Senator Chuck Grassley Questions for the Record Judge Brett Kavanaugh Nominee, Associate Justice of the Supreme Court of the United States 1. I’d like to give you a chance to respond to some of the issues raised last week regarding contraceptives and abortion rights. a. When responding to Senator Cruz’s question about your opinion in Priests for Life v. United States Department of Health & Human Services, you said: “It was a technical matter of filling out a form, in that case with–that–they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were–as a religious matter, objected to.” Why did you use the term “abortion-inducing drugs”? RESPONSE: That was the position of the plaintiffs in that case, and I was accurately describing the plaintiffs’ position. At the hearing, I was not expressing an opinion on whether particular drugs induce abortion; I used that phrase only when recount the plaintiffs’ own assertions. b. Senator Blumenthal and others on the Committee asked you about a March 24, 2003 email in which you addressed legal scholars’ views of Roe v. Wade. Please explain the context of that email. In particular, did you express any personal view in that email on whether Roe v. Wade was “settled law”? RESPONSE: That email commented on the views of legal scholars. It did not describe my own views. 2. Last Tuesday, as the Committee recessed for a break, a man approached you and extended his hand as you left the hearing room. Media reports later identified the man as Fred Guttenberg, the father of a shooting victim from Marjory Stoneman Douglas High School in Parkland, Florida. Please explain your reaction to Mr. Guttenberg. RESPONSE: As I was leaving the hearing room for a recess last Tuesday, a man behind me yelled my name, approached me from behind, and touched my arm. It had been a chaotic morning with a large number of protestors in the hearing room. As the break began, the room remained noisy and crowded. When I turned and did not recognize the man, I assumed he was a protestor. In a split second, my security detail intervened and ushered me out of the hearing room. In that split second, I unfortunately did not realize that the man was the father of a shooting victim from Parkland, Florida. Mr. Guttenberg has suffered an incalculable loss. If I had known who he was, I would have shaken his hand, talked to him, and expressed my sympathy. And I would have listened to him. 3. During the hearings last week, Senator Leahy asked you about your role in the nomination of Judge William Pryor to the U.S. Court of Appeals for the Eleventh Circuit. Since your hearing, the media has reported on emails you wrote regarding that nomination while in the White House Counsel’s Office, as well as the nomination of Judge Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit. During your time in the White House Counsel’s Office, were you the person primarily responsible for handling either of these nominations? If not, did you work with others in the White House Counsel’s Office to support these nominations? If you did support these nominations, what sort of work did you perform? RESPONSE: As I stated in response to written questions after my 2004 hearing, it is fair to say that all of the attorneys in the White House Counsel’s Office who worked on judges (usually ten lawyers) participated in discussions and meetings concerning all of the President’s judicial nominations. As I have accurately explained before, I was not the primary person in the Counsel’s Office assigned to Judge Pryor’s or Judge Pickering’s nomination. 4. Senator Leahy asked you about former Judiciary Committee staff member Manuel Miranda. Senator Leahy asked whether you knew that Miranda took files without authorization from Democrats on the Senate Judiciary Committee. When you received these emails, did you know that some of the materials you received from Mr. Miranda had been taken from the files of Senate Democrats without their authorization? RESPONSE: No. 5. During the hearings last week, Senator Leahy asked you about a September 17, 2001 email you sent to John Yoo, an attorney in the Office of Legal Counsel at the Department of Justice. In the email, you asked about legal research regarding potential surveillance techniques. a. Please explain the context of that email. RESPONSE: As I explained at the hearing, in the wake of September 11th, it was “all hands on deck” in the White House and in the White House Counsel’s Office. The email on September 17, 2001, mere days after the attacks, was sent in that context. b. Please explain that email in light of your testimony to the Committee in 2006 regarding the National Security Agency’s (NSA) Terrorist Surveillance Program. RESPONSE: As I explained at the hearing last week, I testified accurately in 2006 that I did not learn about the Terrorist Surveillance Program, or TSP until I read about it in a New York Times article in December 2005. I was not read into that program. As I understand it, the September 17, 2001, email was not referring to the TSP, which did not exist at that time. The Honorable Jeff Flake Questions for the Record U.S. Senate Judiciary Committee “The Nomination of Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States” September 10, 2018 1. Should a president be able to use his authority to pressure executive or independent agencies to carry out his directives for purely political purposes? RESPONSE: No one is above the law. Many of the greatest moments in Supreme Court history have come when the independent judiciary has stood up for the principle that no one—not even the president—is above the law. Frequently, these moments have occurred during times of political crisis. For example, the Youngstown Steel case arose during the Korean War. President Truman seized steel mills to aid the war effort. His action was wellintentioned, but the Supreme Court stepped in and said the President lacked authority to seize private property. As Justice Jackson’s landmark concurring opinion in that case made clear, the Commander-in-Chief remains subject to both the Constitution and the laws passed by Congress, even in the national security context. Another example of this principle is United States v. Nixon, a unanimous decision authored by Chief Justice Burger and joined by two other Nixon appointees holding that President Nixon had to produce the tapes. Likewise, in Clinton v. Jones, two of President Clinton’s appointees to the Court ruled against him, holding that a sitting president does not have the power to delay civil litigation against him in his personal capacity for unofficial acts. The importance of enforcing constitutional and statutory constraints on the Executive also arose in Hamdan v. United States, in which I wrote the opinion for the D.C. Circuit. That military commission prosecution was initially brought by President George W. Bush’s Administration against Salim Hamdan, an associate of Osama bin Laden’s. Hamdan challenged his conviction on the ground that it violated ex post facto principles. Although the case was a marquee prosecution for the Bush Administration in the war on terror—and was very important to the President who appointed me to the D.C. Circuit—I concluded that Hamdan’s argument was correct, and I wrote an opinion vacating his conviction. 1 For courts to have the authority to stand up to the other branches, it is critical that they maintain independence. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. The independence of the judiciary is critical to the confidence the American people have in our system of government. As you have eloquently said, “[judicial] independence goes both ways,” which is why “[e]lected politicians shouldn’t seek to interfere with the judicial power and the courts shouldn’t interpose themselves into political affairs.” As a federal judge, I appreciated how you explained during the hearing last week that you “certainly do not think it is in our interest to bring the element of politics any closer to the judiciary.” That is why I cannot comment on issues likely to come before me or on current political controversies, in keeping with the nominee precedent from all eight sitting Supreme Court Justices. Indeed, this is why, as a judge, I no longer vote in elections. In my experience serving in the Executive Branch, I worked with countless men and women who were deeply dedicated to good government and to serving the public with the highest integrity. These men and women worked early mornings and late nights to serve the American people and give them the best government possible. Throughout that experience, my colleagues and I lived by the principle that everything the Government does must be based on sound legal principles and a legitimate factual basis. Pure politics is never enough. That’s a principle I have lived by throughout my entire career, and it is one I will continue to live by whether I continue as a circuit judge or am confirmed to the Supreme Court. I have never and will never bow to public pressure from any president, any Senator, or any other political actor—and I am confident that my colleagues in the judiciary will never do so either. 2 Nomination of Brett Kavanaugh to be Associate Justice of the Supreme Court Questions for the Record Submitted September 10, 2018 QUESTIONS FROM SENATOR FEINSTEIN 1. You have referred to Roe v. Wade as “settled law.” a. Can the Supreme Court overrule a longstanding decision even if it is considered settled law? b. Was Abood v. Detroit Board of Education (1977) settled law before 2016? c. Was Dr. Miles Medical Co. v. John D. Park & Sons Co. (1911) settled law before 2006? d. Was Michigan v. Jackson (1986) settled law before 2008? e. Was Austin v. Michigan Chamber of Commerce (1990) settled law before 2009? RESPONSE: As discussed at the hearing, “the judicial power clause of Article III” and “Federalist 78” make clear that respect for precedent is “part of the proper mode of constitutional interpretation.” If confirmed, I would respect the law of precedent given its centrality to stability, predictability, impartiality, and public confidence in the rule of law. 2. When we met in my office, I raised concerns about your potentially being the fifth vote to overturn Roe. You said that it is important to be aware of the real-world implications of Court decisions. However, you have never lived in a world where women did not have safe, legal reproductive care. a. Please explain your understanding of what it means for a woman to be able to control her reproductive life. b. What is your understanding of how women are being affected in states in which access to reproductive care has been curtailed? RESPONSE: As I discussed during the hearing, I understand the importance that people attach to Roe v. Wade, the depth of feelings about the decision, and the real-world importance of the issue. Both Roe and Casey are precedents of the Supreme Court entitled to respect under the law of precedent. Importantly, Roe has been reaffirmed many times over the past 45 years, including in Casey, which specifically analyzed the stare decisis factors at great length and is itself a precedent on precedent. 1 3. If Roe v. Wade were overruled, and the decision whether to permit abortions was left to the states: a. Should there be an exception on abortion bans to protect the health or life of the mother? b. Would an abortion ban without such an exception be constitutionally permissible? c. Should there be an exception on bans on abortion in cases of rape and incest? d. Would an abortion ban without such an exception be constitutionally permissible? RESPONSE: As a sitting judge and nominee, principles of judicial independence prevent me from speculating about hypothetical contingent events, particularly involving a controlling precedent of the Supreme Court. 4. In a 2017 speech at the American Enterprise Institute, you described Justice Rehnquist as your “first judicial hero.” You said that Justice Rehnquist “clearly wanted to overrule Roe and Casey and did not have the votes.” You also praised Justice Rehnquist for “stemming the tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” (9/18/2017 Speech at AEI – From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist). a. What are the judicially created “unenumerated rights” you were referring to? RESPONSE: The Glucksberg case involved the claimed right to assisted suicide. As I discussed at the hearing, it is well-settled that the Constitution protects unenumerated rights. This speech was intended to spell out the consequential impact of Chief Justice Rehnquist’s work, by describing “five different areas of his jurisprudence, where he had helped the Supreme Court achieve . . . a common sense middle ground that has stood the test of time . . . .” I did not discuss particular unenumerated rights in my speech. Rather, in describing Chief Justice Rehnquist’s important contributions to the law with Washington v. Glucksberg, 521 U.S. 702 (1997), I agree with Justice Kagan that the decision provides the primary test that “the Supreme Court has relied on for forward-looking future recognition of unenumerated rights”— and Glucksberg cited Planned Parenthood v. Casey, 505 U.S. 833 (1992), which reaffirmed Roe v. Wade, 410 U.S. 113 (1973). 2 5. In that same speech, you also said: “In case after case during law school, I noticed something. After I read the assigned reading, I would constantly make notes to myself: Agree with Rehnquist majority opinion. Agree with Rehnquist dissent. Agree with Rehnquist analysis. Rehnquist makes a good point here. Rehnquist destroys the majority’s reasoning here. At that time, in 1987, Rehnquist had been on the Court for 15 years, almost all of it as an associate justice. And his opinions made a lot of sense to me. In class after class, I stood with Rehnquist. That often meant in the Yale Law School environment of the time that I stood alone. Some things don’t change.” a. Which Justice Rehnquist dissents did you agree with in law school? RESPONSE: Please see my response to Question 4. My speech specifically noted that “I do not agree with all of [Chief Justice Rehnquist’s] opinions.” As I explained at the hearing, principles of judicial independence make it inappropriate for me, like Justice Kagan, to give a thumbs up or thumbs down on particular opinions. That said, the precedential holdings of the Supreme Court are those contained in majority opinions, not dissents. b. Was Justice Rehnquist’s dissent in Roe v. Wade one of the dissents with which you agreed in law school? RESPONSE: See my answer to Question 5.a. c. If so, has your view changed since then? RESPONSE: See my answer to Question 5.a. d. Was your statement that you “stood alone” and “some things don’t change” an acknowledgement that your views are outside the mainstream? RESPONSE: No. 6. You have called Justice Scalia one of your “heroes” in a number of speeches over the years. In one of these speeches from 2016, you praised Justice Scalia’s view that “courts have no legitimate role . . . in creating new rights not spelled out in the Constitution.” You asked the audience to think about Justice Scalia’s dissent in Casey on abortion. (6/2/2016, "Remembering Justice Scalia," George Mason University). In Casey, Justice Scalia said “the issue is whether [the right to abortion] is protected by the Constitution of the United States. I am sure it is not.” (Casey, at 980). a. Is the right to decide whether to continue a pregnancy a Court created right? RESPONSE: In Roe v. Wade, the Supreme Court grounded a right to abortion in its understanding of “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” 410 U.S. 113, 153 (1973). The holding of Roe has been reaffirmed many times since 1973, including in Casey, and is entitled to respect under the law of precedent. Casey is precedent on precedent. The reference in my speech set forth above merely attempted to summarize Justice Scalia’s jurisprudence in certain areas. 3 b. What “new rights not spelled out in the Constitution” do you believe the Court has created? RESPONSE: This reference in my speech set forth above merely attempted to summarize Justice Scalia’s jurisprudence in certain areas. 7. Even if Roe v. Wade is not completely overruled, the “undue burden” test from Planned Parenthood v. Casey might be applied in a manner that severely restricts access to reproductive care. a. What’s the practical difference to women if Roe is not overruled but gutted? RESPONSE: Roe v. Wade is a precedent of the Supreme Court entitled to respect under the law of precedent. Importantly, Roe has been reaffirmed many times over the past 45 years, including, most recently, in Whole Woman’s Health v. Hellerstedt, 579 U.S. ____, 136 S.Ct. 2292 (2016). Casey, moreover, specifically analyzed the stare decisis factors at great length in reaffirming Roe and is itself a precedent on precedent. As a nominee, it would not be proper to speculate about hypothetical contingent events, particularly involving a controlling precedent of the Supreme Court. b. What has been the practical impact of the undue burden test on women’s access to reproductive care in states with strict limits on abortion? RESPONSE: It would be improper for me as a sitting judge and a nominee to comment on issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their issue in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. 8. In an interview with CNN, Senator Graham said about you and Roe, “there is a process to overturn a precedent and I think he understands that process.” (Graham on CNN State of the Union, 9/2/18). a. Was Roe discussed at your mock hearings in preparation for your nomination hearing? RESPONSE: In preparation for the hearing, various people, including Senators, Administration personnel, and former law clerks provided advice on a range of legal matters. While I received a wide range of advice, the answers I gave at the hearing were my own. b. What were you advised to say? 4 RESPONSE: Please see my response to Question 8.a. 9. One of your former law clerks wrote that when it comes to “enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh.” (Sarah E. Pitlyk, Judge Brett Kavanaugh’s Impeccable Record of Constitutional Conservatism, National Review (July 3, 2018)) a. Is that an accurate assessment of your record? If not, how would you qualify the statement? RESPONSE: I speak for myself. I am an independent judge and have been for 12 years. My opinions show that independence. 10. In your opening statement on Tuesday, September 4, you said you would “interpret the Constitution as written, informed by history and tradition.” As you know, the history and tradition of this country has disfavored women, minorities, Native Americans, immigrants, LGBT people, individuals with disabilities, and many more. a. When you said “history and tradition,” to whose history and tradition were you referring? RESPONSE: The Supreme Court has repeatedly stated that the Constitution “must be interpreted according to its text, by considering history, tradition, and precedent . . . .” Roper v. Simmons, 543 U.S. 551, 560 (2005). b. How does your view of “history and tradition” take into account the fact that classes of people have historically been disfavored? RESPONSE: Please see my response to Question 10.a. c. Does the “history and tradition” of the United States include the decision on who to marry? RESPONSE: Please see my response to Question 10.a. d. Does the “history and tradition” of the United States include a woman’s right to use contraceptives? RESPONSE: Please see my response to Question 10.a. e. Does the “history and tradition” of the United States include a woman’s right to choose whether to terminate a pregnancy? RESPONSE: Please see my response to Question 10.a. 5 11. In Griswold v. Connecticut and Eisenstadt v. Baird, the Supreme Court held that states cannot prohibit the use contraceptives because doing so would violate a constitutional right to privacy. Senator Harris asked whether you believed that Griswold and Eisenstadt were correctly decided. You responded that you have “no quarrel” with Justice White’s concurrence in Griswold. a. Is Griswold settled law? b. Is Eisenstadt settled law? c. What did you mean when you said you have “no quarrel” with Justice White’s concurrence in Griswold? Did you mean you agree with his concurrence, or something else? RESPONSE: As I explained at the hearing, “Justice White’s concurrence in Griswold was a persuasive application of Pierce [v. Society of Sisters, 268 U.S. 510 (1925)] and Meyer [v. Nebraska, 262 U.S. 390 (1923)].” At the hearing, I said that I agreed with Chief Justice Roberts and Justice Alito about those cases. 12. Does a pharmacist have a constitutional right to refuse to fill a prescription for contraception on the basis of the pharmacist’s religious beliefs? RESPONSE: This subject involves an area of ongoing litigation and is a matter that could come before me. As I discussed at the hearing, and in keeping with the nominee precedent of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 13. You testified: “Being a good judge means paying attention to the words that are written, the words of the Constitution, the words of the statutes that are passed by Congress. Not doing what I want to do, not deferring when the executive rewrites the laws passed by Congress, but respect for the laws passed by Congress, respect for the rule of law, the words put into the Constitution itself.” a. Where in the text of the First Amendment text are businesses mentioned? 