[Congressional Record Volume 164, Number 161 (Friday, September 28, 2018)]
[Senate]
[Pages S6368-S6375]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF BRETT KAVANAUGH
Ms. HIRONO. Madam President, these are the remarks I would have given
at this morning's Judiciary Committee markup after the perfunctory and
dismissive way the chairman treated the minority members of the
Judiciary Committee. I walked out in protest. Here are the remarks I
would have given at the committee markup.
I am in disbelief that we are here today voting on Brett Kavanaugh's
nomination to the Supreme Court. Outrageous does not begin to describe
the present circumstances. Yesterday we heard from Dr. Christine Blasey
Ford, who spoke with genuine and raw emotional power about being
sexually assaulted by Brett Kavanaugh. Even though it was more than 30
years ago, her memory of the assault was clear and vivid. This kind of
recall is typical of sexual assault survivors. She was sincere and
authentic. She was 100 percent credible, and I believe her.
By contrast, Brett Kavanaugh came to this committee and refused to
give us straight answers. He would not call for an FBI investigation.
He repeatedly stated that the other people who were at the gathering
where Dr. Ford was attacked had ``rebutted her testimony.'' That is not
true. His alleged accomplice in the attack, Mark Judge, claimed he
didn't remember--a far cry from rebutting her statement. He claimed he
didn't remember, refused to testify, and then went into hiding. Patrick
Smyth and Leland Keyser said they simply don't remember--again, hardly
a rebuttal.
Dr. Ford said yesterday:
I don't expect that P.J. and Leland would remember this
evening. It was a very unremarkable party. It was not one of
their more notorious parties, because nothing remarkable
happened to them that evening.
In fact, even though she doesn't remember, Leland Keyser said she
believes Dr. Ford's account.
[[Page S6369]]
In addition to making misleading statements--which is a pattern with
Judge Kavanaugh--he accused Democratic Senators of coordinating a plot
to sabotage his nomination. Clearly, he was speaking to an audience of
one: President Trump. A nominee for the Supreme Court so rattled that
he would buy into a vast conspiracy theory is astounding and dangerous.
Let's not forget his exact words. Judge Kavanaugh said:
This whole two-week effort has been a calculated and
orchestrated political hit fueled with apparent pent-up anger
about President Trump and the 2016 election, fear that has
been unfairly stoked about my judicial record, revenge on
behalf of the Clintons, and millions of dollars in money from
outside left-wing opposition groups.
With that nakedly political screed, Brett Kavanaugh showed us who he
really is: a partisan political operative with an agenda--the very
worry that kept him from confirmation to the DC Circuit for 3 years.
His own words reinforced a concern that I and many of us here have that
he cannot be a fair and impartial judge.
Setting aside the unvarnished political view--from a potential
Supreme Court Justice, no less--the crux of the matter before us today
is whether Dr. Ford was credible when she said that she is 100 percent
sure that Brett Kavanaugh is the person who sexually assaulted her. On
that issue, Brett Kavanaugh admitted, even without watching her
testimony, that Dr. Ford did not play a part and was not part of any
imagined partisan plot. So what we are left with is his own recognition
that Dr. Ford has no political motive and no reason to lie. I challenge
anyone who watched her testimony to claim that she did not tell us the
truth.
Dr. Ford wasn't the only woman to come forward with an account of
sexual misconduct against the nominee. Two other women have provided
credible accounts that deserve real investigation. But whether it is
one woman or three women, my Republican colleagues are letting nothing
stop them from plowing through to get Brett Kavanaugh to the Supreme
Court as soon as possible. Even before the committee had a chance to
hear from Dr. Ford, Chairman Grassley had already scheduled today's
vote.
By voting to support this nominee, Republican colleagues are sending
a message loud and clear: Sexual assault survivors should not come
forward because we are not going to listen to you. They will not be
believed, and their lives will be up-ended in the process. That is
exactly what happened to Dr. Ford.
As far as I am concerned, there was never a serious effort by the
committee to get to the truth. Today's vote signals to the men and boys
in America that you can demean and assault women--especially if you are
in a position of power and influence. There will be no consequences. It
won't even prevent you from becoming a Supreme Court Justice.
Yesterday, accusations flew from the other side of the aisle about
deliberate efforts to make up accusations and undermine Judge
Kavanaugh's nomination, but Democrats didn't need to manufacture
additional reasons to oppose Judge Kavanaugh's nomination. As I have
maintained before, his record demonstrates a pattern of misstating the
facts. He wasn't candid yesterday. He wasn't candid in his testimony to
the committee when he testified at his 2004 and 2006 confirmation
hearings or when he testified at his confirmation hearing for this
nomination in 2018.
I also found his candor lacking in the judicial opinions and legal
arguments he authored. For example, as my colleagues have talked about
in the past, Judge Kavanaugh was not honest with the committee in 2004
and 2006 when asked about matters that he worked on, and his emails
from the White House show that he was not honest about his awareness of
receiving stolen documents from Manny Miranda. In a case I am familiar
with--Rice v. Cayetano--he demonstrated what could only be called a
deliberate misstatement of the facts that he presented to the U.S.
Supreme Court. He had to have known that what he wrote about the
politics and culture of Native Hawaiians was not true. He filed an
amicus brief in that case, and at his hearing a few weeks ago, Judge
Kavanaugh misstated the holdings of Rice and refused to correct his
misstatement when I gave him a chance to clarify.
I will say that I am one of the few people in the Senate who attended
the oral argument in Rice. I know what the Supreme Court based its
decision on, and he totally misstated the Supreme Court's decision.
Advocates for our Native communities are stepping up and taking
notice. The Council for Native Hawaiian Advancement and the Alaska
Federation of Natives issued statements that strongly urge the Senate
to reject the nomination of Brett Kavanaugh. They and other groups
representing indigenous peoples have come forward to explain how Judge
Kavanaugh's views of the rights of indigenous peoples are deeply
flawed. These are the kinds of attitudes that he expressed in his
amicus brief in Rice v. Cayetano.
