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Washington, DC—Today, Senator Orrin Hatch (R-UT), the senior member and former Chairman of the Senate Judiciary Committee, used his second round of questions in the confirmation hearing for Supreme Court nominee Brett Kavanaugh to discuss a number of key issues, including the Mueller probe, religious liberty, intellectual property, and criminal justice reform.
Click here for Senator Hatch’s opening statement, and click here from his questions yesterday.
Judge Kavanaugh, I’d first like to commend you for how you’ve conducted yourself these last two days. You have displayed the level-headedness and decency that so many of your friends and former colleagues have described in their letters to this committee. I wish I could say the same about everyone who’s attended this hearing or covered it on social media. I am deeply concerned by the theatrics we’ve seen these last two days. I’ve been on this committee for forty-two years—longer than any other member. I’m the former chairman. Never have I seen the constant interruptions we’ve witnessed at this hearing. Confirmation hearings are supposed to be an opportunity for the American people to hear from the nominee.
Unfortunately, it seems that some on the political left have decided to try to turn this hearing into a circus. I worry about the precedent this is setting for future confirmations. But that’s not the worst of it. No, the worst of it are the attacks against people who aren’t even up for confirmation, who just happen to be here in the room to support the nominee.
It’s bad enough that Supreme Court nominations have turned into all-out war against the nominee. Have we really reached the point where anyone who even supports a nominee must also be destroyed? Has our tribalism really reached that low? To those who have been unfairly caught up in the filth that’s being hurled around, I just want to say, you’re right to be here, supporting someone you believe in.
Don’t let the fact that there are a lot of frankly sick people out there cause you to lose faith in our political process. We need good, decent people to step forward to contribute, even when it’s ugly. Particularly when it’s ugly.
Now to my questions.
The full text of Hatch’s questions:
- Late last night, one of my colleagues asked you a series of open-ended questions about any conversations you have had with anyone at a 350-person law firm about Special Counsel Bob Mueller or his investigation. You said you do not remember having had any such conversations. My colleague did not clarify why my colleague was asking the questions and did not allow you to complete your answers. I want to give you a chance to respond.
- With all of the accusations and insinuations and innuendo being hurled around yesterday, there’s something I have to come clean about: I’m on the Board of Visitors of the Federalist Society. It’s true. For those who are not familiar with the Federalist Society, it generally holds debates and puts together panels on legal issues. The American Constitution Society does much the same thing, except it focuses on liberal or progressive lawyers, so this is familiar to my Democratic colleagues on this Committee. They’ve been involved with ACS—from keynoting the annual conference to being an honorary host committee chair to speaking on panels to writing blog entries for the organization. I even heard a nasty rumor that one of them spoke at a Federalist Society event. You’ve already said that when it came to your nomination, you spoke with the President, the vice president, and the White House Counsel Don McGahn, not the Federalist Society. So I don’t need to ask you about that. My question for you is this: what has your experience with the Federalist society been?
- Earlier this year, I attended oral argument in Microsoft v. United States, also known as the Microsoft Ireland case. At issue in the case was the meaning of the Stored Communications Act and whether a warrant for data stored overseas but accessible in the United States falls within the Act’s confines. I had introduced legislation known as the CLOUD Act to resolve this issue. Following oral argument, Congress passed the CLOUD Act, thus mooting the case before the Court. Now, the specific question at issue in the Microsoft Ireland case has been resolved by my legislation, but the case also raised a broader question that I’d like to ask you. When the Stored Communications Act was passed in 1986, no one imagined a world where data could be stored overseas but accessible instantaneously in the United States. It was clear that the Act covered data stored in the United States. But it was less clear that it extended to data stored abroad using new technologies that were not available in 1986. How do we interpret our laws in light of changing technology? How do we determine whether the authors and enactors of legislation would have intended the legislation to cover new technologies and unforeseen situations?
- On the domestic front, there has been debate for some time now in Congress about whether our laws should be updated to require a warrant for the content of electronic communications regardless of how old those communications are. As you may know, the Electronic Communications Privacy Act currently distinguishes between communications that are less than 180 days old and those that are more than 180 days old, requiring a warrant for the former but not the latter. Can you speak generally to the importance of warrant requirements and why they’re an important bulwark against government overreach?
- You’ve been critical of the practice of judges sentencing defendants based on uncharged or acquitted conduct. With regard to acquitted conduct in particular, I agree that the notion that a judge can sentence a defendant to a long prison term for a crime that a jury acquitted the defendant of flies in the face of the right to a jury trial. You’ve written that you believe “it likely will take some combination of Congress and the Sentencing Commission to systematically change federal sentencing to preclude use of acquitted or uncharged conduct.” Why do you take issue with the use of acquitted conduct at sentencing, and why do you believe this is an issue that will likely require intervention by Congress to resolve?
- This committee has been chasing an elusive deal on criminal justice reform for quite some time. One particular focus of mine in this area has been mens rea reform. Without adequate mens rea protections—that is, without the requirement that a person know his conduct was wrong, or unlawful—everyday citizens can be held criminally liable for conduct that no reasonable person would know was wrong. Critics of my legislative efforts to bring clarity to mens rea requirements claim the effort is a ploy to get corporations and white collar defendants off the hook. But stronger mens rea requirements protect the liberty of all defendants in the criminal justice system, the vast majority of whom are not corporations or white collar defendants. You’ve written about the importance of mens rea requirements, including in cases involving unsympathetic defendants like an armed robber or a convicted murderer. Why, in your view, are mens rea requirements so important?
- Some people seem to think that religious people shouldn’t work in government because they swear allegiance to their church, not their country. I have faithfully served this country for over forty years, and I am a religious man. Religion is also a big part of your life. You went to Catholic school, your children go to Catholic school, and you regularly attend church and serve at a church-supported soup kitchen. I know that religious faith is a personal subject, but I’d like to hear from you how your private beliefs affect your public decisions. Can you be devout in your faith and still uphold the law?
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