[Congressional Record Volume 164, Number 165 (Thursday, October 4, 2018)]
[Senate]
[Pages S6509-S6533]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Recognition of the Minority Leader
The ACTING PRESIDENT pro tempore. The Democratic leader is
recognized.
Mr. SCHUMER. Mr. President, it is another morning in the Senate and
another partisan diatribe coming from my good friend--and he is my good
friend--the majority leader. Instead of looking at what happened--that
a young woman came forward because she felt compelled to, knowing she
would risk so much to herself, which, unfortunately, has happened--he
seeks to blame somebody else; in this case, the Democrats.
Let's remember that Dr. Ford came forward before Judge Kavanaugh was
even nominated. Dr. Ford came forward and called up two people before
anyone even knew of her allegations, including, one, a hotline from the
Washington Post, according to her testimony. Our colleague--my
colleague here--has engaged in a giant Kabuki game. He knows how
believable Dr. Ford is. He knows the majority of the American people
believe Dr. Ford was telling the truth rather than Judge Kavanaugh. He
knows any focus on Dr. Ford would bring more feelings that Judge
Kavanaugh is the wrong person for the Supreme Court, but he can't
attack Dr. Ford because of her credibility--greater than Judge
Kavanaugh's--so he attacks ``Democrats,'' increasing the partisan
rancor and basically the fundamental lack of getting to the truth in
this Chamber.
I would like to ask the majority leader a few questions based on what
he said a few minutes ago. He said this debate has been filled with
partisan histrionics. Mr. Leader, are you accusing Dr. Ford of engaging
in partisan histrionics when she came forward?
He said the politics of personal destruction is rampant. Again, Mr.
Leader, are you accusing Dr. Ford of engaging in the politics of
personal destruction?
He talked about people being intimidated. Again, Mr. Leader, are you
accusing Dr. Ford of intimidating the Senate because she had the
courage to come forward?
He talks over and over about the outrageous smear. Mr. Leader, it is
about time you came forward and came clean. When you say ``outrageous
smear,'' you are really referring to what Dr. Ford said, but you can't
say so because everyone knows that kind of rhetoric would be
outrageous.
It is her testimony that got this whole thing going; her testimony,
required by one courageous Republican who said he wouldn't just rush
things through, as Leader McConnell attempted to do, and that is why
there was a hearing, not any Democrats--none.
I said yesterday, the leader is telling one of the greatest mistruths
I have heard on the floor; that Democrats have delayed. Again, Mr.
Leader, what power do we have to delay? Isn't it true that you set the
time and place of hearings--or your committee chairs do--and you set
the time and place of when we vote, with no effect from the Democrats,
no influence by Democrats. If you have delayed, Mr. Leader, it is
because you have delayed. If there has been delay, Mr. Leader, it is
because you have delayed.
Ultimately, Dr. Ford came forward and won America's heart, and our
Republican colleagues were upset because that might derail their
headlong rush to put Judge Kavanaugh on the Supreme Court. Led by Judge
Kavanaugh at his return testimony and by President Trump and by Leader
McConnell, they have tried to misdirect the whole issue away from Dr.
Ford, who is the cause--the reason--we are debating all of this, and
toward other boogeymen, many of whom happen to be Democrats,
coincidentally. It is wrong.
What our Republican friends are doing--what my dear friend, the
leader, is doing--is demeaning to Dr. Ford, and demeaning is the last
thing Dr. Ford and others who have gone through what she went through
needs now or deserves now.
So I would say to the leader, if you are talking about partisan
histrionics, if you are talking about politics of personal destruction,
if you are talking about being intimidated, if you are talking about
outrageous smears, you are really accusing Dr. Ford of all of those
things, not anyone else, because she is the reason we are all here in
this type of discussion, and no Democrat importuned her to come--no
Democrat.
Senator Feinstein tried to respect her wishes and not make it public.
That was not a political instinct, that was a human instinct. As I
understand it, Senator Feinstein's staff called each week and said: Do
you want to go public now? And Dr. Ford said no, and Dianne Feinstein
respected that. Now, because she did that, our Republican friends are
accusing her of manipulating. Manipulating what? Dr. Ford's desire to
keep this private?
We heard what Dr. Ford said. She wrestled with deciding whether to go
public. She knew the damage it would create for her family, for her
life--her very life. She decided she had an obligation to come forward.
She decided she had to come forward. I believe her. A large number of
Americans believe her, but even if you don't believe her and you choose
to believe Judge Kavanaugh, don't demean Dr. Ford, which is exactly
what you are doing.
It is a shame. It is a low point in a headlong rush to get somebody
whose views are out of touch with the American people, who would, in
all likelihood, greatly limit women's healthcare and women's right to
choose, who would gravely constrain healthcare, who would allow this
overreaching President to overreach with no constraint.
Dr. Ford seems to be a casualty along the way in terms of the name-
calling, the nastiness, and the viciousness. Now, they don't say it is
Dr. Ford, but make no mistake about it, it is her they are talking
about because it was only she who brought all of these things up--not
Democrats. Democrats didn't put words in her mouth. Her words came from
the heart.
Now, I will make three final points about the documents that were
released late last night. First, we Democrats had many fears this would
be an all-too-limited process that would constrain the FBI from getting
the facts. Having received a thorough briefing a few minutes ago, our
fears have been realized. Our fears have been realized.
This is not a thorough investigation. According to Dr. Ford's lawyers
and Ms. Ramirez's lawyers, there were many, many witnesses they wished
to have interviewed, and they said they were not interviewed. They
should be. Why not? What limits were placed on the FBI so that they
couldn't do a full and thorough investigation? The word is, it was the
White House, importuned by some of the Republican Senate staffers here.
Well, the White House has two choices: They can admit it or, if they
[[Page S6510]]
deny it, they should at very minimum make the directive they sent to
the FBI public. If the White House didn't limit what the FBI normally
does when they do one of these background checks, it sure seems they
did, given the limited number of witnesses or the so many witnesses who
weren't called who should have been. Make it public. Let the American
people see whether it was truly limited or not.
What else should be made public are these documents that we are
allowed to look at. First, again, the idea that this should be full and
thorough and open and available is once again belied by the pettiness
on the Republican side and the White House. There is only one document
for 100 Members to see in the course of a day. That is very hard to do,
and there were a lot of documents. There is only one copy of these
documents. Why weren't there 10 copies in that room? What the heck is
going on here? It is just a pattern--a pattern of limiting access to
facts, limiting access to truth, and limiting access to what the
American people ought to know.
So I reiterate my call--particularly after receiving the briefing
about what the documents contain--that they be made public. Obviously,
there have to be appropriate redactions, and there should be, to
protect the privacy of those who were interviewed. But there is no
reason on God's green Earth that those documents can't be made public.
Let the American people decide.
Leader McConnell said from the very beginning to the effect that he
was going to rush this through. Starting with not releasing documents,
followed by constraints from our Senate Republican colleagues on what
should be limitations on the FBI's ability to do the new background
check, all the way to this morning with one document in that room, the
White House and the Republican side here in the Senate have attempted
to rush this through regardless of the facts. It is wrong. It jaundices
relationships between the sides in this body--which we all want to be
better--hurts the agencies involved, the reputation of the FBI, and,
above all, this hurts the Supreme Court and the American people.
Make no mistake about it. Once again, had this process been open and
fair, maybe the outcome would be different; maybe it wouldn't. Who
could tell? But at least there would be some respect for the process.
That hasn't happened, and that is very bad for this body, for the
Supreme Court, and for these United States of America.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Fischer). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CORNYN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORNYN. Madam President, it seems like light years ago, but it
was July 9 when President Trump nominated Brett Kavanaugh to be the
next Justice on the Supreme Court of the United States. I want to recap
to refresh everybody's memory of what has happened since July 9 and
explain briefly why I will be voting for Judge Kavanaugh to be the next
Associate Justice on the Supreme Court.
Most importantly, I want to make one point emphatically clear. The
Senate should not be intimidated under the circus-like atmosphere that
has unfortunately surrounded this entire confirmation process. We
should not be intimidated, and we should not be complicit in the
orchestrated attempt to assassinate one man's character and destroy his
career and to further delay this confirmation vote.
When Judge Kavanaugh was nominated, it quickly became clear that we
were dealing with somebody who was well qualified and well respected.
He served for 12 years on the DC Circuit Court of Appeals. He was well
known for his expertise and his talent and his experience. Former
colleagues and judges said that. Lawyers who argued before him at the
DC Circuit Court said that. His former law clerks said that. Legal
scholars, including those who did not share his views on the law, said
that as well.
What happened? I think opponents of this nomination knew they
couldn't beat his nomination the old-fashioned way--on the merits--so
they decided to throw in the kitchen sink. First came the trash
talking. There are claims that supporters of Judge Kavanaugh's
nomination would somehow be complicit with evil. That was a U.S.
Senator who said that. Another said his confirmation could spell the
destruction of the Constitution itself.
These are apocalyptic words and rhetoric. Most Americans can spot
wild untruths and petty shaming when they see it. So that didn't work
very well. Opponents had to move on to round 2.
They then argued that Judge Kavanaugh could not be fair and impartial
on the bench because of his views on executive power or because of his
experience in working on the terrorist detention policy following the
attacks that devastated this country on September 11, 2001, when he
worked at the White House. Thankfully, the fact checkers did their due
diligence and spotted errors with each of these arguments. So opponents
of the nomination moved on.
Next came the great paper chase--the insistence that more and more
documents needed to be produced, including those that had traditionally
been held back because of executive privilege, because these were not
documents that Brett Kavanaugh owned. These were documents held by
either the National Archives or the George W. Bush Library. Yet it is
important to note that more documents about Judge Kavanaugh were
produced for him than for all of the other past Supreme Court Justices
combined--more paper on Judge Kavanaugh than all of the other Supreme
Court Justices combined. Once again, that argument eventually ran out
of gas.
Fourth, came the normally scheduled confirmation hearings, which
Judge Kavanaugh sailed through with flying colors. Opponents couldn't
lay a finger on him, but that is when things began to take a darker
turn. I am talking about the accusations that our Democratic colleagues
sat on for a month before seeing them leaked into the press, contrary
to Dr. Ford's wishes and against her consent. These allegations, of
course, regarded alleged high school misconduct on the part of Judge
Kavanaugh, but the ranking member of the Judiciary Committee didn't
share that with the FBI for 6 weeks or more and didn't share it with
bipartisan Senate Judiciary Committee investigators, who were
responsible for supplementing the investigation of the FBI and the
background investigation. The ranking member didn't share it with the
committee itself during a closed-door session during which sensitive
material would not be made public and where Dr. Ford's identity,
consistent with her request, could have remained confidential, as well,
while that allegation was investigated. Of course, Judge Kavanaugh
himself was never told of the allegation until sometime after his
initial hearing.
Now, that includes when our friend and colleague, the senior Senator
from California, met one-on-one with Brett Kavanaugh. Don't you think,
if somebody had a question about an allegation being made against the
nominee, that would be the perfect time to confront the nominee and
say: I have this allegation. What do you have to say about it? But she
said nothing.
By that point, we know she had already spoken to Dr. Ford. We know
she had already recommended partisan lawyers to represent her. We knew
there had been arrangements by her lawyers to conduct a polygraph
examination. This is all during the time when the senior Senator from
California had assured Dr. Ford that her name would be kept out of the
press and out of the public limelight.
Once she was sent to these partisan lawyers, they were preparing for
battle. They got a polygraph examination, plans were being made and
hatched, but the ranking member of the Judiciary Committee, who sat on
these allegations for 6 weeks, said nothing, including hiding the
allegations from the very man whose name in the next few days would be
tarnished when the full fury of our Democratic colleagues' wrath was
unleashed.
These accusations are very serious. They are crimes. Judge Kavanaugh
has been accused of multiple crimes.
I have said earlier that I wanted Dr. Ford to be treated the same way
my own daughters or my wife or my mother would be treated in similar
circumstances. That is the sort of respect
[[Page S6511]]
we owe any person making a serious allegation like this, but while we
were doing everything we could to treat Dr. Ford with the dignity and
respect she deserves, our Democratic colleagues did her a huge
disservice, not only to her but any other woman across the country who
believes they have been a victim of a sexual assault. I say that
because of the way they handled Dr. Ford's accusations and hid them
along the way.
We know Dr. Ford requested confidentiality, but our Democratic
colleagues deprived her of that against her will. Her letter alleging
misconduct on the part of Judge Kavanaugh was leaked to the press along
the way, which is the way this sort of character assassination begins--
anonymous reports to the press.
We know Dr. Ford is struggling to come to grips with difficult
moments in her past, but eventually she summoned the courage to share
her story. What she didn't fully appreciate is, she was simultaneously
being used and deployed as a political weapon, a last-minute timebomb
that was designed to destroy one man's reputation and blow up the
confirmation process once and for all.
I would say to our colleagues across the aisle who claim to be acting
in Dr. Ford's best interest: It sure doesn't look like it to me. We did
everything we could, under the awful circumstances presented to us by
our Democratic colleagues, to show respect for Dr. Ford and to
accommodate her wishes for safety and privacy. The Judiciary Committee
wanted to do what was best for her when it offered a bipartisan team of
investigators to go to California and give her an opportunity to tell
her story to them out of the limelight, with the TV cameras off,
respectfully and privately.
One of the suspicious circumstances surrounding this whole event, the
very lawyers the ranking member sent her to, these partisan lawyers,
apparently didn't even tell Dr. Ford this option was available to her.
That is what Dr. Ford said at the hearing.
We also brought in an experienced sexual assault investigator and
lawyer from Arizona to help us elicit the facts of her claim.
Throughout the hearing, we listened and tried to learn from what Dr.
Ford was telling us. We took Dr. Ford's statements seriously.
Then it was Judge Kavanaugh's turn. Some of our colleagues now feign
concern about Judge Kavanaugh's judicial temperament because of the way
he forcefully defended himself at the hearing where he had been accused
of multiple crimes and accused of lying under oath.
We know what Judge Kavanaugh's temperament is like on the bench
because he spent 12 years on the DC Circuit Court of Appeals. That is
why the American Bar Association gave him their very highest rating,
not only for his experience but for his temperament as well. They
interviewed hundreds of lawyers and people who had knowledge of Judge
Kavanaugh's expertise and his temperament, and they all said it was
deserving of the highest rating the American Bar Association could
give.
I wonder how any of us would feel if we were accused of a crime we
didn't commit and were forced into the public limelight to defend our
good name and our honor and our reputation and to protect our family
against the threats that were being made against them. I would be
angry. I would do everything possible to push back against the false
accusations, and that is what Judge Kavanaugh did. Along the way, he
again offered his denial of any of the allegations of Dr. Ford under
penalty of felony.
So the question is, How do we decide? Because we are going to be
voting starting tomorrow on this nomination. Isn't it somebody's word
against another's? Don't we either have to believe everything that one
says or another? Do we know whom to trust, whose word to accept, when
allegations are made about something that allegedly happened 35 years
ago with gaps in the story, inconsistencies?
Well, I think the first thing we have to do is put these questions
into the proper context, but here is the bottom line: This is not a
case of he said, she said. It is a case of she said, they said. In
other words, the allegations made by Dr. Ford are not confirmed or
corroborated by any of the other people she said were present that day.
One of those people she said was present was Leland Keyser, a female
friend, one of her closest friends, who said not only does she not
remember being involved in anything like this, she said she never even
met Brett Kavanaugh.
This is not about believing women or believing men. That is a false
choice. It is not about having to choose between a man and a woman when
it comes to allegations of sexual assault. It is not about being for
the #MeToo movement or against it because who, after all, could be
against it--women coming forward and telling their story when they
believe they have been assaulted.
No, what this is about is looking at the specific relevant evidence
in this case in the proper framework. That evidence goes well beyond
the impassioned and unequivocal denial by Judge Kavanaugh.
In this case, as I said, there were three eyewitnesses Dr. Ford said
could confirm her story, and all of them directly refuted her story.
What is more, nothing like this ever came up in the context of six
previous FBI background investigations conducted by the FBI during
Judge Kavanaugh's long and very public career.
We have been told the FBI, during the course of these now seven
background investigations, including the supplemental background
investigation, has talked to 150 witnesses about Judge Kavanaugh. Don't
you think somebody, somewhere, sometime would corroborate what Dr. Ford
said if there were such a person?
We know these claims conflict with the accounts of many women who
said they have known this nominee to behave honorably not only in high
school and college toward them but the countless other women who have
known and interacted with Judge Kavanaugh since. It just seems simply
out of character for the Brett Kavanaugh we have come to know as a
result of these hearings and these investigations.
Finally, the timing of these allegations seem awfully calculated and
unusual, even politically motivated, and compound that with the fact
that our Democratic colleagues chose not to act on the opportunity to
investigate them either through the Judiciary Committee staff or the
FBI when it was much more appropriate to do so.
Well, those are the facts I believe we should consider, and that is
the evidence that suggested Judge Kavanaugh is telling the truth.
The counterarguments offered by our Democratic colleagues are not
compelling, and I think deep down they realize it. That is why they
keep changing their position, moving the goalpost, as you have heard.
That is why they have finally resorted to talking about alleged ice-
throwing incidents in college. Man, that is disqualifying, they say,
apparently, or let's look at his high school yearbook. I would
stipulate that teenage boys--well, I was one once. We are not that
smart when we are teenage boys, and the dumb things that people say and
do, I think, as the judge said, are cringeworthy sometimes.
Then we have seen conspiracy theories spun up involving his calendar
from 1982. Now, I admit it is a little odd, I think, for anybody to
have kept a daily calendar and still have it at age 53, but Judge
Kavanaugh said that is what his dad did, and it was a combination
calendar and diary. So it tells us some of what he was doing at the
time we are concerned with.
I would suggest this whole enterprise has gotten so far afield from a
search for the truth and become just a relentless, unhinged attempt to
defeat the nomination, and in the process, chew up and spit out the
reputation of a good man.
We know this play has been telegraphed. Our friends across the aisle
made known their opposition would be equal parts merciless and
relentless months ago when the minority leader said he was going to
oppose Judge Kavanaugh's nomination with everything he has--everything.
Well, apparently ``everything'' includes last-minute, uncorroborated
accusations made almost 40 years ago. ``Everything'' involves refusing
to participate in the normal committee process, walking out of
hearings, breaking the rules. It involves making loud, baiting
statements designed to incite people. It includes seeing some of our
colleagues get hangers sent to their offices, chasing Senators and
their
[[Page S6512]]
spouses from restaurants or through airports, not to mention delays and
obstructions at every step along the way.
Here is what I really think needs to be understood: Our colleagues
across the aisle claim to be looking out for the victim. They claim to
be on the side of empathy, but there is nothing empathetic about the
cruelty they have shown Judge Kavanaugh, his wife, and their children.
There is nothing empathetic about presuming that somebody is guilty
without evidence, and there is nothing consistent about our colleagues
who forget many of their standard refrains about our criminal justice
system convicting too many people when the evidence is thin.
Some commentators have called this our Atticus Finch moment,
recalling the famous novel ``To Kill a Mockingbird'' by Harper Lee. We
all remember that Atticus Finch was a lawyer who did not believe that a
mere accusation was synonymous with guilt. He represented an unpopular
person who many people presumed was guilty of a heinous crime because
of his race and his race alone. We could learn from Atticus Finch now,
during this time when there has been such a vicious and unrelenting
attack on the integrity and good name of this nominee.
What I find the most distressing is that our colleagues who have
engaged in this relentless and vicious attack express no remorse over
violating Dr. Ford's wishes regarding confidentiality. They make no act
of contrition about thrusting her into the spotlight and using her for
partisan purposes or for recommending partisan lawyers to shepherd her
along and withholding information from the Judiciary Committee and the
FBI for weeks on end.