Madam President, I ask unanimous consent that the following
statements in opposition of Judge Kavanaugh's nomination or that
criticize his views of indigenous people be printed in the Record. They
are from the Department of Hawaiian Home Lands, the Office of Hawaiian
Affairs, and the Alaska Federation of Natives.
There being no objection, the material was ordered to be printed in
the Record, as follows:
State of Hawaii,
Department of Hawaii Home Lands,
September 18, 2018.
Statement of Hawaiian Homes Commission Chairman Jobie
Masagatani on the Nomination of Brett Kavanaugh to Serve
as a Justice on the U.S. Supreme Court
Aloha Chairman Grassley and Ranking Member Feinstein:
Having reviewed his writings and his statements in public
proceedings, we find that Judge Kavanaugh neglected to
recognize the history of actions by the United States
government that has clearly established a trust
responsibility not only on the part of the United States, but
also the State of Hawaii for the lands that were set aside
under Federal law in 1921 to provide for a permanent homeland
for native Hawaiians (Hawaiian Homes Commission Act of 1920)
and for the betterment of the conditions of native Hawaiians
(Hawaii Admissions Act of 1959).
The Hawaiian Homes Commission Act set aside approximately
203,500 acres of land in what was then a Territory of the
United States, the Territory of Hawaii, to assure that the
indigenous, native people of Hawaii could be returned to
their lands.
In the ensuing years, in the exercise of its constitutional
authority, the U.S. Congress enacted more than 160 Federal
laws designed to address the conditions of native Hawaiians.
Additionally, upon its admission into the Union of States in
1959, the United States and the State of Hawaii agreed that
the provisions of the Constitution of the State of Hawaii
should reflect their respective responsibilities, including
trust responsibilities, for the lands and resources
designated to provide for the betterment of the conditions of
native Hawaiians.
The lands and resources authorized under Federal law to be
reserved for native Hawaiians in 1921 are today administered
by the Hawaiian Homes Commission and the Department of
Hawaiian Home Lands.
Our fiduciary duties and responsibilities to the
beneficiaries of the Hawaiian Homes Commission Act are of
paramount importance to existing and future generations of
the indigenous, native people of Hawaii, to the State of
Hawaii, and to the United States.
We cannot embrace nor endorse the views of those, like
Judge Kavanaugh, who would deny our history, the Federal and
State laws which have been enacted on the foundation of that
history, including the right of the indigenous, native people
of Hawaii to exercise self-determination under Federal law
and policy.
____
State of Hawai`i,
Office of Hawaiian Affairs,
September 24, 2018.
Re Nomination of Judge Brett Kavanaugh to the U.S. Supreme
Court.
Dear Chairman Grassley and Ranking Member Feinstein: The
Office of Hawaiian Affairs (OHA) greatly appreciates this
opportunity to provide comments regarding the nomination of
Judge Brett Kavanaugh to be an Associate Justice of the
United States Supreme Court. In particular, given that
Supreme Court precedent pertaining to OHA has become the
subject of questions during Judge Kavanaugh's nomination
hearing, our agency is compelled to clarify the record as it
pertains to our organization, our work to better the
conditions of Native Hawaiians, and the rights and status of
our beneficiaries as Indigenous people.
As Judiciary Committee Member Mazie K. Hirono indicated
during Judge Kavanaugh's nomination hearing, Native Hawaiians
are the original, first people of the Hawaiian Archipelago,
who exercised sovereignty for at
[[Page S6370]]
least a thousand years prior to recorded contact with the
Western world. Congress has acknowledged that ``. . . . prior
to the arrival of the first Europeans in 1778, the Native
Hawaiian people lived in a highly organized, self-sufficient,
subsistent social system based on communal land tenure with a
sophisticated language, culture, and religion.'' The Native
Hawaiian people established and maintained the Kingdom of
Hawai`i, first as a united monarchical government, and later
as a constitutional monarchy, at all times under the
leadership of a Native Hawaiian head of state.
Judge Kavanaugh's description of the Rice decision may have
left some Committee Members and observers with another
impression. Senator Hirono asked the nominee about an amicus
brief he submitted in Rice, as well as an op-ed he wrote for
The Wall Street Journal, in which he argued that OHA's very
purpose was inconsistent with the principles and language of
the U.S. Constitution. When asked to explain these views,
Judge Kavanaugh stated that by a vote of 7-2, the majority of
the U.S. Supreme Court had agreed with him, and that the
Court found violations of both the Fourteenth and Fifteenth
Amendments.
This is erroneous.
As stated earlier, the majority's decision was limited to
the manner in which OHA's trustees were elected under the
Fifteenth Amendment. To quote U.S. Supreme Court Justice John
Roberts, then an attorney representing the State of Hawai`i
in the Rice case, ``. . . the majority's opinion was very
narrowly written and expressly did not call into question the
Office of Hawaiian Affairs, the public trust for the benefit
of Hawaiians and native Hawaiians, but only the particular
voting mechanism by which the trustees are selected.'' In
limiting its holding to OHA's means of electing trustees, the
majority chose not to adopt arguments and conclusions made by
then-practicing attorney Brett Kavanaugh, with respect to
OHA's purpose and mission.
The extreme nature of Judge Kavanaugh's arguments, both his
examples and his conclusions, may have played a role in the
majority's failure to incorporate them in Rice. For example,
he compared OHA's mission of serving Hawaii's Indigenous
people to an interracial marriage ban to maintain white
supremacy. He argued that allowing Native Hawaiians to elect
their own trustees to manage their trust ``. . . could usher
in an extraordinary racial patronage and spoils system'' of
national consequence. Little explanation is given as to why
treatment of the Indigenous people of Hawai`i in a manner
similar to the treatment of other Indigenous people in the
United States would have such dramatic consequences. At the
time of his writing, Judge Kavanaugh may not have been
familiar with Congress's clear legislative understanding that
its relationship with Native Hawaiians is based on its
recognition of Native Hawaiians as an Indigenous people and
not based on race.
