Executive Session

EXECUTIVE SESSION

BREAK IN TRANSCRIPT

Mr. LEVIN. Mr. President, although I may not agree with a judicial nominee on policy matters, I will support that nominee as long as his or her values are consistent with the fundamental principles of American law and there is no indication that the nominee is so controlled by ideology that ideology distorts his or her judgment. Regardless of their political views, I will support a nominee who demonstrates fairness and openmindedness and whose reasoning is straightforward, clearly expressed, and worthy of respect.

Brett Kavanaugh is, unfortunately, not such a nominee. Because Mr. Kavanaugh does not have a judicial record to review, evaluating his fitness for the bench is not easy. We do not have written opinions from him that would reveal whether he looks objectively at both sides of an issue before making a decision. Therefore, we must judge his temperament on how he has conducted himself in interviews before the American Bar Association Standing Committee on the Federal Judiciary and how he answered questions posed by the Senate Judiciary Committee. Neither assessment gives me the confidence necessary to vote to confirm Mr. Kavanaugh to the DC Circuit.

In its 2003 assessment of Mr. Kavanaugh, the ABA record noted concerns with the breadth of Mr. Kavanaugh's professional experience. It was noted that he had never tried a case to verdict or judgment; that his litigation experience over the years was always in the company of senior counsel; and that he had very little experience with criminal cases. Specifically, the committee said: ``Indeed, it is the circumstance of courtroom experience that fills the transcripts that make the record before the Court of Appeals, and concerns were expressed about the nominee's insight into that very process.''

In its report on its recent reassessment of Mr. Kavanaugh, the ABA's Standing Committee on the Judiciary down-graded its rating of his qualifications. The report states that one judge who saw Kavanaugh's oral presentation in court said that Kavanaugh was ``less than adequate,'' and that he had been ``sanctimonious,'' and had demonstrated ``experience on the level of an associate.'' A lawyer in a different proceeding said: ``Mr. Kavanaugh did not handle the case well as an advocate and dissembled.''

According to the report, the 2006 interviews of Mr. Kavanaugh raised a new concern involving his potential for judicial temperament. Interviewees characterized Mr. Kavanaugh as, ``insulated,'' which one person commented was due to his current position as Staff Secretary to the President. Another interviewee questioned Mr. Kavanaugh's ability ``to be balanced and fair should he assume a federal judgeship.'' And another said that Kavanaugh is ``immovable and very stubborn and frustrating to deal with on some issues.''

A judge needs to be able to balance competing viewpoints and objectively determine a fair and equitable outcome. Mr. Kavanaugh's lack of judicial or courtroom or scholarly experience added to my doubts about his impartiality and lead me to vote no.

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