NOMINATION OF BRETT KAVANAUGH; Congressional Record Vol. 164, No. 117
(Senate - July 12, 2018)

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[Pages S4923-S4924]
From the Congressional Record Online through the Government Publishing Office []


  Mr. McCONNELL. Madam President, the President of the United States 
made a superb choice. He chose to fill a place on the Nation's highest 
Court with one of the Nation's brightest legal minds. Brett Kavanaugh 
brings unimpeachable academic credentials as a student at Yale and a 
lecturer at Harvard. He carries over a decade of experience ruling from 
the Nation's most consequential circuit court. Along the way, he has 
earned the admiration and praise of his peers--legal professionals with 
all manner of judicial and political philosophies--for his professional 
abilities and his experience, as well as qualities that simply go 
beyond his resume.
  Nevertheless, the instant Judge Kavanaugh was announced, far-left 
groups and some of our own Democratic colleagues in the Senate started 
pushing the same old scare tactics. More than a week before the 
nomination, one Democratic Senator explained on cable news that 
President Trump's nominee, whoever it was, would threaten ``the 
destruction of the Constitution, as far as I can tell.'' The President 
hadn't even named his selection, and already our entire system of 
government was on its last legs? Give me a break. This Senator, by the 
way, serves on the Judiciary Committee.
  One leftwing group had an angry press release all ready to go for 
whoever the nominee would be, but after Judge Kavanaugh's nomination 
was announced, they forgot to fill in his name. They had the press 
release ready with a big blank there, and they forgot to fill in the 
name. They wound up decrying all the terrible things that would happen 
if we confirmed the President's ``nomination of blank to the Supreme 
Court,'' and they sent it out. That kind of says it all--fill-in-the-
blank opposition.
  Our Democratic friends have learned Judge Kavanaugh's name by now, 
but the hysterical attacks haven't gotten any less desperate or any 
more sensible. No sooner are these silly attacks launched than they are 
beaten back by the facts.
  One of the flavors of the week was the outlandish claim that in law 
review articles he wrote 10 or 20 years ago, Judge Kavanaugh supposedly 
said that sitting Presidents cannot be held accountable under the law. 
Some far-left special interests claimed he said that. So did some 
congressional Democrats. It was the perfect conspiracy theory, catnip 
for their far-left base. The only problem was, it wasn't true. People 
who have actually looked at these articles note that Judge Kavanaugh 
``does not reach legal conclusions on issues'' of Presidential 
accountability. If anything, he seems to arrive at the opposite 
conclusion of what has been alleged.
  Professor Noah Feldman of Harvard Law School observed that ``from a 
legal and constitutional perspective,'' Judge Kavanaugh ``wasn't saying 
that the courts should find that the President shouldn't be 
investigated'' or held accountable; ``to the contrary.'' To the 
contrary. Professor Feldman observes that Judge Kavanaugh's logic would 
seem to imply that any President is open to being investigated and held 
accountable under the law. Here is how Professor Feldman finished his 
debunking of this unfair attack. This is what he said: ``Trying to 
oppose him on logically backward grounds doesn't serve anyone's 
  The Washington Post Fact Checker jumped on the Democrats' 
mischaracterization. It explained that Judge Kavanaugh's scholarly 
articles actually contained ``a mainstream view'' on this 
constitutional question. They blasted the Democratic rhetoric as ``an 
extreme distortion of what he has written.''
  Let me sum that up. According to the Washington Post, it is Judge 
Kavanaugh's analysis that is mainstream. It is the distortions of his 
record by congressional Democrats and far-left special interest groups 
that are extreme.
  We have a word for blatantly misrepresenting the record and character 
of a judicial nominee in order to achieve a political objective. We 
call it an attempt to Bork the nominee. It refers to how Judge Robert 
Bork was

[[Page S4924]]

slandered in the 1980s, when people both inside and outside the 
Congress blatantly and shamelessly distorted his record to claim he 
would do terrible things if confirmed to the Supreme Court.
  It is actually in the dictionary now, literally. Judge Bork's last 
name is in the Merriam-Webster Dictionary as a verb. This is what 
``Bork'' means: ``to attack or defeat (a nominee or candidate for 
public office) unfairly through an organized campaign of harsh public 
criticism or vilification.'' To be Borked is now in the dictionary. It 
is completely unfair vilification.
  Looking back, most people agree now that this episode was grossly 
unfair, insulted the intelligence of the American people, and stained 
the history of the U.S. Senate.
  Jeffrey Rosen was a Democrat who worked in Senator Biden's office on 
the Democrats' side during that episode. Here is what he wrote a few 
years ago:

       I remember feeling that the nominee was being treated 
     unfairly. Senator Edward Kennedy set the tone with a 
     demagogic attack. . . . Bork's record was distorted beyond 
     recognition. . . . It [was] bad for the country.

  This was a man named Jeffrey Rosen--a Democrat--who worked in Senator 
Biden's office during this episode.
  Here is what a lawyer who helped lead the anti-Bork effort wrote just 
last year:

       I regret my part in what I now regard as a terrible 
     political mistake.

  He was seized with guilt after all these years of having participated 
in this Borking. Because of that episode, he goes on, ``we have 
undermined public confidence in the judiciary.''
  There is widespread and bipartisan agreement that trying to Bork 
judicial nominees is harmful to our Democratic process and to our 
  Judge Kavanaugh's impressive record, impeccable credentials, and his 
enormous, bipartisan fan club of judicial peers and legal scholars all 
attest to the outstanding service he would render on the Supreme Court. 
I am glad that outside fact checkers are already swatting down 
Democrats' desperate attacks on his nomination.
  In a breaking-news bombshell report just last night, we learned that 
Judge Kavanaugh enjoys America's pastime. Investigative reporters 
scoured his financial disclosures and learned that he and his friends 
buy tickets to baseball games and that he pays his bills. As you can 
see, there is still plenty of silliness to go around.
  I urge every one of my colleagues to treat Judge Kavanaugh's record 
truthfully and treat the confirmation process with the respect that it 
and this institution in which we serve deserve. We need to act like a 
responsible United States Senate going through a confirmation process 
to the United States Supreme Court.