Through the process of the Committee's review of a portion
of Judge Kavanaugh's writings during his time with the Bush
Administration, we learned that he continued to hold and
advance extreme views against Native Hawaiian rights after
Rice. Disregarding the Court's decision not to adopt his
arguments against the constitutionality of Native Hawaiian
programs, Judge Kavanaugh offered the same arguments as legal
advice when reviewing administration testimony on
legislation. Given his reported acknowledgement of his lack
of exposure to Indigenous people's law, it is concerning that
he has held so tightly to arguments hostile to Native
Hawaiians.
His past actions and the recent nomination hearing leave
OHA with many doubts. We sincerely hope that if a case
concerning Native Hawaiian rights comes before Judge
Kavanaugh's court, be it the D.C. Circuit or the U.S. Supreme
Court, he will look more closely at the facts before the
court. Facts that include the actions that Congress, the
Executive, and the State of Hawai`i have all taken, within
the framework of the U.S. Constitution, in recognizing the
unique status of Native Hawaiians. During his hearing, Judge
Kavanaugh acknowledged Congress's ``substantial'' authority
to deal with matters concerning Native people, though he
offered few specifics beyond that statement. Judge Kavanaugh
may find it interesting that in the years following Rice,
Congress and the Executive have continued to pass legislation
and establish programs to benefit Native Hawaiians, regularly
with the acknowledgement of the legal and political
relationship OHA has articulated throughout this letter.
In closing, OHA hopes that this letter has brought some
clarity to questions raised as part of the process of
considering Judge Kavanaugh's nomination. OHA hopes that the
Committee understands the need we feel to clarify the record
about Rice, and to address certain arguments espoused by
Judge Kavanaugh prior to his taking the bench, which are not
only inaccurate, but threaten the rights and resources of the
beneficiaries that OHA exists to serve. Until and unless
Judge Kavanaugh is able to correct the aforementioned
misunderstandings and misconceptions, should a case involving
the rights or political status of Native Hawaiians come
before him, perhaps a recusal would be in order. Finally, OHA
wishes to bring to the Committee's attention concerns voiced
by American Indian and Alaska Native groups, who share our
concerns with Judge Kavanaugh's record on Native law.
Sincerely,
Colette Y. Machado,
OHA Board of Trustees Chair.
____
[From the Alaska Federation of Natives]
AFN Opposes Kavanaugh Appointment
The Alaska Federation of Natives is the oldest and largest
Native organization in Alaska. Our membership includes 186
federally recognized Indian tribes, 177 for-profit village
corporations, 12 for-profit regional corporations, 12 not-
for-profit regional organizations, and a number of tribal
consortia that compact and contract to run federal and state
programs. For over 50 years, AFN has been the principal forum
and voice for Alaska Natives in addressing critical issues of
law and policy, including the nomination of U S. Supreme
Court justices.
The federal judicial appointment and confirmation process
is designed to thoroughly vet nominees. As such, we did not
immediately weigh in on President Trump's choice to replace
retiring Justice Anthony Kennedy. However, the questions and
colloquies that came out of Judge Brett Kavanaugh's Senate
Judiciary hearings last week has necessitated us taking a
position. AFN joins our colleagues and friends across Indian
country in strongly opposing Judge Kavanaugh for the Supreme
Court because of, among other things, his views on the rights
of Native peoples.
Judge Kavanaugh's Position on the Indian Commerce Clause is
Erroneous. Congress' plenary power over Indian affairs is
grounded in the Commerce Clause of the U.S. Constitution. The
clause gives the Congress the power to ``regulate commerce
with foreign nations, and among the several states, and with
the Indian tribes.'' Judge Kavanaugh concedes this point.
However, like Justice Clarence Thomas--the most senior
justice on the Supreme Court, he challenges the clause's
application to affairs beyond trade. This impacts Alaska
Native tribes, corporations, organizations and consortia
because their dealings with Congress presently extends to a
host of federal programs concerning their members, resources
and governments.
In the 2013 Adoptive Couple v. Baby Girl decision, Justice
Thomas contested Congress' authority to enact the Indian
Child Welfare Act, reasoning the Indian Commerce Clause only
provides federal authority over Indian trade. Because most
federal laws concerning Indians lack a nexus to Justice
Thomas's narrow definition of trade, they would unlikely
survive the scrutiny he urges. The result would be a
wholesale reshaping of the body of law and policy that has
governed Indian affairs for the past century and a half.
Legal observers tracking Judge Kavanaugh believe he is
further to the right than Chief Justice John Roberts. Thus,
he may agree with Justice Thomas that Congress only has
plenary power to regulate direct commerce with Indian tribes,
nothing more. Confirming a nominee with this viewpoint would
be disastrous for Alaska, and would roll back the gains of
self-determination and usher back in the losses of
termination.
Judge Kavanaugh's View of the Special Trust Responsibility
is Misguided. The federal government has a special trust
relationship with federally recognized Indian tribes. The
relationship commands the highest moral and legal
obligations, and is rooted in early federal-tribal treaties,
the U.S. Constitution, federal statutes, and opinions of the
U.S. Supreme Court. Judge Kavanaugh's writings demonstrate a
limited view of the federal government's power to deal with
Native peoples under this relationship. Specifically, he
would only extend the special trust relationship to Indian
tribes that have with his preferred history of federal
dealings, including territorial removal and isolation. This,
too, impacts Alaska since Alaska Native have a unique federal
experience and few reservations were established.
During his Senate Judiciary Committee hearing, Judge
Cavanaugh questioned the legitimacy of Native Hawaiian
recognition, citing their different treatment by the federal
government, and the fact that they do not live on
reservations or enclaves. If he remains of the view that the
special trust relationship only extends to Indian tribes with
his brand of federal history, including territorial removal
and isolation, he could very well rule that Congress lacks
the authority to deal with Alaska Natives. This thinking
could overturn much, if not all, of the Alaska Native Claims
Settlement Act, as well as all other federal legislation and
regulations addressing Alaska Natives, tribes, corporations
and organizations. To confirm a nominee who does not
understand or appreciate the position of Native Hawaiians,
and who could weaken the special trust relationship Alaska
Natives share with the federal government, would be
imprudent.
