On the Judicial Nomination of Brett Kavanaugh

On the Judicial Nomination of Brett Kavanaugh

Senator Kennedy(as prepared for delivery):

"The Court of Appeals for the D.C. Circuit is the second-highest court in the nation. As such, its judges bear a unique responsibility.

By law, the D.C. circuit has exclusive jurisdiction over many issues that other appellate courts cannot deal with. Only the judges of the D.C. Circuit can hear appeals under many critical laws that affect our economy, our environment, and our election system. Because the Supreme Court only hears a limited number of cases, the judges of the D.C. Circuit often have the final word on laws that affect the lives of millions of Americans, at home and in the workplace.

Unlike most of the members of the D.C. Circuit, Brett Kavanaugh is not a judge, an experienced litigator, or a legal scholar. Far from it. Mr. Kavanaugh is a political operative, a man whose ambition has placed him at the center of some of the most politically divisive events in recent memory. He is not qualified for this position. If his nomination is approved, I can say with confidence that Mr. Kavanaugh would be the youngest, least experienced and most partisan appointee to the court in decades.

Mr. Kavanaugh blatantly lacks the broad legal experience that is the hallmark of federal judges—particularly those at the highest levels. He has never tried a case to verdict or to judgment. In fact, Mr. Kavanaugh has only practiced law for ten years. Even counting his time as a law clerk, he still has only half of the average legal experience of nominees to the D.C. Circuit. To put this in context, Mr. Kavanaugh would be the least experienced member of the D.C. Circuit in almost a quarter century.

His lack of experience is underscored by his responses to questions from Judiciary Committee members. When he was asked to name his ten most significant cases, Mr. Kavanaugh could only cite five cases for which he actually appeared in court, and only two cases in which he was lead counsel. He even cited two cases for which he merely wrote a friend-of-the-court brief for someone who was not a party to the lawsuit.

I am not alone in my judgment that Mr. Kavanaugh is not qualified for this position. Aside from my seven colleagues on the Judiciary Committee who voted against his appointment, organizations from around the country are united in their opposition to his nomination. The AFL-CIO, the Leadership Conference on Civil Rights, the NAACP, the National Urban League, the United Auto Workers…the list reads like a who's who of citizen representatives.

Most troubling, however, is the lukewarm evaluation of the American Bar Association, which has now conducted three separate evaluations of Mr. Kavanaugh. On the latest and perhaps closest evaluation, the ABA took the unusual step of downgrading its rating of Mr. Kavanaugh. Today, a majority of that committee does not believe Brett Kavanaugh can meet their highest standard for federal nominees.

Why did the ABA downgrade its rating? It did so after confidential interviews with judges and lawyers familiar with his work, when numerous questions were raised about Mr. Kavanaugh's ability as an attorney and potential appellate judge.

A judge who heard Mr. Kavanaugh's oral arguments found that his presentation was "less than adequate," and that he demonstrated skills "on the level of an associate"—a young lawyer at a law firm. Lawyers familiar with his work raised additional questions about his impartiality and partisanship. One attorney specifically questioned whether Mr. Kavanaugh was capable of being "balanced and fair should he assume a federal judgeship."

But Mr. Kavanaugh's lack of qualifications goes beyond years of experience or individual interviews. More important, Mr. Kavanaugh is almost completely unfamiliar with the substantive issues of law that consistently arise in the D.C. Circuit.

These aren't arcane concerns. The D.C. Circuit has a key role in upholding the rights of American workers. That Court decides far more appeals than any other circuit of decisions by the National Labor Relations Board on unfair labor practices. Usually, these cases are filed by employers across the country attempting to overturn unfair labor practice findings against them by the Board. Recently, almost one in three such appeals have been heard by the D.C. Circuit.

During our hearings, I asked Mr. Kavanaugh whether he had any experience handling labor law matters. He couldn't provide a single example of work in this area—not one. Instead, he made vague reference to his work as a law clerk and his brief time in the Justice Department.

The D.C. Circuit is also important to anyone who breathes our air or drinks our water. It is the only federal appellate court that can hear appeals on rules to protect the environment under the Clean Air Act and the Safe Drinking Water Act. It is the only federal court that can grant a remedy when the Executive Branch fails to follow Congressional mandates to protect the environment under these laws.

Nothing in Mr. Kavanaugh's record suggests that he would be willing to keep the executive branch in compliance with the law on these matters. More generally, nothing in his record suggests that he would be able to avoid the partisanship and politics that have marked his brief career.

In fact, partisan politics is the only area in which Mr. Kavanaugh's qualifications cannot be questioned. He has been deeply involved in some of the most bitterly divisive political events in the last decade—and always on the same side.

At the Office of the Independent Counsel, Mr. Kavanaugh co-authored the infamous Starr Report, wrote the articles of impeachment against President Clinton, and investigated the tragic suicide of Vince Foster.

As an Associate White House Counsel, Mr. Kavanaugh worked to support the nomination and confirmation of Jay Bybee, the author of the notorious—but then still secret—torture memo. He also was personally responsible for drafting the executive order that made presidential records less accessible to the public and the press. This was order was so restrictive that one observer said it would "make Nixon jealous in his grave."

We gave Mr. Kavanaugh an opportunity to prove that he was independent and impartial in spite of his partisan past. I personally noted that this was my chief concern with his nomination, and I know that my colleagues did the same. Mr. Kavanaugh refused to specify the issues and policies on which he would recuse himself—in spite of the fact that he was at the center of a number of executive policy directives in recent years.

His answers to our questions resembled political talking points more than they did the answers we would expect from a nominee to such a prominent lifetime position in the nation's Judiciary. He has shown nothing to suggest that he will stand up to the President when his duties require it.

Mr. Kavanaugh is not qualified for this job. Even worse, his nomination is a harsh reminder of the partisan and ideological pressures that have marked many recent judicial nominations. His nomination seems little more than a crass Administration attempt to politicize the courts and provide a solid vote in favor of even the most extreme political tactics of the Administration. The federal courts need experienced, independent judges who can rise above their partisan beliefs and enforce the rights and guarantees of our Constitution and the rule of law.

http://www.tedkennedy.com/journal/885/on-the-judicial-nomination-of-brett-kavanaugh