[Congressional Record Volume 164, Number 158 (Tuesday, September 25, 2018)]
[Senate]
[Pages S6284-S6286]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mr. DURBIN. Madam President, plow through this nomination. That is 
what the Republican majority leader said over the weekend, that we are 
going to plow through this nomination of Brett Kavanaugh for the 
Supreme Court. It doesn't sound to me like a recipe for fairness, and 
it certainly doesn't sound like a recipe for getting to the truth. Plow 
through. That was what the Republican majority leader said the 
Republican majority would do.
  When this all started, I was surprised when a spokesperson for 
President Trump--Kellyanne Conway, who is not noted for her 
moderation--made what I thought was a very moderate and thoughtful 
statement at the beginning of the consideration of Dr. Ford's charges. 
She said that we are neither going to ignore nor insult Dr. Ford. I 
thought that was a good standard. Unfortunately, since she has said 
that, neither the President nor many Republican leaders have lived up 
to it.
  I really come to this as a member of the Senate Judiciary Committee 
who is trying to think about the gravity of the situation and what is 
fair. In this situation, we have Dr. Ford's coming forward. I have 
thought long and hard and have talked to many of my staffers

[[Page S6285]]

and friends back home about her motivation. What in the world does she 
have to gain by putting herself and her family through this? What is at 
the end of it for her?
  I can't see any positives other than the satisfaction that she is 
pursuing what she believes to be true. She is exposing herself to 
ridicule, harassment, and attack even by the President of the United 
States in his tweets. Her family is in danger, and they have had to 
move out of their home. Her computers have been hacked, and she has had 
to engage attorneys and get into lengthy negotiations with Republicans 
in the Senate just for a chance to come and tell her story. This woman 
had a family and a life and was well respected by her colleagues and 
the people in her community. It has been turned upside down.
  Why? What is in this for Dr. Ford? What is she trying to achieve 
here?
  The more I have thought about it, the more I have concluded that she 
just believes it is so critically important for the American people to 
hear her story and understand what she believes to be true about this 
nominee. So I come to this, certainly, with an open mind in terms of 
her presentation.
  When I hear the Republican leader come to the floor and talk about 
her situation, he zigs and zags. In one moment, he sounds like he is 
sympathetic to Dr. Ford and to what she has been through and calls for 
fairness. Then, before he catches a breath, he calls her charges an 
unsubstantiated smear.
  I would say to my colleague from Kentucky that he can't have it both 
ways. He can't be respectful of Dr. Ford and of the reason she comes to 
Washington and then dismiss and discredit everything she has said as a 
smear. He just can't have it both ways, but he has tried for 2 straight 
days.
  He argues that this situation that we face has been carefully 
choreographed by the Democrats.
  There is the old cliche by Will Rogers: ``I don't belong to any 
organized political party--I am a Democrat.'' It, certainly, applies to 
this situation because this has been an unusual development.
  Senator Dianne Feinstein receives a letter from Dr. Ford through a 
Member of Congress, Anna Eshoo. When she receives the letter, it reads 
at the top ``confidential,'' that she doesn't want her identity to be 
disclosed.
  Senator Feinstein told me and others over and over again that she 
felt duty bound not to victimize Dr. Ford, who claimed to have been 
victimized already. She tried to find a way to get to the bottom of 
this--to establish whether Dr. Ford's charges were accurate. After 
weeks of trying, she came to the conclusion that she couldn't do it 
through the U.S. Senate and through the resources available to her. She 
spoke to Dr. Ford. She took the charges seriously. She was in 
communication with her attorneys. She tried her best to find a way to 
establish the credibility of these charges before moving forward and 
was always constrained by Dr. Ford's admonition: Don't let my identity 
become public. That is why it took longer than it should have.