6 RESPONSE: As I said at the hearing, in my decision in United States Telecom Association v. FCC, I followed the Supreme Court’s Turner Broadcasting decision. Specifically, I explained in that opinion that “[t]he Supreme Court’s landmark decisions in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), and Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (Turner Broadcasting II), established that those foundational First Amendment principles apply to editors and speakers in the modern communications marketplace in much the same way that the principles apply to the newspapers, magazines, pamphleteers, publishers, bookstores, and newsstands traditionally protected by the First Amendment.” 855 F.3d 381, 427 (D.C. Cir. 2017). Turner Broadcasting is a business. The Supreme Court has applied the First Amendment to businesses in many other cases. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964). b. What in U.S. history demonstrates that the founding fathers intended the First Amendment to recognize religious beliefs of companies and businesses? RESPONSE: Under existing Supreme Court precedent, some constitutional rights apply to businesses. I am bound to follow those precedents subject to the rules of precedent. As I discussed at the hearing, and in keeping with the nominee precedent of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. 14. The Affordable Care Act (ACA) plays a vital role for millions of Americans in this country. Thanks to the ACA, people across the nation can no longer be denied coverage by insurance companies because of preexisting conditions. Families throughout the country enjoy the security and certainty that comes with having quality health coverage. Jackson Corbin made precisely these points in his testimony on September 7, when he said: “If you destroy protections for pre-existing conditions, you will leave me and all the kids and adults like me without care or without the ability to afford our care — all because of who we are.” (Corbin Testimony at p. 3) a. Do you believe Congress has the authority to enact legislation that prevents discrimination based on health status? RESPONSE: As I explained in Seven-Sky v. Holder, 661 F.3d 1, 52 (2011), “[t]he elected Branches designed [the Affordable Care Act] to help provide all Americans with access to affordable health insurance and quality health care, vital policy objectives.” I further noted that “[c]ourts must afford great respect to that legislative effort and should be wary of upending it.” Id. at 53. Nevertheless, as I discussed at the hearing, and in keeping with the practice of previous nominees, it would be improper for me as a sitting judge and a nominee to comment further on a matter that may come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. 7 b. At any point before or after your nomination to the Supreme Court, has anyone from the Trump Administration discussed with you your views on the Affordable Care Act or Congress’s ability to regulate the health insurance market more generally? If so, who and what was discussed? RESPONSE: I was asked questions similar to those posed by the Senators on the Senate Judiciary Committee during preparation for the hearing and during preparation for meetings with individual Senators. I have given no hints, forecasts, or previews, and I have made no commitments. c. During your nomination hearing, you spoke frequently of the fact that you were aware of or considered “real-world consequences” of judicial decisions. Have you ever experienced being denied coverage for a preexisting condition? Have you ever been denied health insurance? Have you or your family ever been uninsured? RESPONSE: No, as to me and my immediate family (my wife and daughters). I do not know as to other members of my extended family. d. If not, what steps have you taken to understand what it would be like if the Affordable Care Act were struck down? RESPONSE: Please see my response to Question 14.a. 15. In a September 2017 speech at the American Enterprise Institute (AEI), you praised decisions authored by Chief Justice Rehnquist striking down federal statutes on the grounds that they were beyond Congress’s Commerce Clause power. One of those decisions, United States v. Lopez, found the Gun-Free School Zones Act unconstitutional. The other, United States v. Morrison, held that parts of the Violence Against Women Act (VAWA) providing a federal civil remedy for victims of gender-motivated violence were unconstitutional. At AEI you said that these two decisions “were critically important in putting the brakes on the Commerce Clause and in preventing Congress from assuming a general police power.” a. Why was it “critically important” for the Supreme Court to strike down gun restrictions? RESPONSE: As explained in my answers to Questions 4 and 5, this speech was intended to spell out the consequential impact of Chief Justice Rehnquist’s work by describing “five different areas of his jurisprudence.” b. Why was it “critically important” for the Supreme Court to strike down the ability for victims of sexual violence to sue for civil damages in federal courts? RESPONSE: Please see my response to Question 15.a. 8 c. In light of your emphasis on considering real-world consequences, what do you believe are the real-world consequences of your narrow view of the Commerce Clause? RESPONSE: Please see my response to Question 15.a. d. Specifically, what has been the impact of striking down that section of the Violence Against Women act? RESPONSE: Please see my response to Question 15.a. e. What has been the impact of striking down the Gun Free Schools Act? RESPONSE: Please see my response to Question 15.a. 16. You also connected Lopez and Morrison to the Supreme Court’s 2012 decision concerning the Affordable Care Act, NFIB v. Sebelius, saying: “Although it is not often the first thing discussed about [NFIB v. Sebelius], we do remember that a five-justice majority said that the Commerce Clause did not give Congress authority to require citizens to purchase a good or service.” (From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist, Speech at AEI (Sept. 18, 2017)) a. Why did you think it is important to highlight that decision? RESPONSE: The NFIB case is of course an important precedent. b. Do you believe the Court was correct in NFIB v. Sebelius in concluding that Congress does not have authority under the Commerce Clause to regulate health care? RESPONSE: As I explained at the hearing, principles of judicial independence make it inappropriate for me, like Justice Kagan, to give a thumbs up or thumbs down on particular opinions. 17. In your dissent in Seven-Sky v. Holder, a 2011 case concerning the constitutionality of the Affordable Care Act’s individual mandate, you wrote the following: “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” (Seven-Sky v. Holder, 661 F.3d 1, 50 n. 43 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)) a. On what basis did you conclude that the President is the ultimate arbiter of whether a law “that regulates private individuals” is constitutional? RESPONSE: As I said at the hearing, footnote 43 of my opinion in Seven-Sky v. Holder refers to the concept of prosecutorial discretion, which was recognized by the Supreme Court in United States v. Nixon, which says the executive branch has the “exclusive authority and 9 absolute discretion whether to prosecute a case.” And in Heckler v. Chaney, the Supreme Court said this principle applies to civil enforcement as well. The limits of prosecutorial discretion are uncertain. b. Where in the Constitution is the President given this authority? RESPONSE: In United States v. Nixon and Heckler v. Chaney, the Supreme Court recognized the power of prosecutorial discretion. c. Has this conclusion ever been adopted by a majority in any Supreme Court decision? If so, which decision? RESPONSE: Yes. In the criminal context, the Supreme Court has stated that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693 (1974). As I said at the hearing, the Supreme Court recognized that the doctrine of prosecutorial discretion applies in the civil context in Heckler v. Chaney, 470 U.S. 821, 831-33 (1985). d. Is there any constitutional limit on the ability of a President to undermine or otherwise refuse to enforce duly enacted legislation? RESPONSE: As I have explained, those limits are debated. 18. You have expressed opinions in the past about immunity of sitting presidents from investigation, indictment, and prosecution. Although you were asked about these issues during your hearing, your answers were unclear. Accordingly, please answer the following questions with a simple yes or no: a. Do you believe that the Constitution prohibits the criminal investigation of a sitting president? b. Do you believe that a sitting president can be required to respond to a grand jury subpoena consistent with the Constitution? c. Do you believe that the Constitution prohibits the indictment of a sitting president? d. Do you believe that the Constitution prohibits the prosecution of a sitting president? RESPONSE: I discussed these issues at length at the hearing. 10 19. You have written that “the President has absolute authority to issue a pardon at any time after an unlawful act has occurred, even before a charge or trial.” (In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013)) a. Do you believe the President’s pardon authority is subject to any limits? RESPONSE: As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 20. In Clinton v. Jones, 520 U.S. 681 (1997), the Supreme Court said it is “settled” that a President’s conduct – before or while in office – can be investigated. The Court cited U.S. v. Nixon and said that a court may require a President to cooperate in the investigation of possible misconduct. a. Was Clinton v. Jones correctly decided? b. Have any Supreme Court rulings called it into question? RESPONSE: Clinton v. Jones is a precedent of the Supreme Court entitled to all the respect due under the law of precedent. 21. You have stated: “it makes no sense at all to have an independent counsel looking at the conduct of the President.” (Georgetown Panel – Independent Counsel Statute Failure, Feb. 19, 1998) a. Do you stand by that statement? RESPONSE: As I discussed at the hearing, Congress decided not to reauthorize the independent counsel statute in part because of the significant flaws in the statute. As I also explained at the hearing, the appointment of an independent counsel under that now-expired statute is distinct from the appointment of a special counsel under separate statutory authority and Executive Branch regulations. I have repeatedly stated my approval of the general system of special counsels. 22. You have argued that “an independent counsel should never be appointed to prosecute the President because a sitting President should not be subject to criminal indictment.” (The President and the Independent Counsel, Georgetown Law Journal, July 1998) a. Do you stand by that statement? RESPONSE: Please see my response to Question 18. 11 23. You have said: “If the President were the sole subject of a criminal investigation, I would say no one should be investigating that at all.” (Independent Counsel Structure & Function, Georgetown Law Journal Symposium, Feb. 19, 1998.) a. Do you stand by that statement? RESPONSE: As I said at the hearing, no one is above the law, including a President. The primary dispute is over whether a President may be criminally prosecuted while he is in office or whether such a prosecution should instead be deferred until after a President leaves office. For 45 years, the Department of Justice has stated that a sitting President may not be indicted while in office. Regardless, the House and the Senate also possess the impeachment and removal powers. 24. During my questioning, I pointed out that when you worked in the Office of Independent Counsel Ken Starr investigating President Clinton, you argued for aggressive questioning of the President. But you have also taken the opposite position. For example, in a panel discussion in 1998, you said: “If the President were the sole subject of a criminal investigation, I would say no one should be investigating that. That should be turned over immediately to the Congress.” (Video, Independent Counsel Structure & Function, Georgetown Law Journal Symposium (Feb. 19, 1998)) In your response, you indicated that the events of September 11, 2001, were what caused you to change your mind about investigating the President. You said: “What changed was September 11th. That is what changed. So after September 11th, I thought very deeply about the presidency, and I thought very deeply about the independent counsel experience, and I thought very deeply about how those things interacted.” But you said that “no one should be investigating” the President on February 19, 1998— three-and-a-half years before September 11, 2001. a. What changed your mind before September 11th when you argued against the President being the sole subject of a criminal investigation in 1998? RESPONSE: I have described my views at that time in my writings and at the hearing. 25. As discussed above, in February 1998, after you had left the Independent Counsel’s Office, you publicly expressed serious concerns about having an independent counsel conduct an investigation into a sitting President. You stated that Congress should be the body investigating the President. Yet you returned to work for the Independent Counsel in April or May 1998. a. Why did you return to work for the Office of the Independent Counsel? RESPONSE: I returned to the Independent Counsel’s Office at the request of Judge Starr to assist the Office, including to argue a case in the Supreme Court in June 1998. 12 26. You have said that the president should have “absolute discretion” to decide when to appoint a special prosecutor, and that any such prosecutor should be nominated by the President and confirmed by the Senate. (Georgetown University Law Center, Feb. 19, 1998) a. If the president is a possible target or subject of an investigation, does he still have “absolute discretion” to select the person who will investigate? b. If the president’s close associates are the possible target or subject of an investigation, does he still have “absolute discretion” to select the person who will investigate? RESPONSE: My comments in 1998 were policy proposals, not statements of law. Given my position now as a sitting judge and nominee, it would be inappropriate for me to comment on these questions. 27. During your White House tenure, many of President Bush’s signing statements specifically asserted that he would interpret laws “consistent with the constitutional authority of the President to supervise the unitary executive branch” and would disregard laws he deemed inconsistent. I asked you during your hearing about one such statement that President Bush issued regarding the Detainee Treatment Act of 2005, reserving the President’s right to disregard that law’s ban on torture if it interfered with his constitutional authorities as President. (Signing Statement, H.R. 2863, Dec. 30, 2005) a. You said at your hearing that this signing statement would have crossed your desk when you were Staff Secretary, and you recalled that “there was debate” about it. What position did you take in that debate? RESPONSE: As discussed at the hearing, I do not specifically remember any comments I made or the details of who within the government took what position, but I do recall that there was internal debate and controversy about the signing statement. The White House Counsel ordinarily would have been in charge of the final recommendation for signing statements. As Staff Secretary, my role was not to replace the legal or policy advisors, but rather to make sure that the President had the benefit of the views of advisors, as any issue that reached the President’s desk from July 2003 to May 2006, with the exception of a few covert matters, would have crossed my desk. b. At that time, what did you know about interrogation techniques being used on detainees or combatants or about memos written by the Office of Legal Counsel regarding interrogation techniques? RESPONSE: As I explained during the hearing, I was not read into the program involving the controversial enhanced interrogation techniques, and I was not involved in crafting the legal memos justifying that program. Your report for the Intelligence Committee and the DOJ Office of Professional Responsibility report confirm that point. I became aware of the program and the memos when they were publicly disclosed in news reports in 2004. 13 c. Was the Bush Administration planning to disregard any of the provisions of the Detainee Treatment Act? RESPONSE: As I stated during the hearing, I recall that there was internal debate and controversy about a signing statement for the Act. d. Did the Bush Administration ever disregard requirements of the Detainee Treatment Act of 2005? RESPONSE: See my answer to Question 27.b. 28. You have written in opinions, and said in public appearances, that the President may decline to enforce a law that he thinks is unconstitutional “even if a court has held or would hold the statute constitutional.” (Seven-Sky v. Holder, 661 F.3d 1 (2011)) a. Did President Bush ever exercise this authority? RESPONSE: This portion of the footnote referred to prosecutorial discretion. I believe President Obama relied in part on the power of prosecutorial discretion in the DACA program. b. If so, what was your role in advising on this authority when it was exercised? RESPONSE: While working in the White House, I worked on, provided advice on, or was otherwise involved in many different issues, including those involving legislation, litigation, and policy, and for several years, any issue that reached the President’s desk from July 2003 to May 2006, with the exception of a few covert matters, would have crossed my desk. c. Do you still believe the President has this authority? RESPONSE: Prosecutorial discretion has been recognized by the Supreme Court as part of the President’s executive authority. The extent of that discretion is the subject of litigation. d. Are there any limits to the President’s authority to decline to enforce a law he thinks is unconstitutional? RESPONSE: As I noted in In re Aiken County, “it has occasionally been posited that the President’s power not to initiate a civil enforcement action may not be entirely absolute (unlike with respect to criminal prosecution) and thus might yield if Congress expressly mandates civil enforcement actions in certain circumstances,” 725 F.3d 255, 264 n.9 (2013). Whether there are limits on the President’s authority is the subject of pending litigation. As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 14 e. If the President and the Supreme Court disagree, which branch’s interpretation is controlling? RESPONSE: As I stated during the hearing, one of the central principles of judicial independence is that sitting judges and judicial nominees should refrain from commenting on current events and political controversies. As I also stated at the hearing, when the Supreme Court issues a ruling prohibiting the President from doing something or ordering the President to do something, the Supreme Court’s word is the final word, subject of course to a constitutional amendment or a subsequent overruling by the Court. See Cooper v. Aaron, 358 U.S. 1, 23 (1958). 29. The Committee has an email from your time in the White House where Deputy National Security Adviser Steve Hadley asks for your review of talking points defending the Administration’s position on torture. The talking points read: “the President has never considered authorizing torture under any circumstances.” (Email from Harriet Miers to Brett Kavanaugh, Fw: let me know when you get this…thx (June 12, 2004)). This email asking for your input was sent four days after the Washington Post reported on legal memos justifying the use of brutal enhanced interrogation techniques a. Did you respond to this email? Did you provide any feedback on these talking points? If so, what was your response or feedback? RESPONSE: As noted, I became aware of the program and the memos when they were publicly disclosed in news reports. I do not recall what reaction, if any, I had in response to the talking points that you mention from more than 14 years ago. As Staff Secretary, my usual role would have been to send draft talking points around for comment and input from other staff members. b. At that time, what did you know about these memos or the interrogation techniques being considered by the United States? RESPONSE: Please see my response to Question 29.a. c. If you did not know about the OLC memos or the interrogation techniques, why were you being asked to review talking points? RESPONSE: I was Staff Secretary. Please see my response to Question 29.a. d. The talking points stated that the Bush Administration “has never considered authorizing torture.” Did you believe it was accurate at the time? RESPONSE: Please see my responses to Question 29.a and 29.b. 15 e. Knowing what you know today, do you believe that this was accurate? RESPONSE: Please see my responses to Questions 29.a and 29.b. 30. On November 1, 2001, President Bush issued Executive Order 13233, which significantly restricted and slowed the release of records under the Presidential Records Act by giving sitting and former presidents the ability to delay the release of records indefinitely. (It has since been rescinded.) Some of the limited number of documents we have received from your time in the White House Counsel’s Office suggest that you were involved with this executive order. a. Please describe the nature and extent of your work or advice on this executive order or related issues. RESPONSE: I worked on it. While working in the White House, I worked on, provided advice on, or was otherwise involved in many different issues, including those involving legislation, litigation, and policy, and for several years, any issue that reached the President’s desk from July 2003 to May 2006, with the exception of a few covert matters, would have crossed my desk. I do not recall my work or involvement in all of these matters. b. What is the justification for withholding from public view presidential records that are not protected by a legitimate claim of executive privilege? RESPONSE: As I explained during the hearing, it is my understanding that officials in the Administration, members of the Senate Judiciary Committee, and lawyers working for President Bush made the decisions regarding the processing and production of documents related to my nomination. I cannot speak knowledgeably to the details of the document production. c. The Presidential Records Act was enacted in 1978 to enhance the public’s access to presidential records. Do you believe President Bush’s executive order served that purpose? RESPONSE: The order speaks for itself. 