[Congressional Record Volume 164, Number 162 (Monday, October 1, 2018)]
[Senate]
[Pages S6402-S6406]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination Of Brett Kavanaugh

  Mr. McCONNELL. Mr. President, the confirmation process for Judge 
Brett Kavanaugh, one of the most qualified and most impressive Supreme 
Court nominees in our Nation's history, is moving forward.
  On Friday, the Judiciary Committee reported this nomination 
favorably.

[[Page S6403]]

Then, here on the floor, we officially moved to take up the nomination. 
Every Republican member of the committee agreed that Judge Kavanaugh 
should be reported out with a favorable recommendation, and every 
Democrat voted in opposition--in some cases, before he or anyone had 
even been nominated.
  That last part shouldn't really surprise anyone. Democrats have made 
no real attempt to disguise that this was a pure partisan calculation 
for them from the beginning.
  Several of them had announced their opposition to Judge Kavanaugh's 
nomination long before his original hearings even began, before they 
had questioned him on his judicial record they deem so problematic and, 
in some cases, more than 2 months before Dr. Ford's allegations of 
misconduct were made public.
  The Democrats didn't mince any words. The way one Democratic member 
of the Judiciary Committee put it: Supporters of Judge Kavanaugh are--
listen to this--``complicit in the evil.'' That is a Democratic member 
of the Judiciary Committee.
  Another Democrat on the committee, before Judge Kavanaugh was even 
named, described in almost apocalyptic terms the consequences of 
whomever the President might nominate. Here was the quote: ``We are 
looking at the destruction of the Constitution of the United States as 
far as I can tell.''
  And here was the Democratic leader, just hours after Judge Kavanaugh 
was nominated: ``I will oppose him with everything I've got.'' Well, 
they have certainly done just that. They have done just that.
  The ranking Democrat on the committee first heard from Dr. Ford on 
July 30. Did our colleague alert the chairman so the committee could do 
due diligence in a confidential way, consistent with Dr. Ford's wishes? 
No, she did not. Did she discretely raise the issue with Judge 
Kavanaugh during her private meeting with him on August 20? She didn't 
do that, either. As best we can tell, the Democrats chose to keep this 
allegation secret, rather than investigating in a bipartisan and timely 
way; in fact, they held it in reserve. Meanwhile, the senior Senator 
from California, or her office, were already in communication with Dr. 
Ford. In fact, her office had already recommended--recommended--that 
Dr. Ford retain a particular Washington, DC, law firm.
  The firm in question is not exactly foreign to Democratic politics. 
Two of its founding partners, including one of the attorneys who 
personally appeared at the hearing to represent Dr. Ford, had until 
recently been scheduled to hold a fundraiser for one of our Senate 
Democratic colleagues tonight. Oh, and by the way, the firm had also 
represented in another matter the person who has made the most 
salacious and disgusting accusations against Judge Kavanaugh as a high 
school student. This is the firm the Judiciary Committee Democrats 
recommended to Dr. Ford.
  Not long thereafter, of course, Dr. Ford's letter to the senior 
Senator from California wound up in the hands of the press. The same 
letter in which she asked for confidentiality was leaked. By whom? As 
best I can tell, nobody had possession of this letter, except for Dr. 
Ford's Democratic Congresswoman, the Democratic side of the Judiciary 
Committee, and presumably the politically connected lawyers they 
recommended to Dr. Ford. And somehow--somehow--it ended up in the 
press. Dr. Ford's plea for privacy was brushed aside. A predictable 
media circus was launched.
  Of course, the questionable and concerning handling of this matter 
didn't stop there. In her testimony, Dr. Ford seemed surprised that 
Chairman Grassley had offered her legal team a number of more discrete 
and less burdensome ways to share her story if she preferred. The 
chairman had offered to fly investigators out to California, or 
anywhere else, for a private interview at a time and a place of Dr. 
Ford's choosing. But, apparently, neither our Democratic colleagues nor 
the lawyers they recommended felt it was necessary to make these 
options clear to Dr. Ford.
  She told the committee: ``I wasn't clear on what the offer was. . . . 
[I would have] been happy to speak with you out there''--referring to 
California. ``It wasn't clear to me that was the case.''
  So let's take stock of all of this. The ranking member withheld 
serious allegations from committee colleagues, precluding any chance 
that they would be handled with sensitivity and discretion. Meanwhile, 
her staff made recommendations that the accuser retain specific, 
politically connected counsel. Then, her confidential account reached 
the media faster than it reached either the chairman of the committee 
or the FBI, which our colleagues have been insisting must now look into 
it. Finally, we had reason to believe that Dr. Ford was not even 
apprised of the chairman's offers to collect her testimony in ways that 
might have been less likely to create a media circus and less 
burdensome on her. It is almost as if Dr. Ford didn't want a 
Washington, DC-based media circus, but others with whom she was in 
contact and on whom she was relying wanted exactly that.
  So we have learned that if you confide in Senate Democrats on highly 
sensitive personal matters, no request for confidentiality will keep 
you from becoming a household name. And even if you are a nominee whose 
judicial philosophy Senate Democrats deem to be objectionable, no 
centuries-old standard of presumed innocence will protect your name, 
your family, or your reputation from irreparable damage.
  Now, fortunately, Chairman Grassley has taken action to clean up this 
mess.
  Last Thursday, he supervised a professional and respectful hearing. 
He retained an experienced sex crimes prosecutor to methodically 
collect the details of Dr. Ford's recollections. This is a professional 
who is recognized as ``Outstanding Arizona Sexual Assault Prosecutor of 
the Year'' by former Democratic Governor Janet Napolitano--a former 
Cabinet Secretary of President Obama's and herself a member of Anita 
Hill's legal team back in 1991.
  Here is what she wrote in her memo to Members following the hearing:

       A he said, she said case is incredibly difficult to prove. 
     But this case is even weaker than that.
       Dr. Ford identified other witnesses to the event, and those 
     witnesses either refuted her allegation or failed to 
     corroborate them. I do not think that a reasonable prosecutor 
     would bring this case based on the evidence before the 
     Committee. Nor do I think that this evidence is sufficient 
     to satisfy the preponderance-of-the-evidence standard.

  That is a lower standard.
  Will our Democratic colleagues listen to this expert opinion, 
although it conflicts with their political mission? Don't hold your 
breath. Nor am I optimistic that they will stay consistent and accept 
the conclusions of the supplemental background investigation the FBI is 
now conducting on top of its six prior investigations of Judge 
Kavanaugh.
  Democrats demanded a supplemental investigation. They proclaimed it 
would be a game-changer. The Democratic leader and the ranking Democrat 
on the committee both said recently that an FBI investigation can be 
completed in less than a week, but I would bet almost anything that 
after it runs its course in the next few days, we will then be treated 
to a lecture--a lecture--that anything short of a totally unbounded 
fishing expedition of indefinite duration is too limited or too 
arbitrary or somehow insufficient. We all know that is coming.
  If you listen carefully, you can practically hear the sounds of the 
Democrats moving the goalposts. Remember, back in the summer, Democrats 
said there weren't enough documents to get a good sense of Judge 
Kavanaugh's career. Then we heard there were too many documents. Then 
once Dr. Ford's private allegation was mysteriously made public, we 
couldn't possibly move forward until we heard from them both. Then, 
after neither the hearing nor the statements of supposed witnesses 
yielded any corroborating evidence and, in fact, produced evidence that 
supported Judge Kavanaugh, we were told that only an FBI investigation 
would resolve this and that it could be done promptly. So let me go out 
on a limb. Let me make a small prediction. Soon enough, the goalposts 
will be on the move once again.
  I would respectfully say to my colleagues: Do these actions suggest 
this has ever been about finding the truth? Does anybody believe that? 
Do these actions suggest this has ever been