Judge Kavanaugh's Assessment of the Political
Classification Doctrine is Troubling. The political
classification doctrine announced in the 1974 Morton v.
Mancari decision, that focusses on and Indian person's
membership in a federally recognized tribe rather than his or
her ancestry to avoid strict scrutiny review of federal
legislation and regulation that benefits Indians, would be
extremely vulnerable if Judge Kavanaugh were to ascend to the
Court. For the reasons outlined above, he would likely align
himself with Justice Thomas on the issue, and the two of them
would likely work to persuade their fellow justices that the
relationship between an Indian person's status politically
and their race is open for interpretation. Judge Kavanaugh
does not accept this well-
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established legal doctrine. Confirming a nominee who is
unable to grasp the necessity of federal programs based on
the political classification doctrine, and articulate why
they must be protected, would be unwise.
AFN strongly urges the U.S. Senate to vote against Judge
Kavanaugh. The documents that have been released so far in
relation to his nomination demonstrate how troubling his
confirmation would be for Native peoples, particularly Alaska
Natives and Native Hawaiians.
Ms. HIRONO. It is deeply troubling to have a Supreme Court nominee
for a lifetime position who isn't candid with us about the facts or
straight with us about the law.
In Garza v. Hargan, he did it again. In that 2017 case, he wrote a
dissent in which he misapplied the law and treated the case as if it
were about parental consent. It was not. The case, which was about
whether a 17-year-old undocumented young woman could be released from
immigration custody to have an abortion, did not involve the question
of parental consent. But he sat there at his nomination hearing, and
when I asked him about it, he said that was a case involving parental
consent--a total misstatement of the issue in the case. In that case,
this young woman had already received a proper judicial bypass from a
Texas judge that allowed her to make her own decisions. So that had
nothing to do with having to require parental consent; she had already
overcome that. But that wasn't good enough for Judge Kavanaugh. He
inserted his own views about legal issues not even present in the case.
This is just one example of his outcome-driven approach to important
cases before him.
At the hearing, I also asked him about the pattern that was revealed
in his numerous dissents. In several of those cases, his own colleagues
called him out for misrepresenting the facts and the law. Just last
year, in United States v. Anthem, the majority said that Judge
Kavanaugh ``applies the law as he wishes it were, not as it currently
is.'' In a 2008 case, Agri Processor v. NLRB, the majority wrote that
Judge Kavanaugh's dissent ``creates its own rule.'' Instead of
following Supreme Court rules, they said that Judge Kavanaugh's dissent
abandons the text of the applicable law altogether. It is pretty
telling when your own colleagues on the court feel so strongly about
your dissent that they will actually call you out on it.
When this nomination first came to the Senate, I was skeptical. I
said that if the President's nominee to the Supreme Court is anything
like the nominees he has been sending to the lower Federal courts, I
expect we will see a nominee handpicked by the Federalist Society and
the Heritage Foundation intent on carrying out their rightwing ideology
supported by the President. It turned out to be much worse than I
imagined. Not only was the nominee someone who fit that description; it
became clear that he was someone who lacked candor, credibility, and
character. This has been displayed at every turn.
After hearing from Dr. Ford and Brett Kavanaugh yesterday, the
editors of America Magazine--a well-respected Jesuit weekly--withdrew.
They originally endorsed Judge Kavanaugh. This group withdrew their
endorsement of Judge Kavanaugh. They said:
While we previously endorsed the nomination of Judge
Kavanaugh on the basis of his legal credentials and his
reputation as a committed textualist, it is now clear that
the nomination should be withdrawn.
If Senate Republicans proceed with his nomination, they
will be prioritizing policy aims over a woman's report of an
assault.
Madam President, I ask unanimous consent that a portion of a copy of
this article be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From America Magazine, Sept. 27, 2018]
The Editors: It Is Time for the Kavanaugh Nomination To Be Withdrawn
(By The Editors)
Dr. Christine Blasey Ford's testimony before the Senate
Judiciary Committee today clearly demonstrated both the
seriousness of her allegation of assault by Judge Brett M.
Kavanaugh and the stakes of this question for the whole
country. Judge Kavanaugh denied the accusation and emphasized
in his testimony that the opposition of Democratic senators
to his nomination and their consequent willingness to attack
him was established long before Dr. Blasey's allegation was
known.
Evaluating the credibility of these competing accounts is a
question about which people of good will can and do disagree.
The editors of this review have no special insight into who
is telling the truth. If Dr. Blasey's allegation is true, the
assault and Judge Kavanaugh's denial of it mean that he
should not be seated on the U.S. Supreme Court. But even if
the credibility of the allegation has not been established
beyond a reasonable doubt and even if further investigation
is warranted to determine its validity or clear Judge
Kavanaugh's name, we recognize that this nomination is no
longer in the best interests of the country. While we
previously endorsed the nomination of Judge Kavanaugh on the
basis of his legal credentials and his reputation as a
committed textualist, it is now clear that the nomination
should be withdrawn.
Ms. HIRONO. In addition, Robert Carlson, president of the American
Bar Association, the ABA, issued a letter urging the Judiciary
Committee of the Senate to not vote on Judge Kavanaugh's nomination
until there is an FBI investigation into Dr. Ford's account of sexual
assault. The ABA explained that ``deciding to proceed without
conducting an additional investigation would not only have a lasting
impact on the Senate's reputation, but it will also negatively affect
the great trust necessary for the American people to have in the
Supreme Court.''
I agree. Brett Kavanaugh does not have the credibility, candor,
character, or, I would say, as we saw yesterday, the temperament to be
on the Supreme Court. His presence on the Court under this kind of
cloud will weaken the Court. I cannot support this nomination.
I would like to end the remarks I would have given at the markup but
am giving on the floor now. I would like to say that my colleague
Senator Jeff Flake has said that he would not be able to vote on the
confirmation of Judge Kavanaugh without an FBI investigation into the
current allegations. I support that. I have no idea whether the
Republican leadership is going to allow a timeout for that kind of
investigation to occur--an investigation that I and other Democratic
members of the Judiciary Committee have been calling for, for what
seems like months.