16 31. Congress has established several independent agencies, such as Security Exchange Commission and Federal Communications Commission, which are important for enforcing our laws and safeguarding Americans’ rights. Congress requires the President to have good cause to remove the heads of these agencies to insulate them from political interference. You objected to this limit on the President’s power and struck down the “for cause” requirement in a case involving the Consumer Financial Protection Bureau. (PHH Corp. v. CFPB, 839 F.3d 1 (2016)) The en banc D.C. Circuit disagreed and overturned your decision, holding that the CFPB’s for-cause provision was constitutional under Humphrey’s Executor v. United States, a 1935 Supreme Court decision that established the constitutionality of independent agencies. a. In light of this, how can you contend that your opinion was consistent with Humphrey’s Executor? RESPONSE: As I explained at the hearing, I concluded in PHH Corp. v. Consumer Financial Protection Bureau, 839 F.3d 1, 8 (2016), that the Consumer Financial Protection Bureau was unconstitutionally structured. As a single-Director independent agency exercising substantial executive authority, the Bureau was “the first of its kind and a historical anomaly.” Id. at 17. In light of the historical practice under which independent agencies have been headed by multiple commissioners or board members, and in light of the threat to individual liberty posed by a single-Director independent agency, I concluded that Humphrey’s Executor could not be stretched to cover the Bureau’s novel agency structure. Id at 8. b. The CFPB was designed to protect consumers. How did your opinion in this case protect consumers? RESPONSE: My opinion enforced the requirements of the Constitution as I understood them in light of Supreme Court precedent. My opinion in the PHH case would not have halted the CFPB’s ongoing operations to protect consumers or otherwise fulfill its statutory mission. My opinion would have made the CFPB director removable for cause, rather than at will, and left the Bureau able to continue its duties. c. What is the real-world impact of this decision? RESPONSE: The impact of my dissenting opinion, if adopted, would have been to make the CFPB director removable at will, rather than for cause. The remainder of the statute would have remained in place. d. What do you believe would be the real-world impact of allowing a President to fire heads of independent agencies at will? RESPONSE: Please see my answer to Question 31.c. 17 32. You wrote in your dissent that the CFPB’s single-Director structure “threatens individual liberty more than the traditional multi-member structure does.” a. What individual liberty is threatened? RESPONSE: As I explained in my opinion, in the absence of Presidential control, the multimember structure of independent agencies serves as a critical substitute check on the excesses of any individual independent agency head. See PHH Corp. v. Consumer Financial Protection Bureau, 881 F.3d 75, 183 (2018) (Kavanaugh, J., dissenting). A multi-member structure helps to prevent arbitrary decisionmaking and abuse of power, and to protect individual liberty. Id. b. Does the individual liberty you are referencing refer to financial services providers? RESPONSE: It refers to anyone affected by the actions of the CFPB. c. Where in the statute is this interest for financial service providers outlined? RESPONSE: Please see my answer to Question 32.b. As relevant here, my decision was based on the Constitution as interpreted by Supreme Court precedent. d. Where in the Constitution is there language applying individual liberty rights to companies? RESPONSE: The Supreme Court has explained, including in cases involving entities rather than individuals, that “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Free Enter. Fund v. PCAOB, 561 U.S. 477, 501 (2010) (internal quotation marks and citation omitted). 33. The en banc majority decision in PHH stated that Morrison v. Olson “remains valid and binding precedent.” a. Do you agree with that statement? RESPONSE: My dissent in PHH speaks for itself. 18 34. Throughout his administration, President George W. Bush frequently issued signing statements reserving the right not to enforce laws or portions of laws he believed encroached on the President’s constitutional authority. According to Professor Peter Shane, in President Bush’s first six years in office, he “raised nearly 1400 constitutional objections to roughly 1000 statutory provisions, over three times the total of his 42 predecessors combined.” (Peter M. Shane, Madison’s Nightmare: Executive Power and the Threat to American Democracy (2009)) a. During your time in the White House Counsel’s office, were you involved in any of these statements? RESPONSE: While working in the White House, I worked on, provided advice on, or was otherwise involved in many different issues, including those involving legislation, litigation, and policy, and for several years, any issue that reached the President’s desk from July 2003 to May 2006, with the exception of a few covert matters, would have crossed my desk. I do not recall my work or involvement in all of these matters. b. Which ones and what was your involvement? RESPONSE: While working in the White House, I worked on, provided advice on, or was otherwise involved in many different issues, including those involving legislation, litigation, and policy, and for several years, any issue that reached the President’s desk from July 2003 to May 2006, with the exception of a few covert matters, would have crossed my desk. I do not recall my work or involvement in all of these matters. 35. Jay Bybee was nominated for an open seat on the Ninth Circuit and confirmed to that position by the Senate in March 2003, during your time in the White House Counsel’s office. a. Did you recommend him for the seat? If so, why? b. What role did you play in his confirmation process? c. At the time, were you aware of Mr. Bybee’s view on executive authority or the “unitary executive”? d. Were you aware of any of the memos he had written advocating an expansive view of presidential war powers (including memos that he had authored or signed regarding the power to transfer terrorists, interrogation of combatants or detainees, or the sharing of grand jury information under the PATRIOT Act)? 19 e. Did you learn about the existence of any of these memos before his confirmation by the Senate? If not, when did you first become aware of these memos? f. Do you believe that the Senate should have known about these memos and had access to all information relevant to Mr. Bybee’s involvement in these issues before it confirmed him? If not, why not? RESPONSE: As I explained in response to questions for the record after my 2004 hearing, primary responsibility for judicial nominations was divided among eight associate counsels in the White House Counsel’s Office. Each associate counsel was responsible for district court nominations from certain states and circuit court vacancies were handled as they arose. Judge Bybee’s nomination was not one of the nominations that I primarily was assigned to during my service in the White House Counsel’s Office. While I do not have specific recollection of all of the circumstances surrounding Judge Bybee’s nomination, including comments that I made, I do recall that I regularly discussed many judicial nominations, and suggested concerns or offered ideas and opinions where I believed them to be relevant. As I noted in responses to questions for the record in 2004, “[i]t is fair to say that all of the attorneys in the White House Counsel’s office who worked on judges (usually ten lawyers) participated in discussions and meetings concerning all of the President’s judicial nominations.” I knew that Judge Bybee was a highly respected academic who was strongly supported by Senator Harry Reid. g. Do you believe the Senate, in considering your nomination, is entitled to all information relevant to your possible involvement in these issues? If not, why not? h. Has the Committee been provided all documents relevant to your knowledge or involvement in post-9/11 terror policies and programs? i. Same question for: i. warrantless surveillance? ii. interrogation of combatants and detainees? iii. transfer of terrorists or combatants (including rendition)? iv. detention of combatants? v. military tribunals or commissions? RESPONSE: As I said during the hearing, this is an issue for the Senate, the Executive Branch, and President Bush. Many of the same issues have arisen in confirmation proceedings for current and recent members of the Supreme Court including Chief Justice Roberts, Justice Kagan, Justice Alito, and Justice Scalia. 20 36. Emails provided to the Committee indicate that John Yoo also was considered as a potential nominee for the 9th Circuit. a. Did you recommend Mr. Yoo as a nominee for the Ninth Circuit? If so, why? b. At the time, were you aware of Mr. Yoo’s view on executive authority or the “unitary executive”? c. Were you aware of any of the memos he had written advocating an expansive view of presidential war powers (including memos regarding warrantless surveillance, the power to detain combatants, or the interrogation of combatants or detainees)? If not, when did you first become aware of these memos? d. Did you ever recommend Mr. Yoo for any other positions within the Administration? If so, when, what positions, and why did you recommend him? For each such position, please also indicate whether you knew, at the time, of his views of executive authority or involvement in Office of Legal Counsel memos related to surveillance, interrogation, or detention. e. When Mr. Yoo withdrew his name from consideration as a possible nominee to the Ninth Circuit, you asked “why??? . . . he was my magic bullet.” What did you mean? How was Mr. Yoo a “magic bullet”? Why did he withdraw? RESPONSE: As I explained in response to questions for the record after my 2004 hearing, primary responsibility for judicial nominations was divided among eight associate counsels in the White House Counsel’s Office. Each associate counsel was responsible for district court nominations from certain states and circuit court vacancies were handled as they arose. While I do not have specific recollection of all comments that I made during my service in the White House Counsel’s Office, I do recall that John Yoo was considered as a potential nominee for the Court of Appeals for the Ninth Circuit. He was a highly respected academic at Boalt Hall. I cannot speak to why Mr. Yoo withdrew his name from consideration as a possible nominee. Beyond that, I regularly discussed many judicial nominations, and suggested concerns or offered ideas and opinions where I believed them to be relevant. As I noted in responses to questions for the record in 2004, “[i]t is fair to say that all of the attorneys in the White House Counsel’s office who worked on judges (usually ten lawyers) participated in discussions and meetings concerning all of the President’s judicial nominations.” 37. You worked extensively on judicial nominations while you were in the White House Counsel’s office. a. As part of the judicial nomination process, did you consider or discuss whether a potential nominee would help the president as a member of the judiciary? If so, please identify the specific candidates or nominees and why they were viewed as helpful to the president. 21 RESPONSE: While I do not have specific recollection of all comments that I made during my service in the White House Counsel’s Office, I do recall that I regularly discussed many judicial nominations, and suggested concerns or offered ideas and opinions where I believed them to be relevant. 38. In 1994, I was the author of the federal Assault Weapons Ban (AWB) which contained a sunset provision. As the sunset approached, I worked to renew the legislation — in 2003, 2004, and again in 2005. You were at the White House during that time, serving in the role of Staff Secretary. a. While serving in the Bush White House, did you meet with—or discuss the renewal of the assault weapons ban with—the NRA or any other advocacy group? Please describe those meetings and/or discussions, including who you met or spoke with. b. What did the NRA or other advocacy groups request? RESPONSE: As I explained at the hearing, I worked on a wide variety of issues during my time in the Bush White House. As Staff Secretary, any issue that reached the President’s desk from July 2003 to May 2006, with the exception of a few covert matters that I was not read into, would likely have crossed my desk. That applies to the President’s speeches, public decisions, and policy proposals, as well as other Presidential actions. I do not recall all of the matters that crossed my desk during this time. Further, my role was not to replace the policy or legal advisors, but rather to make sure that the President had the benefit of the views of his policy and legal advisers. During that time, I met with many people on a variety of issues, but I do not now have a specific recollection of such a meeting about this bill. c. At the White House, did you ever discuss or work on the assault weapons ban and/or other Second Amendment issues? If so, what was the nature of your work and/or discussions? I am not asking if you were the primary person, I am asking if you worked on the issue at all. RESPONSE: Please see my response to Questions 38.a and b. d. If you did not work on the assault weapons ban or other Second Amendment issues, were you ever consulted on these issues? RESPONSE: Please see my response to Questions 38.a and b. 22 e. Did you ever discuss whether President Bush should support renewal of the assault weapons ban? If so, what was your view? RESPONSE: Please see my response to Questions 38.a and b. f. What was your view on the constitutionality of the assault weapons ban at the time you served in the White House? RESPONSE: Please see my response to Questions 38.a and b. g. If your view has changed, how has it change? RESPONSE: As I discussed at the hearing, and in keeping with the nominee precedent of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on a policy or litigation matter that may come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. This approach is essential for the independence of the Judiciary, as is revealed by prior nominee precedent. 39. Also during your time as Staff Secretary, the National Rifle Association strongly backed a landmark lawsuit against the District of Columbia related to the District’s handgun ban. The lawsuit in that case, District of Columbia v. Heller, commenced in 2003. a. Did you ever discuss this lawsuit with the NRA or any other advocacy group? If so, which group and what was your position? RESPONSE: Please see my response to Questions 38.a and b. b. What was your view on the decision to file the lawsuit at the time it was filed? RESPONSE: Please see my response to Questions 38.a and b. 40. During your hearing, I asked you about assault weapons being in “common use.” You stated: “Semiautomatic rifles are widely possessed in the United States. There are millions and millions and millions of semiautomatic rifles that are possessed so that seemed to fit common use and not being a dangerous and unusual weapon.” a. What was the source for your statement that there are “millions and millions and millions of semiautomatic rifles that are possessed”? RESPONSE: In my dissent in Heller v. District of Columbia, 670 F.3d 1244, 1287 (D.C. Cir. 2011) (Kavanaugh, J., dissenting), I provided sources and noted that about 40 percent of rifles sold in 2010 were semi-automatic. I also noted and provided a citation to the record that approximately two million semi-automatic AR-15 rifles have been manufactured since 1986. These statements were consistent with statements made by the majority opinion in that case. See id. at 1261 (“We think it clear enough in the record that semi-automatic rifles and 23 magazines holding more than ten rounds are indeed in ‘common use,’ as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market.”). b. Do you believe that people commonly utilize assault weapons? If so, what is the evidence for that assertion? RESPONSE: Please see my response to Question 40.a. 41. In your dissent in the D.C. Circuit’s Heller case, you analogized assault weapons to semiautomatic rifles, which you then said were like semiautomatic handguns. Assault weapons like the AR-15, however, are just civilian versions of M-16s. a. From a constitutional perspective, what makes an AR-15 more like a semiautomatic handgun than like an M-16? RESPONSE: My dissent in Heller discusses this question in some detail. Beyond the discussion set forth in that dissent, I believe it would be inappropriate for me to offer further commentary. As I discussed at the hearing, and in keeping with the nominee precedent of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 42. In 2003, while you were in the White House Counsel’s office, the Supreme Court decided to hear two cases involving the University of Michigan’s efforts to increase racial diversity on campus—Grutter v. Bollinger and Gratz v. Bollinger. The Bush Administration filed briefs in these cases arguing that the University of Michigan’s programs were unconstitutional. a. What was your view on whether the Bush Administration should oppose the University of Michigan’s efforts to increase racial diversity on campus? b. Did you support an argument that only race-neutral programs can be used to try to achieve racial diversity on campus? RESPONSE: As a lawyer in the White House, any views I expressed would have been in keeping with trying to advance President Bush’s legal and policy agenda. As a judge and a nominee, your question implicates issues that remain in dispute and that may come before me as a judge. As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the 24 political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. I will note that my views 15 years ago as a White House attorney do not dictate my views now as a judge. 43. In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), Chief Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” a. Do you agree with Chief Justice Roberts’s statement? b. Do you believe that a majority of the Court supported this statement? RESPONSE: Parents Involved in Community Schools v. Seattle School District No. 1, is a precedent of the Supreme Court entitled to the respect due under the law of precedent. Your question implicates the meaning of—and significance of—a specific portion of the Chief Justice’s opinion. As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this case. 44. In 2012, you wrote the majority opinion in South Carolina v. United States, which allowed South Carolina’s voter ID law to go into effect. The other two judges on the panel wrote a concurring opinion that highlighted the critical importance of the Voting Rights Act. The concurring opinion said that the Voting Rights Act had played a “vital function” in keeping the voter ID law from being “more restrictive” and that the Voting Rights Act has “continuing utility” in “deterring problematic, and hence encouraging non-discriminator, changes in state and local voting laws.” a. Why didn’t you join the concurring opinion? b. What did you disagree with in the concurring opinion and why? RESPONSE: I wrote the unanimous opinion in South Carolina v. United States, 898 F. Supp. 2d 30 (D.C. Cir. 2012), which was joined in full by Judges Kollar-Kotelly and Bates. Id. at 52 (Kollar-Kotelly, J., concurring); id. at 53 (Bates, J., concurring). Both Judges referred to my opinion as “excellent.” Id. at 52 (Kollar-Kotelly, J., concurring); id. at 53 (Bates, J., concurring). In that opinion, I noted that “[t]he Voting Rights Act of 1965 is among the most significant and effective pieces of legislation in American history.” Id. at 32-33. Our opinion blocked enforcement of South Carolina’s voter ID law for the 2012 elections. 25 45. Section 2 of the Voting Rights Act prohibits drawing election districts in a manner that is meant to dilute the voting power of minorities. In 1982, Congress strengthened Section 2 to allow plaintiffs to prove a violation of the Voting Rights Act where a local electoral practice had the effect of denying to racial or language minorities an equal opportunity to participate in the political process. That same year, the Supreme Court held in Thornburgh v. Gingles that plaintiffs could also bring a challenge under Section 2 alleging that legislative maps were drawn in a way that infringed on racial minorities’ rights to vote. a. Do you consider Gingles to be settled law? b. Is it correct law? RESPONSE: Thornburg v. Gingles, 478 U.S. 30 (1986), is a precedent of the Supreme Court entitled to the respect due under the law of precedent. As I discussed at the hearing, the law of precedent is not a judicial policy but rather is rooted in Article III of the Constitution. Adherence to precedent ensures stability and predictability in the law, and reinforces the impartiality and independence of the judiciary. 