Jon Kyl

United States Senator for Arizona

Floor Statement by Senator Jon Kyl on the Kavanaugh Nomination

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Mr. President, this is the first time I have had the opportunity to address my colleagues on the Senate floor since I was appointed to fill the seat of our late friend and colleague John McCain.

I appreciate the opportunity to speak on a matter of great importance, both to this body and to the people of the United States of America; namely, the confirmation of Judge Brett Kavanaugh as Associate Justice to the U.S. Supreme Court.

I would like to address this in five general areas, beginning with a couple of preliminary areas of discussion.

The first concerns my work right after I came to the Senate in 1995

to try to adopt a constitutional amendment for the victims of crimes. We called it a crime victims' rights amendment. I had become acutely aware of the problems crime victims faced, especially those who have suffered some kind of sexual assault. Through personal interviews and discussions with victims, victims' rights groups, with prosecutors and others, with research and a great deal of reading and hearing from victims' groups, law enforcement, and others, I became convinced that the only way we could guarantee the rights of these victims and bring

justice to them would be through the adoption of the constitutional amendment doing so.

I worked with Senator Dianne Feinstein. The two of us joined together in this effort, and we spent countless hours and many months trying to persuade our colleagues that this was the way to proceed.

Eventually, we were able to get legislation through the Senate, which established a Federal law rather than a constitutional amendment. This Federal law--which is now embodied in 18 U.S.C. 3771--has provided some support to victims of Federal crime and, as importantly, a template for States to develop their own statutes and constitutional amendments to provide rights to victims.

As a result of all of this, I am well aware of the issues like the delay or non-reporting of assaults by crime victims, and I very much appreciate the need to be lenient in evaluating the testimony of such victims.

Rights, like the need to attend proceedings and to address the court at the time of sentencing and to be notified of these rights, were included in the statute we got adopted. Those rights are now part of a majority of the States in the Union, either in statute or the

Constitution.

The recognition of the rightful role of victims in our criminal justice system cannot only help provide courage and closure to victims of sexual assault, it thereby also helps prosecutors gain critical testimony for their cases so that more of the perpetrators could be brought to justice.

There are some insensitive people who are not aware of the difficulties faced by victims of sexual abuse, and you have heard some of them speak publicly. What is not true is that all men are ignorant of the problem.

Senator Feinstein and I met many men in the victims' rights movement who are extraordinarily helpful and understanding. I don't ask anyone to establish their bona fides to speak to any of these issues, and I would hope none would question mine.

To the second point, some have asked me about my time in helping Judge Kavanaugh as a so-called sherpa. This was part of the early process of his confirmation process, where he was interviewed by a majority of the Senators and tried to answer their questions and to also respond to requests for information and the like.

Just before his nomination was announced by the President, Don McGahn, the White House Counsel, called me in Arizona and asked if I would serve as the sherpa for the nominee--a person to get him around the Senate, introduce him to the Senators, follow up on any questions, and so on. I agreed to do that, and I also participated in some of the hearing preparation. This all occurred in about a 5-week period of time.

During this time, I was employed part time at a Washington, DC, law firm. I want to be clear that my assistance to Judge Kavanaugh was on my own time, free of charge, and in no way connected to the firm or any client of the firm. It was not a pro bono matter because I actually didn't represent Judge Kavanaugh. It was simply to help him prepare for his hearing and to get him around the Senate to meet the Senators and to talk to them.

After about 5 weeks of this, roughly, I was appointed by Arizona's Governor to Senator McCain's seat in the Senate, and I immediately resigned from the firm and all other remunerative positions and ceased working with Judge Kavanaugh. I should also mention that during this time, I performed no lobbying work for my law firm or for any clients of the firm, and I so notified the Secretary of the Senate and the Clerk of the House.

Finally, at no time during my work with Judge Kavanaugh did any allegation of sexual impropriety arise. The Ford allegation came after, and nothing like that was discussed in my presence during my work with him.

As I said, some have asked me questions about this. I hope that satisfies their inquiries.