Of course, I would want an FBI investigation to be thorough. I do not
want some kind of a peripheral investigation to give cover to Senators
who are wavering. I would want an investigation by the FBI to be
thorough, to be real, to provide us with the kind of information that
we need to make a determination as to the credibility, candor, and
character of Judge Kavanaugh.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. BLUMENTHAL. Madam President, the Judiciary Committee had an
extraordinary meeting this morning, and each of us spoke at some length
about our reservations or support for the nomination of Brett Kavanaugh
to be a U.S. Supreme Court Justice. At the end of that meeting, as we
were about to take a vote, Senator Jeff Flake, our colleague, announced
his decision that he would request and seek a 1-week extension of the
vote so there could be an FBI investigation of some of the unanswered
questions that still very seriously and urgently demand responses in
fact and evidence.
That is a very promising and important step. It has to be a real
investigation, not a sham or show. It has to be penetrating and
impartial, which the trained professionals of the FBI can do.
I have a lot of confidence that the FBI will do its job and answer
those very serious and urgent questions.
The answers are all the more pressing after the extraordinary hearing
we held yesterday at the Judiciary Committee. The entire Nation watched
as two people told their stories; two very, very different stories and
also told in very, very different ways, but let's be very clear. The
roles of these individuals and their responsibilities were also very
different.
Judge Brett Kavanaugh came before us for a job interview. He has no
right to be on the U.S. Supreme Court. It is a privilege of
extraordinary magnitude and significance. The position is one of the
most important in our country--a lifetime appointment to the highest
Court in the land.
Our responsibility in the Judiciary Committee is not to approve just
anyone for that job. We should be seeking the best person, a person of
intellect and integrity and temperament who will be fair and impartial,
objective, and considerate.
[[Page S6372]]
I concluded well before the hearing yesterday--it is no secret--that
I would oppose Judge Brett Kavanaugh for the U.S. Supreme Court.
My opposition was based on his extreme ideological views and judicial
philosophy which were amply demonstrated at the previous hearing we had
with him. My concern is, he would be a fifth vote to cut back or even
overturn Roe v. Wade and stop women from making decisions about when
they will become pregnant or have children; stop people from marrying
and exercising their right to do so with the person they love; cutting
back on consumer rights and workers' rights and environmental
objectives; and permitting an imperial Presidency--a President who
could decide unilaterally that he believes the law is unconstitutional,
and therefore it should not be enforced, meaning that laws protecting
millions of Americans who suffer from preexisting conditions like
diabetes and heart disease, cancer, mental illness, and, yes, pregnancy
would go unprotected, and other rights under the Affordable Care Act.
An imperial Presidency giving the power of that kind of unilateral
authority is an anathema.
What we saw yesterday went beyond views on substantive issues, and I
will be very blunt. What we saw was a man filled with anger, even rage,
and self-pity, someone of arrogance, highly intensely partisan, and
someone, in my view, temperamentally unfit for the U.S. Supreme Court.
In fact, I fear his rancor and animus, his partisan bitterness, which
came across so clearly and explicitly in his reference to a leftwing
conspiracy; Democrats organized to fight him and dredge dirt to destroy
his family, a conspiratorial view of the world that is not only
factually totally false but also deeply dangerous and unprecedented in
anything we have ever heard from any nominee for any judicial position
as long as I have been here and I believe unprecedented also in the
Senate's consideration of Supreme Court nominees. He indicated a
partisanship that was disrespectful and dangerous.
We saw also a woman who came before us as a sexual assault survivor
who was temperamentally almost exactly the opposite. Instead of
hostile, she was helpful. Instead of angry, she was calm. Instead of
rancorous and arrogant, she was modest and humble.
Like Judge Kavanaugh, her family has been harmed by death threats and
other vile, vicious behavior that has no tolerance in a democratic
society, and my heart goes out to both families. We should reject
threats to both of those families, as we do to anyone else in our
society, and I have sympathy for the children and the families on both
sides and others who may have been affected in coming forth with truth
that relates to this nomination.
The demeanor of Professor-Dr. Christine Blasey Ford was completely
distinct and different. She was mesmerizing. Even now, her visage
haunts me in her profound honesty. She was credible and powerful in
recounting events that caused her untold terror and anguish; events she
hid because of the trauma she experienced then and because of many of
the fears that cause other survivors of sexual assault to hide the same
kinds of assault, the fears of blame and public shaming and character
assassination and threats of retaliation and sometimes self-blame or
stigma or embarrassment.
In her case, coming forward has made many of those fears a reality,
tragically and unfortunately. She has endured the nightmare befallen
her and her family simply to serve the public with facts and evidence
she believes we should know--we in the Senate, we in America--should
take into account before we make a decision on Brett Kavanaugh as the
nominee.
So there are profound questions raised by her powerful testimony that
need to be answered in the FBI interview. That is the reason the
American Bar Association Thursday evening called for postponing a vote
on Brett Kavanaugh's nomination to the Supreme Court until sexual
assault and misconduct allegations made by Dr. Blasey Ford and others
are fully investigated and why separately the magazine of the Jesuit
Order in the United States, America, withdrew its endorsement of Judge
Kavanaugh. He was educated by Jesuits at Georgetown Preparatory School
in Maryland, and on Thursday, the editors said the nomination was no
longer in the best interest of the country.
I want to quote further the magazine, which said:
If Senate Republicans proceed with his nomination, they
will be prioritizing policy aims over a woman's report of
assault. Were he to be confirmed without this allegation
being firmly disproved, it would hang over future decisions
on the Supreme Court for decades and further divide the
country.
Approval of Brett Kavanaugh for the U.S. Supreme Court would be a
cloud, it would be a stain on the U.S. Supreme Court for generations to
come. We do that damage to the Nation's highest Court at our peril
whether we are in agreement or disagreement with Brett Kavanaugh on his
policy aims, as the magazine said.
We are talking about the fundamental integrity of an institution and
our responsibility to uphold that integrity.
