[Congressional Record Volume 164, Number 159 (Wednesday, September 26, 2018)]
[Senate]
[Pages S6317-S6320]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mrs. GILLIBRAND. Mr. President, I rise to speak about Judge 
Kavanaugh's nomination to the Supreme Court.
  I urge my colleagues to actually listen to Dr. Blasey Ford and treat 
her with the respect that she deserves. She deserves better than the 
setup she is walking into tomorrow.
  I want to take a step back for a second and look at the big picture 
of what is actually going on with this nomination. We have a nominee 
for a lifetime appointment to the highest Court in the land who has 
been accused, credibly, of sexual assault. Dr. Blasey Ford reluctantly 
came forward out of civic duty and said that Brett Kavanaugh tried to 
rape her in high school. She is now facing death threats for her 
courage, and her worst fears of how she would be treated by this body 
have come to fruition.
  Another woman, Deborah Ramirez, agreed to tell her story after being 
contacted by a reporter--again, risking her career and her safety--and 
said that Brett Kavanaugh exposed himself to her face in college while 
laughing, as part of a game.
  These accusations are disturbing enough by themselves, but the 
response to these allegations by our colleagues are so disappointing. 
Take a look at how Dr. Blasey Ford is being bullied because she told 
her story. Listen to how she is being patronized and dismissed by some 
Members of the Judiciary Committee. Look at how our President belittled 
and demeaned Dr. Blasey Ford and Ms. Ramirez, reminding us once again 
that he has been credibly accused of committing sexual assault himself 
and denigrates not just women who accuse him but survivors everywhere.
  That is not all. The chief counsel of the Senate Judiciary Committee 
tweeted after Dr. Blasey Ford's sexual assault allegation: ``Unfazed 
and determined. We will confirm Judge Kavanaugh.''
  According to Ms. Ramirez's lawyer, the Judiciary Committee isn't even 
interested in taking her claims seriously or getting information from 
her about her claims. Instead of getting the facts--instead of even 
wanting the facts--they try to dismiss this as a smear campaign and 
plow right ahead.
  For anyone who has ever wondered why so many survivors of sexual 
assault don't come forward--obviously, there is trauma, but there is 
also the fear of this very kind of retaliation and scorn. The question 
I have, that I know you have: Do we value women in this country? Do we 
listen to women when they tell us about sexual trauma? Do we listen to 
their stories about how their lives have been forever scarred? Do we 
take their claims seriously or do we just disbelieve them as a matter 
of course?
  I want to echo the words of my colleague from Alaska: ``It is about 
whether or not a woman who has been a victim at some point of her life 
is to be believed.''
  I believe Dr. Blasey Ford. Here is why I believe her. She has risked 
everything--her own safety--to come out on the record to say Brett 
Kavanaugh sexually assaulted her. She told her therapist and her 
husband about it 5 years ago. She told a friend about it a year ago. 
She told a reporter about it before Kavanaugh was ever named. She has 
even taken a lie detector test.
  Why are my colleagues moving so fast, as fast as they possibly can, 
to confirm this judge?

[[Page S6318]]

  This process is sending the worst possible message to girls and boys 
everywhere. It is telling American women that your voices don't matter. 
It is telling survivors everywhere that your experiences don't count, 
that they are not important, and that they are not to be believed. We 
are saying that women are worth less than a man's promotion. That is 
not how the world is in 2018, and we cannot allow this Senate, this 
body, to take us back to before 1991.
  To those whom I hear say over and over that this isn't fair to Judge 
Kavanaugh, that he is entitled to due process and to the presumption of 
innocence until proven guilty and that Dr. Blasey Ford has to prove her 
case beyond a reasonable doubt, those are the standards for a trial. 
Those are the standards in criminal justice. We are not having a trial. 
This is not a court. He is not entitled to those because we are not 
actually seeking to convict him or to put him in jail. We are seeking 
the truth. We are seeking facts. We are seeking just what happened.
  We, Senators--not staff members, not female lawyers--are being asked 
to assess his honesty. Is he an honest person? Is he trustworthy? Can 
we trust him to do the right thing for decades? To rule on women's 
lives for decades to come? Can we trust him to do that right?
  This is not about whether he should be convicted. This is about 
whether he has the privilege to serve on the highest Court of the land 
for a lifetime. This is not a court of law. This is a job interview, 
and it is our job as Senators to assess if he is honest. Has he lied 
about his past? Has he misled members of the Judiciary Committee? Is he 
trustworthy?
  One point, I think, that our colleagues are somewhat blind to, which 
I know the Presiding Officer is not, is that the last 2 weeks have been 
so painful for women who have experienced sexual trauma. Women have 
lived through this. So, when they are watching some of the most 
powerful people in this country disregard, distrust, disbelieve, 
minimize, devalue, unfortunately, it is painful for all of them. It is 
painful because you are tired of seeing the same old outcome every 
single time. You are tired of the scenarios in which the men are 
believed and the women are not. They can't believe their eyes when they 
see two women being treated with less respect and having less of a 
process than even Anita Hill received.
  I quote a friend of mine, Amina Sow, who just disclosed today that 
she is a survivor. Her words are powerful and truthful and describe 
exactly the way many people feel:

       The truth is our strength. We are each other's strengths. 
     To the women who are struggling: I see you. I am sorry we 
     have to go through this. Thank you for trusting us with your 
     stories. I am heartened by them and honored to know about 
     you.

  I believe Dr. Blasey Ford because she is risking everything--her 
safety, her security, her reputation, her career--to tell this story at 
this moment for all the right reasons. If we allow women's experiences 
of sexual trauma to be second to a man's promotion, it will not only 
diminish this watershed moment of the societal change we are in, but it 
will bring shame on this body and on the Court.
  I yield the floor.
  The PRESIDING OFFICER. The majority whip.
  Mr. CORNYN. Mr. President, as a member of the Senate Judiciary 
Committee, I am looking forward to a hearing that we will have tomorrow 
at 10 o'clock in the morning, at the request of Dr. Ford, that will 
give all of us an opportunity to provide a fair chance to her and for 
her to have her say. It is important that we do this because, during 
the last 10 days, it has felt like a series of small earthquakes. 
Actions taken and blunders committed by our Democratic colleagues have 
destabilized the normal confirmation process and timeline.
  All of this stems from the fact that the allegations made by Dr. Ford 
were made to the ranking member and kept by her from other members of 
the committee as well as from the background investigators, who, 
normally, when allegations come up like this, protect the 
confidentiality and anonymity of both the accuser and the accused until 
they can be properly vetted. Yet that all went by the wayside when our 
friend from California, Senator Feinstein, sat on this letter, this 
accusation. So we are where we are.
  As a result of the unfairness to both the accuser and the accused 
because of the secrets the Democrats kept, because of the way these 
were leaked to the press and the pledges of confidentiality were 
violated, we know the nominee, Judge Kavanaugh, who has had six FBI 
background checks in the course of his professional career, has been 
subjected to multiple accusations that could and should have been 
brought up much earlier.
  As I say, if it had been handled during the normal, conventional 
process, it would have protected Dr. Ford, and it would have protected 
the nominee from this circuslike atmosphere, and we could have gotten 
to the bottom of the allegation. We could have, hopefully, ascertained 
where the truth lies. Yet, under this approach, under this current 
situation--again, created by this failure to release the information so 
it could not be investigated until after the hearing--everybody loses. 
I think we all recognize the basic unfairness of this process both to 
Dr. Ford and to Judge Kavanaugh and that it did not have to be this 
way.
  The process, as I say, has been patently unfair. That is why my 
colleagues and I have been insisting on a better way forward by 
returning to the process that is fair to all concerned. In the 
dictionary definition, ``fairness'' is defined as the ``quality of 
treating people equally or in a way that is right or reasonable.'' 
Another definition is ``impartial and just treatment of behavior 
without favoritism or discrimination.''
  How are we to handle this accusation and this challenging difference 
of position on Dr. Ford's part, who said this attempted sexual assault 
occurred 36 years ago, and Judge Kavanaugh, who has stated under oath 
that no such thing happened? How do we get to the bottom of this?
  The biggest challenge we have is time because I defy any one of us to 
try to reconstruct what we were doing on a given day at a given time 35 
or 36 years ago. It is just impossible to reconstruct with complete 
fidelity and accuracy.
  What we really need to be thinking about, I believe, is a fair 
process. We have tried to provide a fair process for Dr. Ford, under 
these unfortunate circumstances, to tell her story, but we also need to 
provide a fair process for the nominee. This should not be a precedent 
for how future nominations will be handled. We should learn from this 
terrible experience and commit to doing better. One way to do better 
would be to return to our basic values and principles in our government 
and in our country, under our Constitution, which guarantee the rights 
of a person who is accused of a crime.
  I know the minority leader--my friend from New York, Senator 
Schumer--has said to Judge Kavanaugh that this is not a court, that 
this is a nomination, which, I presume from that, means, well, anything 
goes and that there are no rules. He has been accused of a crime--
attempted sexual assault--and has testified under oath, under penalty 
of perjury, that no such thing happened. This is a very serious matter, 
and we need to take it seriously and not create a new framework out of 
thin air, which says, somehow, if somebody makes an accusation that 
cannot be corroborated by anybody else 36 years later, that that 
somehow satisfies our notions of due process and of protecting the 
rights of people who are accused of crimes.
  Fundamentally, this is about fairness. People who have been accused 
of grave misconduct have a right to due process under our Constitution. 
They have a right to know who their accusers are as well as the nature 
of the charges being brought against them and the evidence that will be 
presented against them. Those are basic, constitutional, American 
rights that are consistent with our idea of what the government's 
burden should be when the government is trying to deny us our right to 
liberty or property or even to our lives.
  We also know these rights include a right to speedy proceedings 
without unnecessary delays. Unfortunately, there have been plenty of 
delays for Judge Kavanaugh. Last week, we saw Chairman Grassley 
patiently wait and wait and wait some more while the legal team and 
political operatives who represent Dr. Ford strung the committee along. 
I am sure Judge