46. In the 2003 case Lawrence v. Texas, the Supreme Court held that states may not intrude into the bedrooms of same-sex couples. Justice Kennedy’s majority opinion explained that laws prohibiting intimacy between same-sex couples are unconstitutional because states “cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Justice Scalia—a justice whom you have described as a “hero” and a “role model”— dissented. He argued that the government had the authority to ban intimate sexual activities between consenting gay adults. He wrote: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” a. Do you agree with Justice Kennedy’s opinion or Justice Scalia’s? RESPONSE: As a sitting judge, I am bound to follow Supreme Court decisions, subject to the law of precedent. However, as I discussed at the hearing, and in keeping with the practice of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on existing precedent. The Supreme Court stated last term in Masterpiece Cakeshop that the days of treating gay and lesbian Americans or gay and lesbian couples as second-class citizens or inferior in dignity and worth are over. 26 b. Is Lawrence settled law? Is it correct law? RESPONSE: Lawrence v. Texas is a decision of the Supreme Court entitled to respect under the law of precedent. As I discussed at the hearing, the law of precedent is not a judicial policy but rather is rooted in Article III of the Constitution. Adherence to precedent ensures stability and predictability in the law, and reinforces the impartiality and independence of the judiciary. In accordance with nominee precedent, I will follow the lead of the current Justices in declining to offer my view as to whether recent precedents of the Supreme Court were correctly decided. For example, when asked to give her opinion on Supreme Court precedents, Justice Kagan said she would not give a thumbs up or thumbs down on Supreme Court precedents. She explained that this was a principle of judicial independence. The Supreme Court stated last term in Masterpiece Cakeshop that the days of treating gay and lesbian Americans or gay and lesbian couples as second-class citizens or inferior in dignity and worth are over. c. Lawrence overruled Bowers v. Hardwick (1986). Was Bowers settled law before it was overruled? RESPONSE: Bowers was overruled for the reasons set forth in Lawrence. The Supreme Court stated last term in Masterpiece Cakeshop that the days of treating gay and lesbian Americans or gay and lesbian couples as second-class citizens or inferior in dignity and worth are over. d. Can a business legally fire an LGBT employee to “protect” other employees from the LGBT employee’s “lifestyle”? RESPONSE: See my response to Question 46.a. e. In your White House role, did you provide any legal or policy advice concerning the Court’s Lawrence decision? If so, what did you advise? RESPONSE: I do not remember specifics, but it seems possible that there would have been internal discussions of major Supreme Court decisions such as Lawrence. 47. In a 1971 case called Lemon v. Kurtzman, the Supreme Court established a three-factor test to decide whether a government’s action violates the Establishment Clause. Several Supreme Court justices have suggested that the Court should abandon the Lemon test in favor of a test that accommodates more government aid to religion and more of a religious presence in government. a. Is Lemon settled law? Is it correct law? b. Do you support the continued application of the Lemon test, or do you favor a different test? If so, please explain what you view as the appropriate test and how it addresses entanglement between religion and government? 27 RESPONSE: As I set forth in my dissent in Newdow v. Roberts, “the Supreme Court’s Establishment Clause jurisprudence does not set forth a one-size-fits-all test.” 603 F.3d 1002, 1017 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (citing Salazar v. Buono, 559 U.S. 700, 721 (2010) (opinion of Kennedy, J.); Van Orden v. Perry, 545 U.S. 677, 686 (plurality opinion); Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 718 (1994) (O’Connor, J., concurring in part and concurring in judgment)). 48. The Office of Independent Counsel Ken Starr has been described as “notoriously leaky” because of how often its attorneys spoke to the press about the investigations into President Clinton and First Lady Hillary Clinton. (Josh Gerstein, ‘Brett was involved’: Inside Supreme Court nominee’s work for Bill Clinton probe, Politico (July 22, 2018)). In your response to the Senate Judiciary Questionnaire, you acknowledged that you spoke to reporters “on background as appropriate or as directed.” (Kavanaugh SJQ at 41). a. While working in the Office of Independent Counsel, did you ever speak with reporters about any of the Office’s investigations into President Clinton or Hillary Clinton (including your investigation into the death of Vince Foster) while those investigations were ongoing? b. If so, what type of information did you provide to reporters? c. Did you ever provide any reporters—or anyone else—with information learned through grand jury proceedings or witness interviews? d. Have you ever provided any information to the press in violation of a statutory or ethical obligation to keep such information confidential? RESPONSE: As I said at the hearing, I spoke to reporters at the direction or authorization of Judge Starr consistent with the law. 49. In March 1995, while working in the Office of Independent Counsel Ken Starr, you wrote a memo pushing to broaden the investigation to cover a “full-fledged investigation of [Vince] Foster’s death.” (Kavanaugh Memo to Starr, 3/24/95). By that time, three separate investigations had concluded that Mr. Foster committed suicide, and as you admitted in your memo, the Independent Counsel might lack prosecutorial jurisdiction over any crime uncovered in relation to that death. You nonetheless pursued the allegation that Mr. Foster was murdered, and the theory that he had an affair with Hillary Clinton, for three more years. 28 a. What specific evidence led you to question the conclusion that Mr. Foster had committed suicide and decide, instead, that a “full-fledged” investigation of Mr. Foster’s death was still warranted? Please identify the source(s) for the evidence that justified this conclusion. RESPONSE: The decisions regarding the Vince Foster investigation were ultimately made by Judge Starr. Given the persistent public questions about the causes of Mr. Foster’s death, Judge Starr stated that it was important to thoroughly investigate the matter and provide a definitive conclusion. That conclusion was ultimately that Mr. Foster committed suicide. Our report on the Foster death has stood the test of time. b. Did you rely on allegations generated by conservative right-wing media outlets in deciding to pursue a “full-fledged” investigation of Vince Foster’s death? For example, did Chris Ruddy, Ambrose Pritchard-Evans, Hugh Sprunt, Reed Irvine, or Rush Limbaugh provide you with any information about Mr. Foster before you made the decision to reinvestigate his death? If so, what specific information did they provide and what weight was it given? RESPONSE: Please see my response to Question 49.a. c. In a June 1995 memo, you wrote that “we have asked numerous witnesses about Foster’s alleged affair with Mrs. Clinton.” (Kavanaugh Memo to Starr et al. re: “Summary of Foster Meeting on 6-15-05”, 6/16/95.) Did you lead or participate in this questioning? Were you present during the questioning? Did you object to any of the questions that were asked? RESPONSE: Please see my response to Question 49.a. d. Webster Hubbell has stated that Office of Independent Counsel attorneys investigating the death of Vince Foster asked him a number of sexual questions in early 1995, including specifically asking if Hillary Clinton and Vince Foster had engaged in an affair. (Jane Mayer, Dept. of Inquiring Minds: The Webster Hubbell investigation: Was it about sex? The New Yorker (Aug. 9, 1999)). Did you participate in the questioning Mr. Hubbell? If so, what was your role? If you were present, did you object to any of the questions that were asked? RESPONSE: Please see my response to Question 49.a. e. Did you ever speak with reporters about the investigation into whether Mr. Foster had committed suicide or had been murdered? RESPONSE: Please see my response to Question 49.a. 29 f. Did you ever speak with reporters about the investigation into whether Hillary Clinton and Vince Foster had engaged in an affair? RESPONSE: Please see my response to Question 49.a. 50. Your Starr-investigation era files from the National Archives include a number of complete files devoted to articles from Christopher Ruddy and others who were strong proponents of the Vince Foster murder conspiracy theory. For example, NARA File no. 70105096, labeled “Foster Death—Articles by Ruddy,” is 195 pages long. It includes articles entitled “Foster’s Death Site Strongly Disputed,” by Ruddy, and a partial transcript from a Rush Limbaugh Radio Broadcast entitled “Foster Note a Forgery.” A separate file, NARA File No. 70105100, includes what appears to be a summary analysis of the film “The Death of Vincent Foster: What Really Happened?” and an extended report from Hugh Sprunt entitled “The official record contradicts the Foster suicide conclusion,” which appears to have been faxed to your office on September 27, 1995. a. How often did you or others working on your behalf speak with or otherwise interact with each of the following individuals: Ambrose Pritchard-Evans; Hugh Sprunt; Reed Irvine; and Rush Limbaugh? RESPONSE: Please see my response to Question 49.a. b. Were any of these individuals a source for your investigation? If so, what specific information did they provide and what actions did you take in response? RESPONSE: Please see my response to Question 49.a. 51. A November 13, 1995 memorandum from Starr deputy Hickman Ewing to File, subject line “Chris Ruddy,” states that “At noon, Saturday, November 4, 1995, I checked my Little Rock voicemail. Brett Kavanaugh had called at 5:50 p.m. on Friday, November 3 leaving a voicemail to the effect: “I got a voicemail message from Ruddy. He said he had talked to [a witness]. He said that [the witness] was disappointed by the way he was treated in the grand jury. He said he was treated as a suspect. Ruddy knows some of the questions that Brett Kavanaugh asked. Why did Brett ask [the witness] if the guy in the park grabbed his genitalia. Brett said on the voicemail to me, ‘I didn’t ask him that. I did ask him about sexual advances by the other man in the park. John Bates and I want you to call Ruddy—at least get him off the [sexually explicit] part. I am worried about that.’” (Memo from Ewing to File re: “Chris Ruddy,” (Nov. 13, 1995) (emphasis added)). Hickman Ewing followed your directions and called Ruddy back the day that he received your voice mail (November 4). a. Was the Independent Counsel office seeking to influence Mr. Ruddy’s articles? RESPONSE: Please see my response to Question 49.a. 30 b. In a July 15, 1995 memorandum welcoming a new investigator to your team, you recommended that the investigator familiarize himself with the investigation using a number of sources, including “the Ruddy articles.” (Memo from Kavanaugh to Clemente re: “Vince Foster” (July 15, 1995)). Did you and your team consider Chris Ruddy to be a source for your investigation? Please explain any steps taken in response to information provided by Mr. Ruddy. RESPONSE: Please see my response to Question 49.a. c. How does your direction to Mr. Ewing to discuss grand jury information with a journalist—i.e., your direction that he discuss with Mr. Ruddy the questions asked of a grand jury witness—comply with grand jury secrecy requirements? Please provide legal support for your position. RESPONSE: Please see my response to Question 49.a. 52. In 1998, Ken Starr stated that it was appropriate for attorneys with the Independent Counsel’s office to speak to the media in order to defend its ongoing investigation from attacks made by the Clinton Administration. (Adam Clymer, Starr Admits Role in Leaks to Press, New York Times (June 14, 1998)). a. Is this a valid reason to discuss an ongoing investigation with reporters? RESPONSE: That was a decision made by Judge Starr. b. At the time, what was the Department of Justice’s policy regarding public discussion of an ongoing investigation? RESPONSE: I do not recall. As I stated at the hearing, any conversations that I had with reporters were at the direction or authorization of Judge Starr. c. What is your personal view on whether prosecutors should discuss an ongoing investigation with reporters? RESPONSE: Please see my response to Question 52.a. d. Do you believe that your discussions with reporters during your time in the Starr Independent Counsel Office about the Vince Foster investigation were appropriate? Were they fair? RESPONSE: Yes. 31 53. Between March and August of this year, President Trump attacked Robert Mueller’s work in at least 127 tweets. The number of such attacks has sharply increased since May. a. Do you believe that it would be appropriate for Mr. Mueller or members of his team to discuss details of the investigation in light of these attacks? RESPONSE: As I stated during the hearing, one of the central principles of judicial independence is that sitting judges and judicial nominees should refrain from commenting on current events and political controversies. 54. In 2006, the Department of Justice fired numerous U.S. Attorneys for political reasons, in a process that has been described as “chaotic and spiked with petty cruelty.” (Amy Goldstein, E-Mails Reveal Tumult in Firings and Aftermath, Washington Post (Mar. 21, 2007)). According to the Department of Justice report on the dismissals, “the process to remove the U.S. Attorneys originated shortly after President Bush’s re-election in November 2004,” at which time you were serving as White House Staff Secretary. (U.S. Department of Justice Office of the Inspector General and Office of Professional Responsibility, An Investigation into the Removal of Nine U.S. Attorneys in 2006, at 16 (Sept. 2008)). The report indicates that beginning in early 2005, Deputy White House Counsel David Leitch, Department of Justice official Kyle Sampson, and White House Counsel Paralegal Colin Newman engaged in email discussions in which Sampson suggested replacing fifteen to twenty percent of all U.S. Attorneys who may not have been “loyal Bushies.” (Id. at 17). Sampson first circulated a proposed U.S. Attorney target list in March 2005, after Alberto Gonzales became Attorney General. (Id.) You had served under Gonzales in the White House Counsel office. Sampson circulated this list to Associate White House Counsel Dabney Friedrich, at the request of White House Counsel Harriet Miers, on March 23, 2005. (Id. at 22). Sampson and Monica Goodling, who was appointed as Counsel to the Attorney General in October 2005 and as DOJ White House Liaison in April 2006, regularly interacted with the individuals at the Executive Office of the Presidency, including with Sara Taylor, a top aide to Karl Rove, regarding U.S. Attorney target lists from March 2005 until the U.S. Attorneys were removed in December 2006. (Id. at 2267). 32 The DOJ OIG “found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.” (Id. at 325-26). It further concluded that “the White House was more involved than merely approving the removal of Presidential appointees” for at least three U.S. Attorneys, but was unable to fully determine what role the White House played in all removals because White House officials, including Karl Rove and Harriet Miers, declined to participate in the DOJ OIG investigation. (Id. at 337-38). a. Please describe any interactions you had with Kyle Sampson, Monica Goodling, or any other Department of Justice official regarding the dismissal of U.S. Attorneys. RESPONSE: As you mention, I was serving as Staff Secretary during the period you reference. As I explained during the hearing, during my time as Staff Secretary, any issue that reached the President’s desk from July 2003 until May 2006, with the exception of a few covert matters, would have crossed my desk. That applies to the President’s speeches, public decisions, and policy proposals, among other things. I do not recall all of the matters that crossed my desk during this time or all interactions I had during those years. In terms of the substance of my work, my role was not to replace the President’s policy or legal advisors, but rather to make sure that the President had the benefit of the views of his policy and legal advisers. b. Please describe any interaction you had with Karl Rove, Sara Taylor, Dabney Friedrich, David Leitch, Colin Newman, Harriet Miers, or any other White House official regarding the dismissal of U.S. Attorneys. RESPONSE: Please see my response to Question 54.a. c. Did you ever receive or comment on any list of proposed U.S. Attorneys targeted for dismissal or replacement? RESPONSE: Please see my response to Question 54.a. 33 55. During your time in the White House there were also reports that White House officials were actively involved in politicized hiring by the Department of Justice. (Eric Lichtblau, Report Faults Aides in Hiring at Justice Dept., New York Times (July 29, 2008)). In fact, according to the Department of Justice’s Inspector General, officials at the White House developed a method—taught through a seminar and distributed in a document called “The Thorough Process of Investigation”—for searching the Internet to determine a candidate’s political leanings. Through this process, DOJ officials used search terms to screen applicants using terms like “abortion,” “homosexual,” “Florida recount,” or “guns.” (U.S. Department of Justice Office of Professional Responsibility and Office of the Inspector General, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, at 20 (July 28, 2008)). The DOJ Inspector General’s report on this issue concluded that Department of Justice officials used the results of these searches to improperly discriminate against candidates for career positions at DOJ. (Id. at 20, 135). a. Did you ever discuss screening job applicants to determine political affiliation or ideology? If so, when, who was involved, and what was discussed? RESPONSE: Please see my response to Question 54.a. b. Were you involved in developing any methods for screening job applicants based on political affiliation or ideology? If so, when, who was involved, and what methods were developed? RESPONSE: Please see my response to Question 54.a. c. Were you aware of or did you attend any seminars or training sessions where screening job applicants based on political affiliation or ideology was discussed? If so, what was your involvement? RESPONSE: Please see my response to Question 54.a. d. Were you aware of or did you assist in preparing the document entitled “The Thorough Process of Investigations,” or any other document discussing screening job applicants based on political affiliation or ideology? If so, what was your involvement? RESPONSE: Please see my response to Question 54.a. e. When did you first become aware that candidates were being screened based on political affiliation or ideology? What did you do when you learned about this? Did you ever object to this practice? If so, when? Are your objections memorialized in any way? RESPONSE: Please see my response to Question 54.a. 34 f. Were you involved in hiring decisions that took into account the political affiliation or ideology of any candidate? If so, please explain the position being filled and why such considerations were taken into account. RESPONSE: Please see my response to Question 54.a. 56. After the U.S. Attorney scandal was made public, it became apparent that a number of White House officials communicated with each other and with Department of Justice officials using Republican Party-affiliated e-mail accounts. For example, J. Scott Jennings, the White House deputy director of political affairs, used a “gwb43.com” email address to discuss replacing one U.S. Attorney. (R. Jeffrey Smith, GOP Groups Told to Keep Bush Officials’ E-Mails, Washington Post (March 27, 2007)). Some have suggested that Karl Rove actually directed the firing of U.S. Attorneys so that the fired attorneys could be replaced with political picks. (Dan Froomkin, The Rovian Theory, Washington Post (March 23, 2007)). However, because Rove primarily conducted his official business using an RNC-based email address, official investigations were unable to fully assess his role in the scandal. (See id. (noting that “According to one former White House official familiar with Rove’s work habits, the president’s top political adviser does ‘about 95 percent’ of his e-mailing using his RNC-based account.”)). A 2007 House Oversight and Government Reform Interim Staff Report concluded that “at least 88 White House officials had RNC e-mail accounts. (Committee on Oversight and Government Reform, The Use of RNC E-Mail Accounts by White House Officials (June 18, 2007)). Some have suggested that Bush White House officials strategically used these political email accounts to keep particular information secret. Notably, in a 2003 email, Jennifer Farley, a deputy in the White House Office of Intergovernmental Affairs, told Jack Abramoff aide Kevin Ring that “it is better to not put this stuff in writing in [the White House] … email system because it might actually limit what they can do to help us, especially since there could be lawsuits, etc.” (R. Jeffrey Smith, GOP Groups Told to Keep Bush Officials’ E-Mails, Washington Post (March 27, 2007)). a. Did you ever use a non-government email address during your time in the White House, including any email address from the rnchq.org, gwb43.com, georgewbush.com, or any other email affiliated with a political candidate or organization, or registered to a political campaign? (If so, please identify those accounts.) RESPONSE: In addition to my White House email address, I had a personal email address that I may have used on occasion for personal matters. That personal account was not affiliated with any email server run by the Republican National Committee. I did not have a personal device that could access personal emails. And White House employees were not able to access personal emails from our work computers, as I recall. To the best of my recollection, it was not my practice to use my personal email address for official matters, although I cannot rule out isolated emails. 