In her testimony yesterday, she was convincing not only because of
what she knew and recalled in such precise, vivid detail--indeed,
highlighting the laughter of Brett Kavanaugh as he groped her and held
her down, as he lay on top of her, the laughter from both him and from
Mark Judge--but after we heard her compelling and powerful story, in
Judge Kavanaugh, we heard several statements that clearly contradict
the facts in evidence. They are untruths.
He claimed the FBI had already investigated him because they did a
background check six times. The FBI never investigated Dr. Blasey
Ford's allegations. It never investigated Deborah Ramirez's
allegations. It never investigated Julie Swetnick's allegations. In
fact, the ABA highlights this point.
Senator Grassley said that committee investigators were willing to
talk to the witnesses about their allegations, but committee
investigators are no substitute for the FBI. The FBI must send those
trained professionals to talk to these brave survivors who have come
forward, and it must talk to Mark Judge.
I offered a motion to subpoena Mark Judge this morning before our
committee. The motion was voted down.
The FBI must talk to Mark Judge, who was allegedly in that room with
Brett Kavanaugh when he assaulted Dr. Blasey Ford.
We asked Judge Kavanaugh to call for an investigation by the FBI. A
person who is innocent would want the FBI to investigate their claims
and clear their name. That is what Dr. Blasey Ford wanted. She said so
publicly.
When Brett Kavanaugh was asked, he refused to make that same call.
The question is, Why? What is he hiding? What is the administration
concealing in refusing to disclose more than a million pages of
documents that relate to Brett Kavanaugh's service in the Bush White
House as Staff Secretary? They bear on his credibility, maybe not on
these specific allegations, but on his credibility.
Judge Kavanaugh claimed that polygraphs are not reliable; that the
polygraph Dr. Blasey Ford took and passed was meaningless. Yet, on the
DC Circuit as a judge, Brett Kavanaugh ruled otherwise. He wrote ``law
enforcement agencies use polygraphs to test the credibility of
witnesses and criminal defendants.''
As a former U.S. attorney, I know how polygraphs are used to test
credibility of witnesses and criminal defendants. They may sometimes be
inadmissible. They may be inadmissible generally, but they have a use.
Judge Kavanaugh claimed that all four witnesses Dr. Ford identified as
being present at the party have said that the sexual assault ``didn't
happen,'' but in fact, only one person has said the sexual assault
didn't happen. That one person is Brett Kavanaugh. The other three
parties identified by Dr. Blasey Ford said they do not remember. There
is a big difference between ``do not remember'' and ``it didn't
happen.''
The other woman Dr. Blasey Ford named who was there has since
publicly stated that she believes Dr. Ford's account. She believes Dr.
Ford, and I do too. Judge Kavanaugh tried to give himself an alibi by
making it sound like he never drank on weeknights. His own high school
calendar, which he provided the committee as evidence, disputes that
statement.
During the hearing, he admitted that one of the entries on his
calendar from
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a Thursday signified that he went to a friend's house to drink.
Judge Kavanaugh repeatedly said that he had never in his life had so
much to drink that he couldn't remember everything that happened, but
numerous people who spent time with him during his high school,
college, and law school years confirmed that he frequently drank to
excess and sometimes became belligerent.
Judge Kavanaugh claimed that he always treated women ``with dignity
and respect''--his words--and yet he and his football friends from high
school named one of my constituents, Renate Dolphin, in their yearbook
pages, saying they were her ``alumnius,'' in effect, boasting of sexual
conquests and objectifying her, demeaning her. That is hardly treating
a woman with dignity and respect. Judge Kavanaugh said this reference
meant nothing sexual, but Renate Dolphin disagrees. In a quote to the
New York Times, she said:
The insinuation is horrible, hurtful, and simply untrue. I
pray their daughters are never treated that way.
He said the allegations against him were ``a calculated and
orchestrated political hit fueled with apparent pent-up anger about
President Trump and the 2016 election.'' He called it ``revenge on
behalf of the Clintons.'' He issued a warning--more like a threat--that
``what goes around comes around.'' That threat to the Judiciary
Committee of the U.S. Senate is a threat to America. It is profoundly
and deeply dangerous to think that litigants will come before his court
with the threat that their political views will determine how he
decides their cases. That is antithetical to the basic fundamental
principles of this country. It contravenes the entire concept of an
independent judiciary. President Trump has demonstrated his contempt
for the rule of law and an independent judiciary, but a member of one
of the highest courts in the country doing so is chilling. It is
stunning. It is staggering.
My Republican colleagues, unfortunately, followed that example. They
said we leaked her letters to the press at the last minute to derail
Judge Kavanaugh's nomination. They called the allegation against Judge
Kavanaugh a coordinated smear campaign. That contention is false. It
implies that these courageous survivors of sexual assault are puppets
or pawns orchestrated by politicians. Anybody who heard and saw Dr.
Blasey Ford yesterday knows that is blatantly false. She came forward
on her own initiative. She did it reluctantly, foreseeing the nightmare
that would befall her and her family. She did it without encouragement
from any Member of the U.S. Senate or any other political figure. That
contention is an insult to her and all survivors of this horrific
crime. Is Deborah Ramirez's story, too, a fabricated allegation to take
down Judge Kavanaugh?
When Senator Harris asked Judge Kavanaugh if he had listened to Dr.
Ford's testimony, he said: ``I did not.'' He should have. He should
have listened to her testimony. He should have heard and heeded what
Deborah Ramirez said about his sexual misconduct toward her and,
likewise, Julie Swetnick, about the chilling acts that she alleged that
he was involved in performing.
Judge Kavanaugh and my Republican colleagues say they don't dispute
that Dr. Blasey Ford may have been sexually assaulted at some point but
by some other person, just not Brett Kavanaugh. Maybe she was mixed up.
Maybe she was confused. Those kinds of words used to describe her and
other sexual assault victims demonstrate the disrespect and disregard
that has shamed and silenced so many sexual assault survivors from
coming forward to tell their truth, seek prosecution, and consult their
parents or loved ones and seek healing. It is the reason that sexual
assault is one of the most underreported crimes in our country. One out
of every three women is a survivor, but so very few come forward
because of the public shaming, character assassination, and threats and
rejections they fear and, in fact, they rightly foresee.