[[Page S6319]]

Kavanaugh was wondering: What in the heck is going on here?
  As we all heard during a televised interview on Monday night, he, 
unequivocally, denies the claims that have been made against him. 
Again, that is a serious statement because he does so under penalty of 
perjury. He said: ``I know what is the truth, and the truth is I have 
never sexually assaulted anyone in high school or otherwise.'' Those 
are strong words and direct words, and they remind us of something 
important. It is the truth that the Judiciary Committee and the entire 
country should be after--the truth. But for the truth to be our goal 
this week, some of my colleagues need to dial down the rhetoric and 
quit presuming guilt based on an accusation and nothing else.

  At a minimum, a fair process requires a partial and open mind on the 
part of those charged with determining a person's professional fate. My 
fellow Senators need to remain open to receiving and evaluating 
credible evidence presented at the hearing. Unfortunately for our 
Democratic colleagues, that ship has sailed.
  Long before Dr. Ford's allegations were leaked to the press and made 
public, contrary to her wishes, all of our colleagues on the other side 
of the aisle on the Senate Judiciary Committee had said that they would 
vote against this nomination, so Judge Kavanaugh hardly has an open and 
impartial tribunal deciding his professional fate and deciding whether 
this accusation will remain a stain on his professional career and 
reputation for the rest of his life.
  Then, as I said, there is also the presumption of innocence. The 
Supreme Court has said: ``The law presumes that persons . . . are 
innocent until they are proven, by competent evidence, to be guilty.'' 
This is a fundamental bedrock of our constitutional system. It is 
nonnegotiable. It cannot be conveniently brushed away by our colleagues 
across the aisle. It is not one of several options; rather, it is 
guaranteed under our Constitution. The burden of proof is always on the 
party alleging wrongdoing, not the other way around.
  We have the logical conundrum, as well, beyond the constitutional 
one, where Dr. Ford has testified--at least in the letter--to an event 
occurring. Judge Kavanaugh said it didn't happen. He said: I didn't do 
that; I wasn't there. So unless the burden is on the person making the 
accusation, how in the world could the person defending possibly prove 
a negative when he says that it didn't happen and he wasn't there? It 
is impossible. That would be a presumption of guilt, not a presumption 
of innocence. That would turn our Constitution on its head.
  That is why it is so important for us to hear from Dr. Ford, to 
evaluate the strength of not just the allegations but what 
corroboration, what other evidence, there is in order to find the 
truth.
  We have learned from media reports that attorneys for Dr. Ford have 
affidavits of additional people who know the accuser personally, but 
according to USA Today, these simply indicate that these are things 
that Dr. Ford told her friends 20 or 30 years later, not witnesses of 
the event that she claims occurred 35 or 36 years ago.
  Let's also remember that three other eyewitnesses Ms. Ford identified 
have said that they have absolutely no recollection of the events that 
she says took place--none whatsoever. These are people Dr. Ford 
identified as witnesses to the assault that she claims Judge Kavanaugh 
perpetrated. Yet the witnesses she identified said that they have no 
knowledge of such an event.
  We also need to remember the context in which all of this is 
occurring. Sixty-five women who went to high school with Judge 
Kavanaugh have written a letter saying that he has always behaved 
honorably toward them and treated them with respect. That doesn't mean 
Dr. Ford is not entitled to be heard--quite the contrary.
  She has a story to tell. As the father of two daughters, I want to 
hear that story. I want to compare it to Judge Kavanaugh's unequivocal 
denial and judge for myself the reliability of each. As a former judge 
for 13 years and an attorney general for 4, I feel that doing anything 
less would be shirking my duty.
  We owe Dr. Ford our time, our attention, and our best efforts at 
discerning the truth. That means her claims will be tested, examined, 
and new information, perhaps, will be brought to light. At least that 
is my hope. That is the way it should be.
  We are trying to clean up the mess created by an unconventional 
process of leaking allegations to members of the press after the 
background test was completed and after the hearing occurred rather 
than handling it the way that, as I said, it should be. We should have 
started with that process, not end it here.
  What the majority leader described yesterday as a disturbing pattern 
should never have taken place over the last few weeks. Our colleagues 
across the aisle, catching wind of an allegation, refused to share it 
with the majority and, instead, waited and then made sure that it was 
leaked to the press at the most politically opportune time, when it was 
likely to cause the maximum disruption and embarrassment to both Dr. 
Ford and Judge Kavanaugh. That is no way for the U.S. Senate to do its 
business.
  A search for the truth--if that, in fact, is what we are involved 
with, and I hope it is--should not involve delays and the withholding 
of documents. It should not involve orchestrated personal attacks on 
Members either. It should not involve a mob rule like what we saw at 
the first Kavanaugh hearing. It should not involve people sending coat 
hangers to offices or forcing committee members to leave restaurants, 
harassing them when they are trying to have dinner with their family.

