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Q&A: Alaska Sen. Lisa Murkowski on vetting Trump’s new Supreme Court nominee

Sen. Lisa Murkowski speaks with staff members of Anchorage Daily News on May 31, 2018. (Marc Lester / ADN)

This interview has been edited for length and clarity. It took place in a conference room in Alaska Republican Sen. Lisa Murkowski's Washington, D.C., office on Tuesday, July 10, 2018, between Murkowski, Anchorage Daily News reporter Erica Martinson and Alaska Public Radio Network reporter Liz Ruskin, who is quoted with her permission. Two staffers and two interns were also in the room. The discussion focused on President Donald Trump's nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit to the Supreme Court, to fill the vacancy left by Justice Anthony Kennedy upon his retirement upcoming July 31. (The transcript begins after a bit of chitchat about Murkowski's Independence Day activities in Alaska.) 

LISA MURKOWSKI (LM): So anyway, we're back (in D.C.), the president has announced his pick for the United States Supreme Court, and I, this morning, have begun the arduous process of doing the due diligence that's required for any nominee. I've been asked already this morning by several different reporters, "What do you think? What do you think?" And I am certainly going to defer on that until I have had an opportunity to review, and this is an individual that has a pretty extensive record out there. He's been on the bench since 2006. He's been in the administration before that. So there is a lot to go through. And we had begun some of that, because he had been in the grouping of, you know, the top four for the past week or so. And so we had begun some of the review, but clearly there's a great deal to be done. I'm going to be asking for a sit-down with him. I don't expect that I'm going to be at the top of the list, not being on the judiciary committee, so I don't know when we'll have a chance for the sit-down – so, that's an important part for me.

APRN'S LIZ RUSKIN (LR): You don't think he'd make a lot of time for you? You think you'd be high on the priority list?

LM: I think that he knows that before he can get to me, he's got to get through the judiciary committee. So if I were him, I'd make sure that my initial meetings were with every member of that committee. And then line up with the rest of us. And, yes, I'm certain I will have my opportunity for a sit-down with him, and I look forward to that. I've never met him.

ADN'S ERICA MARTINSON (EM): You voted for him in 2006. What new do you take into consideration now? What's different with the Supreme Court spot? (Murkowski voted to approve Kavanaugh's nomination to the appeals court in 2006.) 

LM: Well, Supreme Court is lifetime on the Supreme Court, the highest court in the land. And also you now have a much more substantive record to review in the intervening years. So just because I had an opportunity to weigh in on his nomination at the circuit court level, this is a different ballgame. So I'm going to be — I take this very, very seriously. And I will say… I'm a little annoyed that some of my colleagues, even before the president laid down Judge Kavanaugh's name, had already determined that they were going to vote against whomever.

And many of the groups that are out there have said, "Vote against the nominee." Well, who's the nominee? Well, basically it didn't make any difference to them. And that's, I think, unfortunate. I guess what's going around the airwaves today is apparently an organization had put out a release last night saying that we should all be encouraged to vote against "XXX," name to be filled in. They had done up their press release, they didn't care who it was that the president was going to name. They just wanted to make sure that we were going to, by gosh, vote against him.

EM: If I may play devil's advocate for a moment – there's people on both sides of the issue who see a Supreme Court pick primarily through the lens of Roe v. Wade. (Roe v. Wade is the landmark 1973 Supreme Court decision legalizing abortion.) And the president has made very clear, over and over, that he intended to nominate someone to the Supreme Court that he thought would overturn Roe v. Wade. Whether he specifically asked them or not, that was his goal, he's stated many times. So, it stands to reason that whoever he picks, people would expect — 

LM: I don't know that it stands to reason that whoever he picks is one who would be committed to overturning Roe v. Wade. And I had a very direct conversation with the president about this 10 days or so ago, before I went back up to the state, and suggested to him that it would be inappropriate to even raise that direct ask as to where an individual would come down on Roe v. Wade. He confirmed that he had not and would not. What I believe I have to do now as one who has the privilege of voting on this role of advise and consent, is to determine whether Judge Kavanaugh will do what I think most Americans expect him to do, which is to basically follow that law, interpret the law, not create new law, not be that activist judge. So I'm going to do the work that I have to do.

But I do think there's been a great deal that has been made about "the list." I raised the list with the president, and suggested to him that I didn't feel that he needed to be limited to it. I know that that was part of his campaign promise when he ran, and he kept that promise in naming Judge Gorsuch in that original list of 25. Mr. Kavanaugh was not on that list. He has been since added, vetted through the White House, as opposed to this outside group. I don't know that it puts him in a different category or not, but I do know that that had been raised as one of those concerns, that that was this outside group that had approved or disapproved – and so regardless of what they may have done, my role is not to look to them for guidance, but to determine it on my own, based on my own review.

EM: What is it that goes into your ultimate decision, and how much of that is what you hear from constituents?