To my friends on the other side of the aisle, you cannot have it both
ways. You either believe Dr. Blasey Ford or you reject her testimony.
Either you accept her veracity or you don't. Dr. Blasey Ford was asked
whether it was possible that she confused her attacker, whether there
was mistaken identity, or whether there was maybe someone else other
than Brett Kavanaugh. Firmly, unequivocally, repeatedly, she said no.
Before us and the entire country, she said she was ``100 percent'' sure
that Brett Kavanaugh was her attacker.
This detail is seared in her memory. There is no mistaken identity
here. A person so brutally attacked at the age of 15 who admits to
these details and also the details that she doesn't remember and
insists on the details she does remember doesn't make something like
that up out of whole cloth. She came forward at great personal
sacrifice. I believe her. I think America believes her.
She testified that she was terrified--that is her word,
``terrified''--to come forward. She was very nearly silenced by her
fear. She worried if she told her story that she would be shouted down
or vilified by Judge Kavanaugh's defenders and that he would never be
held accountable. That fear silences too many survivors. We must prove
them wrong. We must hold him accountable.
As I said at the very start, a lifetime appointment and promotion to
the Supreme Court is not an entitlement. It is a privilege for the
person who is best for that position.
Last Friday, President Trump said about Dr. Blasey Ford's story on
Twitter:
I have no doubt that, if the attack on Dr. Ford was as bad
as she says, charges would have been immediately filed by
local Law Enforcement Authorities by either her or her loving
parents. I ask that she bring those filings forward so we can
learn the date, time, and place!
President Trump knows better. I hope he knows better. Psychologists
have noted, and it is widely known, that there are a number of reasons
why survivors opt for silence, such as fear of retaliation and
repercussions in the workplace or at home, feelings of self-blame. They
are told to dismiss it. They are told by their parents they will be
blamed, not the perpetrators. They fear they will not be believed, and
they want to forget. They want to put this trauma somewhere deep and
dark where it will be a source of less pain.
So Dr. Ford did not share the details of her abuse until a therapy
session in 2012. She told her husband early in their relationship, but
even he did not know the details of this incident until that therapy
session.
That is not uncommon for people who have experienced trauma. In the
last few weeks, numerous survivors of sexual assault have stepped
forward with their stories to explain why they hid their own trauma. I
want to take this opportunity to express my admiration for the
survivors who are coming forward now with stories of terrible crimes,
of impulses to stay silent, and of fears that they have conquered in
coming forward.
Madam President, I ask unanimous consent that these stories be
printed in the Record.
I will not read them all now, but I wish for the statements of
Lindsey Jones of Connecticut; Tara, who asked that her last name not be
used, also of Connecticut; and survivors from other parts of the
country who have contacted me just over the past few days be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Lindsey Jones From Connecticut
Pain, sadness, shame, self-doubt, loyalty, guilt, fear.
These are some of the reasons I decided not to file a police
report when I was assaulted at a house party in my teens.
The main reason, however, was that as a teenage girl I had
spent my life in a culture that told me I was the least
important character in the story of my life. My pain, my
truth, my future were all less important than the futures and
reputations of the people who assaulted me.
I believed that I must bear at least some of the
responsibility for the assault because I had been drinking
underage.
And a brief visit to the victim services office of my
college only confirmed that belief. I believed that the
symptoms of depression and post-traumatic stress following
the assault was my own personal failings.
I told myself I was being dramatic, that my inability to
just get on with things shouldn't negatively impact the
futures of my formers friends.
I even, in a desperate attempt to convince myself that
nothing truly terrible had happened, apologized for
inconveniencing them and privately accusing them of assault.
You see, I could deal with what happened to me if I was at
fault. If it was my fault, I
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could change my behavior to make sure it never happened
again.
If I stayed silent, I could pretend everything was fine and
deal with my emotions in private. If I was silent, people
wouldn't look at me and see either a victim or a liar.
No one would have to choose sides, everyone I knew would be
spared of what side to take, my side, or the side of my
rapist.
If I stayed silent and accepted all the blame, I spared
myself the additional trauma of watching friends and loved
ones choose the sides of the person who assaulted me.
Most importantly, if I convinced myself that nothing
illegal had taken place, that it was more of a
misunderstanding than an assault, if I convinced myself that
it didn't matter anyway, that I didn't really care, then I
wouldn't have to face my biggest fear--that no one else would
really care, that I didn't really matter.
I was convinced that I could find safety in my silence, but
to paraphrase the poet and activist Audre Lorde, my silence
did not protect me.
It's been 15 years, and I'm still in pain. And the people
who assaulted me have not faced a single consequence.
And meanwhile, especially over the last two years, I
continued to find evidence that my teenage self was right--no
one cares about the victims of sexual assault.
No one seems to care to the point that in 2018, men who
have been credibly accused of sexual assault are leading this
nation and their accusers are publicly doubted and verbally
eviscerated by the media, the president, and members of the
senate judiciary committee.
I am here today because I want all the unheard teenagers
girls in this country, past, present, and future, including
my two daughters, one of whom is here with me today, every
time you speak the truth, you do your part to dismantle a
toxic, victim-blaming culture, and the world is better for
it. Make them hear you. Thank you Senator Blumenthal, and
thank you Dr. Blasey Ford.
Tara From Connecticut
Between the ages of 13 and 14, I was raped by a man whose
children I used to babysit for.
He used the fact that I loved his children and wanted them
in my life against me as he raped me while the children were
around us.
I didn't tell--I thought that if I got out of the situation
that it would be okay because it was my fault--especially
after the first time.
I didn't tell, like he said, nobody would believe me.
They would think that I wanted it.
So I continued on and didn't tell till I got a phone call
that he had possibly raped the babysitter after me.
And that was the only thing that got me to come forward and
speak up.
I had already not been in the children's life and I needed
to stop him from doing it again.
And so we went through and I pressed charges and he ended
up getting five years.