I also want to conclude this part of the presentation by saying that having sat through over 50 interviews, hearing the questions asked of him and his responses--many of them repetitious--and helping him to prepare for his hearing, I really believe I have a very good idea of how he would conduct himself as an Associate Justice on the U.S. Supreme Court. After all, that is the most important question before us.

The third area of inquiry gets to Judge Kavanaugh as Justice Kavanaugh. The first thing to do is to examine his qualifications and his experience. Ordinarily, this is where we begin in our inquiry to provide advice and consent to the President after a person has been nominated.

He is a graduate of Yale Law School, had clerkships on both the Ninth Circuit Court of Appeals and the U.S. Supreme Court under Justice Kennedy. He has been described as ``wicked smart'' and extraordinarily hard-working. He went over this on numerous occasions, discussing his early service on the Court of Appeals, where he wanted to emulate Judge Merrick Garland, whom he had heard something about.

Merrick Garland is a prodigious worker by reputation, and Judge Kavanaugh saw that and tried his best to follow in Judge Garland's footsteps in that regard.

He has had a huge output in cases. I believe he has 312 written opinions over his 12 years on the bench. In addition to that, outside of the court, he wrote law review articles, speeches, and gave many presentations to groups. He also lectures at the Harvard Law School.

Regarding his previous experience, it also includes, as we know, previous experience on the executive branch, both as a lawyer and as an assistant to the President. All of this, by the way, he was required to undergo six separate FBI checks.

His qualifications have been reviewed by the American Bar Association, which is just oneentity that looks at judicial nominees and is generally deemed to be an organization that studies records. It goes into depth interviewing people, and they concluded he had the top rating, ``well qualified,'' to serve on the Supreme Court.

As some have described, he is a judge's judge. He is a real standout on the bench. People would have been surprised if he were not someday nominated to serve on the U.S. Supreme Court.

He has also been recommended by law professors, students, former clerks, and hundreds of people who have written letters on his behalf. I note that many of these are liberals or Democrats. They are not necessarily conservatives or Republicans. He is well regarded by virtually everyone who has had connection with him either in his professional or as a member of the Bench.

The next question we go to in evaluating a nominee to a court is their judicial philosophy--how do they approach the job of judging? How will they decide cases?

I first want to say what Judge Kavanaugh is not, and he made this crystal clear in the many meetings in which I sat with him talking with the Senators. He is not a results-oriented judge. When parties come before the court, he doesn't decide whom he wants to win and then figure out a way to help that party win the case. That is not the right way to evaluate a case before the court, and he is not that kind of judge.

He is a judge who wants to apply the law in the right way and to reach the decision the law requires based upon precedent, based upon the way the Constitution or--if appropriate--statutes are to be interpreted in order to reach the right result in the case.

One of my colleagues on the Judiciary Committee I think got us off on the wrong foot or tried to get us off on the wrong foot in this regard.

He came to one of the hearings with a presentation on how many times Judge Kavanaugh allegedly ruled for corporations over individuals and concluded this was an important factor in determining whether Judge Kavanaugh should sit on the Supreme Court. I think this illustrates the mindset of many: Whom did you rule for, rather than how did you rule in the case? This is totally wrong, and it is irrelevant to the way judges should decide cases.

Theoretically, if 10 plaintiffs bring 10 spurious lawsuits against 10 different corporations and the courts rule for the corporations in those cases, it proves exactly nothing. That is why we shouldn't focus on who wins the cases but rather on whether they were decided based upon proper legal principles, on precedent, and on the way courts are supposed to approach cases--on facts and the law.

In the meetings that I sat in on, Judge Kavanaugh went to great pains to describe how he approaches a case. He begins by looking at the text of the Constitution for any relevant statutes. He begins applying the law, as judges are supposed to do, in interpreting those constitutional provisions and statutes. In the process of doing this, he uses the same principles other judges do. In just a moment, I will mention what some of those principles are.