  People who hold a genuine concern for Dr. Ford would have honored 
requests for anonymity and privacy. That is what Dr. Ford specifically 
requested. They would have passed those allegations to the Judiciary 
Committee so that an investigation could have been conducted in a more 
timely and confidential fashion, and then they could be addressed 
during the hearing, if necessary, that we had earlier this month. That 
standard procedure would have treated Ms. Ford as a real person, not as 
a political pawn, and it would have left the Democratic operatives who 
have now been hired to dig up dirt out of the mix.
  I want to say that throughout all of this, Chairman Grassley has been 
exceedingly generous toward Dr. Ford, as we would all want him to be, 
even when his patience has been tested. I want to commend him, once 
again, because he has had a very difficult job of trying to run the 
Judiciary Committee, trying to be fair to the nominee and the accuser 
alike when this wrench, thrown into the spokes of the committee 
operation, has created more of a circuslike atmosphere than a 
deliberative process and search for the truth, testing the background 
of a nominee, which is something all nominees deserve. No nominee 
deserves to be dragged through the mud like this.
  Chairman Grassley has been patient because he knows how important 
this is and how much is on the line, not only for the Supreme Court but 
also for women across this country who see a little bit of themselves 
in Dr. Ford and want to make sure that their voices, like hers, are 
always heard.
  Over the last year, we have been in the middle of an important 
national conversation on the topic of sexual assault and the way men 
have treated women. As I said, I have two daughters. As I mentioned 
earlier, every American has a mother. Some are lucky and have a sister 
or a spouse or a daughter, and I think all of us would want to make 
sure that all of those women in our lives would be treated with dignity 
and respect, were they in the same position that Dr. Ford now finds 
herself in.
  Yet it is also important to remember that every person has a father. 
Many are fortunate to have brothers or sons or husbands, and we would 
want to make sure that all of those men are also treated fairly and 
with respect. We would no more rather have a women's truthful claim be 
ignored than an uncorroborated accusation against a man be honored. 
That is fairness.
  As we know, Dr. Ford is a real person, and so is Judge Kavanaugh--
flesh and blood. Each of them should be treated with fairness, with 
dignity, and with respect. It is not just one or the other, which is 
the false choice that many of our colleagues have suggested. We can't 
pick one and dismiss the other outright and claim any fairness

[[Page S6320]]

or allegiance to our constitutional system and due process of law if we 
do otherwise.
  As Michael Gerson, the columnist for the Washington Post, reminded us 
earlier this week, somewhere along the way this process devolved into 
one that is no longer about just winning arguments but about demonizing 
and destroying other people. It is not about winning arguments. It is 
not about winning elections. It is not about winning votes here in the 
Senate. This process has devolved into character assassination and 
destroying the reputation and lives of real people. It is not too late 
to change that.
  This all calls to mind that famous line by Joseph Welch, a lawyer 
during the McCarthy hearings. He said: ``Have [we] no sense of decency 
. . . at long last?''
  Well, I think we still do, and I hope Republicans and Democrats will 
prove we have a sense of decency and fairness as we approach Thursday's 
hearing.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Ernst). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CASEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CASEY. Madam President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.