I have spent much of my career in elected office fighting to make
sure that victims of sexual assault and domestic violence and human
trafficking are never ignored, but at the same time, I will never
apologize for 1 second for believing in the constitutional presumption
of innocence and due process of law--one of the bedrock principles of
our justice system, and that is because those principles are grounded
in basic fairness and fair play. The spirit of that principle and the
concept of due process applies to Judge Kavanaugh just as much as it
does to any defendant taking a stand in any courtroom across this
country. He has, in fact, been accused of a crime--multiple crimes.
I believe we will remember last week's hearings for years to come,
and I am sure history will ultimately judge all of us, but in the
meantime, we need to act. We have had more than enough time to evaluate
this nominee. The Senate must do its job, and we will not be
intimidated. This is about the principles we stand up for and defend--
yes, sometimes even when it is unpopular.
This vote that we will have beginning tomorrow is about upholding
long-established constitutional principles and creating the right
precedent, not establishing the wrong one. Can you imagine, if this
orchestrated smear campaign and relentless effort to destroy this
nominee is successful, what kind of precedent that would set in the
future? Woe be to all of us and shame on all of us if we allow that to
happen.
This vote is about validating years of public service and decades of
honorable conduct. It is not about forgetting everything that a person
has done, all that he is, and all that he has worked for at the drop of
a hat based on unproven allegations. It is not about shifting with the
turbulent political whims. It is about what is just, and not just what
is popular in some circles.
The FBI has submitted its supplemental background investigation.
Democrats and Republicans are in the process of being briefed on that.
Having been briefed, I can tell you this: Nothing new. No witness can
confirm any allegation against Judge Kavanaugh. As I said, Judge
Kavanaugh has been investigated seven times now by the FBI through
background investigations where they have talked to 150 witnesses.
It is time to vote. I hope my colleagues will join me in supporting
Judge Kavanaugh's nomination starting with the cloture motion we will
vote on tomorrow morning.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. DUCKWORTH. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. DUCKWORTH. Madam President, by the time Dr. Ford was sharing her
story last Thursday afternoon, I was heartbroken. Then, by the time
Judge Kavanaugh was done speaking, just a few hours later, I was
horrified.
Dr. Ford spent her time talking about the laughter she still hears
ringing in her ears from that night--the night that an older, stronger,
drunker boy forced her to learn what it was like to feel helpless. Her
voice quivered, but she herself never wavered, steadfast in the truth--
in the memory of those few moments that changed her life forever.
Judge Kavanaugh, meanwhile, spent his time interrupting and attacking
the committee members, shouting over Senators and dressing them down--
appearing belligerent and outraged that anyone would dare keep him from
getting what he feels entitled to, as though he--or anyone--is entitled
to a seat on the U.S. Supreme Court.
Time after time, he made brazenly political statements that should
disqualify any candidate from serving as a Federal judge. Over and over
again, he told what appeared to be blatant lies despite his being under
oath. He seems to have lied about the meaning of his yearbook page,
about when he learned of some of the recent accusations, about what he
knew at age 53 and what he did at age 17.
Sadly, this was hardly even surprising. Kavanaugh has a habit of
appearing to lie under oath, as we know from when he was questioned
about his role in the Bush administration's torture policy back in
2006. This consistent dishonesty--this disregard, even distaste for the
truth--should be unacceptable in any judicial nominee, let alone one
nominated to serve on the highest Court of the land for a lifetime
appointment.
Let's be clear: How Republicans went about restricting the FBI
investigation this past week was questionable at best, sabotage at
worst. Yet the reality is that that suspiciously limited background
check was not even necessary to prove that he was unfit; it was his
inappropriate public outbursts and his lack of candor that were so
deeply troubling, that should be so obviously disqualifying.
This has nothing to do with his conservative beliefs. This has to do
with the fact that the belligerent partisan operative who revealed
himself last week is wholly unsuited for a job that demands a level-
headed temperament. It is not just I who is saying that. It is a
sentiment that some of Kavanaugh's own former law clerks have expressed
in the wake of his hostile outbursts.
No one is entitled to a Supreme Court seat, not even someone who went
to Yale College or Law School as he reminded us one, two, three, four
times last Thursday. In this #MeToo moment we are living through, we
need to recognize the bravery it took for these women--Dr. Ford but
also Deborah Ramirez--to speak out and not deride them and shame them
as some on the other side of the aisle and even the President are
doing.
The other night, Trump stood in the middle of a political rally in
Mississippi and told joke after joke about Dr. Ford and the worst
moment of her life--mocking a survivor, making fun of her trauma,
riling up thousands of people to laugh at her just as she says Brett
Kavanaugh did in that bedroom that night. That makes me sick. It makes
me furious. Donald Trump may sit in the Oval Office, but it is obvious
he cannot live up to even the minimal standards of what we should
expect of any President. He doesn't even understand or care how cruel
it is to try to bully a survivor back into the shadows.
You know, I have two daughters. The younger, Maile, was just born
this April. The older, Abigail, is nearly 4 years old now. Her drawings
line the walls of my Senate office, and her smile is the first thing I
see in the morning. Well, I just can't stop thinking about how Dr. Ford
was also once that age. She too probably had her hair brushed and then
braided by her mom. She too probably loved that too-big set of Crayola
crayons and proudly took to her mom drawing after drawing like those my
Abigail brings to me. I can't stop thinking about how that little
[[Page S6513]]
girl, just a decade later, found herself cornered and alone and
scared--outnumbered and overpowered and terrified--in hearing that
boy's laughter that she remembers all of these years later.
I am voting against Brett Kavanaugh because I believe Dr. Christine
Blasey Ford, because I believe Deborah Ramirez, because we need a
nominee who will not cover up, abet, and lie about torture, but also
because I know the American people deserve a fair-minded Supreme Court
Justice who actually cares about honesty and the truth. That is the
bare minimum we should expect from a nominee to the Supreme Court, and
Brett Kavanaugh can't even clear that low hurdle.
I yield the floor.
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. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Hoeven). Without objection, it is so
ordered.
Mr. HATCH. Mr. President, nearly 3 months ago, I came to the Senate
floor for the first time to support President Trump's nomination of
Brett Kavanaugh to the U.S. Supreme Court. Here is what I had to say at
that time:
Judge Kavanaugh is among the most distinguished and most
influential judges in the entire country. The Supreme Court
has adopted the positions in his opinions no less than 11
times. He has authored multiple dissents that ultimately
prevailed in the Supreme Court.
He has taught courses at Harvard, Yale, and Georgetown.
It bears mention, liberal and conservative justices alike
have hired his former clerks, which shows the respect he has
across the ideological spectrum.
Truly, there is no one more qualified and more prepared to
serve on the Supreme Court than Brett Kavanaugh.
A lot has transpired in the last 3 months. We have received and
reviewed more documents for Judge Kavanaugh than for any other Supreme
Court nominee in our Nation's history. We have had 5 days of public
hearings. Judge Kavanaugh has answered more than 1,300 written
questions--more questions than all previous Supreme Court nominees
combined.
We have had protesters in halls and hearing rooms and elevators. We
have even seen the miraculous return of Spartacus, and we have had the
lowest, most vile, most dishonest attempt at character assassination I
have ever seen in my whole 42 years of service in the Senate.
We may never know who leaked reports of Dr. Ford's allegations to the
press. We do know it was someone in the Democratic orbit. This was
followed by the most appalling smear campaign imaginable. No accusation
was too heinous, no claim too far-fetched.
My Democratic colleagues like to pretend that Judge Kavanaugh's
understandable indignation at last week's hearing was a reaction only
to Dr. Ford's allegations but, of course, that is not the case. In the
days immediately preceding that hearing, Judge Kavanaugh was accused of
drugging women, of sexual assault, and even of gang rape.
Judge Kavanaugh told the committee investigators it was like the
twilight zone. I sure wish my Democratic colleagues would stop trying
to rewrite history to excise the slew of garbage they unleashed on
Judge Kavanaugh and the American people, and I hope they will start
talking to their friends on the outside and start acting like Americans
again and quit this kind of divisive activity.
I would like to say a word here about Dr. Ford. It is clear now that
we will never know what happened 36 years ago. Dr. Ford offered a
moving account of what she says happened between her and Judge
Kavanaugh back when they were teenagers. Judge Kavanaugh, in turn,
offered a forceful, impassioned rebuttal of her claims. Some have
criticized Judge Kavanaugh for being too forceful in his response. My
gosh, if that were me, I would be even more forceful than he was, to
have false accusations like that, especially at this particular time in
this process.
Interestingly, almost without exception, these critics had announced
their opposition to Judge Kavanaugh even before Dr. Ford's allegations
were leaked to the press. So let's not pretend these critics are
neutral observers.
In any event, Judge Kavanaugh's indignation at what he clearly
believes are false and unjust accusations was both understandable and,
in my view, entirely proper.
Dr. Ford's allegations are serious. If true, they should disqualify
Judge Kavanaugh from serving on the Supreme Court. But neither Dr. Ford
nor her attorneys nor any member of news media has been able to provide
any corroboration for her claims. To the contrary, every alleged
eyewitness or partygoer she has named has either denied her allegations
or failed to corroborate them. This includes her lifelong friend Leland
Keyser, whom Dr. Ford says was present at the party that night. Ms.
Keyser says that not only does she not remember such a gathering ever
taking place but that she does not even know Judge Kavanaugh.
Questions have been raised in recent days about certain elements of
Dr. Ford's testimony.
She says she first told others that Judge Kavanaugh had attacked her
around the time of a house remodel to add a second front door to her
home, but permit records show that the door was added 4 years prior to
her first alleged mention of Judge Kavanaugh.
She testified that she had never given advice on how to take a
polygraph test. A former boyfriend of hers, however, disputes that
statement.
Dr. Ford has also offered inconsistent accounts of when the attack
took place and how many people were present at that party.
There are other aspects of her story that are also confusing. She
does not remember where or when the attack took place, but she
remembers with crystal clarity how much alcohol she had consumed. This
appears to be the only fact unrelated to the alleged attack that she is
able to recall with certainty.
Dr. Ford also testified that after the attack, she ran out of the
party. The location of the party had to be some distance from her home.
She was too young to drive, so she would have had to have gotten a ride
home, but she does not recall who drove her home. And given that this
was long before the era of cell phones, it is unclear how she would
have contacted someone to come pick her up after she ran out of the
party.
Even more puzzling, her good friend, Ms. Keyser, apparently never
asked Dr. Ford why she disappeared from the party.
Given that there is no corroborating evidence for Dr. Ford's claims,
all we have to go on is her story. Although not dispositive, the
questions and inconsistencies and puzzling aspects that I have just
outlined call into question the reliability of her account. This is
simply not enough to conclude that Judge Kavanaugh is guilty of the
heinous act Dr. Ford alleges. It flies in the face of the life he has
lived as a judge and how effective he has been as a judge on the second
highest court in the land.
Against the thinness of Dr. Ford's accusations, we have an entire
lifetime of good works and honorable public service by Judge Kavanaugh.
We have received dozens of letters and hundreds of people attesting to
Judge Kavanaugh's good character and unimpeachable credentials. His
clerks, students, and former colleagues have all praised him as a man
of the highest integrity. He has made the promotion and encouragement
of women lawyers a focus of his time on the bench. He volunteers in his
community and mentors young athletes. This is a good man. He is a very
good man, and he does not deserve this kind of treatment or behavior.
What Dr. Ford alleges is entirely out of character with the entire
course of Judge Kavanaugh's life.
The recent sideshow stories about his drinking habits in high
school--my gosh--and college over 30 years ago from people who never
liked him in the first place are just a distraction. That this
confirmation process has turned into a feeding frenzy about how nice
Judge Kavanaugh was to his freshman roommate is an embarrassment.
That said, the Senate has taken these allegations seriously, as we
should. We invited Dr. Ford and Judge Kavanaugh to testify, and they
did so. Committee investigators spoke with numerous individuals who
said they
[[Page S6514]]
had relevant information to share. The committee also took statements
under penalty of felony from the alleged witnesses Dr. Ford named.
In addition, the FBI recently completed a supplemental background
check of Judge Kavanaugh, and the FBI found no corroborating evidence
for any of the recent allegations against Judge Kavanaugh. Let me
repeat that. The FBI found no corroborating evidence for any of the
recent allegations against him--not a single piece of corroborating
evidence.
Now that the FBI has found no corroborating evidence, some of my
Democratic colleagues shamefully have taken to calling into question
the credibility of the FBI and its investigators. These attacks are
irresponsible, to say the least. Indeed, contrary to what my Democratic
colleagues have said, the FBI conducted a thorough, professional, and
expeditious investigation. The FBI talked to the people it needed to
talk to. What agents did not do is talk to someone who says he talked
to someone more than 30 years ago who now doesn't remember seeing
anything. They didn't investigate whether Judge Kavanaugh was, in fact,
spotted near a punch bowl at a high school party, and they were right
not to do so. An FBI investigation is not a wild goose chase.
Some of my Democratic colleagues are also complaining that the FBI
did not interview Dr. Ford or Judge Kavanaugh during the supplemental
investigation. Well, Dr. Ford testified in a public hearing for nearly
3 hours. She told the committee that she had given us all of the
information she could remember. The FBI does not need to repeat
questions that have already been asked and answered, particularly when
a person has already said she shared everything she can remember.
Judge Kavanaugh, likewise, testified publicly at the hearing. He also
spent several hours answering questions from committee investigators
under penalty of felony on several different occasions. He has been
thoroughly interrogated under oath in public and in private about these
allegations.
Some of my Senate Judiciary Committee colleagues made the unfortunate
choice last night to smear Judge Kavanaugh with yet another piece of
innuendo. Eight members of the committee sent a letter in which they
incorrectly implied that the six previous background checks on Judge
Kavanaugh contained information concerning sexual improprieties or
alcohol abuse. In so doing, they took advantage of rules that protect
the confidentiality of witnesses to score cheap political points.
Although we should all be disquieted by my colleagues' unscrupulous
conduct, the American people can rest assured that no such information
exists. If it did, Democrats would have raised it before now. Of that,
we can certainly be certain. Indeed, after weeks of nonstop mudslinging
and attempted character assassination by Senate Democrats and their
media allies, no one--no one--has been able to find any charge against
Judge Kavanaugh that sticks. And you can believe they have tried. Boy,
can you believe they have tried. This has been the worst example of the
Washington smear machine that I have seen in all my 42 years of Senate
service.
So we are left back where we were before this whole sordid saga
began. Judge Kavanaugh is eminently qualified, unquestionably
qualified, to serve on our Nation's highest Court. He is among the most
distinguished, influential judges in the entire country. His opinions
have received widespread acclaim and have won approval by the Supreme
Court on multiple occasions--multiple occasions. The American Bar
Association interviewed more than 100 fellow judges and lawyers who
know Judge Kavanaugh and who have appeared before him, and they all
spoke with virtual unanimity in praising his integrity, his work
product, and his judicial temperament.
As somebody who tried cases in Federal court, I would have been happy
to have had Judge Kavanaugh, who I know would give a fair shake to both
sides. He is the kind of a judge I would have admired in every way, and
I do, but I would have admired him in every way as a practicing trial
lawyer who had quite significant experience.
I hold the highest rating, the ABA rating from Martindale-Hubbell,
which is the rating service that rates attorneys without their
knowledge by going to other top lawyers in their area. I have had that
highest rating in two States--in Pennsylvania and in Utah. So I take
these matters very seriously. I believe in the Federal courts. I think
they do a terrific job in this country. I have nothing but admiration
for them. There are very few exceptions. And I think it is just a
terrible, ridiculous problem that has arisen here because people are
playing politics with this judge and this judgeship.
I am sorry that Judge Kavanaugh has had to go through this ordeal. He
did not deserve this. He is a good man. He spent decades building a
reputation of decency and fairness. His opponents have attempted to
destroy it with 3 weeks of smut and unsubstantiated allegations. It
makes me sick to see this type of stuff. It certainly does when some of
my colleagues buy into it, which they shouldn't. They should not.
I know Brett Kavanaugh. I know him well. He is a man of great
resilience and firm conviction. He is going to be a great Justice--
perhaps one of the greatest we have ever had. He will bring to the
Supreme Court the integrity, honor, and intellectual rigor he has
demonstrated throughout his entire career. And soon enough, he will
have rebuilt his reputation. He will earn the respect of his colleagues
and the American people through his writings and his decisions--of
that, I have no doubt.
I will vote to confirm Judge Kavanaugh. He is unquestionably
qualified. He has gone through the most thorough vetting process I have
ever seen. It has been a miserable, retched process in some respects,
but he has come through, and we all give him credit for that. Hundreds
of thousands of documents produced. Five days of hearings. Seven FBI
background checks. We know what we need to know. The American people
know what they need to know.
It is time to vote. It is time to confirm this good man to the U.S.
Supreme Court, and I hope this body will get to that decision-making
process as soon as it can. It is time to end this charade. It is time
to back this really good man. I predict he will make one of the great
Justices on the U.S. Supreme Court.
I am grateful to my colleagues who have given him the benefit of the
doubt and who know him and know these things are not true. I am
grateful for the privilege of serving in the Senate. I sure hate to end
my service with further smears to a good man like Judge Kavanaugh.
I yield the floor.
The PRESIDING OFFICER (Mr. Perdue). The Senator from Maryland.
Mr. CARDIN. Mr. President, I have read the FBI report. I listened to
the Judiciary Committee hearings, including the second hearing with Dr.
Ford and Judge Kavanaugh. I reviewed Judge Kavanaugh's opinions as a
judge and his public record during his tenure in the White House.
Based on his record, I cannot support his nomination for a lifetime
appointment to the Supreme Court of the United States. I reached this
conclusion before Dr. Ford's allegations were made based on his court
opinions and White House record. That conclusion was reenforced by
Judge Kavanaugh's testimony in response to Dr. Ford's powerful and
compelling testimony, raising very serious issues concerning Judge
Kavanaugh's conduct.
Judge Kavanaugh's response demonstrated his lack of impartiality and
temperament, which is a critical qualification to serve as a judge.
That view was reenforced by a letter written by over 1,000 law
professors and legal scholars reaching the same conclusion I had drawn.
I was very disappointed by the process on Judge Kavanaugh's
nomination that was dictated by the Republican leadership. For Senator
McConnell, 10 months was inadequate time for the Senate to consider
President Obama's choice of Judge Merrick Garland to the Supreme Court
of the United States. Yet Senator McConnell had no difficulty in
rushing the consideration of Judge Kavanaugh through the Senate in a
fraction of that time.
The Republican leadership refused to demand a complete discovery of
relevant documents concerning Judge Kavanaugh. I served on the
Judiciary Committee during the consideration of
[[Page S6515]]
Justices Sotomayor and Kagan when the Republicans' request for complete
discovery was honored and welcomed by the Democrats. Such was not the
case in regard to the Republicans honoring reasonable requests for
information concerning Judge Kavanaugh.
To make matters worse, the chairman of the Judiciary Committee
inappropriately and unilaterally classified certain documents as
confidential, preventing their public use during the confirmation
process.
After Dr. Ford's allegations became public, the Republican leadership
refused to allow the FBI to conduct a proper investigation before
scheduling a rushed, inadequate, and incomplete hearing without any
additional witnesses beyond Dr. Ford and Judge Kavanaugh. The
Republican leadership refused to call before the committee eye
witnesses to the allegation.
Prior to the first hearing and before I reached a conclusion on the
nomination, I had requested an opportunity to meet one-on-one with
Judge Kavanaugh, which is the Senate tradition on Supreme Court
nominees. That request was denied by the White House.
I cannot support Judge Kavanaugh because of his judicial record, his
partisan leanings, and lack of impartiality and judicial temperament.