35 b. Can you affirmatively state that you did not use any non-government account to conduct official business during your time in the White House? RESPONSE: Please see my response to Question 56.a. c. Did Karl Rove or any other White House official ever consult with you regarding the use of any non-government email address? RESPONSE: At this time, I do not remember. d. When did you first learn that Mr. Rove was using a non-government email address for official business? What did you do when you learned this? When did you learn that emails on Mr. Rove’s non-governmental accounts had been deleted? Had anyone advised Mr. Rove that these emails should be preserved and, if so, when was this conveyed to him? RESPONSE: While working in the White House Counsel’s Office, I worked on, provided advice on, or was otherwise involved in many different issues, including those involving legislation, litigation, nominations, and policy, among others. I do not recall my work or involvement in all of these matters, nor do I have specific recollection of every discussion in which I took part during my years at the White House. e. Did you play any role in the investigation of the use of non-government emails by White House officials? If so, please describe your role. RESPONSE: While working in the White House Counsel’s Office, I worked on, provided advice on, or was otherwise involved in many different issues, including those involving legislation, litigation, nominations, and policy, among others. I do not recall my work or involvement in all of these matters, nor do I have specific recollection of every discussion in which I took part during my years at the White House. f. On April 11, 2007, the White House acknowledged that emails to and from White House officials were lost or deleted between 2001 and 2007 because “White House policy did not give clear enough guidance” on the use of official email, rather than private, and that “the oversight of that [guidance] was not aggressive enough.” (Dan Froomkin, Countless White House E-Mails Deleted, WASHINGTON POST (Apr. 12, 2007)). Please describe your role in developing and enforcing White House policy on the use of email. RESPONSE: While working in the White House Counsel’s Office, I worked on, provided advice on, or was otherwise involved in many different issues, including those involving legislation, litigation, nominations, and policy, among others. I do not recall my work or involvement in all of these matters, nor do I have specific recollection of every discussion in which I took part during my years at the White House. 36 57. In the aftermath of the attacks on September 11, 2001, you were closely involved in crafting the legislation related to the limitation of airlines’ liability and the creation of a compensation fund for victims. Ultimately, the compensation fund model that was used paid victims’ families an average of approximately $1.8 million. a. At any point in the process, did you express opposition to providing 9/11 victims any form of additional compensation outside of the compensation they would normally be entitled to through already-existing programs like insurance and government benefits? RESPONSE: As I explained at my 2004 hearing, in the days after the September 11th attacks, I worked on the September 2001 legislation as a representative of the Bush administration. As I recall, there was bipartisan agreement that the airlines’ liability needed to be addressed immediately because the airlines were potentially going to go bankrupt. Ultimately, the separate, important issue of compensation for the victims of the September 11th attacks became linked in the same bill. I recalled in 2004 that there were discussions about compensating each victim’s family equally so as not to favor rich over poor. I also recall concern about the time it would take for victims and their families to receive compensation if there were not immediate payments. I also testified in 2004 that we considered various precedents for compensating victims, including the Public Safety Officers’ Benefits Fund. b. At any point in the process, were you opposed to creating any form of a compensation fund for 9/11 victims? RESPONSE: Please see my answer to Question 57.a. c. Did you ever propose capping victims’ compensation? Did you suggest capping it at $250,000? $400,000? $500,000? RESPONSE: Please see my answer to Question 57.a. d. If so, were your proposals to cap victims’ compensation due to legal concerns, policy concerns, or both? What were your specific concerns? RESPONSE: As I testified in 2004, there were discussions about compensating each victim’s family equally due to a concern that a litigation model would mean unequal compensation, such that victims from a relatively poor family would receive a smaller amount in compensation. Consistent with what I believed to be the views of President Bush and OMB Director Mitch Daniels, I believe that I thought poor families and rich families should receive the same amount, and should receive payment immediately. 37 58. During your hearing, I asked you about the Bush White House’s position that it was up to the Federal Energy Regulatory Commission (“FERC”) to investigate and punish any misconduct by Enron that contributed to the California electricity crisis. You testified that FERC’s role was not in your “area of expertise.” Congressional investigations showed that Enron executives were focused on stacking FERC with appointees who they thought would be friendly regulators for the company. When you were in the White House Counsel’s office, you were involved in drafting the surveys that the Counsel’s office sent to White House staff about their communications with Enron. One of the survey questions asked whether White House staff members had communications with Enron related to FERC or other government agencies. You argued, unsuccessfully, that this question should be narrowed. In particular, you argued in an April 23, 2002, email that any communications disclosed “should be issues-oriented so as not to include appointments.” a. Were you aware at the time you made these arguments that President Bush had appointed a chairman of FERC and another FERC commissioner who had been recommended to him by Enron’s Ken Lay? RESPONSE: While working in the White House Counsel’s Office, I worked on, provided advice on, or was otherwise involved in many different issues, including those involving legislation, litigation, nominations, and policy, among others. I do not recall my work or involvement in all of these matters, nor do I have specific recollection of every discussion in which I took part during my years at the White House. b. Why was it your view that Congress and the American people should not have information about contacts between the White House and Enron about appointments to the very entities that were responsible for preventing Enron’s corporate misconduct? RESPONSE: I do not agree with the premise of the question. 59. You also distributed draft talking points in May 2002 which argued that it was “highly unusual” for Congress to ask questions about presidential appointments because “appointments are at the core of his constitutional power. The confirmation process is, in effect, the Senate’s oversight on that process.” a. Is it your view that congressional oversight of any presidential appointment ends when an appointee is confirmed? RESPONSE: That is not what that comment says. b. If congressional investigators, in your view, are not entitled to information about the appointments process, then who – if anyone – can investigate and hold the President accountable for corruption in that process? RESPONSE: Please see my answer to Question 59.a. 38 60. During your time on the D.C. Circuit, you have written 61 dissents. Out of all the active judges on the D.C. Circuit, you have the highest number of dissents per year of service on the court. a. Have you ever dissented in a case in which the majority ruled against an environmental interest? RESPONSE: As I explained at the hearing, I have ruled for environmental interests on many occasions. I apply the law impartially, without regard to the identity of the parties. 61. Do you believe that human activity is contributing to or causing climate change? RESPONSE: As a judge, I base decisions on the law and factual evidence in the record. My opinions addressing regulations designed to mitigate the effects of climate change have stated, among other things, that “[t]he task of dealing with global warming is urgent and important at the national and international level.” Center for Biological Diversity v. EPA, 722 F.3d 401, 415 (D.C. Cir. 2013) (Kavanaugh, J., concurring). 62. The same night you were announced as President Trump’s nominee for the Supreme Court, the White House circulated a fact-sheet about your judicial record. The document stated: “Judge Kavanaugh protects American businesses from illegal job-killing regulation”; “Judge Kavanaugh helped kill President Obama’s most destructive new environmental rules”; “Judge Kavanaugh has led the effort to rein in unaccountable independent agencies”; and Judge Kavanaugh has “overruled federal agency action 75 times.” (Lorraine Woellert, Politico.com, “Trump asks business groups for help pushing Kavanaugh confirmation” (July 9, 2018).) a. Is there anything inaccurate about the White House’s assessment of your record? If so, please explain. RESPONSE: As I stated at the hearing, I have ruled in favor of agencies on numerous occasions when the law and facts have dictated. I have also ruled against agencies when the law and facts have dictated. As I stated, “I decide cases based on the law. I am a pro-law judge.” 63. According to press accounts, you woke President Bush in the middle of the night to sign just-passed legislation that would allow a federal court to intervene in a family dispute over end-of-life care for Terri Schiavo. (New York Times, After Signing Schiavo Law, Bush Says ‘It Is Wisest to Always Err on the Side of Life’, Mar. 22, 2005)) a. What other involvement did you have in the Terri Schiavo matter? Did you provide any advice about the legislation? RESPONSE: My work on this matter was in my capacity as Staff Secretary to President Bush. As I explained at the hearing, as Staff Secretary, any issue that reached the President’s desk from July 2003 to May 2006, with the exception of a few covert matters, would have crossed my desk on the way to the President. That applies to the President’s speeches, public 39 decisions, and policy proposals, among other things. I do not recall all of the matters that crossed my desk during this time, and in terms of what work I did, my role was not to replace the policy or legal advisors, but rather to make sure that the President had the benefit of the views of his policy and legal advisers. b. Did you agree at the time that it was appropriate for the federal government to intervene? If so, why? What, if any, principles did you propose to limit the ability of the government to intervene in a personal family matter? RESPONSE: Please see my response to Question 63.a. 64. In 2007, you authored the opinion in Doe ex rel. Tarlow v. District of Columbia. That case was about whether it was constitutional to force individuals with intellectual disabilities to have medical procedures against their will. All that these individuals wanted was the right to have their wishes at least taken into consideration for major medical decisions. a. Does the existence of laws such as the Americans with Disabilities Act and the Individuals with Disabilities Education Act affect whether the rights of individuals with intellectual disabilities are rooted in history and tradition and implicit in the concept of ordered liberty? RESPONSE: The plaintiffs in Tarlow represented a narrow class of several intellectually disabled people who had “never had the mental capacity to make medical decisions for themselves” and who had “no guardian, family member, or other close relative, friend, or associate” available to provide or withhold consent for surgeries approved by two separate physicians. Id. at 377. The unanimous panel for which I wrote explained that allowing people who lack mental capacity to make important medical decisions “would cause erroneous medical decisions . . . with harmful or even deadly consequences to intellectually disabled persons.” Id. at 382. In part for that reason, no state applies the rule proposed by the plaintiffs in that case. 65. Only a small fraction of your White House record was produced to the Committee before your hearing. We have not seen close to six million pages of your total record, including documents from your years as Staff Secretary, which you described as the “most instructive” and “useful” to you as a judge. (Remarks to Inn of Court, May 17, 2010) 40 a. Is there anything in the documents that we have not seen that would illuminate your views on or involvement in interrogation, detention, rendition, or warrantless wiretapping? b. Is there anything in the documents that we have not seen that would illuminate your views on privacy rights? c. Is there anything in the documents that we have not seen that would show your involvement in issues related to the Enron scandal? d. Is there anything in the documents that we have not seen that would illuminate your views on the power of the President or the unitary executive theory? e. Is there anything in the documents that we have not seen that would illuminate your knowledge of or possible involvement in politicized hiring and firing of lawyers and applicants in the Department of Justice during the Bush Administration? f. Is there anything in the documents that we have not seen that would illuminate your knowledge of or possible involvement in the use by approximately 80 Bush White House aides of Republican National Committee email accounts to conduct official business? RESPONSE: As I explained during the hearing, it is my understanding that officials in the Administration, members of the Senate Judiciary Committee, and lawyers working for President Bush made the decisions regarding the processing and production of documents related to my nomination. As I further stated during the hearing, I do not take a position regarding the release of documents, which I believe is an issue for the Senate, the Executive Branch, and President Bush. As a matter of nominee precedent, I am aware that neither Chief Justice Roberts’, Justice Alito’s, or Justice Kagan’s documents from the Solicitor General’s Office, nor Justice Scalia’s and Justice Alito’s documents from the Office of Legal Counsel, were turned over to the Committee during their confirmations. 66. We have several documents showing that, while you were in the White House Counsel’s Office, you handled issues related to the Presidential Records Act, including one email in which a colleague referred to you as “Mr. Presidential Records.” (Email from Robert Cobb to Brett Kavanaugh, speechwriting & laptops (Feb. 14, 2001)) a. Given your past experience with these issues, were you consulted about or in any way involved in the process through which records related to your nomination were produced to the Committee, including issues related to the Presidential Records Act? RESPONSE: As I explained during the hearing, it is my understanding that officials in the Administration, members of the Senate Judiciary Committee, and lawyers working for President Bush made the decisions regarding the processing and production of documents 41 related to my nomination. I cannot speak knowledgeably to the details of the document production. b. When did you become aware of the process to be used to provide your records? RESPONSE: Please see my response to Question 66.a. c. Did you ever communicate with Bill Burck or anyone else at the law firm of Quinn Emanuel Urquhart & Sullivan, LLP, about your nomination to the Supreme Court? If so, when, who was present, and what was discussed? RESPONSE: As I testified during the hearing, I saw Mr. Burck on the Saturday after my nomination at a social event. I saw another Quinn Emanuel partner, Chris Landau, at the swearing in of Judge Britt Grant to the United States Court of Appeals for the Eleventh Circuit. d. Did you ever communicate with Mr. Burck or anyone else at Quinn Emanuel about the process through which records related to your nomination were produced to the Committee, including issues related to the Presidential Records Act? If so, who, when, and what was discussed. RESPONSE: No. e. Did you ever communicate with anyone regarding Committee confidential designation for documents related to your record? If so, who, when, and what was discussed. RESPONSE: As I explained during the hearing, it is my understanding that officials in the Administration, members of the Senate Judiciary Committee, and lawyers working for President Bush made the decisions regarding the processing and production of documents related to my nomination. I cannot speak knowledgeably to the details of the document production. f. Did you ever communicate with anyone regarding assertion of constitutional or executive privilege over your record? If so, who, when, and what was discussed. RESPONSE: Please see my response to Question 66.e. g. Did you ever communicate with Mr. Burck about your nomination to the Supreme Court or your confirmation hearings? If so, when, who was present, and what was discussed? RESPONSE: As I testified during the hearing, I saw Mr. Burck on the Saturday after my nomination at a social event. 42 67. Have you ever communicated with anyone about the potential assertion of executive privilege over documents dating from your tenure in either the White House Counsel’s Office or as Staff Secretary? If so, when did those discussions occur, with whom, and what was discussed? RESPONSE: As I explained during the hearing, it is my understanding that officials in the Administration, members of the Senate Judiciary Committee, and lawyers working for President Bush made the decisions regarding the processing and production of documents related to my nomination. I cannot speak knowledgeably to the details of the document production. 68. Please identify all individuals who assisted in your preparation for testifying before the Judiciary Committee. Include both those from within the Trump Administration and outside of the Trump Administration. RESPONSE: Consistent with the practice of past nominees, I prepared for this process through meetings and discussions with a number of people including Senators, Administration personnel, former law clerks, and friends. As I noted in my testimony before the Committee, prior to the hearing I met with 65 senators, including most of the members on the Committee. As I further noted, each of these meetings was substantive and provided me insight into the issues I could look forward to discussing at the hearing. 69. Please identify all organizations that have assisted in your preparation for testifying before the Judiciary Committee. RESPONSE: Please see my response to Question 68. 