Confirmation hearing on the nomination of Hon. Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States
Sep 04 2018
Thank you, Mr. Chairman.
Judge Kavanaugh, welcome, and welcome to your family and guests.
This is the third time you’ve had the quote-unquote privilege of appearing before this Committee. So you’re seeing some familiar faces on this side of the dais. You’re also seeing some new faces, but I think you’ll find that in a lot of ways, nothing has really changed since you were last here 12 years ago.
Over the next few days, Senators will ask you questions about Supreme Court cases, your record, and your qualifications. Some of these questions will be fair. Many others will be unfair. And some of these unfair questions will ask you to promise to vote a certain way in particular cases that are likely to come before the Court.
When you look at the history, that is precisely why confirmation hearings developed—so that Senators could ask nominees how they would vote in particular cases.
The first Supreme Court confirmation hearing occurred in 1916, when Justice Brandeis was nominated. Brandeis was controversial for several reasons—including, it has to be said, because he was Jewish. But Senators also wanted to determine whether Brandeis would use a seat on the Supreme Court to advocate for the progressive causes he championed as a public-interest attorney. They wanted to know how he would vote in particular cases. They didn’t ask Brandeis to testify, but asked outside witnesses to talk about his nomination.
The next important moment was in 1939, when Justice Frankfurter became the first nominee to testify before the Senate. At the time, Frankfurter was controversial in part because he was he was born overseas. But Senators also worried that Frankfurter was a radical based on his defense of anarchists in court. So again, Senators wanted assurances that Frankfurter would reach certain results. Frankfurter, however, declined to engage with Senators and insisted that his public record spoke for itself.
Justice Stewart’s 1959 nomination was another turning point. Senators seeking to resist Brown v. Board of Education wanted to grill Stewart about his views on integration. Others wanted to grill Stewart about his views on national security. So Senators turned-up the heat a bit more in that hearing. Like Frankfurter before him, Stewart did not provide substantive answers to their questions.
Twenty-eight years later, the Senate considered Robert Bork’s nomination. This was another turning point, and in my view, remains a rock-bottom moment for the Senate. Without getting into the gory details, suffice to say that Senator Ted Kennedy and Judge Bork did not agree on constitutional law. Kennedy’s response was to savage – unfairly – the results he thought Bork would reach.
This history shows that, over the better part of a century, the Judiciary Committee has gradually created a norm in which members demand that nominees talk about specific cases in return for favorable treatment.
Nominees, for the most part, have resisted trading confirmation in exchange for promises on how they’ll vote. To give two famous examples: Justice Scalia refused to say whether Marbury v. Madison was settled law, on the ground that it could come before him. And sure enough, last term in Ortiz v. United States, the Supreme Court considered a case implicating the scope of Marbury. Likewise, Justice Ginsburg created the so-called “Ginsburg standard”—no previews, forecasts, or hints. Every current member of the Supreme Court has adhered to a similar principle.
Even though nominees have not caved to the pressure, I still believe the Senate’s approach does a disservice to the country. If Senators repeatedly ask nominees about outcomes, the public is entitled to think that judges are supposed to be outcome-oriented. This undermines the legitimacy of the courts. Over time, no free people would accept a judiciary that simply imposes its own preferences on the country, absent fidelity to legal principle.
There’s a better way for the Senate to approach its work. This process should be about your qualifications, your character, and your approach to judging. It should not be about results in a select number of cases.
You are obviously qualified. Even your staunchest critics would not claim otherwise.
You are independent. You’ve written that “some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law.” You’ve said that judges “cannot be buffaloed, influenced, or pressured into worrying too much about transient popularity when we are trying to decide a case” and that “one of the most important duties of a judge” is to “stand up for the unpopular party who has the correct position.”
And you’ve lived-up to those words during your time on the bench. Everyone knows you served in the Bush administration. Yet when you became a judge, in only two years, you ruled against Bush a total of 8 times. For you, it simply does not matter who the parties are. The only thing that matters is correct application of the law.
As far as your approach to judging, you have appropriate respect for precedent. You co-authored an 800-page book on precedent that, among other things, explains that a change in a court’s membership alone “should not throw former decisions open to reconsideration or justify their reversal.” You’ve explained that, for a precedent to be overruled, it must be “not just wrong but a case with serious practical consequences.” You’ve voted to overturn circuit precedent only four times during your time on the D.C. Circuit—and each of those cases were unanimous. And you follow binding precedent even if you believe it’s wrongly decided.
You decide cases on the legal merits, not based on the identity of the parties or your political beliefs. We’ve already heard that your nomination will be bad for women, the environment, labor unions, and civil rights. I have a laundry list of cases in which you’ve ruled for each of these groups.
But there’s a more fundamental point: The judiciary’s decisions are legitimate only if they are based on sound legal principle. And ruling for a preferred party is not a sound legal principle. Jury-rigging decisions and backfilling legal reasoning to reach a particular result—no matter how desirable—is not a legitimate mode of judicial decision-making. No free people would accept it.
So my plea to my colleagues is that we ask Judge Kavanaugh hard questions. I believe we are required to. The Senate is not and should not be a rubber stamp. But if you disagree with an opinion he’s written, make a legal argument. Explain why you think it’s wrong. Don’t complain about the result as if it’s proof that he’s wrong. And don’t ask him to make promises. If it’s unacceptable for the president to impose a litmus test, it’s surely unacceptable for the Senate to do so.
Judge Kavanaugh, I look forward to your testimony.
As prepared for delivery