explained in Federalist 78, there is a difference between the type of government activity that goes on in the judiciary and the type of government activity that goes on in the legislative branch. In the judiciary, they exercise judgment; that is, they read the law. They figure out what the law says. When two or more parties come before the court's proper jurisdiction, they interpret the law on the basis of what the law says. That, Hamilton explains, is judgment.

Will, on the other hand, is deciding what the law should say, what policies are best for the U.S. Government. That is the prerogative of this branch. That is the prerogative of the political arms of the Federal Government. That is not the prerogative of our friends across the street who wear black robes.

So I was surprised to hear that my colleague from Maine, the junior Senator from Maine, Mr. King, was saying that he objects to the judicial philosophy of Judge Kavanaugh on the basis that he says he would call the balls and strikes as he sees them. It seems to me that this is the essence of what Federalist 78 was talking about, about the difference between will and judgment.

Hamilton explained that if ever the judiciary started exercising will instead of judgment, it would upend the entire constitutional order. That, we cannot have. That is not how it should be.

Next, my colleague from Maine went on to explain that Judge Kavanaugh's association with the Federalist Society was somehow a problem, that the Federalist Society is somehow some sort of demonic conspiracy to overthrow the U.S. Government--or something to that effect. I embellished slightly his characterization of it, but you would think from what some of my colleagues say about the Federalist Society that there is something terribly wrong with it. Let me tell you about the Federalist Society.

I have been aware of the Federalist Society for most of my life. I attended my first Federalist Society event while I was still in high school. I mean, what teenager doesn't want to attend a Federalist Society event at a nearby law school? That was something we considered to be a lot of fun in Provo, UT.

At every Federalist Society event that I have ever attended, starting when I was in high school, all the way through college, through law school, throughout my career as an attorney, and since then in my career in politics, one thing has been consistent: The Federalist Society, when it puts on an event, allows for all sides to be represented. You will see views that are widely divergent. You have people, such as Nadine Strossen, former president of the American Civil Liberties Union, who have long been affiliated with the Federalist Society and participated in their symposium. This, you see, makes the Federalist Society rather unlike most American law school experiences, wherein one side is presented--not both. The Federalist Society prides itself in focusing on open, robust, honest debate.

So if some people want to criticize the Federalist Society or those who, heaven forbid, have ever attended a Federalist Society event, what they are doing is criticizing academic freedom, criticizing a robust discussion of law and public policy. We should all be grateful for the Federalist Society for Law and Public Policy Studies. This is an enterprise that really represents the core of what the American people should value--certainly what those who study and admire and respect the law should value. This is not something people should be criticized for participating in. Last I checked academic freedom and robust discussion of what the law says and which branch of government ought to exercise will and which ought to exercise judgment--that is something to be rewarded. That is part of America's bedrock. Its core institutions of civil society are people who are willing to come together, not under the auspices of government, not under the control of some bureau or bureaucracy, but rather on their own to discuss and debate things that will inure ultimately to the benefit of the people.

Next, my colleague from Maine, Senator King, referred to Judge Kavanaugh's refusal to agree anticipatorily to a recusal in certain cases. As Judge Kavanaugh very capably explained in his hearing, this is not the kind of judgment a person makes before taking the Bench, before assuming a particular judicial office to which he or she has been nominated. It wouldn't be appropriate for him to anticipatorily agree to recuse himself in a type of case that he has even yet to see.

I am not sure why some of my colleagues wanted to put him on the record as taking himself off of a certain broad category of cases, but that, nonetheless, seems to be what they were after. That, in most circumstances, is improper, just as it would be improper to get Judge Kavanaugh to agree in advance of his confirmation as to how he would vote in a particular type of case.

This, too, many of my colleagues find troubling, by the way; yet this, too, is part of the canons of judicial ethics. We don't want people campaigning as if on political issues to get onto the Supreme Court of the United States. We will get back to that a little bit more later.

Next, Senator King referred to the supposed lack of documentation from the Bush administration where Judge Kavanaugh worked--the lack of documentation, meaning the lack of documents coming out of the White House. It is important to know that Judge Kavanaugh doesn't own the documents in question. No, those are owned by the Bush administration. They own the privilege, and under the Presidential Records Act, which Congress itself has enacted, there are terms set. There are agents identified, agents who get to assert certain privileges and decide when, whether, and to what extent certain documents will be released and available for our review. I am not sure what it is that they are so terrified might be out there, but whatever it is, it is in a document that doesn't belong to us, a document to which we have no access, to which we have no rightful claim, but a document that in all events is not Judge Kavanaugh's call. It is not his call to decide what happens to those documents--when, whether, under what circumstances we receive them. It is not his fault. It is not under his control. He has no say on that. Do not hold that on his head. That is not his burden.