[[Page S6404]]

about giving Judge Kavanaugh a fair hearing?
  This institution has seen before episodes somewhat like what we are 
now seeing from some of our colleagues across the aisle. Back during 
the McCarthy era--in fact, in 1950--character assassination and 
uncorroborated allegations were being utilized in a very different 
debate. That is when a distinguished Senator from Maine named Margaret 
Chase Smith--an icon from the great State of our colleague Senator 
Collins--went to the Senate floor to say enough was enough. She gave a 
speech that guaranteed she would be in the history of the Senate. She 
titled it ``Declaration of Conscience.'' Here is what she said:

       I do not like the way in which the Senate has been made a 
     rendezvous for vilification, for selfish political gain at 
     the sacrifice of individual reputations and national unity.

  Margaret Chase Smith went on:

       Whether it be a criminal prosecution in court or a 
     character prosecution in the Senate, there is little 
     practical distinction when the life of a person has been 
     ruined.

  We should listen to these words. They speak as loudly today as they 
did 68 years ago.
  In my judgment, the pattern of behavior we have seen confirms what 
Democrats' own public statements have told us: They are committed to 
delaying, obstructing, and resisting this nomination with everything 
they have. They just want to delay this matter past the election. That 
is not my supposition; that is their plan. According to another 
Democratic member of the Judiciary Committee, the junior Senator from 
Hawaii, that is their plan.
  Soon I expect we will hear that the conclusions of the expert 
prosecutor who questioned both witnesses at last week's hearing aren't 
reliable or that the FBI's investigation was not infinite or endless 
enough for their liking. Maybe we will hear that the real issue is not 
these uncorroborated allegations of misconduct after all but, rather, 
the fact that Judge Kavanaugh--now, listen to this--drank beer in high 
school and in college or the fact that he was, rightfully, angry--who 
wouldn't be?--that his good name and his family have been dragged 
through the mud with a campaign of character assassination based on 
allegations that lack any corroboration. Who wouldn't be angry about 
that?
  Their goalposts keep shifting, but their goal hasn't moved an inch--
not an inch. The goal has been the same all along. So let me make it 
very clear. The time for endless delay and obstruction has come to a 
close. Judge Kavanaugh's nomination is out of committee. We are 
considering it here on the floor, and we will be voting this week.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Lankford). Without objection, it is so 
ordered.
  Mr. CORNYN. Mr. President, after the tumultuous week just past, after 
the fireworks during the Kavanaugh hearing--the second hearing--I think 
we all needed a little bit of time to decompress and to digest what 
exactly happened. I am, of course, referring to this contentious 
hearing over the confirmation of Brett Kavanaugh. It was fair and 
necessary, in my view, to hold the hearing because Dr. Christine Ford, 
against her wishes, as it turned out, was thrust into the national 
spotlight by our Democratic colleagues. Once there, we believe she 
deserved her chance to tell her story. Just as importantly, Judge 
Kavanaugh deserved a chance to speak to the American people and to 
clear his name.
  I have told people before, and I will say it again, I want to make 
sure Dr. Ford is treated no worse than my own daughters would be if 
they found themselves in this unfortunate circumstance or my mother or 
my wife. Similarly, I think Judge Kavanaugh should be treated as well 
as we would want our father, our brother, our son, or somebody's 
husband were they to find themselves in his circumstances.
  This is about fairness in the end, fair process, one that gives 
everybody a chance to tell their story. One of the things that makes 
this so different is we know many of the Senators listening to this 
testimony--almost half of them--throughout the Senate had already made 
