[Congressional Record Volume 164, Number 159 (Wednesday, September 26, 2018)]
[Senate]
[Pages S6322-S6324]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mr. FLAKE. Madam President, I rise today to say a few words about the 
two human beings who will be providing extraordinarily important 
testimony before the Senate Judiciary Committee tomorrow, Dr. Christine 
Blasey Ford and Judge Brett Kavanaugh, who will testify in that order.
  Two human beings--it feels a bit odd in this political setting to 
specify their humanity, but we need to. I admit it feels strange to 
have to do that, but we in this political culture, in this city, and in 
this building, even in this Chamber, seem to sometimes forget that 
before this woman and this man are anything else, they are human 
beings.
  We sometimes seem intent on stripping people of their humanity so 
that we might more easily denigrate or defame them or put them through 
the grinder that our politics requires. We seem sometimes even to enjoy 
it.
  For the past 2 weeks we certainly have seen that happen to both of 
these human beings, for whatever reason--because we think that we are 
right and they are wrong, because we think our ideological struggle is 
more important than their humanity, because we are so practiced in 
dehumanizing people that we have also dehumanized ourselves.
  Whatever else they are or have become to us, whatever grotesque 
caricature we have made of them or ourselves, before we are Democrats 
or Republicans and before we are even Americans, we are human beings. 
As President Kennedy said:

       We all breathe the same air. We all cherish our children's 
     future. And we are all mortal.

  These witnesses who will testify in a very important hearing 
tomorrow, these unwitting combatants in an undeclared war--these people 
are not props for us to make our political points, nor are they to be 
``demolished like Anita Hill'' as was said on conservative media the 
other night, nor is one of them a ``proven sex criminal'' as has been 
circulating on the left side of the internet. These are human beings 
with families and children--people who love them and people whom they 
love and live for--and each is suffering through a very ugly process 
that we have created.
  I will not review the unseemly process that brought us to this point 
because that is for another time, and, in any case, it didn't start 
with this particular nomination. But here we are.
  There was an earlier case, 27 years ago, from which you might have 
thought we would have learned something, but the past couple of weeks

[[Page S6323]]