70. At any point before or during your nomination hearing (September 4-7, 2018), did you review or discuss, or were you informed about, any of the documents from your tenure in the White House Counsel’s Office that Bill Burck planned to produce or did produce to the Senate Judiciary Committee? a. If so, which documents did you review or discuss? Please provide a list of Bates numbers of all documents that you reviewed, discussed, or received information about. RESPONSE: I was informed that I might be asked about documents designated “committee confidential” in the closed session and potentially also in the public sessions (as I ultimately was). To prepare for these potential questions I was shown some documents that were designated “committee confidential.” b. How many of the documents you reviewed or discussed were designated Committee Confidential? Please provide a list of Bates numbers of all such documents designated Committee Confidential. RESPONSE: Please see my response to Question 70.a. 43 c. Who provided you with copies of these documents or otherwise informed you about the documents’ contents? RESPONSE: Please see my response to Question 70.a. d. At any point during your hearing, were you given advice on how to address Senator’s questions? RESPONSE: Consistent with the practice of past nominees, I prepared for this this process through meetings and discussions with a number of people including Senators, Administration personnel, former law clerks, and friends. As I noted in my testimony before the Committee, prior to the hearing I met with 65 senators, including most of the members on the Committee. As I further noted, each of these meetings was substantive and provided me insight into the issues I could look forward to discussing at the hearing. All of my answers were my own. 71. You were added to President Trump’s second so-called “short list” of potential Supreme Court nominees on November 17, 2017. a. Did you ever discuss with Justice Anthony Kennedy whether you might be an acceptable replacement on the Court if he were to retire? If so, when, who was present, and what was discussed? RESPONSE: No. 72. At any point during the process that led to your nomination, did you have any discussions with anyone—including, but not limited to, individuals at the White House, at the Justice Department, or any outside groups—about President Trump’s position on loyalty? If so, please elaborate. Was there any communications about whether President Trump may pull your nomination if your answers displeased him? RESPONSE: As I said at the hearing, I am an independent judge and am loyal to the Constitution. My answers to all questions posed by the Senators were my own. 73. Please describe with particularity the process by which you answered these questions. RESPONSE: I drafted answers to these questions in conjunction with members of the Office of Legal Policy at the U.S. Department of Justice, and other attorneys from the Department of Justice, the White House Counsel’s Office, as well as my former clerks. My answers to each question are my own. 44 Senator Patrick Leahy (D-Vt.), Senate Judiciary Committee, Questions for the Record Hearing on the Nomination of The Honorable Brett Kavanaugh to be an Associate Justice of the Supreme Court of the United States September 10, 2018 1. At your 2006 nomination hearing, you said that you “absolutely” believed President Bush’s statements that the United States “does not torture” and does not “condone torture.” At the time, I brought your attention to abuses that took place at Abu Ghraib. Senator Durbin reminded you that our government sanctioned techniques such as threatening detainees with dogs, forced nudity, and painful stress positions. Since then, the Senate Intelligence Committee’s 6,000 page report about Bush-era detention policies provided details about the CIA’s widespread use of waterboarding and other “enhanced interrogation techniques,” which of course is a euphemism for torture. Knowing what you know now, do you still believe what you testified in 2006 — that the United States did not engage in the practice of torture during the George W. Bush administration? RESPONSE: To be clear, my 2006 testimony stated my belief in what President Bush had said. As I noted at the hearing last week, I was not read into the program involving the controversial enhanced interrogation techniques, nor did I craft the legal memos for that program. 2. Attached in Appendix I is a document that was obtained through a FOIA request. It shows that you, as Staff Secretary, were specifically looped in to review talking points covering the just-released and infamous Bybee torture memo. What other emails relating to post 9-11 torture and detainee policies exist from your tenure as Staff Secretary? RESPONSE: As I explained at the hearing, as Staff Secretary, any issue that reached the President’s desk from July 2003 to May 2006, with the exception of a few covert matters, would have crossed my desk. That applies to the President’s speeches, public decisions, and policy proposals, among other things. I do not recall all of the matters that crossed my desk during this time, and in terms of what work I did, my role was not to replace the policy or legal advisors, but rather to make sure that the President had the benefit of the views of his policy and legal advisers. Once there was public disclosure of those previously secret memos, the President and White House responded in a number of ways, and I would have performed my usual Staff Secretary role. 3. Torture is as un-American as it is illegal. Thanks to the leadership of my late dear friend Senator John McCain, torture is explicitly banned by law. Under Justice Jackson’s Youngstown framework, a President’s power “is at its lowest ebb” when he acts contrary to the will of Congress. Nonetheless, candidate Trump repeatedly threatened to resurrect the practice of torture upon becoming President. In your view, is there any circumstance in which the President could violate a statute passed by Congress and authorize the use of torture? 1 RESPONSE: Under Justice Jackson’s Youngstown framework, a President’s power is very limited and at its nadir when the President acts contrary to the will of Congress. And as I noted in my 2006 hearing, the President has the responsibility to follow the laws against torture reflected in statutes passed by Congress. 4. When you testified before this Committee in 2006, you testified: “I was not involved and am not involved in the questions about the rules governing detention of combatants.” But in 2007, the Washington Post published a report indicating that you had been consulted on and offered an opinion regarding whether the Supreme Court would approve of American citizens being detained as enemy combatants without access to counsel.1 Is the Washington Post correct that, while you were in the Bush White House, you were consulted on such a policy matter regarding the detention of enemy combatants? RESPONSE: I answered this question at the hearing. 5. Presidents frequently invoke an expansive view of “national security” to justify sweeping, often seemingly unrelated executive actions, such as when President Trump has used national security to justify enacting tariffs or to ban transgender Americans from serving in the military. In both of those examples, actual studies carried out by the relevant executive agencies did not demonstrate any national security threat that could be rectified by the President’s action, which proceeded nonetheless. You have written in support of an expansive view of executive power many times in the past. a. Should the courts defer to the President on the definition of “national security” in the absence of a clear legal definition? What about in the case of a clear legal definition? RESPONSE: As I discussed at the hearing, national security is not a blank check for the President. See Boumediene v. Bush, 553 U.S. 723 (2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). b. When the President and the agencies legally charged with executing a particular law of the United States containing a national security exception are not in agreement on whether a national security need exists, or when they are in disagreement, can a clear national security justification be said to exist? RESPONSE: As I discussed at the hearing, and in keeping with the practice of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on hypotheticals or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. 1 http://voices.washingtonpost.com/cheney/chapters/pushing the envelope on presi/. 2 c. Is it necessary that a national security waiver be written into a law for the President to waive certain provisions on national security grounds? RESPONSE: Please see my response to Question 5.b. 6. During your 2006 hearing, I asked whether you had any knowledge of President Bush’s post 9-11 torture and detainee policies. You testified that you were “not aware” of the “legal justifications or the policies relating to the treatment of detainees” until “2004, when there started to be news reports” on the subjects. Yet a 2007 news report indicated that in 2002, you were a key player in White House discussions about whether President Bush’s detainee policies would pass muster before the Supreme Court. There are still thousands of your documents we have not reviewed – and thousands that may have been screened out of the partisan production we received – that could shed additional light upon what you knew at the time. At some point they will become public. At any point in your tenure in the White House, were you aware of any aspects of President Bush’s post 9-11 torture and detention policies before they became public through news reports? RESPONSE: As I said at the hearing, my 2006 testimony on this point was accurate and remains accurate. 7. In Hamdan v. Rumsfeld, the Supreme Court recognized that the President “may not disregard limitations the Congress has, in the proper exercise of its own war powers, placed on his powers.” Do you agree that the Constitution provides Congress with its own war powers, and that Congress may exercise these powers to restrict the President – even in a time of war? RESPONSE: Please see my response to Question 5.a. I explained this issue in some depth at the hearing. 8. Justice O’Connor famously wrote in her majority opinion in Hamdi v. Rumsfeld that: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” In a time of war, do you believe that the President has a “Commander-in-Chief” override to authorize violations of laws passed by Congress or to immunize violators from prosecution? Is there any circumstance in which the President could ignore a statute passed by Congress and authorize torture or warrantless surveillance? RESPONSE: Please see my response to Question 5.a. I have explained my views on this issue in some depth at the hearing and in my writings. 9. You indicated in your hearing testimony that the Supreme Court’s recent decision in Carpenter v. United States was a “game changer” regarding the intersection of technology and the Fourth Amendment. In the wake of Carpenter, what is your view on the continued vitality (or lack thereof) of the Fourth Amendment’s “third-party doctrine,” as explained by the Court in Smith v. Maryland? 3 RESPONSE: Questions involving the third-party doctrine are likely to come before me. As I discussed at the hearing, and in keeping with the practice of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 10. At your hearing on September 6, 2018, I asked you the following question. You did not answer my specific question. Please do so now: In your concurrence in Klayman v. Obama, you went out of your way to say that not only is mass surveillance of American’s telephone metadata okay because it is not a search. You also said — with no support, and citing only the 9-11 Commission Report but no specific part of it — that even if it is a search, it is justified because the government demonstrated a “special need” to prevent terrorism. This was months after Senator Lee and I worked to pass the USA FREEDOM Act, which prohibited such collection. The year before you issued your opinion, the Privacy and Civil Liberties Oversight Board (PCLOB) stated publicly that it could not identify "a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation." Others also found that the NSA's phone records program was not essential to thwarting terrorist attacks.2 a. Why did you go out of your way to issue a concurrence stating that this program met a critical national security need, when it already was found to have made no difference in fighting terrorism? Why not simply join the majority opinion? RESPONSE: I answered this question at the hearing. b. Is it your view that merely making a reference to terrorism, even with respect to a program that was already found to have made no “Based on the information provided to the Board, we have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. In that case, moreover, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program. Even in those instances where telephone records collected under Section 215 offered additional information about the contacts of a known terrorism suspect, in nearly all cases the benefits provided have been minimal — generally limited to corroborating information that was obtained independently by the FBI.” See https://www.pclob.gov/library/215-Report on the Telephone Records Program.pdf. 2 4 concrete difference in fighting terrorism, is sufficient to justify an exception to the Fourth Amendment’s warrant requirement? RESPONSE: No. 11. At any point during your time in the White House Counsel’s office, were you involved in obtaining or providing legal analysis as to the Fourth Amendment implications of any warrantless electronic surveillance program, whether actual or hypothetical? RESPONSE: As I stated during the hearing, I cannot rule out the possibility of my involvement in the broad range of issues stated in your question. In the wake of the terrorist attacks of September 11, 2001, it was “all hands on deck” on all fronts in the White House Counsel’s office. 12. According to the 2009 Report on the President’s Surveillance Program, prepared by the Inspectors General of the DOD, DOJ, CIA, NSA and ODNI, on September 17, 2001, John Yoo, who was then at the Office of Legal Counsel, wrote a memo to your supervisor, Timothy Flanigan, “evaluating the legality of a ‘hypothetical’ electronic surveillance program within the United States to monitor communications of potential terrorists.” The memorandum was entitled, “Constitutional Standards on Random Electronic Surveillance for Counter-Terrorism Purposes.” As of 2001, were you aware that Mr. Yoo had written such a memorandum to Mr. Flanigan? RESPONSE: I cannot specifically recall every memorandum that I may have seen while working for the White House Counsel’s Office. As I explained in the hearing, in the wake of September 11th, it was “all hands on deck” in the White House and in the White House Counsel’s Office. 13. According to the same 2009 Joint Inspector General Report, Attorney General Alberto Gonzales believed that that September 17, 2001 memo, along with another written by Mr. Yoo in October 2001, provided the legal authority for the electronic surveillance program that would be codenamed Stellar Wind. As of 2001, did you have any interactions with Mr. Yoo, Mr. Flanigan, or anyone else, about either the contents of or legal reasoning underlying either of these memoranda? RESPONSE: As I explained in the hearing, I testified accurately in 2006 that I did not learn about the Terrorist Surveillance Program, or TSP, until it was described in a New York Times article in December 2005. I had not been read into that program. As I understand it, the September 17, 2001, email does not refer to the TSP. 14. Did you have any conversations of any type whether via email, over the phone, in person or otherwise with Mr. Yoo between September 17, 2001 and October 4th 2001 regarding warrantless surveillance of phone and/or email conversations within the United States? RESPONSE: I cannot specifically recall every conversation that I may have had while 5 working for the White House Counsel’s Office. As I explained in the hearing, in the wake of September 11th, it was “all hands on deck” in the White House and in the White House Counsel’s Office. 15. Attached in Appendix II is a September 17, 2001 email you wrote to John Yoo, BCC’ing Mr. Flanigan, asking the following question: “Any results yet on the 4A [Fourth Amendment] implications of random/constant surveillance of phone and email conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” a. Would you agree that the question in your September 17, 2001 email is substantially similar to the one Mr. Yoo answered in his memorandum to Mr. Flanigan dated September 17, 2001? RESPONSE: Please see my response to Question 13. b. Other than to help evaluate the legality of a bulk collection electronic surveillance program, for what purpose would you have asked Mr. Yoo to provide a legal analysis of the Fourth Amendment implications of such a program? RESPONSE: Please see my response to Question 13. c. Given that the answer to your question to Mr. Yoo helped form the legal justification for the NSA’s electronic surveillance program, is it still your position, as you testified in 2006, that you had neither “seen any documents relating to” the President’s NSA warrantless wiretapping program nor “heard anything” about it prior to the public disclosure of the program in 2005? RESPONSE: Please see my response to Question 13. d. What response did you receive from Mr. Yoo, to your September 17, 2001 email? RESPONSE: Please see my response to Question 13. e. It is clear from the email you sent that you had discussed the topic of warrantless surveillance with Mr. Yoo prior to your email request. Please detail the conversations or interactions you had with Mr. Yoo regarding the subject of warrantless surveillance between September 11 and September 17, 2001. RESPONSE: Please see my response to Question 13. 16. At your hearing on September 6, 2018, I asked you about your dissenting opinion in U.S. v. Jones, which I described as “more like an analysis we’d get 6 from the Chinese government than we’d get from James Madison.” In response, you stated the following: KAVANAUGH: I also went on in that opinion to say the attachment of the GPS device on the car was an invasion of the property right and that independently would be a Fourth Amendment problem. When the case went to the Supreme Court, the majority opinion for the Supreme Court followed that approach that I’d articulated in saying that it was a violation of the Fourth Amendment so the approach I’d articulated there formed the basis of saying it was actually unconstitutional. Your response to me conveyed that you believed that “the attachment of the GPS device on the car was an invasion of the property right” and “was a violation of the Fourth Amendment.” However, your actual opinion merely asserted that this argument “poses an important question.” Your opinion specifically stated that you “do not yet know whether I agree with that conclusion,” and that it “requires fuller deliberation.” Is it your testimony that you found in U.S. v. Jones that the attachment of the GPS device on the car constituted a violation of the Fourth Amendment? RESPONSE: My dissent in Jones stated that the D.C. Circuit should grant rehearing to consider “the defendant’s alternative submission” that the installation of a GPS device on his vehicle by police constituted a physical encroachment that would be considered a search under Fourth Amendment precedent. United States v. Jones, 625 F.3d 766, 770 (D.C. Cir. 2010) (Kavanaugh, J., dissenting from the denial of rehearing en banc). The Supreme Court subsequently granted certiorari to review the case. The defendant’s brief in the Supreme Court repeatedly cited my opinion, and the Court’s majority opinion ultimately adopted reasoning similar to the argument that I advanced in my dissent. See United States v. Jones, 565 U.S. 400, 403-13 (2012). 17. During your 2004 confirmation hearing, you were asked by Senator Kennedy about nowJudge William Pryor in the following exchange: SENATOR KENNEDY: Let me, if I could, ask you about your role in the vetting process, and particularly with regard to William Pryor. KAVANAUGH: That was not one of the people that was assigned to me. I am familiar generally with Mr. Pryor, but that was not one that I worked on personally . . . I was not involved in handling his nomination. You added that aside from participating in a moot, you did not work on the nomination of Judge Pryor to the 11th Circuit Court of Appeals. 7 Yet the limited documents that we have been permitted to see from your time in the White House Counsel’s Office suggest you indeed worked on his nomination personally, even if you were not the point person assigned to his nomination. a. Did you participate in the Pryor working group? If so, how many counsels were assigned to this working group? RESPONSE: As I explained in response to questions for the record after my 2004 hearing, primary responsibility for judicial nominations was divided among eight associate counsels in the White House Counsel’s Office. Each associate counsel was primarily responsible for judicial nominations from certain states. Judge Pryor’s nomination was not one of the nominations for which I was primarily assigned during my service in the White House Counsel’s Office, as I noted in the exchange you provide above. Nonetheless, and as I noted in responses to questions for the record in 2004, “[i]t is fair to say that all of the attorneys in the White House Counsel’s office who worked on judges, usually ten lawyers, participated in discussions and meetings concerning all of the President’s judicial nominations.” I do not have specific recollection of all of the circumstances surrounding Judge Pryor’s nomination. b. What calls did you participate in related to the Pryor nomination? RESPONSE: Please see my response to Question 17.a. c. What was your role with respect to Judge Pryor’s White House interview(s)? RESPONSE: Please see my response to Question 17.a. d. Did you ever personally interview Judge Pryor, including by participating in any group or joint interviews of Judge Pryor? RESPONSE: Please see my response to Question 17.a. e. Prior to recommending Judge Pryor for the nomination, were you aware that he had called Roe v. Wade “the worst abomination in the history of constitutional law?” We you also aware that argued that a constitutional right to same sex intimacy would “logically extend” to activities like “necrophilia, bestiality, and pedophilia?” RESPONSE: Please see my response to Question 17.a. f. During your moot session with Judge Pryor, did you advise him on how to handle questions on his views on Roe and same-sex intimacy? RESPONSE: Please see my response to Question 17.a. g. Did you attend an “emergency umbrella meeting” to discuss Bill Pryor’s hearing on 6/6/2003 at Baker & Hostetler? 