I mentioned the fact that some of my colleagues have focused on whom he has ruled for in cases. Bear in mind that as a member of the U.S. Court of Appeals, he sits with two other judges, so the three judges decide the cases, not just one--although, a case can be decided by a 2-to-1 vote. Some of my colleagues have said, well, they are concerned that because he served in an administration for a President and because of something he once wrote for a law review article, they fear he would want to rule for the President and against other parties if a lawsuit involved the question of Executive power--how much authority does the President of the United States enjoy. I think that is wrong, based upon his explanation of all of his decisions and what he has written on the subject. I think it is very clear that he has no predilections in this regard, and that he believes strongly in the separation of powers as set forth in the U.S. Constitution; he holds no special place for the President above the other two branches of government.

One of the cases he cites to demonstrate this fact is a case that didn't please me, and the outcome certainly didn't please his old boss, President Bush, because he ruled against President Bush. Instead, he ruled for Osama bin Laden's assistant and driver. The reason he did that is that individual--as bad as he may be, as evil as he may be--was not accorded proper constitutional rights as guaranteed under our Constitution, and he had to reach the result he did because of that. As I said, I didn't like the outcome, and I am sure his previous boss, President Bush, didn't either. But it illustrates the fact that he is not going to blindly rule for the President, even in a case where the equities would seem to favor what the President was trying to do in this case; that is, to ensure that Osama bin Laden's colleagues were held to account for their misdeeds.

So the bottom line here is that it is not who wins and loses that matters; it is whether the law is applied fairly and correctly.

Now, how do we know whether it is correctly applied? Obviously, judges will differ sometimes, and each case is going to be decided on its own merits. The question of how one judges is really the key to this. I said I would get to this.

Here is just a little bit of a discussion of how cases should be decided, how judges should approach these decisions, and how I believe Judge Kavanaugh will. It is based on legal rules and principles that have been long established and written up and followed by courts throughout the ages. The law is literally full of these rules--basically, the ``how to'' for judges to decide difficult cases. Most judges know and apply these rules fairly and systematically. They don't try to make up new rules or deliberately fudge the facts or twist the rules in order to reach a desired result.

I kind of liken it to the instructions that come with those dreaded packages that say ``some assembly required.'' That is always a sign that I need to get my wife involved rather than for me to do it myself because I don't follow directions very well. But failure to follow the steps in that case can lead to some pretty bad results, as a couple of lawn chairs I put together will attest to.

The question here is, a judge should have a clear view of how he approaches each case, the steps that he follows to decide them. But sometimes cases provide ambiguities and difficult decisions that make it especially difficult to apply the usual rules. In these cases, the question is whether a judge will be tempted to guess what the right procedure is or to try to reach an outcome that he has predetermined he wants to reach, as opposed to applying other commonsense principles.

It is true that sometimes laws are ambiguous, and they require some interpretation. I have seen Judge Kavanaugh address this precise question and go over decision after decision that he has made, showing how he approaches cases like this. I can tell you, first of all, he tries to get his colleagues to agree, if a reading of a statute is not really all that ambiguous, to say: Look, if you find my reading of the statute persuasive, then that should be it. We can end the inquiry. We don't have to find ambiguity in every single thing because when ambiguity is found, obviously, judges are not as tethered to the law as they would otherwise be. He is very aware of this, and he has tried very hard, I think, to reach the right conclusion based upon the proper application of the law.

I am not going to go into all of those judicial rules; we have heard precedent and statutory interpretation and the like. But I will say that having heard him describe his approach to numerous cases, I am convinced that he will, as a Justice on the Supreme Court, apply the law in the same way that he has during his 12 years as a member of the court of appeals.

He describes his approach to judging in a way that some have called strict construction or textualism, which I think is really not much more than giving a preference to the written text of either the Constitution in cases where constitutional interpretation is the question or statutes in cases where statutes have to be interpreted. This approach to judging is the methodology that is used more and more today by judges, and it tries to avoid substituting the judge's notions of how things should come out and substituting the judge's discretion as opposed to carefully reading the text of the Constitution or the statute as either the Founding Fathers or the Congress, in the case of a statute, has written it.