Well, I mean clearly you – I want to hear from constituents on their views, and I certainly hope that they will take to heart the role that I have to actually do my homework on this. I know that there are some who believe that, well, because this is a Republican president's pick, you should just automatically accept it. You don't need to do due diligence; you should just support it without doing more than that. That is not the role of advise and consent. That is absolutely not the role. And I have never viewed it that way. And I have said before that I have pretty exacting standards and I will work to make sure that this individual meets those standards, but I hope that Alaskans will weigh in, but I also hope that they will give it thoughtful consideration too, and not just a knee-jerk, "You should support him because he's Trump's pick, or you should not support him because he's Trump's pick." Let's evaluate this individual. Again, I don't know him. I don't know much about him. I will learn. But anybody at his age that has the years of experience that he has deserves to have a fair review of his record.

LR: I believe in your statement, you said that the most important thing would be what Alaskans tell you –

LM: I don't think I said that it was the most important thing. I think that I factored in – I will factor in – what Alaskans have to say. I will review the ratings, because that again goes to a host of different factors, that essentially assess the qualification, the criteria, the reputation that he has amongst a legal network and that's something that Alaskans can't really give me, and I can't really get. So I look to that. I'll look to the written opinions, all sides of him while he was on the bench, and then of course before he was on the bench.

He's got a very interesting background, with what he did in the Bush administration, the Starr investigation. There's a lot out there. Somebody asked me this morning if I felt that because there is so much out there it may take longer. I don't know that. Probably – it makes sense that it would take longer, just to get all the documentation for the committee. I think that that's something that Chairman Grassley is going to have to figure out. But yeah, it's probably more arduous to do a thorough review of someone like Judge Kavanaugh than some of the other names that were out there that had had just a very short tenure on the bench. So I don't know what the thinking was behind that, but –

LR: In your statement, as I recall it, I don't have it in front of me, you did put a fair amount of emphasis on what you would hear from Alaskans.

LM: Absolutely. Absolutely.

LR: How do you do that, since you know there's a lot of very loud voices on both sides. Do you count the numbers? How do you – 

LM: Well, as a very immediate for instance, this morning I was given the update on what we are receiving in incoming calls, incoming emails, and who they're from. And as of — what did we hear this — 10:30 I guess — the bulk of the calls were coming from the Lower 48, which is understandable because Alaskans are not up yet.

So we're monitoring them as they come in and this – this is one of the things, though, that I find again a little bit – I'll go back to my "annoying" word: Under ordinary circumstances, I would know that the month of August would be a time where I could be going all over the state.

(Murkowski lamented the cancellation of August recess, a time she traditionally uses to travel around the state and visit with constituents. She has strong feelings about it.) 

… There's also a lot of people that don't have the time or don't have the opportunity to be part of an organized group, who also want the opportunity to weigh in. And so how we're going to address that remains to be seen, because at this point in time we have no more clarity on what is actually going to happen in August than we did two weeks ago…

EM: Much of the drama behind this pick is the prospect that it could swing the direction of the court for a generation. Is that something that you take into consideration in your decision?

LM: Sure, sure, absolutely.

EM: To what degree?

LM: Well, I mentioned that when I was back home that I had valued the service of Justice Kennedy and I felt that he had been — I don't know if I used the term "moderating voice," but I respected the position that he was that swing vote in many ways on a host of different issues. And I said that I would be fine with someone in the Justice Kennedy role or somebody who could be viewed that way. And so yeah, it is something that I will look to as I look to Kavanaugh's background.

EM: Do you want to see the court move more to the right?

LM: Well, I think we have to recognize: You have a Republican president. A conservative Republican president. Not conservative enough for some, far too conservative for others. But he is a Republican president. And he has had the opportunity to now nominate two individuals. One is being confirmed, the second is beginning that process. And so we had to assume that this president was going to nominate someone that was probably more to the right, center-right. And so this is why people look to this particular nomination with a perhaps a heightened interest or scrutiny, because Kennedy did play that … pivot point on certain issues.

And so the question is whether Kavanaugh, if he's confirmed, replaces him as that justice who's perhaps more in the middle. I don't know that he is. But that is something that I'm going to be looking at.

Again I have to remind myself as I remind others, that I'm not going to have him sitting here in this room and ask him the question, "What are you going to do on Roe v. Wade?" I wouldn't expect that he would answer that were I to ask him the question. And if he's a good judge, which I have to assume he has been, if he's been nominated, if he's a good judge he would say, "I cannot predetermine an outcome." The expression that is used around here is: "You want an umpire who's going to fairly call the balls and the strikes."

And so you look to other areas to determine how he has ruled in the past, whether he has held closely to the rule of law. Whether he has looked to precedent for clarity. What he views as settled law. These are the types of questions that I think we can look to and evaluate how he may approach the court.

But I think we have to remember that they may be predictors but they may not be accurate predictors. We've seen the frustration of some where justices were nominated and boy, we didn't think they'd turn out that way. But you know these are independent men and women who have been tasked, who have been charged to, again, interpret the law …

EM: What kinds of questions do you think you will ask, granted of course that you have more research to do?

Well lucky for me, I have many weeks, probably at least several weeks. By then I will have had a much greater opportunity to go through his writings. Perhaps by then the leg work that is going on all over this Capitol right now, by every group on one side or the other, will have laid down fascinating information, so we'll just start laying down questions. But he's got a lot for us to go through.

LR: He's had several rulings that rein in the (Environmental Protection Agency) – that must appeal to you. 

LM: I haven't read 'em, though … I've got a lot of work to do, so maybe it's a good thing that we're here.

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