I am concerned Judge Kavanaugh is inclined to turn back the clock on
civil rights and civil liberties, voting rights, reproductive choice,
equality, the Affordable Care Act, workers' rights, clean air and clean
water, and protection of abuses from corporate and political power,
including the President of the United States.
Our Constitution created the Supreme Court as an independent check
and balance against both the executive and legislative branches of
government. It should not be a rubberstamp for Presidential efforts to
undermine the rule of law or independence of the Judiciary, self-
pardon, or derail Special Counsel Mueller's investigation into Russia's
interference in our 2016 elections.
The next Justice of the Supreme Court should not be predisposed to
rich corporations at the expense of consumers or hollow out protections
for Americans against abuse of power as Judge Kavanaugh's record as
appellate judge reveals.
Judge Kavanaugh has advanced legal theories as part of an activist
agenda to overturn longstanding precedent to diminish the power of
Federal agencies to help people, and he has demonstrated an expansive
view of Presidential power that includes his belief that Presidents
should not be subject to civil suits or criminal actions.
Let me turn to some specific policies in Judge Kavanaugh's record
that concerns me should he become Justice Kavanaugh. To point out what
I just said, I look at the opinions and writings he has done.
There are concerns Judge Kavanaugh's nomination could present a
conflict of interest on the ongoing investigations of the Russian
interference in the 2016 Presidential elections as the Supreme Court
could be asked to rule on whether Special Counsel Robert Mueller has
the right to subpoena the President to testify. In his confirmation
hearing, Judge Kavanaugh refused to say whether he would recuse himself
from this case should it reach the Court.
I hope the Supreme Court would indeed compel President Trump to
comply with any reasonable subpoena from the special counsel, citing
the precedent of requiring President Richard Nixon to surrender tapes
and other evidence during the Watergate investigations. The Supreme
Court ultimately held that the President was not above the law. Some
comments of Judge Kavanaugh suggest he believes the Nixon case was
wrongly decided.
There are also concerns that a Justice Kavanaugh would defer criminal
investigations and prosecutions of a President's misconduct until after
President Trump leaves office. Ironically, his views on Presidential
power have changed since he worked for Independent Counsel Kenneth
Starr on the Whitewater investigation of President Bill Clinton.
Indeed, Judge Kavanaugh wrote that a sitting President should have
``absolute discretion'' to determine whether and when to appoint or
remove a special counsel.
It is clear Judge Kavanaugh holds a troubling record when it comes to
Presidential power. In the case of Seven-Sky v. Holder, pertaining to
our country's healthcare system, Judge Kavanaugh's opinion implied that
he believes the President does not have to enforce laws if the
President deems a statute to be unconstitutional, regardless of whether
a court has already held it constitutional.
Judge Kavanaugh was asked in 2016 if he could overturn precedent in
any one case, and he said he would ``put the final nail'' in Morrison
v. Olson, which upheld the constitutionality of the independent counsel
statute. It appears Judge Kavanaugh believes the President is above the
law and the only remedy for Presidential misconduct in office is
impeachment by Congress, as suggested in some of his writings in 2009.
He wrote we ``should not burden a sitting President with civil suits,
criminal investigations, or criminal prosecutions'' and that the
``country loses when the President's focus is distracted by burdens of
civil litigation or criminal investigation and possible prosecution.''
No one is above the law, including the President of the United
States. We know President Trump has deep disregard for the rule of law.
He constantly criticizes his own Justice Department, including urging
the Justice Department to prosecute or not prosecute certain
individuals. He has criticized the special counsel investigation into
Russia interference in our election as a ``witch hunt,''
notwithstanding the growing number of convictions and guilty pleas
obtained by Mr. Mueller. He has explored whether he has the power to
pardon himself, family members, and associates. The future status of
Rod Rosenstein, the Deputy Attorney General who supervises the special
counsel investigation, is in jeopardy as President Trump has made it
known he would like Mr. Rosenstein to go.
We need a Supreme Court Justice who can stand up to the President,
stand up for the rule of law, and stand up for the independence of the
Judiciary. Based on his track record, I am not convinced a Justice
Kavanaugh would do that.
While serving on the Court of Appeals for the DC Circuit, Judge
Kavanaugh considered the constitutionality of the Affordable Care Act
of 2011. The Court upheld the constitutionality of the Affordable Care
Act by a 3-to-0 vote, and Judge Kavanaugh wrote a concurring opinion.
His concurring opinion has been described as the roadmap challenging
the constitutionality of the Affordable Care Act.
In his opinion, Judge Kavanaugh argued it was premature to hear the
case before the individual mandate had taken effect. Judge Kavanaugh
laid out the legal justifications for President Trump not enforcing the
individual mandate and for a judicial challenge to the
constitutionality for the Affordable Care Act.
A Justice Kavanaugh would raise significant concerns as to how he
would rule on the protections of the Affordable Care Act against
insurance companies discriminating on preexisting conditions, which
could affect millions of Americans.
In June of this year, President Trump's Department of Justice broke
with longstanding Department precedent and cited it would no longer
defend the Affordable Care Act. In a brief filed by the Trump
administration in Texas v. United States, the administration joined
with 20 Republican-led States to argue that the Affordable Care Act
protections for people with preexisting conditions should be
invalidated. In their court filing, the administration argued that when
the Republican tax bill eliminated the individual mandate, the taxless
individual mandate became unconstitutional and therefore the law's
protections for those with preexisting conditions, including guaranteed
issue and community rating, should be unenforceable.
In 2017, Health and Human Services released a report stating that as
many as 133 million nonelderly Americans have a preexisting condition.
Every one of them would be at risk if this protection is held to be
invalid by the Supreme Court. The Maryland Health Benefit Exchange
estimates that in Maryland, there are approximately 2.5 million
nonelderly Marylanders with preexisting conditions, including 320,000
children all at risk.
In addition to Texas v. United States, there are dozens of healthcare
cases
[[Page S6516]]
pending in the lower courts which are likely to be appealed to the
Supreme Court in the upcoming terms. The outcomes of these cases of the
Supreme Court will directly impact access to healthcare for millions of
American families, including the most vulnerable in our society.
In each of these cases, there is a question about whether the
Affordable Care Act creates rights that individuals can enforce in
courts. These cases deal with critical issues, such as the scope of
healthcare coverage for nursing mothers, false advertising by health
insurance companies, and whether employers are required to provide
healthcare coverage to their employees.
Given Judge Kavanaugh's stated hostility to the Affordable Care Act,
I fear that a Justice Kavanaugh would further restrict access to
healthcare for many Americans, particularly in regard to women's
healthcare, including birth control.
In Planned Parenthood v. Casey, the Supreme Court firmly established
that the constitutional right to privacy protects women ``from unduly
burdensome interference with her freedom to decide whether to terminate
her pregnancy.'' This standard, known as the ``undue burden'' standard,
prohibits government action that ``has the purpose or effect of placing
a substantial obstacle in the path of a woman seeking an abortion on a
nonviable fetus.''
Judge Kavanaugh wrote in the dissent in Garza v. Hargan in 2017,
supporting the Trump administration's ongoing efforts to prohibit a
pregnant immigrant teenager in government custody from exercising her
constitutional right to make her own healthcare decisions. Judge
Kavanaugh pays lip service to the undue burden standard articulated in
Casey. He shuns longstanding precedent and chooses instead to impose
his own moral standards on Jane Doe.
In a heated dissent in Priests for Life v. HHS, Judge Kavanaugh
argued that the Affordable Care Act's existing accommodations for
religious employers that wanted an exception from the contraception
coverage policy still placed a substantial burden on the employers'
beliefs. Multiple cases referring women's access to birth control are
working their way through the courts. A Justice Kavanaugh could become
a decisive vote on the Supreme Court limiting access to reproductive
care.
Maryland is home to many rivers which are part of the vast Chesapeake
Bay watershed. The land and waterways that supply our drinking water,
support our native ecosystems, and contribute to our tourism and local
economies are all at stake.
Whether allowing more toxins in our air or more nuclear waste in our
backyards, Judge Kavanaugh has prioritized corporate America over the
health of American citizens and our environment.
Justice Kennedy understood the values of Americans when weighing the
costs and benefits of environmental protection. Judge Kavanaugh has not
shown such concern for balancing values and interests.
The Clean Air Act, which dramatically reduced these toxins after its
passage in 1970, has prevented over 400,000 premature deaths, 1 million
bronchitis cases, 2 million asthma attacks, and over 40 million
children's respiratory illnesses. Judge Kavanaugh heard several major
cases about the EPA's authority under the Clean Air Act. In each of
these cases, he opposed the Agency's position. These protections should
be strengthened, not eroded.
As a lifelong Marylander and as a senior member of the Environment
and Public Works Committee, I have prioritized the protection of the
Chesapeake Bay; thus, I have worked to defend the EPA's clean water
rule, which has come under attack by Republican legislators and
opponents in this administration. There are 67 percent of Marylanders
who get their drinking water from sources that rely on small streams
that are protected under the Clean Water Act.
Partisan and shortsighted threats put our environment, economy, and
public health in danger. If these attacks prove successful, protecting
our citizens from the danger of water pollution will become far more
difficult.
So we are left with even more uncertainty with Judge Kavanaugh's
nomination. Would he support the clean water rule, which would protect
the drinking water sources of 100 million Americans by making sure they
are regulated under the Clean Water Act? We can all agree that few
responsibilities of our government are more fundamental than clean,
safe water, but I am not certain that Judge Kavanaugh would defend this
duty on the Supreme Court.
As a member of the DC Circuit Court, Judge Kavanaugh has ruled in a
number of high-profile cases to limit the EPA's protection on issues
like climate change and air pollution and against Maryland's interests
as a coastal, downwind State. He has consistently voted against
environmental regulations and often in favor of corporate interests.
Judge Kavanaugh's environmental jurisprudence is rife with double
standards, as he has frequently attempted to insert cost considerations
into environmental regulations where none exist in statute.
Furthermore, he places a very low burden of proof on businesses
claiming injury from regulation, while at the same time asserting a
much higher standard of proof for citizens arguing that pollution is
sufficiently harmful to warrant regulation. The following cases
involving Judge Kavanaugh document his support of powerful interests
over public interests in the areas of public health and the
environment.
In EME Homer City Generation, LP v. EPA, Judge Kavanaugh wrote an
opinion overturning an EPA rule designed to lower smog-forming sulfur
dioxide emissions by 73 percent and nitrogen oxide emissions by 54
percent. The Supreme Court later ruled in favor of the EPA and
overruled Judge Kavanaugh's opinion. Nitrogen oxides account for two-
thirds of the airborne nitrogen that ends up in the Chesapeake Bay.
In the case of the Coalition for Responsible Regulation v. EPA, Judge
Kavanaugh dissented from a decision not to rehear a case which had
found that the EPA had the ability to regulate emissions in order to
slow climate change.
In the case of White Stallion Energy Center v. EPA, in a dissent,
Judge Kavanaugh insisted that the EPA must take costs to business into
account when judging regulation, attempting to argue that instead of
determining what is best for public health, the EPA should determine
what is the least costly to business.
In Clean Air Council v. Pruitt, Judge Kavanaugh dissented to a DC
Circuit determination that the EPA was unreasonably delaying the
implementation of a 2016 rule that curbed fossil fuel emissions of
methane, smog-forming volatile organic compounds, and toxic air
pollutants.
In Mexichem Fluor, Inc. v. EPA, Judge Kavanaugh sided with producers
of hydrofluorocarbons, saying the EPA had no authority to regulate
them.
In Mingo Logan Coal Co. v. EPA, Judge Kavanaugh dissented again and
argued that the EPA must weigh the cost to business of revoking Clean
Water Act permits.
In each of these cases, Judge Kavanaugh sided with corporate
interests over public health. There is a clear record here.
My concerns about Judge Kavanaugh also include his lack of
sensitivity to the protections of civil rights.
In the case of South Carolina v. Holder, Judge Kavanaugh ruled that
South Carolina's voter ID law was not discriminatory and did not
violate the Voting Rights Act. South Carolina residents are required to
use driver's licenses, passports, military IDs, or voter registration
cards to vote. Judge Kavanaugh disregards section 5 of the Voting
Rights Act and impedes on the voting rights of minorities who are
impacted by South Carolina's voting laws. We all know how difficult it
is in minority communities when you have these ID laws. We know how
difficult it is for older people to get to places to get their
identification. This sends a dangerous signal about Judge Kavanaugh's
views on voting rights and racial justice in America.
Judge Kavanaugh's ideological bias can also be seen in his rulings in
employment discrimination cases, in which he has dissented and voted to
dismiss claims that a majority of his DC Circuit colleagues have found
to be meritorious.
In Howard v. Office of the Chief Administrative Officer of the U.S.
House of Representatives, Judge Kavanaugh
[[Page S6517]]
dissented from a majority decision which held that under the
Congressional Accountability Act, an African-American woman fired from
her position as House of Representatives deputy budget director could
pursue her claim of racial discrimination and retaliation in Federal
court, giving her a right of action.
Judge Kavanaugh dissented from that. He argued that the speech and
debate clause of the Constitution prohibited the employee from moving
forward with her claims, and he would have dismissed the case. His
interpretation of this constitutional provision would bar workers in
congressional offices and throughout the legislative branch from
pursuing most of their discrimination claims in Federal court,
including many sexual harassment, discrimination, and retaliation
claims, only leaving available an inadequate and secret remedy.
In Miller v. Clinton, the majority held that the State Department
violated the Age Discrimination in Employment Act when it imposed a
mandatory retirement age and fired an employee when he turned 65. The
State Department argued that it was exempt from the statute in light of
a separate Federal law that permits U.S. citizens who are employed
abroad to be excepted from U.S. anti-discrimination laws.
The majority disagreed and held that there was nothing in the Basic
Authorities Act that abrogates the broad proscription against personnel
actions that discriminate on the basis of age and that the necessary
consequences of the Department's position is that it is also free from
any statutory bar against terminating an employee like Miller solely on
account of his disability or race or religion or sex. Judge Kavanaugh
dissented, arguing that the Basic Authorities Act overrides existing
anti-discrimination laws. His willingness to embrace such a broad
exemption from anti-discrimination laws is troubling.
Once again, we see a pattern in Judge Kavanaugh's rulings, favoring
the powerful over individual rights.
In Rattigan v. Holder, Judge Kavanaugh dissented from a majority
decision which ruled that an African-American FBI agent could pursue a
case of improper retaliation for filing a discrimination claim, where
the agency started a security investigation against him, as long as he
did so without questioning unreviewable decisions by the FBI's Security
Division. He stated that the entire claim must be dismissed despite the
majority's warning that this was not required by precedent and that the
courts should preserve ``to the maximum extent possible Title VII's
important protections against workplace discrimination and
retaliation.'' Judge Kavanaugh was in the minority on that opinion.
Judge Kavanaugh's dissents in these cases embrace positions that
carve out Federal employees from the protections of Federal employment
discrimination laws or limit their ability to enforce such rights.
Judge Kavanaugh has a pattern of ruling against workers and employees
in other types of workplace cases as well, such as workplace safety,
worker privacy, and union disputes. Let me cite a few examples.
In SeaWorld of Florida, LLC v. Perez, Judge Kavanaugh once again
dissented from a majority opinion upholding a safety citation against
SeaWorld following the death of a trainer who was working with a killer
whale that had killed three trainers previously. While the majority
deferred to the Occupational Safety and Health Review Commission's
finding that SeaWorld had insufficiently limited the trainers' physical
contact with the whales, Judge Kavanaugh strongly disagreed and
questioned the role of government in determining the appropriate levels
of risk for workers.
In National Labor Relations Board v. CNN America, Inc., Judge
Kavanaugh dissented in part from Chief Judge Garland's majority opinion
upholding a National Labor Relations Board's order that CNN recognize
and bargain with a worker's union and finding that CNN violated the
National Labor Relations Act by discriminating against union members in
hiring. Judge Kavanaugh dissented from the finding that CNN was a
successor employer, and his position would have completely absolved CNN
of any liability for failing to abide by the collective bargaining
agreement.
In National Federation of Federal Employees v. Vilsack, Judge
Kavanaugh dissented from the DC Circuit majority's ruling that
invalidated a random drug testing program for U.S. Forest Service
employees at Job Corps Civilian Conservation Centers. The majority,
which included another Republican-appointed judge, observed that there
was no evidence of any difficulty maintaining a zero-tolerance drug
policy during the 14 years before the random drug testing policy was
adopted and that the primary administrator of the Job Corps, the
Department of Labor, had no such policy. That didn't affect Judge
Kavanaugh--he dissented and would have restricted employees' privacy
rights.
In American Federation of Government Employees, AFL-CIO v. Gates,
Judge Kavanaugh authored the majority opinion that reversed the lower
court's partial blocking of Department of Defense regulations, which
had found that many of the Pentagon's regulations would ``entirely
eviscerate collective bargaining.'' Judge Kavanaugh disagreed. Judge
Tatel dissented in part, noting that Judge Kavanaugh's majority opinion
would allow the Secretary of Defense to ``abolish collective bargaining
altogether--a position with which even the Secretary disagrees.''
In Heller v. District of Columbia, after the Supreme Court decided 5
to 4 in the 2008 case of District of Columbia v. Heller that the Second
Amendment protects an individual's right to bear arms, Washington, DC,
passed laws that prohibited assault weapons and high-capacity magazines
and that required certain firearms to be registered. We know the Heller
decision, and we know the importance of the Heller decision's extending
individual rights under the Second Amendment. Yet, after the District
passed a law involving assault weapons and high-capacity magazines, the
same plaintiff, Richard Heller, argued that the new gun laws violated
the Second Amendment.
In the 2011 case of Heller v. District of Columbia, a panel of three
Republican-appointed judges ruled 2 to 1 that DC's ban on assault
weapons and high-capacity magazines was constitutional. It happened to
be three Republican-appointed judges. The ruling was 2 to 1. You
guessed it--Judge Kavanaugh was the dissenter and would have held that
the ban on assault weapons was unconstitutional. He wrote in that
opinion that there was no difference between handguns and assault
weapons in that regard. I find that very troubling if he does not see
the difference between a handgun and an assault weapon.
A Justice Kavanaugh would worsen the problems caused by the Supreme
Court's decision in Citizens United, which gave corporate speech First
Amendment protection, increasing the flow of money into our elections.
His record indicates he would continue opening the floodgates of dark
and secret money into our political system. We have enough money
already in the system, and we don't need more. A Justice Kavanaugh, to
me, would mean an open season on more special interest money getting
into our election system.
In the case of EMILY's List v. Federal Election Commission, Judge
Kavanaugh wrote the opinion for a conservative three-judge panel that
struck down FEC rules that were developed to address the influx of
spending by outside groups and paved the way for the creation of super
PACs.
Judge Kavanaugh has been critical of the Chevron deference. Under
Chevron, which is named for a 1984 Supreme Court opinion, courts defer
to reasonable agency interpretations when Congress has been silent or
ambiguous on an issue.
In a 2017 speech at Notre Dame that honored Justice Scalia, Judge
Kavanaugh said: ``The Chevron doctrine encourages agency aggressiveness
on a large scale. Under the guise of ambiguity, agencies can stretch
the meaning of statutes enacted by Congress to accommodate their
preferred policy outcomes. I saw this firsthand when I worked in the
White House, and I see it now as a judge.''
Judge Kavanaugh's proposed solutions to Chevron is to simply
determine the best reading of the statutes, and courts would no longer
defer to
[[Page S6518]]
agencies' interpretations of statutes. Such an interpretation would put
environmental, public health, and consumer protection interests at
great risk.
Judge Kavanaugh would have struck down the Consumer Financial
Protection Bureau as unconstitutional when he wrote the majority
opinion in a panel decision. An en banc panel of the DC Circuit
ultimately vacated that and remanded Judge Kavanaugh's decision,
upholding the constitutionality of the Dodd-Frank reforms, including
the Consumer Financial Protection Bureau.
