Washington, DC — Senate Democratic Leader Harry Reid today delivered the following speech on the Floor of the U.S. Senate, opposing the confirmation of Brett Kavanaugh to the D.C. Circuit Court of Appeals.
The text of Senator Reid’s speech, as prepared, is below.
I intend to vote against the confirmation of Brett Kavanaugh to the D.C. Circuit Court of Appeals. This youthful, relatively inexperienced nominee lacks the credentials to be approved for a lifetime appointment to the second most important federal court in the country.
At the outset, let me contrast this nomination with a circuit court nomination we recently approved: the nomination of Milan Smith to the Ninth Circuit Court of Appeals. Mr. Smith is a pillar of the California legal community, a distinguished practicing lawyer with 27 years of experience in complex legal transactions. His nomination was the product of extensive consultation with Democratic Senators. The Judiciary Committee approved his nomination 18-0 and the full Senate gave its consent unanimously.
The Smith nomination is an example of the way the process is supposed to work. The Constitution gives the President and the Senate a shared role in filling vacancies on the federal courts. Working together, we can move highly qualified non-partisan nominees through the process without rancor or delay.
But when the President uses judicial appointments as a reward to the extreme right-wing of the Republican Party, he invites controversy and conflict. Regrettably, that may be just the result that the White House wants.
Cesar Conda, a former domestic policy advisor to Vice President Cheney, recently wrote in the Roll Call newspaper: “For Bush, a renewed fight over conservative judges…just might be the cure to the Republican Party’s current political doldrums.”
One of my Republican colleagues is quoted in the National Review earlier this month as saying: “A good fight on judges does nothing but energize our base. Right now our folks are feeling a little flat. They need a reason to get engaged, and fights over judges will do that.”
At the same time, a lengthy debate over judges serves to distract attention from the pressing problems facing the nation: an intractable war in Iraq, soaring gas prices, millions of Americans who lack health insurance. Instead of addressing these vital issues, this Senate has been forced to spend days and weeks and months talking about divisive judicial nominees.
The nomination of Brett Kavanaugh is nothing if not divisive. All eight Democrats on the Judiciary Committee oppose his confirmation. Every leading civil rights, environmental and labor organization in the country has urged that he be rejected.
This nomination is not the product of consensus and consultation – it is a poke in the eye to the Senate. It is a wedge that disrupts the wonderful bipartisanship which has characterized the immigration debate over the past two weeks.
I recently met with Brett Kavanaugh. He seems like a bright young man. But he is a 41 year old lawyer who has spent his short legal career in service to partisan Republican causes.
His two principal accomplishments as a lawyer are his work as an aide to Special Counsel Kenneth Starr during the misguided crusade to impeach President Clinton, and his current duty as a political lawyer in the Bush White House. Those positions do not disqualify Mr. Kavanaugh from future service, but they do not constitute the kind of broad experience in the law that we should expect from a nominee to the District of Columbia Circuit.
The D.C. Circuit is a uniquely powerful court. It has jurisdiction over challenges to federal activities affecting the environment, consumer protections, workers and civil rights. This court hears appeals from the Environmental Protection Agency, the National Labor Relations Board, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration and other agencies.
As a result, D.C. Circuit judges sit in a unique position to judge government actions that affect our lives in fundamental ways. Mr. Kavanaugh’s slim, partisan record gives me no confidence he is the right person to assume this awesome responsibility.
In the 113 years since the Court of Appeals for the D.C. Circuit was established in 1893, fifty-four judges have sat on the court. Only three of those judges came to the court with less experience than Kavanaugh. D.C. Circuit judges have averaged over 26 years of legal experience at the time of their appointment to the D.C. Circuit. Mr. Kavanaugh, in contrast, graduated from law school a mere 16 years ago.
It is not just Mr. Kavanaugh’s youth but his lack of practical experience that renders him unfit for this post. In his 16 years as a lawyer he has never tried a case to verdict or judgment. When questioned about this deficiency at his committee hearing, the nominee presumed to compare himself to Chief Justice John Roberts. But at the time of his appointment to the D.C. Circuit, Roberts had argued dozens of cases before the Supreme Court. Kavanaugh has argued just one such case, on behalf of the Starr investigation.
There are other kinds of experience one might bring to an appellate court. Some nominees are respected scholars. Some are sitting judges. Kavanaugh is neither. His high ranking position in the Bush White House might constitute relevant experience, but we have little idea what he has accomplished in that role. He largely refused to answer questions from the committee about the issues he has handled or the positions he has advocated.
We know he helped to select many of the controversial judicial nominees who have tied the Senate in knots in recent years. We know he was the author of a far-reaching government secrecy policy, despite his own role in stripping President Clinton of every vestige of privacy and privilege during the Starr investigation. Other than that, all we know is that Mr. Kavanaugh has had a fancy West Wing title.
Most nominees gain more stature over the course of their legal careers, but Mr. Kavanaugh is headed in the opposite direction. The American Bar Association recently took the rare step of lowering its rating of this nominee.
Lawyers and judges interviewed by the non-partisan ABA Committee described Mr. Kavanaugh as “sanctimonious,” “immovable” and “very stubborn and frustrating to deal with on some issues.” A judge before whom Mr. Kavanaugh appeared considered him “less than adequate” and said he demonstrated “experience on the level of an associate.” A lawyer who observed him during a different court proceeding stated: “Mr. Kavanaugh did not handle the case well as an advocate and dissembled.”
Needless to say, these are not qualities that make for a good judge.
Still others described Mr. Kavanaugh as “insulated.” That is the last quality we want in a 41 year old man who will soon begin the cloistered life of an appellate judge. Mr. Kavanaugh lacks the wide-ranging experience that breeds wisdom and judgment, and he is unlikely to acquire those qualities on the bench.
Mr. Kavanaugh’s thin legal resume contrasts with the resumes of the two Clinton nominees who were blocked by the Republican-controlled Senate when they were nominated to the same court. Elena Kagan, now the Dean of Harvard Law School, had been both a practicing lawyer and a leading administrative law scholar at the time of her nomination. Allen Snyder, a former clerk to Justices Harlan and Rehnquist had been a litigation partner at the law firm of Hogan & Hartson for 26 years.
Under what definition of fairness do my Republican colleagues insist that Brett Kavanaugh is entitled to a Senate vote while Elena Kagan and Allen Snyder were denied a vote? By what standard do they consider Kavanaugh qualified to sit on the DC Circuit when these two other distinguished lawyers were denied that honor?
Unlike Kagan and Snyder, Mr. Kavanaugh will be considered by the Senate. But I will cast my vote against confirmation. This nominee’s record is too sparse and the court to which he is nominated is too important to the rights that Americans hold dear.
I urge the Senate to reject this unacceptable nomination.