As I said, during his many interviews and hearing him explain his approach, I believe he has given us a very good idea as to how he would approach cases in the future. As I said, while there are one or two areas that some of my colleagues have raised questions about, I have no doubt at all that he is an extraordinarily knowledgeable and very wise judge who will do what he is supposed to do on the Supreme Court to apply the law fairly and correctly.

I also believe something else. I believe that he is going to work very hard to find consensus on the Court. We all hear about 5-to-4 decisions, and they don't make us feel good because it illustrates how judges can differ, and sometimes it demonstrates an ideological division on the Court, which we would hope to avoid. He would like to work with his colleagues to try to come to more consensus decisions than to have these kinds of split decisions. He really loves the law, and you know that when you talk to him, and he is really committed to making it work.

Another critical factor for a judge--and we frequently refer to it, as it has been referred to on the floor here--is what we call judicial temperament. This is especially important in district court judges where they appear before juries and where trials are actually held. You want the jurors in the case to understand the case well, to feel good about being there as jurors judging their fellow citizens, so judicial temperament is very important for the judges in those cases. But even on the court of appeals, one must have a judicial temperament that demonstrates to the parties and to the litigants that the judge is fair, that demonstrates to the lawyers involved that he can be respectful of them and fair to all of them, and that he can be congenial with his fellow judges on the court with whom he has to work every day and decide these cases.

Until the second hearing for Judge Kavanaugh, following Professor Ford's testimony, I don't believe anybody really questioned Judge Kavanaugh's judicial temperament. His 12 years on the Court of Appeals for the District of Columbia revealed a very careful and courteous and engaged judge--fair to the parties, reasonable to the lawyers, and collegial to his colleagues. It was only when responding to the attacks on his character that he even showed much emotion. I believe that most honest observers would allow him some slack for that in view of the nature of the allegations against him.

Much like the need to show some lenience in evaluating the testimony of a victim of sexual assault, I think we can appreciate the role of emotion in his testimony. He apologized to the one Senator to whom he was rude. In my view, the best evidence of his temperament as a judge is his temperament as a judge for the last 12 years.

So as to judicial temperament, knowledge of the law, an approach to deciding cases, I believe few would doubt his qualifications to sit on the U.S. Supreme Court.

That brings us to the fourth part of my presentation: the allegations of sexual misconduct against him. Do they amount to something that should disqualify him for serving on the Supreme Court? I don't think I need to detail here every allegation and every witness statement that has been involved in the investigation of these allegations.

In the recent hearing at which both Professor Ford and Judge Kavanaugh testified, I believe most observers saw both as presenting credible testimony, and I agree with that. That their recollections differ does not necessarily mean that either of them knowingly lied. We should neither automatically believe one over the other--she, because her testimony was that she had been sexually abused, nor he, because he is a sitting Federal judge. As I said, each deserve some deference for the reasons that I have stated. But, if both are believable, we must still find a way to analyze the evidence to help us reach a conclusion on the issue before us: Should Judge Kavanaugh be confirmed?

Well, the best way to verify the allegations is through corroboration--evidence that backs up the accusations that have been made. While both Professor Ford and DeborahRamirez have named individuals who they believe were present during the incidents of which they complained, none of those individuals would corroborate the accusations. Some denied them; others had no recollection of such incidents. Some said, even so, they believe Judge Kavanaugh; at least one says the same as to Professor Ford. There does not appear to be any corroborative evidence.

Professor Ford's telling of her story later to others is not corroboration, but it does go to her credibility. That she did not report her incident earlier is not dispositive. Victims in similar situations frequently do not report for a number of reasons. The fact that her very good friend, allegedly at the party in question, and the only other girl present, according to Professor Ford, did not become aware of the accusations that night, does raise some questions. And

that particular witness, despite her obvious friendship with Professor Ford, has continued to insist that she has no recollection of the party in question or of Brett Kavanaugh.