That is what is at risk with a Justice Kavanaugh--that type of
decision-making that hinders consumer protection, public health, and
environmental issues.
The purpose of the Chevron doctrine is to allow government agencies
to carry out congressional intent, as our agencies are carrying out and
interpreting increasingly complex statutes. Judicial review of such
interpretations is governed by a two-step framework that was included
in the Chevron case.
The Chevron framework of review usually applies if Congress has given
an agency the general authority to make rules with the force of law. If
Chevron applies, a court asks at step one whether Congress directly
addressed the precise issue before the court, using traditional tools
of statutory construction. If the statute is clear on its face, the
court must effectuate congressional intent. However, if the court
concludes instead that the statute is silent or ambiguous with respect
to the specific issue, the court proceeds to Chevron's step two.
At step two, courts defer to the agency's reasonable interpretation
of the statute. This is just common sense. Even the late conservative
Justice Antonin Scalia defended the Chevron doctrine as an important
rule-of-law principle.
As the Leadership Conference on Civil and Human Rights has stated,
Federal agencies issue regulations addressing a wide array of civil and
human rights issues, including environmental protection, immigration
policy, healthcare protection, education laws, workplace safety, and
consumer protections. A Justice Kavanaugh will put all of these
protections at risk.
Judge Kavanaugh's performance at his hearing and his answers to
questions for the record did not provide me any additional comfort
about his nomination. Indeed, Judge Kavanaugh's testimony, judicial
record, and legal career reveal a disturbing pattern.
I believe he would be a Justice with an activist, conservative agenda
who could disregard precedent to reach a desired outcome. A Justice
Kavanaugh could serve as a rubberstamp for the worst successes of the
Trump administration.
Judge Kavanaugh had several opportunities to stand up for the
independence of the judiciary and the rule of law. He has refused to
condemn President Trump's attack on Justice Ginsburg or Judge Curiel
due to his Mexican heritage. I recall by contrast, when we had Judge
Gorsuch before us with his confirmation hearings, he said that ``when
anyone criticizes the honesty or integrity, the motives of a Federal
judge, well, I find that disheartening, I find that demoralizing,
because I know the truth.'' Judge Kavanaugh wouldn't even go that far.
Judge Kavanaugh refused to comment on President Trump's repeated
attempts to politicize criminal prosecutions at the Department of
Justice.
His testimony following Dr. Ford's testimony is particularly
troubling. His tirade against members of the Judiciary Committee, his
partisan attacks, and his conspiracy theories reveal real concerns to
me about his impartiality and judicial temperament and whether he would
be a partisan on the Court. The American people want an independent
voice on the Supreme Court to protect their individual rights against
those in power, be it the President or powerful corporate interests.
Under our Constitution, the courts must act as an independent branch
of government and as a check and balance against the abuse of power.
The Supreme Court is the guardian of America's constitutional rights
against the powerful. After reviewing Judge Kavanaugh's record, I
believe he is not the right choice to safeguard these fundamental
principles. I will vote no on his confirmation to the Supreme Court.
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. LEAHY. 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. LEAHY. Mr. President, it is extraordinary where we find ourselves
today. We are on the verge of a cloture vote and possibly a
confirmation vote for Judge Kavanaugh to join the Supreme Court. At the
same time, we have credible allegations of sexual assault against a
nominee, and they are not just lingering; they are developing.
The FBI investigation that we hoped would be full and fair has turned
out to be neither after the Trump White House and Senate Republicans
appear to have successfully imposed so many restrictions as to render
it almost meaningless.
I am afraid that from the very beginning of this nomination, the
vetting of Judge Kavanaugh has never been a genuine effort to discover
the truth. Instead, at every turn, it has been a transparent and
partisan attempt to keep the American people in the dark about the
vulnerabilities of a controversial nominee who, if he is confirmed, is
going to shape our lives for a generation.
From start to finish, at every step, this has been a unilateral
effort by the Trump White House and Senate Republicans to protect their
nominee instead of protecting the American people or--I might say--to
protect the Supreme Court. They have been driven by the impulse to rush
and to conceal.
I want to commend my friends Senator Jeff Flake and Senator Chris
Coons for working together in good faith to demand more from this
process. An investigation into the serious allegations of sexual
misconduct by Judge Kavanaugh is the first step, but it should have
happened weeks ago.
Until now, such investigations have been routine any time new,
derogatory information surfaces about a nominee. Unfortunately, the
investigation completed over the last few days falls short of any
reasonable standard. I think it fell short by design.
We have already heard about many of its deficiencies from Dr. Ford,
Ms. Ramirez, and numerous other witness who attempted unsuccessfully--
attempted unsuccessfully--to share relevant information with the FBI.
The Senate Republican leadership and the Trump White House did
everything in their power to assure that this investigation was not a
search for truth but rather a search for cover.
A search for truth would have allowed the FBI to interview Dr. Ford's
husband and her therapist, both of whom have stated that Dr. Ford
mentioned Kavanaugh as her assaulter years ago.
A search for the truth would have allowed the FBI to interview
numerous high school and college classmates who have come forward
saying they could provide information about Judge Kavanaugh's conduct
during those years that was consistent with the allegations and which
contradict Judge Kavanaugh's sworn testimony.
A search for the truth would have allowed the FBI to interview a man
who wrote a sworn statement asserting that he could help corroborate
Ms. Ramirez's allegations or two women who contacted authorities with
evidence that Judge Kavanaugh tried to head off Ms. Ramirez's story
before it became public. That was an apparent contradiction--a total
contradiction--with his testimony before the Judiciary Committee. In
fact, a search for the truth would have allowed the FBI to at least
speak with Julia Swetnick, a third accuser. A search for the truth
would have allowed the FBI to speak with Mark Judge's ex-girlfriend,
who recalled that Mr. Judge told her ``ashamedly'' about a sexual
incident that eerily mirrors both Dr. Ford's and Ms. Swetnick's
allegations.
There is no mistake here: This investigation was rigged by the White
House and Senate Republicans.
Instead of calling on the FBI to take these basic investigatory
steps, inexplicably, the Republican-controlled Judiciary Committee has
solely tried to discredit these women. The committee released a
statement from a former acquaintance of Ms. Swetnick's.
[[Page S6519]]
This individual had no knowledge of the alleged incident but instead
salaciously described the alleged sexual interests of Ms. Swetnick's.
According to the National Task Force to End Sexual and Domestic
Violence--one of the most nonpartisan and respected voices on Capitol
Hill--this shameless attempt to smear a victim violates the intent of
the rape shield law. And to add to it, Ms. Swetnick was never even
interviewed by the FBI. She was ignored. She was silenced. Then she was
shamed. It is outrageous, the way she was treated.
Republicans have also claimed that the other individuals Dr. Ford
identified at the gathering where she was assaulted have ``refuted''
her testimony. Well, that is just false. These individuals stated
publicly that they do not recall the event. As Dr. Ford told the
Judiciary Committee, that is not surprising, as ``it was a very
unremarkable party . . . because nothing remarkable happened to them
that evening.'' Yet one of these individuals has said publicly that she
believes Dr. Ford.
After reviewing the FBI's report this morning, within minutes,
Republican Senators claimed there is a lack of corroborating evidence
for any of these allegations. Despite the numerous restrictions they
placed on this investigation, that claim is simply not true. But a
predicate fact for developing thorough corroborating evidence is a
thorough investigation. That is basic. And this investigation false far
short. It is a disservice to Dr. Ford, Ms. Ramirez, and Ms. Swetnick. I
would go further to say that it is a disservice to survivors anywhere
in this country.
Dr. Ford's credible and compelling testimony captivated the Nation
and inspired survivors of sexual violence across the country. In a
moment that I will never forget, when I asked her for her strongest
memory, something from the incident she couldn't forget, she replied:
``Indelible in the hippocampus is the laughter, the uproarious laughter
between the two'' as a teenage Brett Kavanaugh drunkenly pinned Dr.
Ford down to the bed and attempted to sexually assault her. I believe
what she said.
The reason that a thorough, independent investigation is so critical
is not because we need additional proof that Judge Kavanaugh was not
telling the truth about his high school drinking or the obvious
misogyny in his yearbook or whether he is ``Bart O'Kavanaugh'' who
passed out from drunkenness. All of us here know he wasn't telling the
truth in his testimony about that. The reason we needed a thorough
investigation is that these women have offered credible accusations,
and they have identified potential corroborating witnesses and
evidence, and the Senate needs to know all of the facts before it can
place the accused on the Nation's highest Court for a lifetime
appointment.
A thorough investigation is essential for another reason: We simply
cannot take Judge Kavanaugh at his word. On issues big and small,
anytime Judge Kavanaugh has been faced with questions that would place
him in the middle of controversy, he has shown he cannot be trusted to
tell the truth. Every single time he has testified before the Senate
over the years, he has misled and dissembled. He misled the Senate
about his role in a hacking scandal, in confirming controversial
judicial nominees, and in shaping the legal justifications for some of
the Bush administration's most extreme and now discredited policies.
His appearance before us last week was no different. He gave
testimony that veered into a tirade. He angrily dismissed Dr. Ford's
testimony as part of a smear campaign to ruin his name and sink his
nomination. His conspiratorial ramblings--attributing the allegations
to ``revenge on behalf of the Clintons''--were an insult to Dr. Ford,
and they are an insult to survivors of sexual violence across the
country. He evaded--as he always has when under oath--basic factual
questions, choosing instead to show his disdain for members of the
committee who had the audacity to ask him about his behavior during the
time of the allegations.
In my 44 years in the Senate, I have voted for more Republican-
appointed judges than almost all serving Republican Senators. That
includes voting for Chief Justice Roberts. But I have never seen such a
partisan performance by a nominee of either party to the Supreme Court
or any other court. I have never seen a nominee so casually willing to
evade and deny the truth in the service of his own raw ambition.
If truth under oath means anything at all, Judge Kavanaugh has
disqualified himself over and over and over again. He has neither the
veracity nor the temperament for a lifetime appointment to the highest
Court in our Nation. The truth has an odd way of coming out, one way or
another. To avoid risking permanent damage to the integrity and
legitimacy of our Nation's highest Court, I urge Senators to join me in
voting no on Judge Kavanaugh's nomination.
Mr. President, I do not see anyone else seeking the floor, so I will
suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Cassidy). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. COONS. 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. COONS. Mr. President, it was a week ago today that Members of the
Senate Judiciary Committee, on which I serve, were riveted by the
compelling and powerful testimony of Dr. Christine Blasey Ford. It was
a week ago today that Judge Brett Kavanaugh delivered his forceful
rejoinder and rebuttal.
Today I want to take a moment and share with Members of this Chamber
and folks who may be watching something else that was happening during
this entire hearing that I did not expect. It was powerful and unique
and special in my experience as a public servant, and I have heard, as
I have listened to other Senators of both parties who were present and
with whom I talked to afterward, it was their experience as well:
This conversation is bigger. It is bigger, it is pressing, and, I
would say, it is more important than the question of one Supreme Court
seat and one current nominee. It is a question that we, as a country at
the highest levels of power, believe victims and survivors of sexual
assault and are willing to listen to them, to believe them, and to take
action.
So what was it that happened last Thursday? As I tried to pay
attention to the remarkable testimony of Dr. Ford, my phone was blowing
up. I got texts, I got instant messages, I got phone calls, I got
emails, I got Facebook posts--I got messages in more ways that you can
connect with me than I knew was possible. These were stories--powerful
stories--stories that friends of mine, people I have known for years or
decades, people I barely know or people I hope to get to meet. They
were sharing with me stories of assault. They were told by classmates,
neighbors, friends, constituents, people who had carried these burdens
alone for years.
These stories are difficult to hear, but it is important that they be
heard. It is important to understanding why survivors stay silent, and
it is important to understanding why we, as a body and a nation, must
get this moment right. They are important to understanding why the
President and others are wrong when they say that if a victim's
allegations are true, she would have filed a report or come forward
decades ago.
In response to the question, why didn't Dr. Christine Blasey Ford
come forward earlier, I have just this experience to share. The texts
and emails, the conversations in person and over the phone, with
friends I have known for so long and friends I have just met, make it
powerfully clear to me that the many ways in which assault and
violation happens in our country between people have as many different
reasons why they hide them, carry them, and keep them in darkness and
quiet and in shame, and each one of those stories reminds me even more
powerfully the reasons we must--we must--demonstrate that they are
heard.
One friend from Delaware, a cancer survivor--someone I have spoken
about on this floor before because of her survival of a nearly life-
ending cancer--confided in me she was terrorized and raped as a small
child. Living with the effects of that experience, she said, has been
way harder than cancer. She said to me early childhood trauma can be
murky and difficult to describe and
[[Page S6520]]
doesn't lend itself easily to a courtroom narrative understanding. She
is right.
A male friend, someone I know from high school, shared with me an
experience he had during a spring break trip. He shared how, on a
biology field trip to Mexico, when he sought help from a trip organizer
after snorkeling fins blistered his ankles, after administering first
aid in the hotel room, he was assaulted. His comment was he was too
shocked to call for help and did not tell anyone for over three
decades.
He is right. She is right. They are not alone.
Today I want to share a few more stories shared over the last weeks
by brave men and women who are shining a light on the challenges, the
fear, the shame, and the anger surrounding sexual assault. This is
under the hashtag ``Why I Didn't Report.'' I think it helps lend some
understanding to the dynamics of surviving assault.
Under the hashtag ``Why I Didn't Report'': ``I had known him for
years,'' one victim said.
Why I didn't report:
Because he was ``sorry.'' Because I was drunk. Because I
was young and ashamed and felt like I had somehow asked for
it even though I had said NO and STOP. . . . Because even
typing this still makes me feel it all again.
Another, in response to this hashtag, said:
Because my counselor said they won't believe you because
you're not a pretty girl.
Another said:
I blamed myself. I was humiliated and hurt. I thought they
were my friends. I felt safe until I wasn't and then it was
too late. I wanted to wash it away and never think about it
again.
Another said:
Because I feel ashamed of what happened and didn't want to
publicly ruin someone's life, even though they privately
ruined mine.
Because:
He was my boyfriend and I was sleeping. He told me he had
been accused of this before and it wasn't rape because we
were dating.
Another victim posted:
My mom did report my 18 year old cousin when I was 9. I had
to testify sitting across a table from him. I froze and
cried, couldn't speak. All charges were dropped.
Earlier this week, at a townhall at the Delaware City Fire Company,
someone I have known for decades got out of her car, came up to me,
gave me a huge hug, and, weeping, said: I never told my husband, I
never told my son, and today I have. In her voice, there was both heavy
emotion and an enormous sense of relief--and, I have to say, for me, a
sense of great pain that I was wishing I could do nothing except sit
and listen, to honor her story, to provide some sense of comfort and
support and recognition. Yet I had to move on to the townhall after a
few moments.
At a dinner here in Washington just last night, someone shared with
me an amazing story of her daughter's suffering. To hear a story of
that power and pain in the midst of a social setting is both wonderful,
in that they are trusting with a story they have held on to for so
long, and terrible, in that it is a reminder of the ways in which we
speak to each other of surviving assault in hushed tones and in dark
corners and on the internet and anonymously.
Whatever comes out of this week, whatever comes out of the
proceedings of this floor today, tomorrow, and this weekend, we must
listen and recognize that hundreds of thousands of American women and
men have been victims, are victims, and will be victims, of sexual
assault--and, according to our Department of Justice, at least two-
thirds have never reported it.
There is an ocean of pain in this Nation not yet fully heard, not yet
appropriately resolved, not yet fully addressed. Everyone--everyone--
everyone within earshot of my voice--the women and men in this Chamber,
staff, journalists, colleagues, friends, members of the public, those
who think Brett Kavanaugh should be a Supreme Court Justice and those
who do not, those who have either themselves been victimized by assault
or know someone, a loved one, a family member, a neighbor, a classmate,
a fellow parishioner, a colleague, or a friend--we all--all--have an
opportunity here, a moment, to make it clear that we welcome and will
respect and listen to and act on stories that have been and will be
shared with us and that we will act.
If I could make one request, it would be that we come out on the
other side of these last few weeks with an awareness of those who are
in silent, deep, and lonely pain--often right next to us, all around
us, in our families, in our churches, in our workplaces, and in our
communities--and that we give them the listening, the understanding,
and the embrace to help them heal.
You know, in today's hyperpartisan environment, where we are quick to
question motives of others and search for any excuse to discredit,
devalue, and doubt, I also wanted to add one small but I think
important point: Every victim who has spoken to me in the past week was
not looking for anything. They were not looking for a settlement. They
were not looking for some lawsuit. They were simply looking for
acknowledgement. They were looking to share something they have carried
too long alone. They just wanted to be heard.
Our country is watching. This is a moment where the Senate as an
institution and the country as a whole need to show we can and will do
better. I hope we will listen--that we will listen as we continue to
move forward important legislation: the Violence Against Women Act,
which my predecessor, then-Senator Biden, helped champion in a
bipartisan way over several Congresses; the Victims of Child Abuse Act,
which even now I am working with a bipartisan team to try to get
through this Chamber to be reauthorized. There are many more things we
can and should do to work to combat sexual abuse and sexual assault and
to help prevent and heal.
What I most want to say today, to my friends and acquaintances, to my
constituents and my community, to my Nation and the world that may well
be watching this moment in the United States, to those whose stories I
have just shared and whose stories I have just heard, I simply want to
say this: You have touched my heart deeply. I hear you, and I thank
you.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. MURPHY. 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. MURPHY. Mr. President, this is the first time I have come to the
floor to speak on the nomination of Brett Kavanaugh since the events of
the last several weeks. I want to say this at the outset in the most
dispassionate way I can: I have come to the conclusion Brett Kavanaugh
is perhaps the most dangerous nominee for the Supreme Court in my
lifetime, and I am going to vote no tomorrow when the cloture vote
comes before this Senate.
Let me be clear. I had decided to vote no before his confirmation
hearing, before the allegations of sexual assault were levied against
him, before his second confirmation hearing, before the FBI refreshed
its background check investigation. That doesn't mean I wasn't willing
to do my due diligence; it is simply that his judicial record, which I
became familiar with as he was becoming known as one of the finalists
for this selection, was enough for me to decide he wouldn't rule fairly
on the questions before the Court that affect the millions of people I
represent in Connecticut.
Every year, I take a walk across my State. It takes about 5 days. It
is about 120 miles, give or take. It is a chance for me to conduct a
weeklong running focus group where I get to talk to hundreds of voters
who aren't plugged into politics on a daily basis. The people I meet at
gas stations and auto body shops and folks who are out walking their
dog in the morning are part of the 98 percent of Americans who don't
watch Sean Hannity or Anderson Cooper or Rachel Maddow. Yet they have
strong opinions about what is happening in this country just like
everybody else, and I am glad they share them with me.
For the last 2 years, since President Trump took office, the No. 1
topic people talk to me about during the walk is healthcare. People in
Connecticut are scared about what they see as a coordinated effort that
is underway in Washington to take away their insurance coverage and the
protections for people
[[Page S6521]]
in my State who have preexisting conditions.
Folks in Connecticut don't think the Affordable Care Act is perfect.
They want us to work on making it better, but they don't want us to end
it without a plan for what is going to come next. They were glad when
the repeal plan was defeated last year. Now they are worried that
President Trump is trying to use the courts to get done what he
couldn't get done in the people's branch of government, the legislative
branch.
Brett Kavanaugh was vetted by two conservative political groups whose
chief legislative priority is repealing the Affordable Care Act come
hell or high water. The head of one of those groups said on television
it really didn't matter to him which of the names on the list Trump
picked because they all shared their group's priorities. Trump himself
told the American public he would never pick a judge like John Roberts,
who voted to uphold the major parts of the Affordable Care Act.