8 RESPONSE: Please see my response to Question 17.a. 18. Did you contact investigators to turn over documents you suspected may have been stolen by Manny Miranda that he had provided to you? RESPONSE: During the hearing, I truthfully answered numerous questions regarding Mr. Miranda, and I refer you to those answers. 19. After the theft of confidential Democratic files from senators serving on the Senate Judiciary Committee became public in December 2003, what steps did you take to ensure you did not receive or benefit from stolen property? RESPONSE: Please see my response to Question 18. 20. Did you contact and volunteer to be interviewed by any federal investigators in relation to the hacking of Democratic computer files? RESPONSE: Please see my response to Question 18. 21. On how many occasions did Manny Miranda request to meet with you in person? On how many occasions did he suggest meeting you off-site (defined here as neither his nor your office)? RESPONSE: Please see my response to Question 18. 22. On how many occasions did Mr. Miranda provide you with paper documents related to Democratic senators, either directly (i.e., hand to hand) or indirectly (e.g., through Don Willet)? RESPONSE: Please see my response to Question 18. 23. Did you ever communicate with Manny Miranda while you served as White House Staff Secretary? RESPONSE: Please see my response to Question 18. 24. In at least one email, you passed along inside information about Democrats from Mr. Miranda that you stated originated with “Democratic sources.” Who were those sources? RESPONSE: Please see my response to Question 18. 25. I asked you in written questions in 2004 whether you had ever heard of a Democratic mole. You never answered the question. Please do so now. RESPONSE: Please see my response to Question 18. 26. You stated in your decision in Heller II that a gun restriction must not conflict with the 9 history and tradition of the Second Amendment. a. Would you agree that our founding fathers almost certainly never envisioned 3-D printing technology that could be used to print plastic firearms at home with no expertise? RESPONSE: Courts regularly consider cases involving technologies that would have never been envisioned by the Founders. It is the job of judges to consider these technologies against the backdrop of the Constitution. For example, the Fourth Amendment applies to technologies that were not known at the Founding, including cars and modern communication devices. The regulation of 3-D printed firearms is at issue in the federal courts. As such, and as I discussed at the hearing, and in keeping with the nominee precedent of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on such a case or issue. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this case or issue. b. Would you agree that, consistent with the history and tradition of the Second Amendment, such technology, which is only beginning to emerge now, could be regulated or even banned? RESPONSE: Please see my response to Question 26.a. 27. It has been mentioned many times that you have made it a point to hire women and minority law clerks. I think that’s important and commendable. Why do you believe it is appropriate for you to have an interest in your law clerk’s race or sex when placing them on the government payroll, but a university cannot do the same for its admissions? RESPONSE: I am proud of my record of hiring the best to serve as my law clerks—including women and minorities—and of my efforts to promote diversity. The extent to which public universities may consider certain factors as admissions criteria is the subject of precedent and ongoing litigation. As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. 28. In my view, and in my capacity as a Dodd-Frank conferee, the structure and independence of the Consumer Financial Protection Bureau (CFPB) is key in insulating decisions and actions from undue political influence. In your dissent in PPH Corp. v. Consumer Financial Protection Bureau, you held that the governing structure of the CFPB is unconstitutional and that could be remedied by removing the for-cause requirement allowing the President to fire the director. Congress created the CFPB to be a consumer watchdog and to fight on behalf of individual Americans who cannot by themselves afford to fight lengthy and costly legal battles. Too often, even if consumers were harmed or wronged by companies who broke the law and acted in bad faith, they do 10 not stand a chance against the company’s scores of legal experts eager to prolong and appeal cases. The CFPB levels the playing field on behalf of these Americans and must have the authority and flexibility to advocate on their behalf. a. Do you believe the for-cause provision in the governing structure of the CFPB is unconstitutional? RESPONSE: As I explained at the hearing, I dissented in PHH Corp. v. Consumer Financial Protection Bureau, 881 F.3d 75, 164-200 (2018) (en banc), because, in my view, the structure of the Consumer Financial Protection Bureau unconstitutionally empowered a single director removable only for cause to exercise significant power over the U.S. economy—an agency structure that Congress had never previously employed. I have repeatedly recognized that Humphrey’s Executor v. United States, 295 U.S. 602 (1935), permits Congress to create independent agencies with leaders removable only for cause. But as my opinion explained in detail, Congress has generally structured those agencies to have multiple leaders, rather than a single leader. b. Do you believe the fear of losing one’s job could inform whether a director chooses to pursue a particular course of action with respect to a company’s violation of laws, especially if the president disagrees? RESPONSE: A determination of that kind is for Congress to make in the first instance. As a judge, I enforce the requirements of the Constitution as construed by Supreme Court precedent. c. How can Congress ensure the CFPB director can to take on unpopular but legitimate cases? RESPONSE: Please see my response to Question 28.b. d. Do you believe independent agencies with multi-member governing bodies with term-limits are constitutional? RESPONSE: As I discussed at the hearing, and in keeping with the nominee precedent of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on these issues, e. Do you believe any other aspects of CFPB’s structure are unconstitutional? If so, which aspects? RESPONSE: Please see my response to Question 28.a above. 29. In your dissent in U.S. Telecom v. FCC, you asserted that Internet Service Providers (ISPs) have editorial discretion under the First Amendment to choose what content to 11 carry or not to carry. Were this view to become the law of the land, it would give ISPs unprecedented veto power over free speech online. This would be a real problem because 70 million Americans have only one choice of broadband provider. There is no competition; there are no alternatives. Tens of millions of American consumers would have no recourse but to see only what their ISPs allowed them to see online. We have a president who is famously thin-skinned when it comes to news reports that are critical of him. And he has repeatedly threatened to punish media organizations he deems “fake news.” If ISPs have editorial discretion to choose what Americans can see online, what would stop an ISP from cutting off access to legitimate news sites in an effort to gain favor with the President? RESPONSE: As I said at the hearing, under the Supreme Court’s decision in Turner Broadcasting, if a company exercising editorial discretion in the telecommunications arena has market power, then the government has broad authority to regulate. However, in United States Telecom Association v. FCC, 855 F.3d 381 (D.C. Cir. 2017) (en banc), the FCC did not attempt to demonstrate that internet service providers had market power. Id. at 434. Therefore, I found no basis to deem the net neutrality rule compliant with Turner Broadcasting. 30. Part of the justification you cite in your dissent in U.S. Telecom v. FCC is the dual role that some ISPs have as both cable and Internet providers. Specifically, your dissent states that: “Indeed, some of the same entities that provide cable television service colloquially known as cable companies – provide Internet access over the very same wires. If those entities receive First Amendment protection when they transmit television stations and networks, they likewise receive First Amendment protection when they transmit Internet content. It would be entirely illogical to conclude otherwise.” I would like to explore your conclusion further. In addition to ISPs that use cable wires to provide Internet access, there are ISPs that provide high speed Internet access over telephone lines, a service known as DSL. a. Would it be logical to conclude that providers of Internet access over telephone wires should receive the same level of editorial discretion as providers of traditional telephone service? If not, what are the material differences? b. If providers of Internet access over telephone wires are entitled to editorial discretion, would it be logical to conclude that providers of traditional telephone service provided over the same wires should receive the same level of editorial discretion? 12 c. Would it be logical to conclude that Internet access provided over telephone wires should be subject to the same regulatory scheme as traditional telephone service provided over the same wires? RESPONSE: The issues raised in your questions could well come before me in future litigation. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on these issues. 31. There are ISPs that also use the transmission of radio frequencies to provide Internet access to consumers. Many of these ISPs also use radio frequencies to provide voice service. In addition, radio frequencies are used to provide a wide array of other services. a. Would it be logical to conclude that ISPs providing Internet access over radio frequency should receive the same editorial discretion as providers using these frequencies to provide voice service? If not, what are the material differences? b. If ISPs providing Internet access over radio frequency are entitled to editorial discretion, would it be logical to conclude that providers using these frequencies to provide voice service should receive the same level of editorial discretion? c. Would it be logical to conclude that Internet access provided over radio frequency should be subject to the same regulatory scheme as voice service provided over radio frequency? d. Would it be logical to conclude that ISPs providing Internet access over radio frequency should receive the same editorial discretion as the operator of a garage door opener, which also transmits using radio frequencies? RESPONSE: The issues raised in your questions could well come before me in future litigation. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on these issues. 32. Many who consider themselves constitutional originalists have been critical of Supreme Court decisions that recognized the right to privacy. The originalist argument is that privacy is not an enumerated right and therefore cases like Roe and Griswold were wrongly decided. 13 a. You have suggested that other Supreme Court precedent (U.S. v. Nixon) may have been wrongly decided.3 Do also you believe Roe v Wade and Planned Parenthood v Casey were wrongly decided? RESPONSE: This is not an accurate description of my view of Nixon. I have said repeatedly and publicly over many years that Nixon is one of the four greatest moments in Supreme Court history. Roe and Casey are important precedents of the Supreme Court entitled to respect under the law of precedent. Casey is precedent on precedent. b. Do you believe the Constitution protects personal autonomy and privacy as a fundamental right? RESPONSE: Please see my response to Question 32.a. 33. In Priests for Life v. Department of Health and Human Services, you wrote in reference to the exercise of religion that, “when the Government forces someone to take an action contrary to his or her sincere religious belief . . . or else suffer a financial penalty . . . the Government has substantially burdened.” a. Do you believe that, under the Constitution, corporations should be treated as persons? b. Do you believe that non-governmental organizations, such as Priests for Life, should be treated as individuals when it comes to denying their workers access to affordable contraception? c. Do you believe that a boss’s private views trump the medical needs and health insurance choices of the boss’s employees? RESPONSE: The portion of Priests for Life you have quoted concerned the analysis required under the Religious Freedom Restoration Act, a federal statute passed by Congress. Under the Supreme Court’s precedent in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768-74 (2014)—which I, as a lower-court judge, was bound to apply—the Religious Freedom Restoration Act’s protections apply to businesses as well as natural persons. The extent to which the business form affects the rights secured under the Constitution is the subject of ongoing litigation and is a matter that could come before me. As I discussed at the hearing, and in keeping with the nominee precedent of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 34. You have praised Justice Scalia’s jurisprudence in writings and speeches. In a 3 Attorney Client Privilege, Does it Pertain to the Government?, WASHINGTON LAWYER, January/February 1999. 14 2011 interview, Justice Scalia stated that the Equal Protection Clause does not extend to women or LGBT individuals.4 a. Do you agree with that view? RESPONSE: As I stated at the hearing, the text and meaning of the Fourteenth Amendment requires equal protection under law for all Americans. Everyone is entitled to equal justice under law. b. Does the Equal Protection Clause protect individuals on the basis of their gender or sexual orientation? RESPONSE: Please see my response to Question 34.a. c. Does the Constitution permit discrimination in certain instances? RESPONSE: As a general matter, the Equal Protection Clause does not countenance invidious discrimination. The full contours of this prohibition are regularly the subject of cases and controversies brought before the D.C. Circuit and the Supreme Court. As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 35. Justice Kennedy wrote in Planned Parenthood v. Casey that “At the heart of liberty is the right to define one’s own concept of existence.” a. Do you agree with Justice Kennedy in this case? RESPONSE: The passage cited above is the opening sentence in Planned Parenthood v. Casey. As I discussed at the hearing, it would be inconsistent with judicial independence to opine on cases or issues that could come before me. This means no forecasts or hints, as Justice Ginsburg said during her confirmation hearing, and no thumbs up or thumbs down on cases, as Justice Kagan said during her confirmation hearing. b. Do you believe “the right to define one’s own concept of existence” means states cannot pass laws discriminating against LGBT Americans? RESPONSE: Please see my response to Question 35.a. 4 Scalia: Constitution Does not Protect Women Against Discrimination, WASHINGTON POST, January 4, 2011, at http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p html. 15 36. In your dissent in Seven-Sky v. Holder, you wrote that, “the President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional.” Your reasoning was that, “[u]nder the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” a. How is this position consistent with the president’s constitutional obligation to “take care that the laws be faithfully executed”? RESPONSE: As I explained at the hearing, in footnote 43 of my opinion in Seven-Sky v. Holder, 661 F.3d 1, 50 n.43 (D.C. Cir. 2011), I was referring to the general concept of prosecutorial discretion, which was recognized by the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), and applied to civil enforcement in Heckler v. Chaney, 470 U.S. 821, 837-38 (1985). As I further explained at the hearing, the limits of prosecutorial discretion are uncertain. b. During your time in the Bush White House, did you ever draft, revise, edit, approve, or otherwise contribute to any signing statements reserving the president’s right not to enforce laws or part(s) of laws? If so, which ones? RESPONSE: As I explained at the hearing, as Staff Secretary, any issue that reached the President’s desk from July 2003 to May 2006, with the exception of a few covert matters, would have crossed my desk. That applies to the President’s speeches, public decisions, and policy proposals, among other things. I do not recall all of the matters that crossed my desk during this time, and in terms of my work, my role was not to replace the policy or legal advisers, but rather to make sure that the President had the benefit of the views of his policy and legal advisers. c. Can a president refuse to comply with a court order? RESPONSE: As I said in the hearing, no one is above the law of the United States, including a President of the United States. As I also stated at the hearing, when the Supreme Court issues a ruling prohibiting the President from doing something or ordering the President to do something, the Supreme Court’s word is the final word, subject of course to a constitutional amendment or a subsequent overruling by the Court. See Cooper v. Aaron, 358 U.S. 1 (1958). In keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment any further on this question. d. If a president refuses to comply with a court order, how should the courts respond? RESPONSE: Please see my response to Question 36.c. e. How can a court serve as a legitimate check on the powers of the executive branch if the president can disregard its rulings whenever the 16 president deems it to be necessary? RESPONSE: Please see my response to Question 36.c. 37. In 2017, you became a member of the Board of Directors of the Washington Jesuit Academy, a parochial school in the District of Columbia that accepted vouchers from the D.C. voucher program. You indicated in the questionnaire you submitted to the Committee that you, “participate in meeting where the Board deals with various issues, including educational decisions.” a. Due to your involvement as a board member of this school, will you recuse yourself from cases regarding the legality of school vouchers since the decision will have a direct impact on how the Washington Jesuit Academy functions as a school? RESPONSE: I will consider that question as appropriate. b. If confirmed, will you step down from the Board of Directors of the Washington Jesuit Academy to avoid the perception of there being a possible conflict of interest? RESPONSE: I plan to step down from the Board, if I am confirmed. c. Do you believe that taxpayer dollars should be given to private parochial schools, whereby tax payer dollars could be used to promote religious messages? RESPONSE: This question calls upon me to offer my views as to a matter of public policy. As a sitting judge and nominee, it would be inappropriate for me to provide an answer. d. Do you believe that institutions that receive federal education dollars should be required to follow the same civil rights protections as public schools? RESPONSE: Please see my response to 37.c. 38. You said that “a judge must interpret statutes as written. And a judge must interpret the Constitution as written.” Given the varying and complicated constraints faced by agencies, cost-benefit analysis may vary by administration, mission area, desired outcome, and economic indicators, among other variables. Guidance for agencies on cost- benefit analysis provided by the Office of Management and Budget and internal guidance will also inform the structure and depth each analysis. a. Do you believe it is appropriate for judges to interpret the varying methods of cost-benefit analysis and determine if they are sufficient or appropriate for any given regulation? 17 RESPONSE: If the statute requires or precludes cost-benefit analysis, the agency must follow that statute. If the statute gives the agency discretion, the agency must exercise discretion reasonably. b. If so, what statute on cost-benefits analysis should the court interpret? RESPONSE: In general, a court should apply the analysis required by the particular statute at issue in the case. As I explained at the hearing, Congress passes laws, and it is the job of judges to determine whether the Executive Branch has acted within the authority given by Congress. c. Do you think the benefits of certain regulatory action, especially in the environmental space, are more difficult to measure than the costs? Does that make measuring them when engaging in a cost-benefit analysis any less important? RESPONSE: The Supreme Court has determined that some statutory schemes, including in the environmental arena, require agencies to consider costs and benefits before deciding whether regulation is appropriate and necessary. See, e.g., Michigan v. EPA, 135 S. Ct. 2699, 2711 (2015). 39. You have criticized Chevron deference as being aggressive executive overreach and argued that courts should determine the best reading of the statute. a. How will you make sure expertise is accounted for when considering complicated, scientific cases regarding the environment? b. What role should experts in agencies play when interpreting statutes? RESPONSE: As I explained at the hearing, I have applied the Chevron doctrine in many D.C. Circuit cases over the last 12 years. 