makes it clear that we haven't learned much at all.
  Consequently, there have been cries from both sides of these 
proceedings that each of the witnesses has fallen victim to character 
assassination. Both of these claims are absolutely correct, so I will 
say to these witnesses, these human beings, we owe you both a sincere 
apology. An apology is inadequate, of course, but it is a start. We 
can't very well undo the damage that has been done. But we can govern 
our own behavior as we go through this painful hearing tomorrow and in 
the days afterward. We must do that, lest we do any even more damage.
  Some of the public comments about these witnesses have been vile. Not 
unrelated to those comments, each of these witnesses has reportedly 
been subject to death threats, and for that we should be ashamed. The 
toxic political culture that we have created has infected everything, 
and we have done little to stop it. In fact, we have only indulged it 
and fanned the flames, taken partisan advantage at every turn, and 
deepened the ugly divisions that exist in our country. These past 2 
years, we have tested the limits of how low we can go, and, my 
colleagues, I say that winning at all costs is too high a cost. If we 
cannot have a human rather than a political response to these 
witnesses, if we are heedless to the capacity that we have to do real 
and lasting damage, then we shouldn't be here.
  When Dr. Ford came forward, I felt strongly that her voice needed to 
be heard. That is why I informed Chairman Grassley that the Judiciary 
Committee could not and should not proceed to a vote until she had an 
opportunity to make her voice heard, until such time that her claims 
were fully aired and carefully considered and her credibility gauged. 
This is a lifetime appointment. This is said to be a deliberative body. 
In the interest of due diligence and fairness, it seemed to me to be 
the only thing to do.
  Not everybody felt this way. One man, somewhere in the country, 
called my office in Arizona and left a message saying that he was tired 
of my ``interrupting our President,'' and for the offense of allowing 
Dr. Ford to be heard--for this offense, my family and I would be 
``taken out.'' I mention this with reluctance, but only to say that we 
have lit a match, my colleagues. The question is, Do we appreciate how 
close the powder keg is?
  Tomorrow, we will have a hearing. Many Members of this body from both 
parties have already made up their minds on the record, in advance of 
this hearing. They will presumably hear what they want to hear and 
disregard the rest. One is tempted to ask: Why even bother having a 
hearing?
  I do not know how I will assess the credibility of these witnesses--
these human beings--on the grave matters that will be testified to 
because I have not yet heard a word of their testimony and because I am 
not psychic. I am not gifted with clairvoyance. Given these 
limitations, I will have to listen to the testimony before I make up my 
mind about the testimony. What I do know is that I don't believe that 
Dr. Ford is part of some vast conspiracy from start to finish to smear 
Judge Kavanaugh, as has been alleged by some on the right. I also do 
not believe that Judge Kavanaugh is some serial sexual predator, as 
some have alleged on the left. I must also say that separate and apart 
from this nomination and the facts that pertain to it, I do not believe 
that the claim of sexual assault is invalid because a 15-year-old girl 
didn't promptly report the assault to authorities, as the President of 
the United States said just 2 days ago. How uninformed and uncaring do 
we have to be to say things like that, much less believe them? Do we 
have any idea what kind of message that sends, especially to young 
women? How many times do we have to marginalize and ignore women before 
we learn that important lesson?
  Now I wish to say a word or two about the human beings, first on the 
Judiciary Committee and then in the full Senate, who will have to weigh 
the testimony that we will hear tomorrow and then come to some kind of 
decision on this nomination. The Judiciary Committee is scheduled to 
vote on Judge Kavanaugh's nomination on Friday. I hope that tomorrow's 
hearing gives us some guidance on how we are to vote. But those of us 
on the Committee have to be prepared for the possibility--indeed, the 
likelihood--that there will be no definitive answers to the large 
questions before us. In legal terms, the outcome might not be 
dispositive.
  While we can only vote yes or no, I hope that we in this body will 
acknowledge that we don't have all the answers. We are imperfect 
humans. We will make imperfect decisions. This monumental decision will 
no doubt fit that description. Up or down, yes or no, however this vote 
goes, I am confident in saying that it will forever be steeped in 
doubt. This doubt is the only thing of which I am confident in this 
process.
  I say to all of my colleagues, for this process to be a process, we 
have to have open minds. We must listen. We must do our best, seek the 
truth, in good faith. That is our only duty.
  Thank you.
  I yield the floor.
  Mrs. FEINSTEIN. Madam President, I rise today to object to the 
partisan effort to improperly ``stack'' two consecutive nominations for 
the Consumer Product Safety Commission, CPSC.
  Peter Feldman has been nominated not only to fill the remainder of a 
term that would expire in October 2019, but also for an additional 7-
year term on top of that.
  Stacking these nominations contradicts the aim of the Consumer 
Product Safety Act, which established the CPSC as an independent agency 
with commissioners serving staggered terms to prevent any one Congress 
from having an outsized influence on the agency.
  It also violates Senate practice of considering one nomination at a 
time, particularly when the first term would not expire for over a 
year.
  Both Senate Commerce Committee minority staff and the Congressional 
Research Service were unable to identify an analogous nomination where 
the beginning of a term started this far into a new Congress.
  To be clear, I do not object to Mr. Feldman's nomination to the 
Commission. In fact, I voted to confirm him to fill the unexpired term.
  However, confirming Mr. Feldman to a second, 7-year term today would 
undermine the CPSC's independence and set a dangerous precedent for 
future nominations.
  The CPSC plays a critical role in protecting the public from consumer 
product-related injuries, and we must do all we can to defend the 
agency from partisanship.
  For this reason, I must regretfully vote no on Mr. Feldman's 
nomination to serve an additional 7-year term on the Commission.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. HEINRICH. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays are ordered.
  Under the previous order, all time has expired.
  The question is, Will the Senate advise and consent to the Feldman 
nomination?
  The yeas and nays were previously ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  The result was announced--yeas 51, nays 49, as follows:

                      [Rollcall Vote No. 217 Ex.]

                                YEAS--51

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hyde-Smith
     Inhofe
     Isakson
     Johnson
     Kennedy
     Kyl
     Lankford
     Lee
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--49

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Jones
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCaskill
     Menendez

[[Page S6324]]


     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Smith
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table, and the 
President will be immediately notified of the Senate's action.
  The Senator from North Carolina.

                          ____________________