Kavanaugh, in his judicial writing, has been hostile to the
Affordable Care Act. Frankly, I will take the President's word for it.
He picked Brett Kavanaugh to help him unwind judicially a law he
couldn't unwind legislatively, and that will have huge consequences on
folks in my State who need insurance coverage for things like cancer,
addiction, or mental illness.
While Kavanaugh hasn't said a lot specifically on the ACA, his views
on choice are pretty well known. As a lawyer in the Bush White House,
Kavanaugh went out of his way to note that Roe v. Wade isn't settled
law, that it would take just five Supreme Court Justices to get rid of
it.
As a circuit court judge, he denied access to an abortion for a young
immigrant girl, even though she met the legal criteria to receive the
procedure. He uses rhetoric and terminology that is right out of the
anti-choice dictionary when talking about reproductive healthcare. He
talks about abortion on demand. He called birth control an abortion-
inducing drug.
Kavanaugh, no doubt about it, is going to vote to overturn Roe v.
Wade. Any Senators who have convinced themselves otherwise are living
in a fantasy world.
The people I represent in Connecticut don't want the Supreme Court of
the United States telling them what they can and cannot do with their
bodies. The judicial doctrine of privacy comes from a Connecticut case,
Griswold v. Connecticut, brought by a pioneering civil rights lawyer in
New Haven. In my State, we prefer judges to stay out of our private
business.
Finally, when I am walking across the State of Connecticut, I am
talking an awful lot about the issue of gun violence. It is not just
the murder of 20 little first graders in Sandy Hook that still hangs
heavy over Connecticut; it is the murders in Hartford, New Haven,
Bridgeport, and the suicides all over our State continue unabated.
Listen, it is not as though everybody I meet when I am walking across
the State agrees with me on what we should do. When I walk east to
west, I spend half of my time in Eastern Connecticut--a part of the
State where people still love their guns, and I get into lots of
spirited arguments about assault weapons and gun permits. What there is
relative agreement on is that it is our choice on how we should
regulate guns.
Here is where Judge Kavanaugh's views get outside of the mainstream.
His testimony before the Judiciary Committee suggests that he is a
Second Amendment radical, believing almost all restrictions on gun
ownership are likely unconstitutional. Here is a for instance: He
stated in his testimony, as long as a weapon is in regular commercial
use, it can never ever be banned. That is a recipe for disaster because
all you need then is a very short period of legalization of automatic
weapons, followed by a few years of robust commercial sales, and then
that gun has permanent constitutional protection forever. That is
absurd, but that is Brett Kavanaugh's view on the Second Amendment.
What I am saying is this. I didn't need the tragic drama of the last
few weeks to know how I felt about Brett Kavanaugh serving on the
Supreme Court. I was an early ``no'' vote, and I don't apologize for
coming to that conclusion months ago. Yet that doesn't mean I am not
entitled to have a strong opinion on what has played out before the
eyes of America during the month of September, and it doesn't mean I
don't have the right to make the argument here that for those in the
Senate who weren't as sure as I was, what happened in the last 30 days
should be dispositive on the future of this nomination.
I said at the outset, I thought Brett Kavanaugh is the most dangerous
nominee to the Court in my lifetime. That opinion is one I arrived at
only after hearing his testimony before the committee last week.
I think it is really important for Senators to understand the
Pandora's box they are opening by voting yes, endorsing his
performance, his demeanor, and what I argue is maybe most important:
his bias.
Let me say first, I don't believe any Democrat should defend the way
in which Christine Blasey Ford's allegations were brought to light. I
don't know who leaked the contents of that letter. I think it is fair
to guess it was somebody who didn't want Brett Kavanaugh confirmed. Dr.
Ford should have controlled her story or at least the ranking member of
the committee to whom she entrusted it should have controlled that
story. The timing of its release just sucked. Something that explosive,
that serious, shouldn't be shoved into debate at the very last minute.
Here is the thing. The way in which the substance is revealed does
not change the substance. Yet it may give you reason to be angry about
the way in which it was made known. It may make you suspicious of the
motivations of the person who did it, but the method doesn't alter the
substance. The substance is Dr. Ford's very credible account of a
sexual assault carried out against her by somebody who wants to be on
the Supreme Court.
Let me be clear. There is no reason not to believe Dr. Ford. Plenty
of Republicans admitted to this after she came before the committee.
She disclosed the incident well before Kavanaugh was nominated. She was
composed, credible, and thoughtful in her testimony. Why on Earth would
she put herself and her family through this horror if not because she
is telling the truth?
Though I believed Dr. Ford, you frankly don't even have to be sure
she is telling the truth to decide the risk of nominating someone with
these kinds of serious charges swirling around them is an unnecessary
burden for this body or the judicial system to bear. If there is a
chance he did these things, just move on to the next eligible
conservative candidate.
These charges bother me greatly. What truly shook me about
Kavanaugh's testimony and the speeches many of my Republican colleagues
have delivered on this floor since is the idea proffered by Judge
Kavanaugh that these charges are simply a result of a Clinton-connected
liberal conspiracy theory.
Let me read for you what he actually said last Thursday.
When I did at least okay enough at the hearing that it
looked like I might actually get confirmed, a new tactic was
needed. Some of you were lying in wait and had it ready.
He then went on to allege:
The whole 2-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
had been stoked about my judicial record, revenge on behalf
of the Clintons.
Come on. Listen, I am telling you that I don't like how this
information was released to the press. I am not trying to be a blind
partisan here, but to believe and then to publicly claim that this is
some larger organized effort by Democrats who purposefully held back
this allegation until the last minute is to reveal to America your true
political bias.
There was no conspiracy. There was no orchestrated smear campaign.
Listen, if that was our MO, why didn't we use it on Neil Gorsuch, when
there was even more anger on our side because that was the seat that
should have been Merrick Garland's. Why didn't we use fake allegations
of sexual misconduct against the President's Cabinet nominees, who
engendered much more grassroots anger in early 2017 than Brett
Kavanaugh did in the summer and fall of 2018?
[[Page S6522]]
It just doesn't make sense because it is made up. There are zero
facts behind it, and for a nominee to the Supreme Court to believe such
a far-fetched story and then to angrily warn Democrats that ``what goes
around comes around,'' is one of the most astonishing unveilings of
political bias that I have ever witnessed from a nominee asking for the
support of the Senate. That has serious long-term consequences for us
as a republic, because it used to matter that in the midst of all of
our political heated debates here, there were at least nine people in
America whom Americans could credibly believe didn't care about our
usually petty political partisan fights. There were nine people that
Americans could believe were above it all.
Now we are on the verge of perhaps sending someone to the Supreme
Court who called Democrats ``embarrassments'' and who warned his
political opponents menacingly that we will reap what we sow. I don't
really know what that means, but I am sure that I know that I don't
want a nominee to the Supreme Court saying anything like that.
Now, the fight over the Kennedy seat was going to be controversial
and contentious. There is no way around that, but it didn't need to go
down like this. It didn't need to divide this country. It didn't need
to marginalize victims and to politicize the Supreme Court, like this
nomination has.
Add to the conspiratorial beliefs the hatred that was oozing from him
toward Democrats that day and the likelihood that this nominee was also
lying over and over about, at the very least, relatively small things
for which he had really little reason not to tell the truth.
I am sorry. I know this sounds trivial, talking about things like a
devil's triangle or boofing, but is it really not too much to ask, to
expect that a nominee for the most important court in the world tell
you the truth even about the small embarrassing stuff?
Even if you don't believe Dr. Ford, I just don't know why you would
want to put somebody on the Supreme Court who has a habit of fibbing.
This is the Supreme Court.
So I guess, for me, it comes down to this question, which I think is
a really, really important one: Why did Republicans stick with Brett
Kavanaugh, given all of this, when Republicans could have just sent him
back to the President and brought before this body another really
conservative judge who would have regularly sided with the right side
of the Court?
This process isn't a trial. It is a job interview. Not a single one
of us would hire someone into our office if credible allegations like
this were attached to that person or if they conducted themselves in an
in-person interview the way that Brett Kavanaugh did on Thursday.
Seriously, think of that. Not a single Senator would willingly hire a
person with these questions surrounding him or her, but we are here
with a vote pending in a matter of hours.
Now, I just came from that secure briefing room where I was force-fed
a half-baked FBI investigation that I was told I had to read and digest
in no more than an hour. It was humiliating. I felt like I was 9 years
old.
But that humiliation was sort of the capstone for me on explaining
why we are still moving forward on Brett Kavanaugh. At least it helped
me to fill out the details of my theory of the case, and I will end
here.
Listen, I get it that it is really hard to be a Republican today, and
I mean that sincerely. The things that the Republican Party used to
stand for have been obliterated by this President. The Grand Old Party
has become the party of Trump. There is only a thread of unifying
ideology left between this administration and congressional
Republicans. Republicans are much more so organized now around a kind
of cult of personality. I know that many of my Republican colleagues
are really uncomfortable about this.
Without this unifying set of ideas that can bind together the
President and congressional Republicans, I fear that you are using this
nomination to cling to the one thing left that you can agree on, and
that is the methodical complete domination of your political opponents.
On social media they call it ``owning the libs,'' because why else
would you stick with this nominee other than just because you want to
shove down the throats of Democrats this deeply flawed nominee? Why
else would you try to railroad through his nomination without a
background check, and then, when you are forced to do one, humiliate us
all by giving us 60 minutes to review what turned out to be a product
that raises more questions than it answered?
I wish the answer was that you all think that Brett Kavanaugh is
worth it. He is just that important a jurist, that serious a thinker to
do whatever it takes to get him on the Court, but I don't think that is
what Republicans believe. So we are left searching for the real reason
why we are having a vote tomorrow.
I don't hate my Republican colleagues. I don't have any interest in
dominating them or getting my way just to get my way, and I wish I
could explain this process, especially over the last few weeks, through
any other prism than the desire by Republican leadership to simply bury
Democrats into the ground.
I hate the way this has played out. I hate the lateness of the
revelation. I hate the rush job of an investigation. I hate the
inability to recognize that none of us, Democrats or Republicans, are
obligated to stand by a nominee that has real questions about his
history and his impartiality just because the President likes him.
This is not right. None of this is right, and the elevation of Brett
Kavanaugh to the Supreme Court, filled with hatred toward Democrats and
our allies, surrounded by legitimate questions about his fitness for
office, is totally unnecessary, even to try to accomplish the political
aims of my Republican friends in the majority. In the end, most
importantly, the way in which this has been done is deeply, deeply
hurtful to the unity of our great Nation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Ms. WARREN. Mr. President, last week, millions of people were glued
to their screens as Dr. Christine Blasey Ford testified before the
Senate Judiciary Committee. Dr. Ford's account of the most traumatic
event of her life was harrowing. The pain of retelling this story was
evident, and she did it for no personal gain whatsoever. In fact, her
life has been turned upside down as a result of her decision to come
forward. The courage she showed is remarkable. Dr. Ford's testimony was
credible and compelling. I believe Dr. Ford.
Judge Kavanaugh's testimony was very different. He spent more than 40
minutes ranting, raving, and pedaling fact-free partisan conspiracy
theories, and then he proceeded to insult Senators, to scream at the
people who had the nerve to question him. He evaded some questions and
gave obviously false answers to others. It was a performance that would
have been right at home on talk radio or in a Republican primary
campaign or at a Donald Trump rally, but it was delivered by a judge
who is asking the Senate to confirm him to a lifetime appointment to a
completely nonpolitical position as the swing vote on the U.S. Supreme
Court.
It is the job of the Senate to decide whether or not to confirm Judge
Kavanaugh. Senators must vote yes or vote no on elevating him to a
lifetime appointment on the Federal bench. It is not a criminal trial.
Nobody is entitled to a lifetime appointment on the Supreme Court. If
he is not confirmed, Brett Kavanaugh would still be serving as a
Federal judge on the second highest court in the United States, and the
President, I am sure, will nominate another candidate for this job.
For these reasons, I believe that Dr. Ford's credible allegations and
Judge Kavanaugh's partisan, venomous rants are sufficient reasons to
vote no on his nomination.
Now, my colleagues on the other side of the aisle saw the same
hearing. They watched Dr. Ford sit through hours of testimony. They
heard her when she clearly and unequivocally said she was 100 percent
sure that Brett Kavanaugh sexually assaulted her, and they watched
Judge Kavanaugh demonstrate to the world that he lacks the temperament
and the truthfulness to sit on the Nation's highest Court.
For those Senators who don't care that Judge Kavanaugh thinks the
multiple sexual assault allegations he
[[Page S6523]]
faces must be ``revenge on behalf of the Clintons,'' who simply aren't
sure whether those credible allegations are a sufficient reason to vote
no, and who would like to see more evidence, the sensible course of
action has always been obvious--a serious, nonpartisan FBI
investigation to uncover the truth as best we can to make sure we are
as informed as we can be before we have to vote. But that is not what
has happened.
First, instead of taking Dr. Ford seriously, Mitch McConnell
scheduled a committee vote on Judge Kavanaugh's nomination the next
day. He suspended the Senate vote only when it became clear that
Republicans wouldn't have the votes they needed if they tried to ram
the nomination through the Senate right at that moment.
Then the President offered the smallest fig leaf of an FBI
investigation. Now, I have just come from the secure room where the
summaries of FBI interviews and other FBI-generated documents were made
available.
Senators have been muzzled. So I will now say three things that
committee staff has explained are permissible to say without violating
committee rules--statements that I have also independently verified as
accurate.
One, this was not a full and fair investigation. It was sharply
limited in scope and did not explore the relevant confirming facts.
Two, the available documents do not exonerate Mr. Kavanaugh.
Three, the available documents contradict statements Mr. Kavanaugh
made under oath.
I would like to back up these three points with explicit statements
from the FBI documents--explicit statements that should be available
for the American people to see, but the Republicans have locked the
documents behind closed doors with no plans to inform the American
public of any new information about the Kavanaugh nomination.
The Kavanaugh nomination was a sham, and that is the President's
fault because the President is the one who limited the scope of this
investigation, who refused to allow it to continue for more than a few
days, and who refused to ensure that the FBI completed a thorough
investigation, including interviews with all relevant witnesses. The
statements the President made about the scope of the investigation were
false. If that wasn't bad enough, the President has viciously attacked
Dr. Ford for bravely coming forward to tell her story. How could any
Senator accept this sham?
It is clear the fix is in. Republicans want to confirm Judge
Kavanaugh to the Supreme Court, and they will ignore, suppress, or
shout down any inconvenient facts that might give the American people
pause about this nomination. Republicans are playing politics with the
Supreme Court, and they are willing to step on anyone, including the
victim of a vicious sexual assault in order to advance their agenda.
Judge Brett Kavanaugh's nomination to the highest Court in our
country is the results of a decades-long assault of our Judiciary,
launched by billionaires and giant corporations who want to control
every branch of government. For years, those wealthy and well-connected
people have invested massive sums of money into shaping our courts to
fit their liking. Working in partnership with their Republican buddies
in Congress, they have executed a two-part campaign to capture our
courts.
Part 1: Stop fair-minded, mainstream judges from getting confirmed to
serve on the Federal courts.
Part 2: Flood Federal courts with narrow-minded, pro-corporate
individuals who will tilt the courts in favor of the rich and powerful
and against women, workers, people of color, low-income Americans,
LGBTQ individuals, people with disabilities, Native Americans,
students, and everyone who doesn't have money or power right here in
Washington.
With Trump in the White House and Congress controlled by Republicans,
the wealthy and well-connected have a once-in-a-lifetime opportunity to
control our courts for the next generation.
During his Presidential campaign, President Trump made it clear that
rightwing, pro-corporate groups would not only have a voice in
selecting Supreme Court Justices, they would get to handpick their
favorites. So those groups handed him a list of their top picks for the
Supreme Court, and President Trump has picked judges exclusively from
that list.
His most recent selection is Judge Brett Kavanaugh. There are a lot
of reasons to oppose Judge Kavanaugh's nomination. I want to discuss
three of them: His record, the broken and biased confirmation process,
and the allegations of sexual assault.
Let's start with Judge Kavanaugh's record. Judge Kavanaugh has spent
12 years on the DC Circuit Court. His rulings demonstrate why radical,
rightwing groups and their friends in the Senate are so eager to give
him a seat on the Supreme Court. Pick an issue--almost any issue--and
there is ample reason to be alarmed.
One is a woman's right to make her own healthcare decisions. When the
Trump administration sought to block a young immigrant woman's right to
access abortion care, Judge Kavanaugh sided with the government,
claiming that allowing the woman, who had done everything necessary to
obtain access to an abortion, should be further delayed in obtaining
that care--a delay that would likely have prevented her from obtaining
an abortion.
When religious organizations challenged the contraceptive care
requirement of the Affordable Care Act, Judge Kavanaugh again opposed
access to reproductive care, arguing that requiring religious
nonprofits to submit a simple form allowing them to opt out of
providing comprehensive contraceptive coverage but ensuring that the
employees had access to that care was unconstitutional.
On consumer protection, Judge Kavanaugh ruled that the Consumer
Financial Protection Bureau, the agency that stands up for Americans
cheated by corporate criminals, is unconstitutional.
On environmental safety, he has ruled to overturn the rules that help
keep dangerous toxins out of the air we breathe and the water we drink.
On voting rights, he upheld South Carolina's discriminatory voter ID
laws.
On gun safety, he dissented from an opinion upholding an assault
weapons ban and a gun registration requirement. In speeches on gun
safety, he admitted that most lower court judges disagree with his
extreme position on the Second Amendment.
On money in politics, he wrote an opinion that would permit foreign
individuals to spend unlimited sums of money on issue ads in the U.S.
elections.
Oh, and when it comes to Presidential power and the rule of law,
Judge Kavanaugh believes that sitting Presidents shouldn't be subjected
to personal, civil, or criminal investigations while they are in
office. That is very convenient for the current occupant of the Oval
Office.
That is just the part of Judge Kavanaugh's record that we know about,
and that raises the second reason Judge Kavanaugh should not be
confirmed to the Supreme Court: the secretive process that Republicans
have used to advance his nomination. From the moment President Trump
announced Judge Kavanaugh's nomination, Republicans have worked
overtime to get him on the Supreme Court without giving Senators--or
the American people--a meaningful opportunity to examine his full
record.
Senate Republicans have played an elaborate game of ``hide the ball''
at every step of this process. Judge Kavanaugh spent many years in
government, but the Republicans have refused even to request hundreds
of thousands of documents from his time in service. They have
designated other documents as ``committee confidential'' to hide them
from the public. To top it off, just days before Judge Kavanaugh was
scheduled to come before the Senate Judiciary Committee, a Bush White
House attorney announced that over 100,000 documents from Judge
Kavanaugh's time in the White House Counsel's Office would be withheld
on the basis of constitutional privilege.
A few years ago, President Obama nominated Elena Kagan to the Supreme
Court. Like Judge Kavanaugh, she had served in public office. Unlike
the Kavanaugh confirmation process, the Kagan process included the
release of nearly every document related to her time in service. In
fact, no one has found an example of so much of a nominee's record in
government being hidden from the Senate and hidden from
[[Page S6524]]
the public as in Judge Kavanaugh's case.
The rushed and secretive process that has characterized Judge
Kavanaugh's nomination raises this question: What is he hiding? Why
doesn't he insist that his record be made public? Why doesn't he want a
full investigation of the sexual assault claims made against him? Why
won't Republicans insist on transparency and a meaningful
investigation?
Evidently, neither Judge Kavanaugh nor the Senate Republicans care
about the facts.
Judge Kavanaugh has been accused of sexually assaulting multiple
women. Dr. Christine Blasey Ford and Deborah Ramirez shared their
stories of sexual assault at the hands of Judge Kavanaugh and risked
their safety and the safety of their families to do so.