40. You have often argued that plaintiffs representing industry should have standing for economic damages incurred from environmental regulations. In some cases, for example Grocery Manufacturers Assoc v. EPA, you have claimed that a relatively low bar of economic harm qualifies as standing. a. Will individuals and nongovernmental organizations receive the same treatment when you consider whether they have standing for damages? RESPONSE: As I explained at the hearing, I am a pro-law judge. Part of being an independent, pro-law judge is ruling for the party that is right, no matter who that party is. In the specific context of your question, I apply standing principles in an evenhanded manner, regardless of the identity of the litigants. 18 b. Often environmental regulations create significant economic benefits and value to human health, the clean energy economy, and environmental sustainability while some industries face challenges as a result of the regulations. How do you address and balance these economic factors when determining standing? RESPONSE: I have applied an evenhanded and impartial approach to the wide variety of environmental cases that have come before me. c. As someone who has said “the task of dealing with global warming is urgent and important at the national and international level,” do you agree that the damage caused to individuals, corporations, and communities by climate change should be considered for standing on similar grounds to the economic hardship created by regulations that mitigate climate change? RESPONSE: Please see my response to Question 40.b. As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on legal issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. 41. You have argued that the EPA does not have the authority to regulate greenhouse gases under the Clean Air Act despite statute giving EPA authority to regulate “any air pollutant.” a. Do you still believe that EPA cannot regulate greenhouse gases? RESPONSE: As your question suggests, I addressed one aspect of this issue in Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322, 2012 WL 6621785, at *14-*23 (D.C. Cir. Dec. 20, 2012). The Supreme Court largely adopted my position in Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014). Beyond reference to those prior decisions, it would be improper for me as a sitting judge and a nominee to comment on legal issues that might come before me. b. If so, why are greenhouse gases excluded from this definition of “any air pollutant?” RESPONSE: As I explained above and at the hearing, it would be improper for me as a sitting judge and a nominee to comment on legal issues that might come before me. 42. Chief Justice Roberts wrote in King v. Burwell that “oftentimes the ‘meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.’ So when deciding whether the language is plain, we must read the words ‘in their context and with a view to their place in the overall statutory scheme.’ Our duty, after all, is ‘to construe statutes, not isolated provisions?’” Do you agree with the Chief Justice? Will you adhere to that rule of 19 statutory interpretation – that is, to examine the entire statute rather than immediately reaching for a dictionary? RESPONSE: As discussed at the hearing, “it is critical that judges stick to the law as written, the text of the statute as passed by Congress and signed by the President.” I also believe, as discussed at the hearing, “footnote 9 of Chevron is very important in terms of using all the tools of statutory construction before you make a finding of ambiguity in the statutory term at issue.” In applying those tools, I agree with and respect the principles of statutory interpretation cited in the above passage of the Chief Justice’s opinion. It would not be appropriate for me in this context to opine on whether I agree with how those principles were applied by the Court in King v. Burwell. 43. In United States v. Booker, the Supreme Court held that the Federal Sentencing Guidelines were only advisory and could not mandate that a district court judge sentence a given defendant within a given range. Notwithstanding Booker, many Courts of Appeal, including the D.C. Circuit in cases like United States v. Haipe, have held that the guidelines “frame the discretion” of district court judges. This conception of the post- Booker advisory guidelines leads to sentence reversals in cases in which, for example, the defendant’s sentence is within even his own calculated range. What is your view on the proper role of the advisory guidelines in evaluating a district court’s sentencing decisions? RESPONSE: The role of the advisory sentencing guidelines is a frequently litigated issue that could come before me. As I explained during the hearing, and in keeping with the practice of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 44. President Trump has issued several attacks on the independent judiciary. Justice Gorsuch called them “disheartening” and “demoralizing.” While anyone can criticize the merits of a court’s decision, do you believe that it is ever appropriate for leaders to attack a judge’s integrity based on his ethnicity, or to question the legitimacy of a federal court? RESPONSE: As I stated during the hearing, it would not be appropriate for me to comment on something a politician has said, or to be drawn into political controversy. As I further stated during the hearing, judges stay out of commenting on current events because doing so risks confusion about the role of the judge – which is to decide cases, not to comment on current events as pundits. 45. President Trump praised one of his advisers after that adviser stated during a television interview that “the powers of the president to protect our country are very substantial and will not be questioned.” (Emphasis added.) Is there any 20 constitutional provision or Supreme Court precedent precluding judicial review of national security decisions of a President? RESPONSE: I answered this question at the hearing. See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 46. Does the First Amendment allow the use of a religious litmus test for entry into the United States? How did the drafters of the First Amendment view religious litmus tests? RESPONSE: The extent to which the First Amendment applies to non-citizens seeking entry into the United States is the subject of ongoing litigation and is a matter that could come before me. As I discussed at the hearing, and in keeping with the nominee precedent of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 47. Do you agree with Justice Scalia’s characterization of the Voting Rights Act as a “perpetuation of racial entitlement?”5 RESPONSE: I cannot speak to Justice Scalia’s views. In my unanimous opinion in South Carolina v. United States, 898 F. Supp. 2d 30 (D.C. Cir. 2012), I noted that “[t]he Voting Rights Act of 1965 is among the most significant and effective pieces of legislation in American history.” Id. at 32-33. 48. What does the Constitution say about what a President must do if he or she wishes to receive a foreign emolument? RESPONSE: The Foreign Emoluments Clause of the Constitution states that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The meaning of the Foreign Emoluments Clause is the subject of pending litigation in federal courts. As I discussed at the hearing, and in keeping with nominee precedent, it would therefore be improper for me as a sitting judge and a nominee to comment on this issue. 49. In Shelby County v. Holder, a narrow majority of the Supreme Court struck down a key provision of the Voting Rights Act. Soon after, several states rushed to exploit that decision by enacting laws making it harder for minorities to vote. The need for this law was revealed through 20 hearings, over 90 witnesses, and more than 15,000 pages of testimony in the House and Senate Judiciary Committees. We found that barriers to voting persist in our country. And yet, a divided Supreme Court disregarded Congress’s 5 https://www.supremecourt.gov/oral arguments/argument transcripts/2012/12-96 7648.pdf. 21 findings in reaching its decision. As Justice Ginsburg’s dissent in Shelby County noted, the record supporting the 2006 reauthorization was “extraordinary” and the Court erred “egregiously by overriding Congress’ decision.” When is it appropriate for the Supreme Court to substitute its own factual findings for those made by Congress or the lower courts? RESPONSE: As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 50. How would you describe Congress’s authority to enact laws to counteract racial discrimination under the Thirteenth, Fourteenth, and Fifteenth Amendments, which some scholars have described as our Nation’s “Second Founding”? RESPONSE: As I explained during the hearing, the Thirteenth, Fourteenth, and Fifteenth Amendments are vitally important constitutional Amendments, because they brought the promise of racial equality—which had been denied at the time of the original Constitution— into the text of the Constitution. Because the scope of Congress’s authority to enforce those Amendments is the subject of active litigation, it would be inappropriate for me to comment more specifically on this issue. 51. Justice Kennedy spoke for the Supreme Court in Lawrence v. Texas when he wrote: “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct,” and that “in our tradition, the State is not omnipresent in the home.” Do you believe the Constitution protects that personal autonomy as a fundamental right? RESPONSE: As I said in my opening statement, Justice Kennedy established a legacy of liberty for ourselves and our posterity. The Supreme Court has, as the portion of Lawrence you quote demonstrates, recognized certain areas of personal autonomy as fundamental to liberty. The full contours of this jurisprudence are regularly the subject of cases and controversies brought before the D.C. Circuit and the Supreme Court. As I discussed at the hearing, and in keeping with the practice of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on this issue. 52. As White House Staff Secretary at the time Lawrence v. Texas was decided, what was as your role within the Bush administration as part of its effort to push a constitutional amendment defining marriage as a union between and 22 man and a woman? RESPONSE: As I testified in the hearing, while I was Staff Secretary, any issue that reached the President’s desk from July 2003 to May 2006—with the exception of a few covert matters—would have crossed my desk as well. 53. In the confirmation hearing for Justice Gorsuch, there was extensive discussion of the extent to which judges and Justices are bound to follow previous court decisions by the doctrine of stare decisis. In your opinion, how strongly should judges bind themselves to the doctrine of stare decisis? Does the commitment to stare decisis vary depending on the court? Does the commitment vary depending on whether the question is one of statutory or constitutional interpretation? RESPONSE: As discussed at the hearing, the judicial power clause of Article III and Federalist 78 make clear that stare decisis is “part of the proper mode of constitutional interpretation.” I explained that “at the D.C. Circuit level or the court of appeals level, we follow vertical stare decisis, absolutely, and that means that we are not permitted to deviate from a Supreme Court precedent. With respect to [the] Supreme Court, or … when I am on the D.C. Circuit and we are reconsidering en banc a prior precedent of our own, we can do that at times if the conditions for overruling a precedent are met”—a circumstance that “is rare.” If confirmed, I would respect the rules of stare decisis given its centrality to stability, predictability, impartiality, and public confidence in the rule of law. 54. Generally, federal judges have great discretion when possible conflicts of interest are raised to make their own decisions whether or not to sit on a case, so it is important that judicial nominees have a well-thought out view of when recusal is appropriate. Former Chief Justice Rehnquist made clear on many occasions that he understood that the standard for recusal was not subjective, but rather objective. It was whether there might be any appearance of impropriety. How do you interpret the recusal standard for federal judges, and in what types of cases do you plan to recuse yourself? I’m interested in specific examples, not just a statement that you’ll follow applicable law. RESPONSE: I will follow the applicable rules and will consult with my colleagues as appropriate. 55. It is important for me to try to determine for any judicial nominee – and especially one to our Nation’s highest court – whether he or she has a sufficient understanding the role of the courts and their responsibility to protect the constitutional rights of individuals, especially the less powerful and especially where the political system has not. The Supreme Court defined the special role for the courts in stepping in where the political process fails to police itself in the famous footnote 4 in United States v. Carolene Products, 304 U.S. 144 (1938). In that footnote, the Supreme Court held that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” Can you discuss the importance of the courts’ 23 responsibility under the Carolene Products footnote to intervene to ensure that all citizens have fair and effective representation and the consequences that would result if it failed to do so? RESPONSE: Equal justice under law means that everyone who ends up in an American court is entitled to equal treatment, due process, and the equal protection of the laws. 56. Both Congress and the courts must act as a check on abuses of power. Congressional oversight serves as a check on the Executive, in cases like the IranContra Affair, warrantless spying on American citizens, and politically-motivated hiring and firing at the Justice Department during the Bush administration. It can also serve as a self-check on abuses of Congressional power. When Congress looks into ethical violations or corruption, including inquiring into the Trump administration’s conflicts of interest, we make sure that we exercise our own power properly. Do you agree that Congressional oversight is an important means for creating accountability in all branches of government? RESPONSE: Yes. 57. What is your understanding of the scope of congressional power under Article I of the Constitution, in particular the Commerce Clause, and under Section 5 of the Fourteenth Amendment? RESPONSE: The Supreme Court has clarified the scope of congressional power under the Commerce Clause of Article I and Section 5 of the Fourteenth Amendment in cases including United States v. Lopez, 514 U.S. 549 (1995), Gonzales v. Raich, 545 U.S. 1 (2005), City of Boerne v. Flores, 521 U.S. 507 (1997), and Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003). Those cases are important precedents of the Supreme Court entitled to respect under the law of precedent, which I believe is essential to ensuring stability and predictability in the law. 58. As you know, in Morrison v. Olson the Supreme Court upheld the constitutionality of a law that allowed the Attorney General to recommend appointment of an independent counsel to investigate and prosecute certain high-ranking Government officials, including the President, for federal crimes. You have said that the case has been “effectively overruled,” but you would “put the final nail in.”6 a. What does it mean for a case to have been “effectively overruled”? Precedent has either been overruled or not. RESPONSE: I have discussed this issue at length in my writings and at the hearing. b. What other Supreme Court precedent, in your opinion, has been “effectively overruled”? 6 Federal Courts & Public Policy," American Enterprise Institute, Washington, D.C., March 31, 2016, https://www.c-span.org/video/?c4740724/kavanaugh-final-nail. 24 RESPONSE: Article III of the Constitution incorporates a system of precedent. As a judge, I have carefully adhered to precedent. 59. At your hearing last week, you and Senator Hirono had the following exchange: SEN. HIRONO: Have you otherwise ever received sexually suggestive or explicit e-mails from Judge [Alex] Kozinski, even if you don't remember whether you were on this "Gag List" or not? KAVANAUGH: So Senator, let me start with no woman should be subjected to sexual harassment in the workplace, and ... [sic]7 You avoided answering the question. Please go through your files and emails, and definitively state whether you ever received sexually suggestive or explicit emails from Judge Kozinski, whether as part of his “Easy Rider Gag List” or otherwise. RESPONSE: I do not remember receiving inappropriate emails of a sexual nature from Judge Kozinski. 60. Following up from the prior question, if you ever received sexually suggestive or explicit emails from Judge Kozinski, did you ever speak or otherwise communicate with him about the appropriateness of this conduct? RESPONSE: Please see my response to Question 59. 61. Attached in Appendix III is an email that you received from a White House colleague on June 8, 2001 at 10:13 a.m., making a comment – on a government computer network – that is clearly inappropriate. Did you ever speak or otherwise communicate with this colleague about the appropriateness of this conduct? RESPONSE: Aside from me, none of the senders or recipients of that email were employees of the White House, and no White House business was discussed. I was not the author of the inappropriate comment. The specific email referenced in this question was sent over 17 years ago. 62. What is the Eureka Club? When did you take part in activities or gatherings under that name or a substantially similar name? And what were the activities associated with these gatherings? RESPONSE: A group of friends sometimes gathered for dinner. The scheduling emails for those dinners would sometimes be titled “Eureka.” 63. Do you personally believe that Nazis, Nazi sympathizers, or white nationalists are “fine people”? 7 http://www.cq.com/doc/congressionaltranscripts-5383496?8&search=6DCnZ3GR. 25 RESPONSE: There is no place in American public life for vile ideologies of hate. 64. Have you ever ruled on a case involving a policy that, as an employee of the Bush administration, either you helped create or for which you provided legal or policy analysis? If so, please describe. RESPONSE: I have recused from cases as appropriate. I have explained this issue in Baker Hostetler v. Department of Commerce, 471 F.3d 1355 (D.C. Cir. 2006). 65. Regarding judicial philosophy, do you believe it is important for a judge to approach his or her analysis in a given case with intellectual honesty? Why or why not? Stated differently, would it be appropriate for a judge to have a predetermined conclusion at the outset of a case? RESPONSE: As discussed at the hearing, I believe “process protects you” as a judge. Rather than staking out a predetermined conclusion, the process of briefing, oral argument, and deliberation is critical to allow judges to engage in deliberate decisionmaking and to ensure confidence in the judiciary. # # 26 # Appendix I From: 'Miers, Harriet' To: "Kavanaugh. Brett Subject: Fw: let me know when you get ReoeivedtDate): Sat 12 Jun 2004 18:10:14 -0500 Brett, fyi --?-Original Message--?- From: Jim Wilkinson] I To: Miets, Harriet Sent: Sat Jun 12 19:08:40 2004 Subject: let me know when you get this..thx These were written by WH Counsel and NSC legal (approved by have also been approved by Wilkinson, Bartlett, Hadley also wanted Harriet, Brett, and Andy to see am on my cell at P5/(bl(6l ..these are for use by Condi and Powell for tomorrow?s Sunday The President believes we must do everything possible to protect the American people from terrorism. Gathering intelligence about the plans of terrorists is critical to defending America. In all aspects of our nation's war on terror. including the con?ict in Iraq, the President has insisted our government must comply with US. laws and treaty obligations He has repeatedly made clear that torture of detainees is not permitted under US. policy, and he has never considered the possibility of authorizing torture. IV The abuses of Abu Glraib are a violation of the President?s policies 5" not a result of them - and these violations are being investigated and will be punished. The President has been and remains ?rmly committed to our military's observance in Iraq of the Gemva conventions and our other international agreements. 5? To help eraure our government follows the law. the executive branch receives legal opinions. The Department of Justice in a legal analysis discussed the possibility that under some circumstances could be legally defensible. The lawyers were considering a situation in which the information gained from an interrogation might prevent future attacks by foreign enemies. However. the President has never considered authorizing ta'ture under any circumstances. Interrogation techniques must be kept confidential so we do not give away information that would signal to our adversaries what they could anticipate if captured, allowing them to prepare for it and potentially counter it As required by law. we brief the appropriate Congressional leadership on authorized interrogation techniques. While our actions in the War on Terror are governed by rules the terrorists do not respect any rules. They are an enemy that hides among civilian populations and seeks to in?ict large-scale civilian casualties by surprise attack We have an obligation to aggressively and lawfully interrogate capnred detainees to obtain information that may help us prevent future attacks. ?detainee message ptsdoc? 27 Appendix II From: M. To: You. John