[Congressional Record Volume 164, Number 165 (Thursday, October 4, 2018)]
[Senate]
[Pages S6551-S6556]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ORDER FOR ADJOURNMENT

  Mr. McCONNELL. Mr. President, if there is no further business to come 
before the Senate, I ask that it stand adjourned following the remarks 
of Senators Merkley, Bennet, and Portman.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Oregon.


                     Nomination of Brett Kavanaugh

  Mr. MERKLEY. Mr. President, moments ago, I was outside at a rally on 
the lawn of the Capitol, looking at the Supreme Court of the United 
States of America. When you look at that beautiful building, you see 
the phrase ``equal justice under law'' above the big, beautiful doors 
of entry--equal justice under law. That is the concept behind the 
Supreme Court. Every other court can make decisions, but they can be 
appealed--the final determination, balancing the parts of the 
Constitution against each other, understanding and exercising the 
fundamental vision contained in this beautiful ``We the People'' 
document. That is what those nine Justices are all about.
  For an individual to become a Justice, it takes two steps. The first 
is, it is considered by the President as to whom to nominate. Having 
nominated, it comes over to the Senate. This is the confirmation 
process.
  The Founders, when they wrote the Constitution, wrestled with, how do 
you appoint individuals to these key positions? They said: Well, we 
could give the power to the assembly, so that would be a check on the 
executive or a check on the judiciary getting out of control. But they 
worried that Senators might trade favors: You put my friend in this 
position; I will put your friend in that position.
  They said that the nominating power needed to rest with one 
individual--that being, of course, the President of the United States 
of America.
  Then they said: What happens if a President goes off track? Alexander 
Hamilton spoke to this and called it favoritism--favoritism of a 
variety of types. What if the President goes off track and starts 
nominating friends when they are qualified for particular positions? 
What if he only nominates people from his home State, ignoring the 
qualities of many people who might be better qualified? What if there 
comes a situation where perhaps favors are done for the President in 
exchange for a position? The Founders said that there needs to be a 
check; that is, the Senate confirmation process. It is a pretty good 
design. I can't think of any one better.
  Essentially, the confirmation process is like a job interview: Is 
this individual fit to serve in the executive branch? Is this person 
fit to be a judge? Is this person fit to be a Justice of the Supreme 
Court of the United States of America? That term, ``fit,'' is the term 
that Alexander Hamilton used when he was writing about the fundamental 
goal of the Founders to decide if an individual by experience and 
character was fit or unfit.
  That is our job here. Throughout our history, it is a clear 
separation of powers. The Senate cannot intervene in terms of whom the 
President nominates, and the President cannot intervene in terms of the 
review process of that nominee.
  Now we have something that has happened in an extraordinary fashion. 
It has never happened in the United States before, as far as we are 
aware; that is, the President of the United States, President Trump, 
has violated that separation of powers, and he has done so in three 
fundamental ways.
  After nominating, he did not leave the Senate to review the record. 
He instead had his team call up Senators who lead the Judiciary 
Committee and say: Don't let the Senate get their hands on any of the 
records for the 3 years in which the nominee served as Staff Secretary.
  That is a direct intervention, a violation of the separation of 
powers. When I say ``he,'' I am referring to his team. That 
intervention was unacceptable.
  Then the Senate requested the records for the time he served on the 
White House Counsel. In this case, the President assigned an individual 
and gave him a stamp labeled ``Presidential

[[Page S6552]]