up their minds. I would hate to walk into a courtroom where the judge 
and the jury had already made up their minds without even hearing from 
the witnesses. Unfortunately, that is the kind of hearing room Judge 
Kavanaugh walked into last week.
  We have heard Dr. Ford's story, and we have heard Judge Kavanaugh's 
strong and forceful rebuttal. What is so unusual now--I guess the 
goalposts seem to shift every day, maybe even every hour--some people 
are saying Judge Kavanaugh's rebuttal and his denial was so forceful, 
and he was obviously so upset, that somehow negatively reflects on his 
judicial temperament, and then he is disqualified for trying to defend 
his good name.
  I will defy any Member of the Senate--frankly, anybody in the 
country--whose reputation and way of life was threatened with 
destruction, whose reputation as a father, as a husband, as a member of 
the second highest court in the country under similar attack on their 
reputation and their good name not to be angry about that if they 
believed the allegations against them were completely false. What we 
found is, there is simply no evidence to corroborate or confirm Dr. 
Ford's allegation.
  We have all heard the individuals who Dr. Ford said were present the 
night of the alleged assault either have no recollection of such a 
party or say the assault never happened. That includes one of Dr. 
Ford's best friends at the time, Leland Keyser, who said she doesn't 
remember ever meeting Brett Kavanaugh and certainly she wasn't present 
at an event such as Dr. Ford described.
  This brings us back to the hearing last week. We watched Judge 
Kavanaugh defend his personal integrity and his good name in front of 
the Nation. True, he did demonstrate some righteous indignation at the 
way our colleagues across the aisle have handled this confirmation. He 
became very emotional as he choked back tears, but I must say, he 
wasn't the only one choking back tears during his defense of his good 
name and reputation. There were many eyes around the room and across 
the country that were not dry. He didn't aim his fury at Dr. Ford but 
rather at the atrocious way the claims were sprung on him at the 
eleventh hour, using an unfair process that violated the rules of the 
Judiciary Committee. They were not handled in the normal way, which 
would have respected the privacy and the desire for confidentiality for 
Dr. Ford but at the same time made sure a good man was not smeared in 
public by allegations that could not be proven.
  We know when Dr. Ford's allegations were brought to the attention of 
the Judiciary Committee in July--specifically to the ranking member, 
Senator Feinstein--she didn't share those with either the FBI, which 
she ultimately did long after the first hearing, or with the Judiciary 
Committee background investigation professional staff. That is the way 
they should have been handled. As a matter of fact, Dr. Ford said when 
she heard we would have interviewed her in California in a private, 
confidential setting about her allegations, she said: Nobody ever told 
me that.
  She was thrust against her will into this national spotlight and 
circuslike atmosphere. Somebody is not helping Dr. Ford. Somebody is 
thrusting Dr. Ford into this position against her desires and expressed 
wishes, leaking her letter, which she asked remain confidential. It is, 
unfortunately, a pattern that is beginning to develop here.
  That brings us back to the hearing last week. As I said, we watched 
the judge defend his integrity in front the Nation, but we know the 
allegations of Dr. Ford were held until the time was right, when they 
could be unveiled and weaponized and inflict the maximum amount of 
damage.
  By the look on some of my colleagues' faces during the hearing last 
week, Judge Kavanaugh struck a nerve. I think they started to realize 
what these last couple of weeks must have been like for him and his 
family--his wife, his two daughters, his parents--and the girls he 
coached in basketball. I think that is why the judge felt like he had 
to defend forcefully his