Then my colleague from Maine went on to address Judge Kavanaugh's demeanor. Senator King is not a member of the Judiciary Committee. I am. Senator King acknowledged to have viewed some of the hearings from a television while in other parts of the Capitol Complex, sometimes with the volume on, sometimes with it off. He said something to the effect that if he were watching from another planet, he would conclude that this man is not fit for office. Maybe he wasn't watching the same hearing I was, but I know one thing: Senator King wasn't in that room; I was. Let me tell you what I saw.

I saw a man who has devoted most of his adult professional career to public service; a man who volunteers his time to feed the hungry, the homeless; who coaches his girls' basketball team, which he has done for a very long time; who teaches; and who supervises those whom he employs.

His law clerks over the last 12 years--by the way, men and women of every background in the United States--rave about him, call him the kind of boss that every American would want to have, that every young lawyer would dream of working for, for the simple opportunity of learning under his tutelage, for the opportunity of serving in a judicial apprenticeship of sorts under a true master of the law.

I don't know what Senator King was referring to, but he wasn't in that same hearing I was. He certainly didn't see the same thing I saw, which is someone who was seeking sincerely to defend his own record of public service and his own private conduct against great adversity, moreover, in circumstances in which he and his family have been dragged through the mud by no choice of their own.

  As to the suggestion that he was somehow leveling a threat when he uttered the words ``what goes around comes around,'' I was in that room. I understood that to mean one thing and one thing only, which is to say that when we mess with the process, that process might well remain messed up. That is all he meant. He was not making any threat. That was apparent to anyone watching that meeting with anything approaching an open mind. Anyone watching that with an open mind would have understood what that meant in context. He was simply stating the obvious: When we allow politics to come into play excessively in the process of naming and confirming people to the Supreme Court of the United States, it messes it up. It messes it up now and messes it up for the future. We should all be concerned about that.

I also heard comments from my colleague, the distinguished junior Senator from Illinois. She said, among other things, that the investigation conducted into allegations involving Judge Kavanaugh were ``a sham.'' A sham. Think about what that means. It means that she is suggesting that those investigating didn't want to get to the truth. 

I don't know what documents she has reviewed, but I can tell you the documents that I have reviewed. Those compiled by the Federal Bureau of Investigation and those compiled by the very faithful investigative staff on the Senate Judiciary Committee were thorough. We are talking about hundreds of pages of transcripts, to say nothing of the more than 30 hours of testimony provided by Judge Kavanaugh himself before the Senate Judiciary Committee. We have been thorough in what we have gone through, and to call this a sham is simply disingenuous. It is inaccurate. It is inconsistent with anything I have seen.

I heard my colleague from Illinois also refer to what she characterized as untrue statements made by Judge Kavanaugh in connection with Judge Kavanaugh's alleged participation in the development of the so-called torture policies in the Bush administration 

As has been stated over and over again by Judge Kavanaugh and those who worked with him, he wasn't even cleared, didn't even have access to that program, was not involved in that program's creation. The documents to which they refer in claiming otherwise show only that he was asked about certain arguments that may be presented in court, which is completely different from the question they are talking about--whether he had anything to do with the development, the design, the creation of that program, which he did not. So to say that he lied about that is completely dishonest, it is not borne out by the facts, and I find it shameful that this accusation would be made. It is completely contrary to the evidence.

Next, my colleague from Illinois referred to concerns about what she referred to as healthcare outcomes--outcomes in particular cases involving healthcare. She went on to extol the virtues of the Patient Protection and Affordable Care Act, also known as ObamaCare, and spoke at length as if to suggest that Judge Kavanaugh was being considered not for a judicial position but a position involving lawmaking, policy-setting. He has, after all, been nominated to a position of Associate Justice of the Supreme Court, not policymaker. His exercise of judgment, of interpreting the law based on what it says rather than on the basis of what he wishes it said, is his role. It is unfair to compare him to another standard.

Moreover, if we are going to compare him to that standard, she has to acknowledge that when we are talking about the Affordable Care Act, he actually wrote an opinion upholding it. That is beside the point here, but if she is questioning his judgment and his ability to handle the law and apply the law on the basis of how he views the law and to do so objectively, she ought not to be concerned 

If she is concerned about the outcome of cases relating to the Affordable Care Act--which I don't think she should be--as separate and apart from the judgment part of his role, then she ought to be consoled by the ruling that he made upholding the Patient Protection and Affordable Care Act.