privilege,'' and that individual proceeded to stamp not 10 pages of 
documents, not 100, not 1,000, not 10,000, but 100,000 pages of 
relevant information were stamped ``Presidential privilege'' and were 
not delivered to the Senate. The President of the United States, 
instead of responding to the Senate's request for records, proceeded to 
exercise what he referred to as Presidential privilege or what we know 
to be Executive privilege and prevented the Senate from getting those 
documents.
  Why did that happen? We got some of the documents that made it 
through that censorship process but not all of them. From the documents 
we did receive, we found some information. We found out that when he 
served, he had been very involved in several nominations, discussions 
on nominations, even though he had indicated he had not played much of 
a role. We found out that he was involved in the conversation on 
torture, even though he had said he had not been involved. We found out 
that he had directly received documents stolen from the Democrats, even 
though he said he had not received those documents. That is just in the 
documents received. What is in the 100,000 documents the President 
marked ``Presidential privilege'' so we could not get them? What is 
being hidden in those documents?
  This violation of separation of powers--a violation that has never 
occurred in this manner to this degree, to this extent or anything 
close to it as far as any researcher has been able to ascertain--is 
unacceptable. The Senate must stand up for its right to be able to 
review the record of nominees.
  Sure, some of my colleagues are pretty happy that these documents got 
blocked because they don't want to know what is in them because they 
have already made up their minds. But reverse the situation. Consider 
that maybe a different President is in place, proposing a judge of a 
different judicial philosophy.
  Do we really want to compromise the fundamental rights of the Senate, 
their responsibilities of the Senate of advice and consent? We do not. 
It is wrong. Each of us, every one of us, took an oath of office to 
uphold the Constitution. Now, that Constitution gives each of us, every 
one of us, the responsibility to review the record of nominees and 
decide if they are fit or unfit, and none of us can do that if we don't 
have those records.
  So let's stand up together and tell the President to deliver those 
documents. Well, now, you might ask: Isn't there some justification for 
this Presidential privilege? Consider this: These are records that 
occurred under President Bush, but it is not President Bush asserting 
privilege, it is President Trump. How could his--that is, President 
Trump's--conversations be compromised by records from a previous 
administration? Doesn't this sound suspicious?
  The only reason anyone can think of is not that they compromise 
confidential information about the Trump administration but that simply 
they have information that would not look good in regard to our review 
of Judge Kavanaugh's record.
  So when you have this situation, this abuse of power, we sometimes 
turn to the courts to say stop that abuse, and that is what I have 
done. I filed suit and said: Stop this abuse of power by the President 
stepping in and blocking the Senate from seeing those 100,000 
documents, for which no justification has been provided.
  It isn't that the President said: Well, on this page there is this 
type of sensitive information and that is protected because it affects 
my administration. No, no justification. So that alone tells you this 
Senate should never confirm this individual because we have not had the 
opportunity to review his record. The President is hiding these 
documents. He does not want us to see them because it probably has a 
lot of information unbecoming to this nominee. You don't hear the 
nominee saying: No. Deliver the records. I want the Senate to know 
everything about me. No, the nominee is not interested in us being able 
to actually see his judicial views or his character in that context. So 
this is one reason he should be rejected.
  How about this. Should anyone serve on the Supreme Court, that 
beautiful place where we consider equal justice under the law, who has 
repeatedly lied to the U.S. Senate during his confirmation hearings? He 
lied in 2006 time after time. My colleagues who served in 2006--I did 
not--have pointed this out in detail. He lied on key issues, key issues 
related to the documents I was referring to.
  Then we had his performance in the Senate just last week where he 
proceeded to tell all kinds of whoppers. The press has laid them out. 
Some articles talk about 20-plus whoppers he has told, and by 
``whoppers,'' I mean lies. I mean deceptions. I mean inaccuracies. I 
mean things he knew not to be true. That is unacceptable, to put any 
individual on the Court who cannot be truthful when questioned before 
Congress.
  Then we have the fact that he has this record of engaging in behavior 
abusive to women. Now, it took a lot of courage for Dr. Ford to come 
forward and tell her experiences in high school, and it took a lot of 
courage for Debbie Ramirez to come forward and talk about her 
experiences in her freshman year. She shared how Mr. Kavanaugh--Judge 
Kavanaugh--had directly engaged in massively inappropriate sexual 
behavior.
  When women come forward to share these experiences, we need to treat 
them with respect; we need to treat them with dignity; we need to hear 
them; we need to understand their pain, but what did the Senators on 
the Senate Judiciary Committee majority do? They hired a prosecutor in 
order to treat her as a criminal. Yes, the 11 Republican men hired a 
prosecutor to treat Dr. Ford as a criminal when she appeared before the 
committee.
  Now, she asked for an FBI investigation. The committee didn't want to 
give it to her. The leadership of the committee didn't want to give it 
to her, and I praise my colleague from Arizona who said it is so 
important to investigate the credibility of her story, to talk to those 
who have additional information. She asked for that. She invited that. 
She wanted that.
  She provided a list of eight individuals whom, if you want to 
corroborate her story, these are the people you should talk to.
  So the President, at the request of my good friend from Arizona, 
said: Yes, we will reopen the background investigation, the FBI 
investigation, but the President produced a scoping document that says 
whom the FBI can talk to. So of those eight women, those eight women 
who are on Dr. Ford's list, you would expect, if the goal was to 
explore her experience as she presented it, the FBI would be authorized 
by the President to speak to all eight. To my colleagues, have you paid 
attention to how many individuals the FBI was allowed by President 
Trump to talk to who were on that list--Dr. Ford's list? The answer is 
zero.
  So any colleague in this Chamber who says that was fair treatment of 
Dr. Ford I will contend is absolutely wrong because Dr. Ford presented 
individuals who had relevant information, and the President's scoping 
document prevented the FBI from talking to them.