[[Page S6405]]

good name and reputation against unproven allegations. And who among us 
would do anything less?
  We don't live in a country where once accused of something you are 
assumed to be guilty. That would be a violation in a court of due 
process of law. There is the presumption of innocence and the 
requirement that if you are going to make serious allegations against 
somebody--and, in this case, allegations of a crime--you have to meet 
certain standards. You have to prove it.
  But here, as we found out, Dr. Ford's allegations were not proven. 
All of the people who, according to her, could substantiate her 
allegations said: I don't remember anything like that. I was never 
present at such an event.
  But that doesn't seem to bother any of our colleagues who had already 
decided to oppose this nomination. That is one of the things I hate the 
most about Washington, DC. It is not enough to win an election. It is 
not enough to win an argument for some people. They want to destroy 
you. It is an ugly, cruel, and reckless way to treat another human 
being.
  I wish I could say that some of my colleagues across the aisle 
expressed one ounce of remorse and publicly stated: You know, the way 
we handled this might have been wrong. Maybe we should have done it a 
different way. Maybe we should have raised the issue much earlier, as 
the normal way of processing such an allegation would be handled, in a 
way that protected Dr. Ford and gave her a safe environment to tell her 
story and be questioned by the bipartisan professional staff who handle 
background investigations, as well as the FBI.
  We could have done that in a way that respected Dr. Ford's wishes, 
but we did not because of the way this has been mishandled. So far as I 
can tell, none of our colleagues across the aisle who have foisted this 
unfair, embarrassing, disgraceful process on Dr. Ford and Judge 
Kavanaugh--none of them--expressed any regret or remorse or offered any 
apologies.
  They haven't been willing to admit that their stealth tactics have 
done damage to one man and his family, to the Senate, to the Supreme 
Court, and to our national fabric, at the same time exposing Dr. Ford 
to the sort of public scrutiny and spotlight about which she asked--she 
implored--Senator Feinstein: Please, protect me from that sort of 
environment.
  We could have done so if it had been handled the right way. Our 
colleagues across the aisle have simply refused to cooperate at all in 
the process. They called for an additional supplemental FBI background 
investigation, but when we tried to question witnesses at the staff 
level in a bipartisan way, they simply refused to participate.
  None of them have said the obvious, which is that it is pretty odd 
that Dr. Ford's lawyers apparently didn't tell her that investigators 
volunteered to go to California to speak with her in private. It is 
downright strange that she didn't know she was being directed to 
Democratic lawyers and being sent off for polygraph examinations 
instead of being directed to the FBI or the Senate Judiciary 
Committee's professional staff.
  Our colleagues across the aisle have never questioned that their 
allies' motives were anything less than perfectly righteous or pointed 
out the political convenience of any of this--that their assault on one 
man's integrity is convenient; in other words, that this has been self-
serving for our friends across the aisle who were already committed to 
oppose the nomination, no matter what. None of this makes it any less 
callous.
  So now we have agreed and the White House and the FBI have agreed to 
conduct a supplemental background investigation, something that could 
have been done months ago. It should have been done. It will last no 
more than 1 week, but it could take less time too. It is up to the FBI 
to determine who they believe they should interview for the 
supplemental background investigation, limited to up to a week and 
based on current and credible accusations. Those are the criteria.
  Our colleague from Delaware and others during the hearing suggested 
that this period of time was sufficient. Back when we were discussing 
what was going to happen at the markup on Judge Kavanaugh's nomination 
last Friday, every single one of the Democrats on the Senate Judiciary 
Committee said: Just give the FBI 1 more week, and that is what is 
happening.
  But it will not make any difference. They are not persuadable. They 
have already made up their minds.
  But it would not surprise me if at the end of the week, they raise 
their voices, which they have already begun to do, and move the 
goalposts, change their tune, find some fault with the FBI's 
investigation or the length of time in which it was conducted. I 
wouldn't be surprised because that is the way they have conducted 
themselves since the President announced Judge Kavanaugh as the 
nominee--always finding reason to delay, asking for something, and if 
they are given it, well, that is not enough.
  Though I did not think an additional or supplemental background 
investigation was necessary, I am not opposed to the supplemental FBI 
investigation. What we already know is that the three people who Dr. 
Ford said were present at the party have all given sworn statements 
under penalty of felony saying: I don't remember, or it didn't happen, 
not in my presence. They are already under oath and can be prosecuted 
if they are not telling the truth.
  I am not quite sure what the FBI is supposed to ask them after that, 
if they said: It didn't happen, or I don't remember, or it didn't 
happen; I wasn't there.
  I am not sure what else they can really investigate, but I ultimately 
believe that given the state of the record, I don't believe the FBI 
supplemental background investigation will significantly alter the 
situation we find ourselves in currently. That situation is this: If 
the allegations we discussed during last week's hearing remain 
uncorroborated and unproven, if they never came up in the context of 
six or other FBI background checks, if they have been explicitly denied 
time and again by the nominee, if alleged eyewitnesses have no 
recollection of them and/or say they didn't happen, if they conflict 
with the accounts of many, many women who knew the nominee to behave 
honorably in high school, college, and law school and as a 
professional, and countless more women who have known and interacted 
with Judge Kavanaugh since, if the timing seems calculated, unusual, 
and politically motivated, and if our Democratic colleagues chose not 
to act on this opportunity when it was much more appropriate than now 
for them to do so, then there is simply no reason why we should not 
move forward. The die is cast, and it has been cast for quite a while.
  A number of our colleagues announced against President Trump's 
nominee for the Supreme Court before he was even identified, and a 
dozen or so more shortly after he was identified, without the benefit 
of any of the hearings that the American people have been a party to.
  Move forward we will, soon, because we simply cannot in the United 
States of America establish a precedent by which any nominee can be 
derailed by last-minute, unproven accusations. If we do, then why would 
anyone want to subject themselves to this process? Anybody and 
everybody who is nominated to a Senate-confirmed position would be 
subjected to this same precedent once set: guilty until you prove your 
innocence.
  Well, I wasn't there at the time that this was alleged. Well, you 
still have to prove a negative. You say you weren't there, but you 
still have to prove your innocence.
  That is the opposite of what the presumption of innocence calls for. 
That is the opposite of what due process of law calls for. That is the 
opposite of what our constitutional system demands in fairness to 
everybody involved.
  If that precedent were set--which I pray it will not be set--the only 
ammunition the opposition would need to shoot down any figure at any 
time would be innuendo, speculation, suspicion, and nothing more. We 
can't let that happen. We are not going to allow that to happen, and we 
are not going to set that kind of precedent.
  It always seems that it is never quite enough to satisfy our 
colleagues across the aisle, particularly when it comes to the war over 
judicial confirmations and now the Kavanaugh nomination. It is always 
more, more, and more: Set the goalposts, move the goalposts, and 
backtrack from what you have agreed