In any event, it is simply not fair to compare him to this standard and to say that because they fear--because my colleagues fear that he might reach a different policy outcome than she might prefer, she is attributing to him political views that he doesn't have, that he isn't allowed to have as a jurist, and that he has not expressed 

If you can point to any one of his 300 written published opinions in the Federal reports, bring them to me--any one of those that suggest that he is incapable of being impartial in healthcare or in any other arena, please bring them to me. I would love to see them. Yet they can't, they won't, and they haven't, because such opinions do not exist. That is why they resorted to other things. That is why they are talking about policy. That is why they are trying to smear this man's character and destroy his good name, because they have looked through those opinions, and they can't find a dud among them.

My colleague, the distinguished Senator from New Hampshire, also spoke. She regretted the fact that, in her view, there hadn't been a full investigation into the allegations against Judge Kavanaugh and suggested that additional evidence would have been helpful and that additional evidence exists corroborating the allegations made against him.

Well, having reviewed hundreds and hundreds of pages of transcripts of interviews resulting from the FBI investigation and from our competent Judiciary Committee staff, I don't know what she is talking about because the only potential corroborators in this case--that is, the alleged eyewitnesses to the accusations in question--those allegedly present in the circumstances in question, say that they can't remember any instance in which anything like this happened--not just the underlying bad acts themselves as alleged but the events in which they allegedly occurred. That is what we call corroboration. You cannot have a statement you describe as corroborating unless there is someone who at the time saw or heard or was otherwise made aware of something at or around the time it occurred. That is what corroborating evidence is, and that is what is noticeably absent in this case. 

She also claimed that the FBI was not allowed to conduct a serious investigation. I do not know what she means. What I do know is that what the FBI was asked to do involved conducting a supplemental investigation into current credible allegations of sexual misconduct, and that is what they did. We, the Senate Judiciary Committee, didn't put guardrails around that, didn't tell them they couldn't follow up on leads they deemed significant, didn't tell them they couldn't look past a certain witness, didn't tell them they couldn't follow up on something that might shed light on this candidate's credibility or his eligibility to serve in judicial office.

That leads to another point. This man has now endured 7 FBI background investigations, with over 150 people interviewed during that time--150 people interviewed extensively about what they know about him and about what they know about his character. Those interviews and the report that was produced back up this man's character. And separate and apart from the fact that there is no corroborating evidence for these allegations, these independently backed him up.

My colleague from New Hampshire, like my colleague from Illinois, also brought up the Affordable Care Act, as if assuming from the outset that, on the basis of policy, JudgeKavanaugh would rule a certain way in this or that aspect of anything having to do with healthcare. Here again, we have characterizations that would be much more fitting in a political debate for a political office, but, alas, that is not what we have here.

My colleague from New Hampshire referred to the Mueller investigation. I don't know how that is tied to the nomination of Brett Kavanaugh to be an Associate Justice of the Supreme Court of the United States, but somehow she tried to make that an issue. I don't know what she is talking about. I don't know how that could possibly be relevant here.

She made the argument--the very serious accusation--that Judge Kavanaugh somehow believes that the President of the United States is above the law. I challenge my colleague from New Hampshire to tell me what evidence she has that he believes that. This is a serious accusation and one that should not be made lightly.

I have never ever heard of Judge Kavanaugh having said or written anything suggesting that the President of the United States is above the law. Yes, Judge Kavanaugh acknowledged, as he has repeatedly on a number of occasions in a number of settings, that there is a dispute among scholars as to the timing and manner of liability that might be faced by a current sitting President of the United States, but he has never said the President of the United States is above the law--never--never hinted at it, never concluded that, and it is, therefore, unfair to attribute that view to him.

Finally, my colleague from New Hampshire characterized Judge Kavanaugh as being someone who is without character and sort of the antithesis of being an impartial arbiter.

I think the very best way we can view that with regard to his character is through his life of public service, through the way he has interacted with those he knows, those who have truly known him not just over the last 36 years but for his entire lifetime.

The best we can evaluate his ability to be an impartial arbiter is to review the 300 published opinions he has written while serving as a judge on the U.S. Court of Appeals for the DC Circuit. I challenge any one of my colleagues to bring me any one of those opinions or any combination of those opinions that show that he is incapable of being impartial or that he is in any way challenged as to impartiality. They can't do it. They won't do it. They haven't done it because such opinions don't exist.

Judge Kavanaugh is a good man. He is eminently qualified to serve on the Supreme Court of the United States. I endorse President Trump's nomination of him. I was pleased to vote in favor of cloture, and I look forward to voting for his confirmation in the coming hours.

Thank you, Mr. President.

I yield the floor.