Instead of making sure that these allegations are thoroughly
investigated so the Senators and the public can make judgments based on
facts, Republicans launched a campaign to attack and discredit these
courageous women. Donald Trump openly mocked Dr. Ford at a political
rally, and the Republicans have made clear that their one and only goal
is to get Judge Kavanaugh on the Supreme Court. In fact, just last
week, Mitch McConnell told a group of conservatives: ``Don't get
rattled by all of this. We're going to plow right through it.''
Plow right through it? Really?
Americans are tired of the powerful plowing right through everyone
else to get what they want. There is a reason that so many women and
men have come out in droves to support Dr. Ford and Ms. Ramirez. It is
because people are tired of being ignored and silenced.
Judge Kavanaugh and his Republican sponsors don't want to talk about
the facts in this case. But let's talk about a few other facts. Over 80
percent of women and 40 percent of men have experienced sexual
harassment or assault; 7 out of 10 sexual assaults are committed by
someone the victim knows.
The vast majority of sexual assaults--about two out of three--are
never reported to the police. Why? Because survivors fear retaliation
or they believe that the police will not or can't do anything to help
or they think it is a personal matter or they confide in someone other
than the police or they believe it is not serious enough to report or
they don't want to get the perpetrator in trouble.
Last week, as Dr. Ford testified before Congress, the National Sexual
Assault Hotline saw a 147-percent increase in calls from people seeking
help. We have a problem of sexual harassment and sexual violence in
America. The problem isn't that too many victims are coming forward
with fabricated stories to destroy someone's life; it is that too many
survivors are afraid to come forward at all.
They believe they will not be heard or taken seriously or they think
more about the impact on the perpetrator than their own safety and
well-being or they think that people with power--the ones who can
actually do something--will instead ``plow right through'' them.
We never hear the stories of millions of sexual assault survivors.
But some make the very difficult and very personal decision to come
forward and tell their stories. They, like all survivors, are
courageous, and they deserve to be heard and treated with respect--not
dismissed, not attacked, not threatened.
The record, the process, the allegations--whichever way you slice
this--should lead to only one result: Members of this Chamber should
vote no on Judge Kavanaugh. Our country deserves better.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. UDALL. Mr. President, first let me begin by saying this: I
believe Dr. Christine Blasey Ford.
Her raw courage in coming forward will change the national culture
and discussion. She has given voice to millions of women and men who
are survivors of sexual assault, who are afraid to tell their stories,
who felt powerless. Some of these women have contacted my office with
their own stories. I have read them and they are heart-wrenching.
At its core, sexual assault is a crime of power. Dr. Ford has
confronted some of the most powerful in our Nation and told the truth.
I thank her for her courage in coming forward and for empowering other
survivors to do the same.
At this point, with so much unknown, there are serious consequences
to elevating Judge Kavanaugh to the Supreme Court.
We the Senate need to continue our search for the truth about this
nominee, his background, and his record, and, hopefully, we can do that
in a bipartisan way.
Yet everything about the nomination process for this nominee has been
deeply flawed, from the President's outsourcing the nomination to the
Federalist Society, to the majority leader's violating his own new rule
to delay consideration of a Supreme Court nominee until after an
upcoming election, to a highly partisan lawyer's screening Judge
Kavanaugh's documents for public disclosure instead of the nonpartisan
National Archives staff, to the Judiciary chair's rush to hearings,
even though only 7 percent of Judge Kavanaugh's record is in the public
domain.
What are they trying to hide? I think we have a pretty good idea.
Finally, and most disturbing, are the President's and the majority's
inexcusable treatment of the brave women who have come forward with
allegations of sexual assault and misconduct against the nominee. The
Republican leaders claim to want to hear the allegations of sexual
assault has been nothing but a cynical show for public consumption.
The #MeToo movement forced them to open the floor to Dr. Ford, but
her testimony was never really going to matter to President Trump and
the Republican leadership. The majority leader made that clear when he
bragged to an audience of the religious right before her hearing: ``In
the very near future, Judge Kavanaugh will be on the U.S. Supreme
Court.''
Republican leaders questioned why the allegations did not come
forward sooner. Yet the reasons survivors of sexual assault often don't
come forward are well documented and well understood, and they did
everything they could to undermine getting to the truth of Dr. Ford's
allegations--from refusing to honor her request for an FBI
investigation prior to her hearing to severely limiting the Democrats'
time for questions of Judge Kavanaugh before the Senate Judiciary
Committee, to refusing to call other key witnesses, like Mark Judge,
Deborah Ramirez, and others, and to put them under oath. It is
absolutely stunning that all 11 Republicans on the committee abdicated
their responsibilities and ducked public scrutiny by bringing in a
female prosecutor to do their job and question Dr. Ford. It is just
plain political cowardice, and women in New Mexico and around the
country are watching.
Again, after hearing her testimony and reviewing the record, I
believe Dr. Ford. It is worth noting that no Republican Senator has
said she is not credible. Not a single one has said she is not
credible. The majority whip stated: ``I found no reason to find her not
credible.''
The President found her testimony ``very compelling'' and that she
was a ``very credible witness.'' Although, true to form, the President
changed political course and insulted and mocked her in front of a
laughing crowd and television cameras--yet another shameful new low for
the President's treatment of women.
Dr. Ford's testimony was all the more compelling because she was able
to expertly explain how the memory of the assault was seared in her
hippocampus by neurotransmitters that were released in response to the
attack. Her memory of her assailant is fully intact. It insults Dr.
Ford and survivors generally to say, like Republicans have, that they
believe something happened to her but that it was not Brett Kavanaugh.
Dr. Ford is not mixed up, and contrary to what the Republicans would
tell you, there is strong corroborating evidence behind her
allegations. Years before this nomination, she had told her husband, a
therapist, and friends of the attack, and her polygraph examination
supports her truthfulness. Her story even matches an entry in Judge
Kavanaugh's calendar in a number of ways, identifying the attendees she
would have no reason to know.
[[Page S6525]]
There is a narrow window in which it is possible that both Dr. Ford
and Judge Kavanaugh are telling the truth, and that is if Judge
Kavanaugh does not remember it as a result of his consumption of
alcohol that evening. Yet Judge Kavanaugh's performance during the
supplemental hearing, while loud and angry, was not convincing. You
can't find Dr. Ford's testimony credible and, at the same time, push to
put Judge Kavanaugh on the Court.
The burden of proof for a lifetime appointment to our highest Court
is not ``beyond a reasonable doubt.'' The Senate and the American
people must have a high degree of certainty that there was no sexual
assault and that the nominee didn't lie about it under oath. We have no
certainty on either count.
The supplemental hearing brought Judge Kavanaugh's overall
credibility even further into question. While he denied reports of
heavy alcohol use during high school and college, there are abundant
reports in the press and statements from many eyewitnesses to the
contrary. Numerous acquaintances, even friends, have come forward with
information that he often drank to excess during these years. His own
yearbook quotes allude to--brag about--heavy drinking and exploits with
girls. With all of these accounts of heavy drinking from an array of
different credible sources who have nothing to gain by coming forward,
it is hard to believe there is no truth to them.
Evidence of excessive drinking and inappropriate behavior as a
teenager and young adult is not disqualifying in and of itself, but
misleading Congress and the American people about it is. Most troubling
is that there was already evidence before us that Judge Kavanaugh was
not being fully truthful.
We know that when Judge Kavanaugh worked as a White House lawyer
under George W. Bush, Senate Republican Judiciary staff stole
confidential information from Democratic Senators and staff and gave
some of that stolen information to him. Under oath, Judge Kavanaugh
denied that he knew the information was stolen, but if you read the
email correspondence, it is nearly impossible to believe a
sophisticated political operative, like Brett Kavanaugh was, would not
have understood that the information had been obtained surreptitiously.
There are also valid concerns that Judge Kavanaugh, during his 2004
confirmation hearing, misrepresented his involvement with the George W.
Bush torture policy and with certain judicial nominations he handled as
White House Counsel. His sworn testimony in 2004 and in the two recent
hearings leaves me highly skeptical that Judge Kavanaugh has told the
whole truth and nothing but the truth before Congress. I cannot support
a nominee to the Supreme Court without there being a high degree of
certainty that he or she has been 100-percent honest under oath. The
integrity and reputation of the Supreme Court demand nothing less.
The rushed Judiciary hearing with Dr. Ford and Judge Kavanaugh was
designed to appease and not to make sure the American people had all of
the facts. Senator Flake was right to stop the process and call for an
FBI investigation. He is right that this nomination is tearing the
country apart. The American people needed to know the truth. All
relevant evidence should have been gathered and put before us. Senator
Flake is a friend, and I commend him for having stood up for what he
thought was right, but an artificially limited FBI investigation will
do nothing to bring this country back together. Justice could have only
been served by having a full investigation, with the FBI being allowed
to have done its job as it knows how to do it.
With the results in of the FBI investigation, it is clear that the
President, with the Senate leadership in full support, imposed
arbitrary limits on the scope and length of the investigation. Dr. Ford
was not spoken to. Her corroborating witnesses were not contacted. Her
corroborating documents were not reviewed. There was no meaningful
inquiry as to whether Judge Kavanaugh misrepresented his past alcohol
use, which also corroborates Dr. Ford's story. Up to 40 witnesses tried
to come forward, but FBI agents did not contact or interview them.
While we can all read their statements in the newspapers, their
information will not form part of the FBI's investigation record.
There was no bipartisan briefing at which Senators could ask FBI
leaders about the adequacy of the investigation. The FBI's
investigation was not allowed to be a real investigation. Given what is
in the public record but was kept away from the FBI, it by no means
exonerates Judge Kavanaugh. Without having had a real investigation,
the cloud of credible allegations remains. The President and Republican
leaders were, simply, not on a search for the truth, only on a mad dash
to get Judge Kavanaugh confirmed at any cost to the country.
Folks, it is 2018. We are 27 years beyond Clarence Thomas' hearings.
Yet credible claims of sexual assault against a nominee to the Supreme
Court are not taken seriously by the President of the United States or
by the Republicans in the U.S. Senate. The roughshod process
orchestrated by the Senate majority and the President delegitimizes the
claims of a woman who has been subject to sexual harassment and sexual
assault, and it only serves to drive survivors underground. The
kangaroo court-type process orchestrated by the Senate majority and the
President delegitimizes the Supreme Court and will for decades to come.
During the supplemental hearing, Judge Kavanaugh showed himself as
partisan, belligerent, even paranoid, and lacking in judicial
temperament. He rudely shot back at Senators, asking them about their
drinking habits. He accused Members of the minority of misdeeds for
which he had no evidence. He blamed ``revenge'' by the Clintons for the
predicament he was in. He lacked self-control, dignity, and the
temperament of a Supreme Court Justice. His partisanship and lack of
political independence were on full display.
I have never seen a nominee to a Federal court, let alone the Supreme
Court, behave in such an injudicious manner before the Senate. Under
pressure, Judge Kavanaugh did not show himself worthy to appointment to
the highest Court.
This is not a partisan conspiracy as Judge Kavanaugh claimed. We saw
no such allegations for Judge Gorsuch's nomination--a judicial
candidate who shared a similar judicial philosophy to Judge Kavanaugh's
and who, coincidentally, went to the same high school. There were no
unsavory allegations against Judge Scalia or Judge Alito--two judges
whom most Democrats vociferously opposed based on their rightwing, pro-
dark money ideology.
Elevation to the Supreme Court for a lifetime appointment is not a
right. It is a privilege. While the Republicans take great umbrage that
Judge Kavanaugh's reputation is at stake, the fact is we have before us
credible allegations of sexual assault and sexual misconduct, and
justice demands that he be called to answer to those allegations. He
should not get a pass.
I have reviewed Judge Kavanaugh's decisions, writings, speeches, all
of his testimony before the Senate Judiciary Committee, and the meager
set of documents made available when he served as a White House lawyer
and as part of Independent Counsel Kenneth Starr's investigation. On
the merits, this nominee simply does not represent mainstream judicial
thought. He is on the extreme edge. The American people want a Justice
whose judicial philosophy falls within established parameters, a
Justice who is not on the far end of the ideological spectrum and who
will not put his or her personal beliefs before the text of the statute
or the constitutional provision at issue.
Even before the allegations of sexual assault and misconduct, the
American people opposed this nomination in unprecedented numbers. I,
like the American people, have no confidence that this nominee will
uphold our rights of privacy, a woman's right to choose, and each
individual's right to marry whomever he or she wants. I have no
confidence that this nominee will uphold Americans' rights to
healthcare, consumers' rights to a fair deal, or laws that protect our
environment and combat climate change.
I have no confidence that this nominee will protect minorities'
rights and the rights of Native peoples, in particular, or will uphold
voting rights, will strike down gerrymandered voting districts, which
undermine the principle of ``one person, one vote,'' or will
[[Page S6526]]
rein in dark money, which erodes our democracy, all while the Nation
faces the distinct possibility that Special Counsel Robert Mueller's
investigation will find evidence that the President or his campaign
conspired with Russia to undermine the 2016 Presidential election,
evidence that the President obstructed the Special Counsel's
investigation, or evidence of other crimes. I have absolutely no
confidence that this nomination will hold the President to account if
called to do so.
Judge Kavanaugh is on record saying that, as a matter of policy, he
believes a sitting President should be immune from criminal
investigation while in office, no matter the crime. He has refused to
tell the Senate and the American people whether he believes that, as a
matter of constitutional law, a sitting President may be investigated
and indicted.
I, for one, believe that under the Constitution, if a President
commits a crime, the rule of law still stands and that the Constitution
gives no immunity to a President who is a criminal.
This nomination will shape the course of the Supreme Court--and
American law and lives--for decades. We must have a nominee who has
been fully vetted, who does not stand credibly accused of sexual
assault, whose honesty before the Senate and the American people cannot
be questioned, whose judicial record fits within mainstream
jurisprudence, and who believes that no one--not even the President--is
above the law.
Judge Kavanaugh is not that nominee.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, this is the first time I have had the
opportunity to address my colleagues on the Senate floor since I was
appointed to fill the seat of our late friend and colleague John
McCain.
I appreciate the opportunity to speak on a matter of great
importance, both to this body and to the people of the United States of
America; namely, the confirmation of Judge Brett Kavanaugh as Associate
Justice to the U.S. Supreme Court.
I would like to address this in five general areas, beginning with a
couple of preliminary areas of discussion.
The first concerns my work right after I came to the Senate in 1995
to try to adopt a constitutional amendment for the victims of crimes.
We called it a crime victims' rights amendment. I had become acutely
aware of the problems crime victims faced, especially those who have
suffered some kind of sexual assault. Through personal interviews and
discussions with victims, victims' rights groups, with prosecutors and
others, with research and a great deal of reading and hearing from
victims' groups, law enforcement, and others, I became convinced that
the only way we could guarantee the rights of these victims and bring
justice to them would be through the adoption of the constitutional
amendment doing so.
I worked with Senator Dianne Feinstein. The two of us joined together
in this effort, and we spent countless hours and many months trying to
persuade our colleagues that this was the way to proceed.
Eventually, we were able to get legislation through the Senate, which
established a Federal law rather than a constitutional amendment. This
Federal law--which is now embodied in 18 U.S.C. 3771--has provided some
support to victims of Federal crime and, as importantly, a template for
States to develop their own statutes and constitutional amendments to
provide rights to victims.
As a result of all of this, I am well aware of the issues like the
delay or nonreporting of assaults by crime victims, and I very much
appreciate the need to be lenient in evaluating the testimony of such
victims.
Rights, like the need to attend proceedings and to address the court
at the time of sentencing and to be notified of these rights, were
included in the statute we got adopted. Those rights are now part of a
majority of the States in the Union, either in statute or the
Constitution.
The recognition of the rightful role of victims in our criminal
justice system cannot only help provide courage and closure to victims
of sexual assault, it thereby also helps prosecutors gain critical
testimony for their cases so that more of the perpetrators could be
brought to justice.
There are some insensitive people who are not aware of the
difficulties faced by victims of sexual abuse, and you have heard some
of them speak publicly. What is not true is that all men are ignorant
of the problem.
Senator Feinstein and I met many men in the victims' rights movement
who are extraordinarily helpful and understanding. I don't ask anyone
to establish their bona fides to speak to any of these issues, and I
would hope none would question mine.
To the second point, some have asked me about my time in helping
Judge Kavanaugh as a so-called sherpa. This was part of the early
process of his confirmation process, where he was interviewed by a
majority of the Senators and tried to answer their questions and to
also respond to requests for information and the like.
Just before his nomination was announced by the President, Don
McGahn, the White House Counsel, called me in Arizona and asked if I
would serve as the sherpa for the nominee--a person to get him around
the Senate, introduce him to the Senators, follow up on any questions,
and so on. I agreed to do that, and I also participated in some of the
hearing preparation. This all occurred in about a 5-week period of
time.
During this time, I was employed part time at a Washington, DC, law
firm. I want to be clear that my assistance to Judge Kavanaugh was on
my own time, free of charge, and in no way connected to the firm or any
client of the firm. It was not a pro bono matter because I actually
didn't represent Judge Kavanaugh. It was simply to help him prepare for
his hearing and to get him around the Senate to meet the Senators and
to talk to them.
After about 5 weeks of this, roughly, I was appointed by Arizona's
Governor to Senator McCain's seat in the Senate, and I immediately
resigned from the firm and all other remunerative positions and ceased
working with Judge Kavanaugh. I should also mention that during this
time, I performed no lobbying work for my law firm or for any clients
of the firm, and I so notified the Secretary of the Senate and the
Clerk of the House.
Finally, at no time during my work with Judge Kavanaugh did any
allegation of sexual impropriety arise. The Ford allegation came after,
and nothing like that was discussed in my presence during my work with
him.
As I said, some have asked me questions about this. I hope that
satisfies their inquiries.
I also want to conclude this part of the presentation by saying that
having sat through over 50 interviews, hearing the questions asked of
him and his responses--many of them repetitious--and helping him to
prepare for his hearing, I really believe I have a very good idea of
how he would conduct himself as an Associate Justice on the U.S.
Supreme Court. After all, that is the most important question before
us.
The third area of inquiry gets to Judge Kavanaugh as Justice
Kavanaugh. The first thing to do is to examine his qualifications and
his experience. Ordinarily, this is where we begin in our inquiry to
provide advice and consent to the President after a person has been
nominated.
He is a graduate of Yale Law School, had clerkships on both the Ninth
Circuit Court of Appeals and the U.S. Supreme Court under Justice
Kennedy. He has been described as ``wicked smart'' and extraordinarily
hard-working. He went over this on numerous occasions, discussing his
early service on the Court of Appeals, where he wanted to emulate Judge
Merrick Garland, whom he had heard something about.
Merrick Garland is a prodigious worker by reputation, and Judge
Kavanaugh saw that and tried his best to follow in Judge Garland's
footsteps in that regard.
He has had a huge output in cases. I believe he has 312 written
opinions over his 12 years on the bench. In addition to that, outside
of the court, he wrote law review articles, speeches, and gave many
presentations to groups. He also lectures at the Harvard Law School.
Regarding his previous experience, it also includes, as we know,
previous experience on the executive branch, both as a lawyer and as an
assistant to the President. All of this, by the way, he
[[Page S6527]]
was required to undergo six separate FBI checks.
His qualifications have been reviewed by the American Bar
Association, which is just one entity that looks at judicial nominees
and is generally deemed to be an organization that studies records. It
goes into depth interviewing people, and they concluded he had the top
rating, ``well qualified,'' to serve on the Supreme Court.
As some have described, he is a judge's judge. He is a real standout
on the bench. People would have been surprised if he were not someday
nominated to serve on the U.S. Supreme Court.
He has also been recommended by law professors, students, former
clerks, and hundreds of people who have written letters on his behalf.