[[Page S6406]]

to, all in the interest of more delays, which provide more time for the 
unproven, uncorroborated smears on the character of the nominee and 
more pain and anguish for the family, who has to suffer along with the 
nominee and endure these malicious, false, and unproven allegations.
  Where does it end? Well, it should end this week. The longer this 
goes on, you will find more attention seekers, more lawyers who want to 
see their name in lights or give media interviews and help their 
business, perhaps, I guess.
  I think it is completely unfair that Judge Kavanaugh has been made 
into a pinata. Opponents to this nominee and the media are practically 
gleeful at taking another whack at him, completely oblivious to what 
they are putting this good man and his family and friends through.
  I have always supported Judge Kavanaugh's nomination. I did when he 
was nominated to the DC Circuit Court of Appeals, and I do now because 
I know him to be an upstanding and well qualified individual.
  I first met him back in the year 2000, as I mentioned, preparing for 
an argument before the U.S. Supreme Court, when I was Attorney General. 
I met Brett Kavanaugh because he was one of the best lawyers in 
Washington, DC, to help you get prepared to argue a case before the 
Supreme Court.
  But it is not just my experience with Brett Kavanaugh. Everybody who 
has practiced with him has said that. Condoleezza Rice, the former 
Secretary of State, who worked with him at the Bush White House, has 
said that. Other law professors and law clerks have said that. Hundreds 
of women who know him have said that. We know he has a brilliant legal 
mind, and we know his good work over the last 12 years on the DC 
Circuit Court of Appeals. Many cases where he has written the opinion 
of the court have been adopted by the Supreme Court of the United 
States, essentially, as the law of the land.
  How do we know he will exercise the kind of care, temperament, and 
fairness that we would expect of a member of the U.S. Supreme Court? 
Because he already has for the last 12 years. He will judge those 
before him fairly and carefully.
  Judge Kavanaugh belongs on the Nation's highest bench, and by the end 
of this week, it will be time to put him there. Enough is enough.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. MORAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MORAN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.