And he got out of prison and there were no safeguards to
protect anybody and he is back on the streets and I don't
know today if I would have spoken up back then until
recently.
If I hadn't gotten that phone call, this may still be a
secret I keep.
And, you know, because of the more people coming forward--
Dr. Ford, we believe you. We all need to stick together and
do what's right because 1 out of 4 girls and 1 out of 6
boys--it's in everybody's family.
And I just ask the Senators to think about if it was your
mother or your sister or your daughter, what would you want
for them?
And nobody who is falsely accusing somebody would ask for
an FBI investigation--in my opinion.
I just--I really think we all need to stick together and
demand what she deserves.
Emily Malloy From North Carolina
I remember what I was wearing like it was yesterday.
Like a broken record on repeat.
I'll never forget that outfit and what happened to me in
those clothes that unforgettable night.
Blue jeans and a bright blue t-shirt. Nothing revealing.
Nothing slutty. Just regular clothes you wear to a high
school football game.
It was senior year. I was with one of my high school
friends and we had just gotten invited to a after game party.
I wish I would have listened to my gut that night, but I
ignored that voice in my head like the plague.
I was pressured into going to this party by my friend and I
was staying at her house that night . . . little did I know
I'd never get to her house. There we were.
Beer and loud rap music. I was surrounded by people I knew.
Yes I drank. Yes I got drunk. What happened later that
night ISN'T my fault and it took me 11 years so believe that.
Three guys I knew. Three guys I trusted. Three guys lured
me into a dark room. One of those guys took my innocence
without my consent that night on the cold floor.
I froze. I panicked. I gave in and just let it happened.
What I was left with in the wee hours of the morning, was
bruises and a tattered spirit that I'm still healing to this
day.
I'm now 31.
I finally told my mom this past fall. I remember mom saying
``I wish you would have told me we could have prosecuted
those guys.''
I just hugged her and cried . . . I knew that my chances of
justices were slim to none.
Anonymous from New Jersey
A decorative emerald green bird in a nest, embellished with
gold glitter
An orange shag carpet and a plaid bedspread
An ugly brown wallpaper with golden swirls
A rough wood wall in a darkened hallway between two office
buildings
Look at this list. See any connections? I'm guessing that
most wouldn't--even an experienced HGTV designer would have
difficulty coordinating them or even using them as
inspiration for a room makeover.
But I can connect them without hesitation: they're all
objects--things I remember--from the times I was violated,
molested, or fought through attempted sexual assaults. They
are objects from four specific points in time:
A night when I was 6
An afternoon when I was 12
A night when I was newly-16
An afternoon when I was 16
It's bizarre--even to me--to see this list of things
together. I've never written it before. I've never spoken
openly about the incidents before. But I remember them, each
of them. The incidents and the objects. Some violations play
like movies in my head from time to time, even 40+ years
later. Certain objects, smells, hairdos, and foods can bring
a flood of memories--of the teen boys and grown men who
attacked me. And each time it happens, it's like a punch to
the gut. Still. Decades later.
When that happens, I want to hold the 6-year-old me and
tell her that the pedophile teen was a crafty opportunist
that night--and it was not her fault. I didn't report it
because I didn't have the words.
I want to comfort the 12-year-old me and tell her that the
17-year-old who physically manifested his interest in her
prepubescent body should have been nowhere near her--and it
was not her fault.
I didn't report it because I was told by him that it would
ruin his life.
I want to tell the newly-16-year-old me that the drunken
upperclassman who followed her into the bathroom at a party
to was an insecure, aggressive guy who was incapable of
handling rejection--and it was not her fault.
I didn't report it because I had been drinking and didn't
want to get in trouble.
I want to tell the 16-year-old me that the 40-something-
year-old man who pinned her against the wall, shoved his
tongue down her throat, and groped her was a sick
individual--and it was not her fault.
I didn't report it because I was told by the adult I
confided in that the man would go to jail; and since he was a
husband and a father of young children, it would ruin his
life. This is the first time I've written it all out--the
things that happened and why I didn't report them. And I know
there are millions of unwritten stories and unspoken memories
just like mine--from all over the world.
We haven't been heard, but we exist. And since the #metoo
movement we've realized that we're not alone. We're not
voiceless. We're not powerless. We're finally learning to say
``me too.''
Mr. BLUMENTHAL. Madam President, let me conclude with this thought.
Dr. Blasey Ford is a profile in courage. Her name will be remembered
long after many of ours are forgotten. She will be in the history books
as a teacher--she is a teacher by profession--for this teaching moment
for America. It is a teaching moment for all of us--for women who need
perhaps that inspiration and role model to come forward and to know
that they will be embraced, not rejected. They will be believed, not
shunned. They will be bolstered and heeded, and their perpetrator will
be held accountable. It is a teaching moment for men--all of us--that
we need to do better. It is also a teaching moment for young men--high
school juniors and seniors, like Brett Kavanaugh was. When he put into
his yearbook that hurtful, horrible phrase about Renate Dolphin--in
effect, laughing at her and ridiculing that young woman, just as he
laughed and ridiculed Dr. Blasey Ford, then 15 years old, as he
allegedly was on top of her, groping and trying to undress her--that
laughter was the detail that continued to ring in the ears of Dr.
Blasey Ford. It was the most identifiable fact about that incident, as
she said yesterday: That laughter is what I hear when I see that entry
in the yearbook.
So to all of us men and women in America, her profile in courage
should send a message. We should be proud of her, and no one should be
prouder than her two sons. I say to Dr. Blasey Ford's sons, as I did
this morning in the Judiciary Committee meeting: You should be proud of
your mom. She is an American woman who stood strong and spoke out and
fearlessly and relentlessly insisted on America hearing her story--
well, maybe not fearlessly. She had fear, but she conquered it. That is
the definition of courage--not to be without fear but to act
courageously in
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spite of it. Grace under pressure--that is Christine Blasey Ford.
I expressed my gratitude that I think is shared by many in America
for that great teaching moment yesterday. We should honor her by acting
in a way that keeps faith with her honesty and bravery.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Iowa.
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