I note that many of these are liberals or Democrats. They are not
necessarily conservatives or Republicans. He is well regarded by
virtually everyone who has had connection with him either in his
professional or as a member of the Bench.
The next question we go to in evaluating a nominee to a court is
their judicial philosophy--how do they approach the job of judging? How
will they decide cases?
I first want to say what Judge Kavanaugh is not, and he made this
crystal clear in the many meetings in which I sat with him talking with
the Senators. He is not a results-oriented judge. When parties come
before the court, he doesn't decide whom he wants to win and then
figure out a way to help that party win the case. That is not the right
way to evaluate a case before the court, and he is not that kind of
judge.
He is a judge who wants to apply the law in the right way and to
reach the decision the law requires based upon precedent, based upon
the way the Constitution or--if appropriate--statutes are to be
interpreted in order to reach the right result in the case.
One of my colleagues on the Judiciary Committee I think got us off on
the wrong foot or tried to get us off on the wrong foot in this regard.
He came to one of the hearings with a presentation on how many times
Judge Kavanaugh allegedly ruled for corporations over individuals and
concluded this was an important factor in determining whether Judge
Kavanaugh should sit on the Supreme Court. I think this illustrates the
mindset of many: Whom did you rule for, rather than how did you rule in
the case? This is totally wrong, and it is irrelevant to the way judges
should decide cases.
Theoretically, if 10 plaintiffs bring 10 spurious lawsuits against 10
different corporations and the courts rule for the corporations in
those cases, it proves exactly nothing. That is why we shouldn't focus
on who wins the cases but rather on whether they were decided based
upon proper legal principles, on precedent, and on the way courts are
supposed to approach cases--on facts and the law.
In the meetings that I sat in on, Judge Kavanaugh went to great pains
to describe how he approaches a case. He begins by looking at the text
of the Constitution for any relevant statutes. He begins applying the
law, as judges are supposed to do, in interpreting those constitutional
provisions and statutes. In the process of doing this, he uses the same
principles other judges do. In just a moment, I will mention what some
of those principles are.
I mentioned the fact that some of my colleagues have focused on whom
he has ruled for in cases. Bear in mind that as a member of the U.S.
Court of Appeals, he sits with two other judges, so the three judges
decide the cases, not just one--although, a case can be decided by a 2-
to-1 vote. Some of my colleagues have said, well, they are concerned
that because he served in an administration for a President and because
of something he once wrote for a law review article, they fear he would
want to rule for the President and against other parties if a lawsuit
involved the question of Executive power--how much authority does the
President of the United States enjoy. I think that is wrong, based upon
his explanation of all of his decisions and what he has written on the
subject. I think it is very clear that he has no predilections in this
regard, and that he believes strongly in the separation of powers as
set forth in the U.S. Constitution; he holds no special place for the
President above the other two branches of government.
One of the cases he cites to demonstrate this fact is a case that
didn't please me, and the outcome certainly didn't please his old boss,
President Bush, because he ruled against President Bush. Instead, he
ruled for Osama bin Laden's assistant and driver. The reason he did
that is that individual--as bad as he may be, as evil as he may be--was
not accorded proper constitutional rights as guaranteed under our
Constitution, and he had to reach the result he did because of that. As
I said, I didn't like the outcome, and I am sure his previous boss,
President Bush, didn't either. But it illustrates the fact that he is
not going to blindly rule for the President, even in a case where the
equities would seem to favor what the President was trying to do in
this case; that is, to ensure that Osama bin Laden's colleagues were
held to account for their misdeeds.
So the bottom line here is that it is not who wins and loses that
matters; it is whether the law is applied fairly and correctly.
Now, how do we know whether it is correctly applied? Obviously,
judges will differ sometimes, and each case is going to be decided on
its own merits. The question of how one judges is really the key to
this. I said I would get to this.
Here is just a little bit of a discussion of how cases should be
decided, how judges should approach these decisions, and how I believe
Judge Kavanaugh will. It is based on legal rules and principles that
have been long established and written up and followed by courts
throughout the ages. The law is literally full of these rules--
basically, the ``how to'' for judges to decide difficult cases. Most
judges know and apply these rules fairly and systematically. They don't
try to make up new rules or deliberately fudge the facts or twist the
rules in order to reach a desired result.
I kind of liken it to the instructions that come with those dreaded
packages that say ``some assembly required.'' That is always a sign
that I need to get my wife involved rather than for me to do it myself
because I don't follow directions very well. But failure to follow the
steps in that case can lead to some pretty bad results, as a couple of
lawn chairs I put together will attest to.
The question here is, a judge should have a clear view of how he
approaches each case, the steps that he follows to decide them. But
sometimes cases provide ambiguities and difficult decisions that make
it especially difficult to apply the usual rules. In these cases, the
question is whether a judge will be tempted to guess what the right
procedure is or to try to reach an outcome that he has predetermined he
wants to reach, as opposed to applying other commonsense principles.
It is true that sometimes laws are ambiguous, and they require some
interpretation. I have seen Judge Kavanaugh address this precise
question and go over decision after decision that he has made, showing
how he approaches cases like this. I can tell you, first of all, he
tries to get his colleagues to agree, if a reading of a statute is not
really all that ambiguous, to say: Look, if you find my reading of the
statute persuasive, then that should be it. We can end the inquiry. We
don't have to find ambiguity in every single thing because when
ambiguity is found, obviously, judges are not as tethered to the law as
they would otherwise be. He is very aware of this, and he has tried
very hard, I think, to reach the right conclusion based upon the proper
application of the law.
I am not going to go into all of those judicial rules; we have heard
precedent and statutory interpretation and the like. But I will say
that having heard him describe his approach to numerous cases, I am
convinced that he will, as a Justice on the Supreme Court, apply the
law in the same way that he has during his 12 years as a member of the
court of appeals.
He describes his approach to judging in a way that some have called
strict construction or textualism, which I think is really not much
more than giving a preference to the written text of either the
Constitution in cases where constitutional interpretation is the
question or statutes in cases where statutes have to be interpreted.
This
[[Page S6528]]
approach to judging is the methodology that is used more and more today
by judges, and it tries to avoid substituting the judge's notions of
how things should come out and substituting the judge's discretion as
opposed to carefully reading the text of the Constitution or the
statute as either the Founding Fathers or the Congress, in the case of
a statute, has written it.
As I said, during his many interviews and hearing him explain his
approach, I believe he has given us a very good idea as to how he would
approach cases in the future. As I said, while there are one or two
areas that some of my colleagues have raised questions about, I have no
doubt at all that he is an extraordinarily knowledgeable and very wise
judge who will do what he is supposed to do on the Supreme Court to
apply the law fairly and correctly.
I also believe something else. I believe that he is going to work
very hard to find consensus on the Court. We all hear about 5-to-4
decisions, and they don't make us feel good because it illustrates how
judges can differ, and sometimes it demonstrates an ideological
division on the Court, which we would hope to avoid. He would like to
work with his colleagues to try to come to more consensus decisions
than to have these kinds of split decisions. He really loves the law,
and you know that when you talk to him, and he is really committed to
making it work.
Another critical factor for a judge--and we frequently refer to it,
as it has been referred to on the floor here--is what we call judicial
temperament. This is especially important in district court judges
where they appear before juries and where trials are actually held. You
want the jurors in the case to understand the case well, to feel good
about being there as jurors judging their fellow citizens, so judicial
temperament is very important for the judges in those cases. But even
on the court of appeals, one must have a judicial temperament that
demonstrates to the parties and to the litigants that the judge is
fair, that demonstrates to the lawyers involved that he can be
respectful of them and fair to all of them, and that he can be
congenial with his fellow judges on the court with whom he has to work
every day and decide these cases.
Until the second hearing for Judge Kavanaugh, following Professor
Ford's testimony, I don't believe anybody really questioned Judge
Kavanaugh's judicial temperament. His 12 years on the Court of Appeals
for the District of Columbia revealed a very careful and courteous and
engaged judge--fair to the parties, reasonable to the lawyers, and
collegial to his colleagues. It was only when responding to the attacks
on his character that he even showed much emotion. I believe that most
honest observers would allow him some slack for that in view of the
nature of the allegations against him.
Much like the need to show some lenience in evaluating the testimony
of a victim of sexual assault, I think we can appreciate the role of
emotion in his testimony. He apologized to the one Senator to whom he
was rude. In my view, the best evidence of his temperament as a judge
is his temperament as a judge for the last 12 years.
So as to judicial temperament, knowledge of the law, an approach to
deciding cases, I believe few would doubt his qualifications to sit on
the U.S. Supreme Court.
That brings us to the fourth part of my presentation: the allegations
of sexual misconduct against him. Do they amount to something that
should disqualify him for serving on the Supreme Court? I don't think I
need to detail here every allegation and every witness statement that
has been involved in the investigation of these allegations.
In the recent hearing at which both Professor Ford and Judge
Kavanaugh testified, I believe most observers saw both as presenting
credible testimony, and I agree with that. That their recollections
differ does not necessarily mean that either of them knowingly lied. We
should neither automatically believe one over the other--she, because
her testimony was that she had been sexually abused, nor he, because he
is a sitting Federal judge. As I said, each deserve some deference for
the reasons that I have stated. But, if both are believable, we must
still find a way to analyze the evidence to help us reach a conclusion
on the issue before us: Should Judge Kavanaugh be confirmed?
Well, the best way to verify the allegations is through
corroboration--evidence that backs up the accusations that have been
made. While both Professor Ford and Deborah Ramirez have named
individuals who they believe were present during the incidents of which
they complained, none of those individuals would corroborate the
accusations. Some denied them; others had no recollection of such
incidents. Some said, even so, they believe Judge Kavanaugh; at least
one says the same as to Professor Ford. There does not appear to be any
corroborative evidence.
Professor Ford's telling of her story later to others is not
corroboration, but it does go to her credibility. That she did not
report her incident earlier is not dispositive. Victims in similar
situations frequently do not report for a number of reasons. The fact
that her very good friend, allegedly at the party in question, and the
only other girl present, according to Professor Ford, did not become
aware of the accusations that night, does raise some questions. And
that particular witness, despite her obvious friendship with Professor
Ford, has continued to insist that she has no recollection of the party
in question or of Brett Kavanaugh.
I have either read all of the FBI notes or have had them read to me,
and I have been briefed by the committee staff on all of the FBI and
committee contacts. This includes the second round of FBI interviews.
Contrary to what some have said, this process was not constrained. The
FBI was not told not to interview certain people; they were, in fact,
told to follow the leads, and I believe that they interviewed not just
4 witnesses but a total of 10 witnesses in this latest round of their
interviews.
After reading what I have read and being briefed on the remainder by
committee staff, I find nothing to verify the accusations against Judge
Kavanaugh. He has unequivocally denied them, and having gotten to know
him as I have, I conclude that he is not the proper subject of the
accusations.
Some have suggested that he must prove that he did not engage in the
conduct alleged. It would be totally unfair to place upon him the
burden of proving a negative. This is ordinarily impossible. When you
neither know the time nor place of the event alleged, you can't
disprove that you were there then--there, wherever it was--or then,
whenever that was. In this particular case, for example, unless he can
somehow show that he was in Europe the entire 3 months of the summer
allegedly involved here or in some similar circumstance, there is no
way that he could prove a negative; namely, that he wasn't there.
It is true that the presumption of innocence applies in our courts,
but the same notion of fair play applies in other aspects of our civic
and social life. If a mere allegation of wrongdoing is enough to deny
an applicant a job or otherwise discredit an individual for the rest of
that person's life, our society would be torn apart. This is why we
have Constitutional rights, which embody our notions of fair play in
life generally.
While this is not really a job interview as it has been described,
even if it were and we were the prospective employers, we would want to
evaluate the qualifications--in this case of Judge Kavanaugh--including
accusations of against him, and those accusations would not just be
taken at face value, particularly as serious as they are and given the
fact that he has unequivocally denied them.
So I conclude that, under all of the circumstances, including the
nature of the evidence brought forward and how that evidence would be
proven to us, including how he has lived his adult life, and after
seven FBI investigations now, it is more probable than not that the
accusations against him are not true and therefore disqualifying for
his nomination.
That brings me to the fifth and final point of my discussion:
lifelong considerations of suitability to serve.
I noted the qualifications for judges, their judicial temperament,
the way they approach judging cases, their record of writing opinions,
what they have said and how they have said it--that is the first thing
we look at, but
[[Page S6529]]
we also look at the whole person, and that is an appropriate thing to
do. So let's look at Judge Kavanaugh's whole person.
First of all, I would like to note some things that I think are not
relevant to his competence to serve on the Supreme Court but which we
have heard a lot about. Not relevant are Judge Bork, Justice Thomas,
Judge Garland, or arguments about who started the unseemly process we
are in now.
By the way, let me just as an aside here note that in one of the
interviews with a Senator, the interview started as follows: Judge
Kavanaugh, glad you came in today, but I can tell you that this is
going to be very, very hard because of what happened to Judge Garland.
Well, you can have your views as to whether Judge Garland was treated
fairly or not, but that should have no bearing on the qualifications of
Judge Kavanaugh to be confirmed to the U.S. Supreme Court.
Other not relevant things are comments from the President of the
United States, including unfair comments about Professor Ford. Also not
relevant is the outcome of this debate on elections or on President
Trump's future. Nor is this about punishing Judge Kavanaugh because
some crime victims have not previously received justice. The most
recent claim here now is about process. I think his qualifications
having been well established, now they are claiming that the process is
lacking and is not fair. Obviously, what this is not about is whether
the FBI was allowed to do its work, as I believe it was.
The vote we will be casting tomorrow should not be a surrogate for
some other agenda; it should be simply our judgment of Judge
Kavanaugh's fitness to serve on the Supreme Court, our advice on and
potential consent to his nomination by the President.
As I said, having been with him in interviews, the majority of my
colleagues have otherwise gotten to know him. Having witnessed and
learned of the esteem in which he is held by colleagues, former law
clerks, students, and professional friends, and being aware of his
contributions to his community, his country, his church, and his
family, I conclude that he is imminently qualified to serve on the
Supreme Court and will serve the Nation well in the position of
Associate Justice.
As I said, the best evidence of how he would perform as a Justice is
how he has performed over the dozen years he has been a judge on the
U.S. Court of Appeals for the District of Columbia. I urge my
colleagues to focus on the question at hand, and I urge them to support
Judge Brett Kavanaugh's nomination to the Supreme Court.
The PRESIDING OFFICER (Mr. Young). The Senator from Hawaii.
Ms. HIRONO. Mr. President, tomorrow we will cast a very important
vote on whether to end debate on the nomination of Brett Kavanaugh to
be an Associate Justice of the Supreme Court of the United States.
Should he be confirmed to this position of awesome responsibility,
Judge Kavanaugh would be just one of nine people with the power to
change the American Government and the American way of life for at
least a generation. He would be hearing and deciding cases that touch
all facets of our lives, including the healthcare we receive when the
Texas case involving the Affordable Care Act's individual mandate makes
its way to the Supreme Court. This particular case is very important
because if Texas wins, that means the ACA's protections for those with
preexisting conditions--one out of four people in this country--would
be done away with.
The Supreme Court will also probably get a lot of immigration cases
and many cases about DACA, sanctuary sites, temporary protective
status, and family separation that are pending in the lower courts, and
also abortion, as courts weigh the burden imposed on a woman's right to
choose by laws limiting abortion in States like Texas, Iowa, and
Louisiana. It doesn't really matter? Of course it matters whether Roe
v. Wade is overturned, but even if Roe v. Wade is not overturned, with
Judge Kavanaugh's record, all of these limiting laws by States that I
just talked about will probably be supported by him, and at some point,
the right to an abortion that we have under Roe v. Wade will be pretty
much a nullity.
The Supreme Court will also be faced with cases that will address the
right of workers to bargain collectively with their employers, as
litigation comes up to the High Court in the wake of the Janus
decision, and many other important topics, including voting rights,
gerrymandering, the census, race-conscious college admissions, and
environmental laws.
The Supreme Court's decisions touch every aspect of American life.
With so much at stake, the Senate has an obligation to closely
scrutinize every nominee to the Supreme Court. We need to know that
they have the qualifications for the job. Do they have the proper
education? Do they have the necessary breadth of experience? Will they
treat everyone in the Court--including Court employees, law clerks, and
lawyers--with an even temperament? Can they keep their cool under
pressure and make reasoned decisions when the stakes are high? Can they
listen to the facts and apply the law without fear or favor, or will
they let the experiences they bring with them override objective
judgment? Will they insert their personal preferences where they don't
belong? We need to know if they can rule fairly. Will they give every
litigant who comes before the Court a fair hearing? Will they
acknowledge and put aside their biases, inherent and otherwise? These
last two considerations are especially important because the Trump
administration outsourced the vetting of Supreme Court nominees to the
Federalist Society and the Heritage Foundation. These ultra-rightwing
groups have spent decades supporting people like Brett Kavanaugh and
their ideological, outcome-driven jurisprudence.
After months of scrutinizing Judge Kavanaugh's record and evaluating
his performance before the Judiciary Committee in two hearings, it is
clear that the answer to most of these questions is no. His judicial
record is deeply ideological and outcome-driven, he remains a fierce
political partisan operative, and he holds troubling legal views on
Native Hawaiians, Native Americans, and Alaska Natives.
These patterns were clear based on the weeks I spent reviewing Judge
Kavanaugh's writings, his judicial decisions, and the small fraction of
his records made available from his time as a key White House aide to
President George W. Bush. I became even more certain of my decision to
oppose his nomination after his first hearing in the Judiciary
Committee and after reading the mostly dismissive non-answers he gave
to our followup written questions.
There are plenty of substantive reasons to oppose Brett Kavanaugh's
nomination, and I will continue speaking out about many of these
reasons in the coming days, but over the past 2\1/2\ weeks, we have
learned new information that underscored my concern that Brett
Kavanaugh lacks the character, candor, credibility, and temperament to
serve on the Supreme Court.
Last week, the Senate Judiciary Committee heard testimony from Dr.
Christine Blasey Ford and Brett Kavanaugh about Dr. Ford's account of
an attack on her by the nominee and a friend when they were all
teenagers. Dr. Ford conducted herself with grace and courage,
recounting the terrifying experience that has had a lasting effect on
her life.
In his testimony, Judge Kavanaugh dropped the polite veneer he
presented at his first hearing, during which he complimented all the
Senators he had met with and told the committee that ``[t]he Supreme
Court must never be viewed as a partisan institution.'' That was then,
but last Thursday, he launched into a partisan political screed that
contradicted everything he has ever professed to believe about the way
judges should behave. He 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.''
I have to say, sitting there listening to him be so totally partisan
was bizarre. What he said was bizarre. He was angry, he was
belligerent, he was partisan, he went on the attack, and he argued with
Senators. He forgot who was
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there to ask the questions and who was there to answer them. These are
not qualities to look for in a Supreme Court Justice.
More than 1,700 law professors across the country agree, including
Dean Avi Soifer and 6 other professors from the University of Hawaii
and 21 professors from Georgetown University Law Center, both my alma
maters. I want to quote what a law professor said:
We have differing views about the other qualifications of
Judge Kavanaugh. But we are united, as professors of law and
scholars of judicial institutions, in believing that Judge
Kavanaugh did not display the impartiality and judicial
temperament requisite to sit on the highest court of our
land.
Mr. President, I ask unanimous consent that a copy of this letter
from the law professors be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, October 3, 2018]
Opinion--The Senate Should Not Confirm Kavanaugh
The following letter will be presented to the United States
Senate on Oct. 4. It will be updated as more signatures are
received.
