Department of Defense Appropriations Act, 2019

Floor Speech

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Mr. ALEXANDER. Madam President, the Senate has developed a bad habit. That bad habit is treating Presidential nominees as innocent until nominated. I hope to see better behavior during the next few weeks as the Senate begins hearings on President Trump's nomination of Judge Kavanaugh to be a member of the U.S. Supreme Court. Instead of treating Judge Kavanaugh as someone recently released from San Quentin prison, I hope we treat him with dignity and respect so Americans can better understand his temperament, his intelligence, and his character. That is what we should want to know about a Presidential nominee for the Supreme Court.

The current rudeness is a recent phenomenon. Historically, Senators have recognized that bipartisan approval of qualified nominees helps improve the esteem of the Court. It confirms its impartiality. It strengthens it as an institution. For example, conservative Justice Antonin Scalia was confirmed unanimously by this body even though he was perhaps the most conservative Justice on the Court. On the other hand, Justice Ruth Bader Ginsburg was confirmed with only three votes against her even though she may arguably be the most liberal Justice on the Court. Both were obviously well qualified, of good character, high intelligence, and good demeanor, and therefore the Senate--unanimously in one case and with only three ``no'' votes in the other case-- confirmed the President's nominees.

More recently, half the Democratic Senators voted to confirm President Bush's nominee Chief Justice John Roberts. In 2014, I voted to confirm President Obama's nominee, Sonia Sotomayor, not because I agreed with her but because I thought she was obviously well qualified for the position.

Some Senators insist that Judge Kavanaugh should tell them how he might decide a case. That reminds me of a story from Senator Howard Baker, the former majority leader of the U.S. Senate, who was a practicing lawyer in the mountains. He said he was once before a mountain judge who told the lawyers right before the case: ``Boys, just give me a little bit on the law. I had a telephone call last night, and I pretty well know the facts.'' Judges aren't supposed to decide a case in advance. That is why we have judges--to create an impartial judicial system.

Justice Ginsburg said during her confirmation that she would give ``no hints, no forecasts, no previews'' of what her legal views might be if she were to be confirmed. This rule is now known as the Ginsburg rule. Justices are supposed to follow the law and decide cases when the cases are presented, not before Justices are confirmed or while they are being confirmed.

Of course, a Justice's opinions and decisions can be surprising. That has been true throughout the history of the Supreme Court. President Franklin D. Roosevelt was often surprised by Justice Felix Frankfurter. Justice Scalia once ruled that a government ban on flag-burning violated the First Amendment. Scalia also said that ``the judge who always likes the results he reaches is a bad judge.''

In 2006, I voted for Judge Kavanaugh when he was President George W. Bush's nominee for the U.S. Court of Appeals for the District of Columbia Circuit.

Last month, I attended President Trump's nomination of Judge Kavanaugh at the White House. It is said that you only get one chance to make a first impression, and Judge Kavanaugh certainly took advantage of his one opportunity that night.

I was again impressed with Judge Kavanaugh when I visited with him in my office a few weeks ago. We discussed federalism, how to strengthen the Supreme Court as an institution, and other matters. Never once did I ask him how he might vote on a particular case.

I will not announce how I will vote on his nomination until the hearings are complete. Some Democratic Senators have already announced their opposition to Judge Kavanaugh. I wonder, why have a hearing? Why ask for more records to examine if you have already decided how you are going to vote?

During my 8 years as Governor of Tennessee, I appointed probably 50 judges. In doing so, I looked for the same qualities I will look for in considering the nomination of Judge Kavanaugh: intelligence, character, temperament, respect for the law, and respect for those who come before the Court. I did not ask one applicant to be a Tennessee judge, of that entire 50, how he or she might rule on abortion or immigration or taxation. And political party membership was far down my list of considerations when I had the job, as the chief executive of a State, of appointing judges.

I hope the Senate will return to the practice of inquiring diligently about the qualifications of a nominee, about intelligence, about character, about temperament, and get away from this bad habit of treating Presidential nominees for the Supreme Court as if they had just been released from San Quentin and as if they were innocent until nominated.

I thank the President.

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