I have either read all of the FBI notes or have had them read to me, and I have been briefed by the committee staff on all of the FBI and committee contacts. This includes the second round of FBI interviews. Contrary to what some have said, this process was not constrained. The FBI was not told not to interview certain people; they were, in fact, told to follow the leads, and I believe that they interviewed not just 4 witnesses but a total of 10 witnesses in this latest round of their interviews.

After reading what I have read and being briefed on the remainder by committee staff, I find nothing to verify the accusations against Judge Kavanaugh. He has unequivocally denied them, and having gotten to know him as I have, I conclude that he is not the proper subject of the accusations.

Some have suggested that he must prove that he did not engage in the conduct alleged. It would be totally unfair to place upon him the burden of proving a negative. This is ordinarily impossible. When you neither know the time nor place of the event alleged, you can't disprove that you were there then--there, wherever it was--or then, whenever that was. In this particular case, for example, unless he can somehow show that he was in Europe the entire 3 months of the summer allegedly involved here or in some similar circumstance, there is no way that he could prove a negative; namely, that he wasn't there.

It is true that the presumption of innocence applies in our courts, but the same notion of fair play applies in other aspects of our civic and social life. If a mere allegation of wrongdoing is enough to deny an applicant a job or otherwise discredit an individual for the rest of that person's life, our society would be torn apart. This is why we have Constitutional rights, which embody our notions of fair play in life generally.

While this is not really a job interview as it has been described, even if it were and we were the prospective employers, we would want to evaluate the qualifications--in this case of Judge Kavanaugh--including accusations of against him, and those accusations would not just be taken at face value, particularly as serious as they are and given the fact that he has unequivocally denied them.

So I conclude that, under all of the circumstances, including the nature of the evidence brought forward and how that evidence would be proven to us, including how he has lived his adult life, and after seven FBI investigations now, it is more probable than not that the accusations against him are not true and therefore disqualifying for his nomination.

That brings me to the fifth and final point of my discussion: lifelong considerations of suitability to serve.

I noted the qualifications for judges, their judicial temperament, the way they approach judging cases, their record of writing opinions, what they have said and how they have said it--that is the first thing we look at, but  we also look at the whole person, and that is an appropriate thing to do. So let's look at Judge Kavanaugh's whole person.

First of all, I would like to note some things that I think are not relevant to his competence to serve on the Supreme Court but which we have heard a lot about. Not relevant are Judge Bork, Justice Thomas, Judge Garland, or arguments about who started the unseemly process we are in now.

By the way, let me just as an aside here note that in one of the interviews with a Senator, the interview started as follows: Judge Kavanaugh, glad you came in today, but I can tell you that this is going to be very, very hard because of what happened to Judge Garland.

Well, you can have your views as to whether Judge Garland was treated fairly or not, but that should have no bearing on the qualifications of Judge Kavanaugh to be confirmed to the U.S. Supreme Court.Other not relevant things are comments from the President of the

United States, including unfair comments about Professor Ford. Also not relevant is the outcome of this debate on elections or on President Trump's future. Nor is this about punishing Judge Kavanaugh because some crime victims have not previously received justice. The most recent claim here now is about process. I think his qualifications having been well established, now they are claiming that the process is lacking and is not fair. Obviously, what this is not about is whether the FBI was allowed to do its work, as I believe it was.

The vote we will be casting tomorrow should not be a surrogate for some other agenda; it should be simply our judgment of Judge Kavanaugh's fitness to serve on the Supreme Court, our advice on and potential consent to his nomination by the President.

As I said, having been with him in interviews, the majority of my colleagues have otherwise gotten to know him. Having witnessed and learned of the esteem in which he is held by colleagues, former law clerks, students, and professional friends, and being aware of his contributions to his community, his country, his church, and his family, I conclude that he is imminently qualified to serve on the Supreme Court and will serve the Nation well in the position of Associate Justice.

As I said, the best evidence of how he would perform as a Justice is how he has performed over the dozen years he has been a judge on the U.S. Court of Appeals for the District of Columbia. I urge my colleagues to focus on the question at hand, and I urge them to support Judge Brett Kavanaugh's nomination to the Supreme Court.

 

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