Judicial temperament is one of the most important qualities
of a judge. As the Congressional Research Service explains, a
judge requires ``a personality that is even-handed, unbiased,
impartial, courteous yet firm, and dedicated to a process,
not a result.'' The concern for judicial temperament dates
back to our founding; in Federalist 78, titled ``Judges as
Guardians of the Constitution,'' Alexander Hamilton expressed
the need for ``the integrity and moderation of the
judiciary.''
We are law professors who teach, research and write about
the judicial institutions of this country. Many of us appear
in state and federal court, and our work means that we will
continue to do so, including before the United States Supreme
Court. We regret that we feel compelled to write to you, our
Senators, to provide our views that at the Senate hearings on
Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial
temperament that would be disqualifying for any court, and
certainly for elevation to the highest court of this land.
The question at issue was of course painful for anyone. But
Judge Kavanaugh exhibited a lack of commitment to judicious
inquiry. Instead of being open to the necessary search for
accuracy, Judge Kavanaugh was repeatedly aggressive with
questioners. Even in his prepared remarks, Judge Kavanaugh
described the hearing as partisan, referring to it as ``a
calculated and orchestrated political hit,'' rather than
acknowledging the need for the Senate, faced with new
information, to try to understand what had transpired.
Instead of trying to sort out with reason and care the
allegations that were raised, Judge Kavanaugh responded in an
intemperate, inflammatory and partial manner, as he
interrupted and, at times, was discourteous to senators.
As you know, under two statutes governing bias and recusal,
judges must step aside if they are at risk of being perceived
as or of being unfair. As Congress has previously put it, a
judge or justice ``shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.''
These statutes are part of a myriad of legal commitments to
the impartiality of the judiciary, which is the cornerstone
of the courts.
We have differing views about the other qualifications of
Judge Kavanaugh. But we are united, as professors of law and
scholars of judicial institutions, in believing that he did
not display the impartiality and judicial temperament
requisite to sit on the highest court of our land.
Ms. HIRONO. Judge Kavanaugh also tried to convince us that while he
``liked beer,'' he was basically a choir boy--interested in nothing
more than sports, school, and service projects. This carefully painted
image has been directly contradicted by Judge Kavanaugh's own words in
his yearbook and by many of his high school and college classmates over
the past weeks.
These inconsistencies and contradictions were part of the reason I
joined many of my colleagues in calling for a full FBI investigation of
allegations against Judge Kavanaugh. I wanted the FBI to examine
inconsistencies and contradictions between his testimony and that of
others who knew him in high school, college, and beyond.
Last Friday, Senators Flake and Coons brokered an agreement to hold
off on a floor vote for at least a week while a supplemental background
investigation could be completed to look into these allegations. But I
was disappointed that as the days went by, it became more and more
clear that the White House rigged the investigation. The President
claimed to want the FBI to do a comprehensive investigation, but that
did not happen.
Our ranking member, Senator Feinstein, wrote to White House Counsel
Don McGahn and FBI Director Christopher Wray the day after the
investigation began to request a copy of the written directive sent by
the White House to the FBI. She got no response. The following day,
many other members of the committee also wrote to Mr. McGahn and
Director Wray about the supplemental investigation.
In addition to repeating the ranking member's request for an
explanation of the scope of the investigation, we also asked that it be
comprehensive. We wanted all serious allegations against the nominee to
be investigated. Of course, we would expect, in a comprehensive
investigation, that all appropriate witnesses would be questioned. We
asked that the FBI ``perform all logical steps related to these
allegations, including interviewing other individuals who might have
relevant information and gathering evidence related to the truthfulness
of statements made in relation to these allegations.'' We got no
response.
Just yesterday, I joined a letter with many of my committee
colleagues asking Chairman Grassley to prevent public
mischaracterization or selective leaks of the results of the FBI's
previous work. We urged him to ``call for a full Senate briefing by the
FBI . . . so that all Senators hear the same information and have the
same opportunity to question the FBI before any floor vote on the
Kavanaugh nomination.'' These are requests having to do with the most
recent FBI investigation. We asked for a meeting between the chairman
and the minority members ``to establish bipartisan ground rules for
public discussion of the information provided by the FBI'' and this
most recent, totally truncated and inadequate investigation--those last
were my words--but both requests were rejected.
I had hoped the FBI would exhaust all possible avenues of
investigation relevant to whether Judge Kavanaugh had a pattern of
drinking that resulted in aggression and belligerence toward women. I
had hoped they would follow leads given to them by Dr. Ford and Ms.
Ramirez. I had hoped they would be permitted by the White House to do
the job we know they can do--the job former Director James Comey said
they could do. Instead, as we now know, they were only allowed to do
the bare minimum.
As we know from news reports, there are dozens of people with
relevant information, some of whom say they have corroborating
evidence, who need to be interviewed, but they were not.
It is simply impossible, after seeing the results of the FBI's
supplemental work--and I hesitate to call it an investigation--that
anybody could think it was in any way, shape, or form the comprehensive
investigation the President promised. This so-called investigation is a
sham. It is a fig leaf for the Republicans to hide behind. It is a
talking point for their continued and predictable criticism of
Democrats. They will say: See? You wanted an FBI investigation, and you
got one. But now it isn't good enough for you.
Who are they kidding? This is a sham investigation. This so-called
investigation wasn't good enough for me, and it shouldn't be good
enough to satisfy the American people. Judge Kavanaugh has a burden--
not a burden of proof like in a court but the burden to show us he has
not just the credentials for the job but the temperament and the
character necessary for this lifetime appointment.
I have said many times that Democrats didn't need to manufacture
reasons to oppose Judge Kavanaugh's elevation to the Supreme Court.
Based on his record, his opinions and his dissents, his academic
writings and speeches, I had concluded before these new reports came
forward that he would not be fair and objective on the Supreme Court.
His views on reproductive rights, Native rights, legal protections for
workers, consumers, and the environment are all of deep concern to me,
not to mention his expansive views on Executive power, including
protecting a sitting President from criminal or civil proceedings.
Now that we have heard Dr. Ford's account and seen Judge Kavanaugh's
angry and combative reaction, it is evident that he should not serve on
and should not be confirmed to the Supreme Court for a lifetime,
decades of making decisions that will impact our
[[Page S6531]]
lives on all of these areas on which he has a very troubling record. We
can do better, and the American people deserve better.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. MURRAY. Mr. President, I come to the floor to join in opposition
to Judge Kavanaugh and call on my colleagues to join me in voting
against this mad dash to jam through a lifetime appointment to the
Supreme Court.
Last week, Democrats and Republicans stood together to ask Republican
leaders to allow the bare minimum--an FBI investigation into the new
allegations that have come in. This wasn't an unreasonable request. It
happens all the time with nominees and for far less important positions
than a lifetime seat on the Supreme Court. It is the very least that
should be done when serious allegations like these remain, to make sure
we are hearing from all relevant witnesses and bringing all relevant
information in for consideration, but this simply has not happened.
This morning, I went in for a briefing on the new FBI investigation,
and it was very clear to anyone who reviewed the material that Senate
Republican leaders and President Trump cut the FBI off and refused to
allow them to conduct the comprehensive and thorough investigation that
was promised to Democrats and Republicans.
Instead, this was rigged from the start to protect Judge Kavanaugh
because here is what we know, and this has been reported in the press:
Dr. Ford was not interviewed despite her repeated requests. We know
Judge Kavanaugh was not questioned. We have heard from so many other
witnesses who were desperate to talk to the FBI--desperate--because
they had relevant information they wanted to share in confidence. As
far as we know, they were never even contacted, and now Senators had to
line up to read a single copy of a limited FBI report over the course
of today. We are not allowed to share what we saw or take notes out of
the room, and we are not permitted to ask the FBI agents who actually
conducted the investigation any questions.
Although I am not permitted to share what I heard and read in the
briefing, I can say absolutely nothing I saw makes me believe Dr. Ford
any less, and, in fact, based on what I saw, I am even more concerned
about the veracity of some of what we heard from Judge Kavanaugh.
Even more important than anything we saw was how much we were not
able to see because the investigation was limited. Once again, the
voices of women and their experiences have been silenced and pushed
aside.
So the questions everyone should be asking right now are, What are
Republican leaders so afraid the FBI would find if they were allowed to
take the full week to truly conduct a thorough investigation and talk
to all of the relevant witnesses? What are they trying to hide, and why
will they not allow this to be done right when we are talking about a
nomination to the highest Court in the land?
So I come to the floor to make three points to urge my colleagues to
vote no and stop this mad dash to a rushed confirmation.
First, I am going to talk about what we know about the serious and
credible allegations against Judge Kavanaugh by Dr. Ford and others;
second, I am going to run through, once again, the serious credibility
problems that have been raised regarding Judge Kavanaugh; and finally,
I will highlight, once again, the real temperament concerns so many of
us have based on what we saw from Judge Kavanaugh at the last hearing.
First and foremost, I believe Dr. Ford. She has absolutely no reason
to lie, and she had no interest in making this public before she was
compelled to, citing her civic duty. We all saw her at the hearing, and
like so many people across the country, I was riveted, and I watched
with tears in my eyes. Dr. Ford was so brave and compelling. She was so
real. The memories she recounted were heartbreaking; the fear she felt
when she was being attacked; the relief she felt when she finally made
it out of the house; the laughter between Brett Kavanaugh and Mark
Judge she will never forget; the fact that she is 100 percent sure it
was Brett Kavanaugh who attacked her.
Millions of people watched her, and so many women and survivors were
inspired by her bravery. Dr. Ford made a credible allegation of a
serious offense that needs to be taken seriously.
We have also heard from other women--Ms. Ramirez, Ms. Swetnick--with
their own experiences to share. They should be listened to. They should
be heard. We should presume they are telling the truth, and Republican
leaders should allow a full investigation into their allegations
because, in the end, despite what some Republicans tried to claim, this
is not a trial. We are not supposed to weigh evidence and make judgment
about innocence or guilt. Our job as Senators is to weigh what we know,
weigh what we hear, weigh what we learn, and use our own judgment to
determine whether a nominee deserves a promotion to the highest Court
in the land. Based on everything I know about the allegations made
against Judge Kavanaugh, he should not be confirmed, and he should not
be in a position to make decisions on the Supreme Court that impact
women and families and the future of our country, which takes me to my
second point: Judge Kavanaugh's serious credibility issues.
I went through this in some detail on the floor yesterday. I will not
go through all of it again, but time and again, in his initial hearing
and then even further in his second hearing, Judge Kavanaugh made it
clear he has serious issues with the truth.
He testified under oath directly to Senators and made claims that
simply defy belief on issues big and small. Again and again, he made
claims that were contradicted either through emails that were uncovered
or from others who felt compelled to come forward after hearing what he
said that simply did not align with what they knew to be true.
If we can't trust what he has said to us on those issues, if we know
some of what he said is simply false, how can we trust him on so many
other issues? Surely, the least we can expect from someone nominated to
serve on our Nation's highest Court has a basic commitment to honesty
and truth, especially while under oath. This shouldn't be a partisan
issue. It is just common sense, which brings me to the third point I
want to make.
Like so many people watching last week's hearing, I was shocked by
Judge Kavanaugh's raw anger, his rage, disrespect, sense of
entitlement, and sneering condescension; from his apparent bafflement
that he even had to respond to credible allegations against him to his
attempt to throw questions back at Senators, asking them instead of
actually answering them himself, to his open partisanship, his
bitterness, to his rage and anger, and so much more.
I cannot imagine any Senator seeing what we saw in that hearing,
watching a nominee make a display like that and thinking this person is
fit to serve as an impartial judge on our Nation's highest Court.
I know President Trump loved Judge Kavanaugh's performance. It seemed
to inspire him to move from calling Dr. Ford a credible witness to
openly mocking and attacking her, and it sounds like it has galvanized
him to fight even harder for the man whose anger and defensiveness he
clearly identifies so closely with.
I thought it was truly awful. It was not the kind of temperament we
should want on the Supreme Court, and I can only hope enough of our
colleagues agree.
Once again, I believe Dr. Ford, and, to me, Judge Kavanaugh has shown
so clearly he does not have the temperament or credibility to serve on
the Supreme Court, but for any of my colleagues who may not be
persuaded and have bravely stood up to ask for more information and a
thorough investigation and for all of us who believe the Senate should
do its job and get this right, we can't rush this to a finish line.
[[Page S6532]]
A truly thorough investigation must be completed, as promised, so
Senators hear from all the relevant witnesses and gather all the
relevant information before we cast a vote on this confirmation. It can
be done quickly, but it has to be done right because if this does end
up being jammed through, as apparently currently Republican leaders
intend to do, it will completely undermine the public's trust and the
credibility of the Supreme Court as information continues to come out
from investigations that will continue whether or not he is confirmed.
It will eliminate any remaining trust people have in Senate Republican
leaders to allow us to fulfill our constitutional advice and consent
role and not just be a rubberstamp for the President, and it will cause
tremendous anger and backlash across the country from those who are
shocked to see the voices of women and survivors ignored like this.
I ran for the Senate after I saw what happened to Anita Hill in 1991.
Based on everything I am seeing and hearing across the country, all the
anger and energy and focus, I am confident that if women and their
voices are attacked, undermined, and disrespected once again, we are
going to see a wave of anger and frustration and activism that makes
1992 look like a ripple. We still have time to do this right. We still
have time to do better than the Senate did in 1991. We still have time
to restore the public's faith that women will be listened to.
I urge my colleagues to join me, vote no tomorrow, and end this mad
dash to confirmation.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. HEINRICH. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HEINRICH. Mr. President, I am deeply saddened that the words I am
about to deliver even need to be said in the first place, but I have to
ask: How can we possibly continue to move forward or, as in the
majority leader's own words, ``plow right through'' to confirm a
lifetime appointment on our Nation's Supreme Court in the wake of both
credible allegations of sexual misconduct leveled against the nominee
Brett Kavanaugh and serious questions concerning his judicial
temperament?
Republicans are ignoring very real questions about his credibility
and are intent on hiding his record. Even worse, they are in such a
rush that most of them did not even want the FBI to reopen Judge
Kavanaugh's background check to help us get to the bottom of this, and
when the FBI did reopen the investigation, the White House limited its
scope so much it did not follow multiple credible leads.
Now we as Senators have barely 24 hours to review their findings
before scrambling to a vote.
As the whole Nation watches, what message is the U.S. Senate sending
to our children, to women, to victims of sexual assault about the
values we stand for? Do they not matter? Is this the society that we
want our sons and daughters to grow up in? We all know full well the
weight of who fills this deciding vote on our Nation's highest Court.
Whomever we confirm as our next Supreme Court Justice will decide
major cases that shape the daily lives of Americans for decades to
come, but this is not a time for simply thinking about the judicial
philosophies that we believe should shape opinions on the bench. I have
made it clear that I oppose Judge Kavanaugh's nomination based on the
substance of his views and the broken process being used to rush this
nomination through the Senate on a partisan basis.
From the very start, Republicans have pushed this nomination through
at a breakneck pace, hiding from the public Judge Kavanaugh's record
and the dangerous consequences of his extreme views on many important
issues. That willful blindness, the absence of a thorough vetting
process, and the mad dash to hastily confirm their nominee at all costs
before this fall's election has led us to the crisis that we face
today.
This has now become an even more fundamental test of how seriously we
as Senators take our duty of advice and consent on enormously
consequential Presidential appointments.
Multiple women have come forward publicly to accuse Brett Kavanaugh
of sexual misconduct. While we will never be able to adjudicate these
allegations in the same way as a criminal proceeding, we have an
obligation to weigh these accusations carefully and seriously as we
consider Judge Kavanaugh's fitness to serve on the Supreme Court.
I, for one, after reviewing all of the information that we have and
after listening to the testimony last week before the Judiciary
Committee, have to say clearly and forcefully that I believe Dr. Ford.
When a victim of sexual assault comes forward to make a harrowing
allegation like this, it takes tremendous courage, and it shouldn't be
dismissed. Under incredible duress and at a great personal cost, Dr.
Ford came forward to share the painful details of how Brett Kavanaugh
assaulted her while she was in high school. I don't know how anyone
watching her testimony could question her sincerity or the seriousness
of her experience, but some Republicans seem to be following President
Trump's lead here and are choosing to jeer and dismiss Dr. Ford rather
than take her testimony seriously. As I have said before, all of the
sexual assault allegations made against Judge Kavanaugh deserve a
thorough professional investigation by the FBI before proceeding with
any vote on his nomination to the highest Court in the land.
I was relieved to see my colleague Senator Flake of Arizona speak up
and call for a delay to seek a more thorough FBI investigation.
Unfortunately, once again, the rush to get a predetermined outcome has
undermined the integrity of the process.
Dr. Ford told us that she was absolutely willing to participate in an
FBI investigation to get to the bottom of Judge Kavanaugh's alleged
assault, but according to her, she was not even interviewed by the FBI
as part of this reopened investigation. The FBI did interview another
accuser, Deborah Ramirez, who has alleged that Judge Kavanaugh exposed
himself to her during her freshman year at Yale. However, dozens of
others sought to bring evidence forward and the FBI ignored their
willingness to offer testimony. Again, key witnesses, including Judge
Kavanaugh and Dr. Ford, were not even interviewed by the FBI. The FBI
was so constrained by the White House in this matter that I would not
call this an investigation.
This is unjust. This sends a harrowing message to women and girls all
around the Nation who have been victims of sexual violence. We must not
toss aside a fair and impartial process in favor of a hurried political
endgame. Before we take one of the most consequential votes that any of
us will ever take, shouldn't we want to get to the bottom of this?
Even beyond what we could learn from a real investigation, there is
already reason to doubt Judge Kavanaugh's credibility and his candor.
Despite the fact that the White House tried to limit the scope of the
FBI's work so drastically that I wouldn't characterize it as an
investigation, the FBI's report still manages to raise very serious
questions about Judge Kavanaugh's truthfulness. During his confirmation
process, Judge Kavanaugh began by misleading the Senate on small
things. He misled the Senate on consequential questions about his time
in the Bush White House. Last week, when faced with serious questions
about the sexual assault allegations and questions about his character,
Judge Kavanaugh dodged, dismissed and ranted. He was not able to refute
the serious accusations leveled against him, and neither did the FBI
report. Based on what we have heard since from people who knew him at
the time, there is substantial reason to believe that he was not being
truthful about his conduct.
If Dr. Ford's testimony is the truth--and I believe it is--then Judge
Kavanaugh should be disqualified from serving on the Supreme Court.
Once again, I fully acknowledge the stakes of this nomination. I
understand how much my Republican colleagues want to appoint someone
they agree with on important issues that may come before this Court,
but we cannot--we should not--rush to confirm a man to a lifetime
appointment to the highest Court in the land under such a dark cloud of
credible allegations--not
[[Page S6533]]
to such a critical seat at such a critical time.
Last week's hearing should have been the beginning of looking into
this serious allegation, not the end. If there is nothing to hide and
if there is information that would exonerate Judge Kavanaugh from the
accusations that have been leveled against him, then a real indepth
investigation would help us reach those conclusions. Instead,
Republicans continue to rush this process and press forward with a
predetermined set of conclusions. It makes one wonder if my Republican
colleagues actually want to know the truth.
We cannot allow these allegations to be swept under the rug. The
message that would send to victims of sexual assault and abuse would be
devastating. It would effectively state to them that even if they come
forward, there will be no justice; that they will be ignored or, worse
yet, mocked, in the case of the President. All people regardless of
gender, sexual orientation, or ethnic background should have the same
right to live free from domestic and sexual violence.
I am truly stunned that we are moving forward with this confirmation
vote. If we can't pause to make sure we get this right, the institution
of the Supreme Court will lose the public's faith as an embodiment of
justice. So I will ask one more time: What are we doing here? Can we
not do better than this?
I think we must. The integrity of the highest Court in the land hangs
in the balance. What we stand for as a nation hangs in the balance.
The PRESIDING OFFICER. The Senator from North Carolina.