  Now Senator McConnell has come to the floor for 2 straight days and 
has somehow suggested that the Democrats leaked this letter to the 
press. Well, I don't have any knowledge of that whatsoever. I do know, 
as far as Senator Feinstein was concerned, she was scrupulous in making 
certain that Dr. Ford's identity was protected as long as she wanted it 
protected. So I don't know what he is saying or whether he has 
information to back up these charges that he has made for 2 straight 
days on the floor.
  I take a look at this situation, and I understand where we are today. 
The bottom line is that Dr. Ford had nothing to gain by doing this--
nothing--and still has nothing to gain. Yet then there is one 
overriding fact here that Senator McConnell continues to ignore. Let me 
take you back in history.
  Twenty-seven years ago was the Clarence Thomas hearing. I was in the 
House at the time, but I read about it and followed it as most 
Americans did. On the very day that Senate Judiciary Committee Chairman 
Joe Biden received the letter from Anita Hill, which charged sexual 
misconduct against Clarence Thomas, Chairman Biden sent the letter to 
the President George H.W. Bush White House--to the White House Counsel, 
C. Boyden Gray. Then on that very day, C. Boyden Gray, the White House 
Counsel, ordered the Federal Bureau of Investigation to investigate the 
charges by Anita Hill.
  There has been a lot of comment on whether that investigation had 
been adequate or preemptory. There has been a lot more comment on 
whether the following hearing had been fair, adequate, and not 
preemptory. Yet the fact is that the instinct of Joe Biden and the 
instinct of the George H.W. Bush White House was the same: Investigate 
it. Don't assume it is true, and don't assume it is false.
  Now look at this case. Look at where we are today despite repeated 
requests to the White House and the Republicans for the Federal Bureau 
of Investigation to look into this matter. Despite repeated requests 
for them to ask the FBI to do this, they have refused. The Republicans 
have refused an investigation of the charges by Dr. Ford. Dr. Ford has 
called for the FBI to investigate her own charges. They have refused.
  If they truly believed that there was no evidence, no witness to back 
up Dr. Ford's charges, wouldn't they, obviously, have called the FBI 
and said, ``Do your job, and find what you can. We are confident, at 
the end, that Judge Kavanaugh will be exonerated''? Yet they have not. 
Despite all of the calls for fairness over and over again by Senator 
McConnell, fairness would dictate a nonpartisan investigative group 
like the FBI to look into this matter and come to conclusions, whatever 
they may be.
  I listened as Senator McConnell said this morning that justice 
matters. Evidence matters, he said. Facts matter, he said. I might add 
that an FBI investigation matters, too, because it would get to the 
bottom of all three of those things. Yet, the White House, the 
President, Senator McConnell, and the Republicans have resisted this 
FBI investigation despite Dr. Ford's asking for it.
  As far as the presumption of innocence, I listened to Senator 
McConnell say that someone suggested that Judge Kavanaugh is not 
entitled to that. I disagree with whoever said that. Both Dr. Ford and 
Judge Kavanaugh are entitled to the presumption of innocence. The case 
has to be proven; the facts have to be shown as best they can.
  I want to add something else too. I am troubled by what President 
Trump said over the weekend about Dr. Ford's charges--the suggestion 
that it has been so long that her charges are not credible, the 
suggestion that if they were truly credible, she would have told her 
parents what had happened that night in the bedroom and that her 
parents would have reported it to law enforcement, and we could have 
read the police reports.
  That is not the real world when it comes to this kind of sexual 
harassment and sexual violence--not at all. It is the reason it took 40 
years for altar boys in the Catholic Church to come forward and finally 
tell their stories. It is the reason many women who have been victims 
never come forward. It is hard. It is difficult. It is painful. It is 
divisive. Many of them step away from it and carry those memories for 
their lifetimes without ever telling anyone.
  If you want to be fair to Dr. Ford, and if you want to be fair to the 
victims of sexual violence, harassment, and assault, then you have to 
acknowledge the obvious. This is something no one wishes on any member 
of their family, friend, or person they have met. In fairness, if it 
occurs, we should be sensitive to the fact that many don't want to come 
forward at all, and some only do it reluctantly much later.
  I want a fair and open hearing this Thursday when both Dr. Ford and 
Judge Kavanaugh come before us. This is not a smear campaign, as far as 
I am concerned.
  Dr. Ford, with nothing to gain, has stepped forward and told her 
story. She has subjected her family and her name to the kind of 
publicity no one would wish on their family, and she has done it 
because she believes the truth is important.
  By the same token, Judge Kavanaugh is entitled to tell his story, and 
I hope he will. He will have to explain to this committee why he didn't 
call for a Federal Bureau of Investigation effort on his own behalf to 
establish the facts,

[[Page S6286]]

the evidence, and the witnesses, if there were any. He didn't, and that 
is a fact.
  We also know this charge Senator McConnell made that Senator Schumer 
made up his mind on the Kavanaugh nomination early in some respects is 
true. Senator Schumer announced his position on this nomination early, 
but if you have been listening to the speeches given by Senator 
McConnell on the floor from the start, you certainly know where his 
vote has been. He says he is looking forward to hearing the testimony 
on Thursday. Well, clearly, he has made up his mind before he hears 
that testimony. So to fault Senator Schumer for taking a position on 
this nomination early, that he is ignoring the obvious--so did Senator 
McConnell.
  At this point, I will say we face an awesome responsibility. A nation 
divided politically, a nation where people have strong feelings on both 
sides in an effort to find the truth--I don't know what the legal 
standard is for this hearing. When it comes to criminal law, we 
certainly know the matter of probable cause, which leads to 
investigation and prosecution, and beyond a reasonable doubt to prove 
the guilt of someone. We know on the civil side there are different 
standards. No one has quite spelled out what our standard of proof is, 
but this much I know. No one--not any single American--is entitled to a 
seat on the Supreme Court. They have to come before the American people 
first and certainly the Senate, under the Constitution, and make their 
case for the advice and consent of the Senate to that nomination.
  It is a lifetime appointment to the highest Court in the land. The 
person who fills that seat can make decisions which swing history one 
way or the other, decisions which affect justice and privacy and 
fairness in American life. For that reason, all of us--all the Members 
of the Senate, certainly the Senate Judiciary Committee--have to take 
it seriously. I am going to take this very seriously, and I hope 
Members on both sides of the aisle will.
  I also will say this. Senator McConnell followed up with his ``plow 
through this matter'' comment and told us: We will stay through the 
weekend, if necessary, to get this done. We have to get it behind us. 
We have to move on. Where was Senator McConnell's sense of urgency when 
the vacancy was created by the death of Antonin Scalia? For almost a 
year, Senator McConnell left that seat vacant in the hopes that a 
Republican would be elected President. The idea now of giving a few 
days to go through the evidence, to go through an investigation, to 
have a reasonable review of the record of Judge Kavanaugh is now pushed 
away. This has to be done, it has to be done this weekend, and that is 
it--why? Why the urgency, Senator McConnell? Shouldn't we value 
fairness over urgency?
  I ask Senator McConnell: Set your ``plow'' aside for a few minutes, 
would you? Take a look at the Senate, this deliberative body, and make 
sure that in fairness to both Dr. Ford and Judge Kavanaugh, we don't 
push this through, and we don't rush to judgment. Let us use our 
opportunity in the Senate and our responsibility in the Senate to treat 
our constitutional requirement seriously.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.