  Now let's talk about Debbie Ramirez. She is there during Judge 
Kavanaugh's freshman year at Yale, in the dorm, and he behaves in a 
totally inappropriate manner, according to the information she relayed 
about excessive drinking, followed by this individual, this nominee, 
exposing himself to her and laughing about it.
  She provided a list of 20 individuals who have corroborating 
information about that experience--20. So, of course, if the FBI was 
going to reopen the background investigation and it was going to be an 
investigation with any form of integrity, any form of legitimacy, any 
form of fairness, the FBI would be allowed to talk to those 20 people.
  How many of those 20 people did the President, in his scoping 
document, allow the FBI to talk to? None. Zero. Not a single one. That, 
again, is not fairness to the individual who came forward with her 
experience.
  Now, why is it that the President didn't want the FBI to actually 
talk to these individuals? Well, let's discuss one of them. One of them 
lived in the suite, lived right there in the same cluster of bedrooms 
with a common area as did Mr. Kavanaugh that freshman year, and he 
heard about this story in real time. He heard about it and he 
remembered it and he thought it was outrageous that Mr. Kavanaugh had 
behaved in this fashion.

[[Page S6553]]

  Now, he remembered it so clearly that when he was in a discussion 
with his roommate in his first year in graduate school, he shared that 
story with his roommate years and years and years before Kavanaugh was 
ever nominated to a judicial position. So here you have a suitemate who 
heard the story of what was done by Mr. Kavanaugh to Debbie Ramirez, 
who relayed that story to another student in his first year of graduate 
school and who went to the FBI and said: Come and talk to me because I 
can tell you she is telling the truth. I may not have witnessed it, but 
I heard about it after it happened, and I am not making it up now 
because I told somebody about it, and they are willing to come forward 
and talk to you.
  So it goes to the FBI. Could the FBI talk to him? No, they couldn't 
because the President of the United States prohibited the FBI from 
talking to anyone who had real information about the two experiences 
those two women brought forward. That is just beyond wrong.
  Think about how much worse this body is treating these two women than 
the Senate treated Anita Hill in 1991. Think about that comparison. You 
would think in the nearly three decades since we would have improved, 
27 years--but have we?
  With Anita Hill, the President immediately reopened the FBI 
investigation of his own volition, wanting to get a full background 
check of the issue. The committee held hearings over multiple days, had 
multiple people come forward who had corroborating information. They 
heard them out.
  How many of those 28 individuals have been given an opportunity to 
come before the Judiciary Committee to share their experience? Not a 
one. The leadership of the Judiciary Committee has blocked all of 
them--has not invited one of them to share their story. The President 
blocked the FBI from talking to them. The leadership at Judiciary 
blocked the Judiciary Committee of this body from hearing them out.
  This is perhaps the worst example of injustice we could envision in 
this body, and I would like to call it an esteemed body, but how can I 
call it that when my colleagues are treating these women in such a 
horrific fashion?
  Should an individual serve on the Supreme Court based on this job 
interview that we are conducting? Would you hire this individual into 
your company, into a position of trust, after the testimony of these 
two women? Wouldn't you say: If I am even giving a thought to hiring 
the individual, I will check out these stories, not block these women 
from being able to have the corroborating information shared with the 
Senate, not block the FBI from being able to talk to them? No. This is 
a failure. We cannot allow this to stand. We have a responsibility, 
particularly more with the Supreme Court than any other organization, 
to exercise our advice and consent through a responsible process, a 
process of integrity, of fairness, of decency, of transparency, none of 
which is happening at this point.
  So we have deep differences over this man's judicial philosophy, but 
I know that if he is rejected, then the President will propose someone 
of a similar judicial philosophy. So my colleagues who support that 
philosophy can be assured they will have a chance to put another person 
in who hasn't lied to the Senate, another person who doesn't have a 
record of abuse toward women.
  I heard some interviews this evening of some of my colleagues saying 
things like: Oh, it is so horrific that these women are trashing his 
reputation.
  Are you really telling me that for a woman to share a horrific 
experience from her life, who is willing to have the FBI investigate it 
and who provides people who have corroborating information, you are 
calling that an attack? You are calling that person the wrong person? 
How dare they come forward with their story, you are saying. That is 
just wrong. That is so completely wrong to treat women in that fashion.
  So to my colleagues who want somebody of a similar judicial 
perspective, you will have a chance to have that person, but you will 
do incredible harm to this institution if this man, after this record, 
is put onto the Court, and that is why he needs to be rejected.
  That is why the President should withdraw him. That is why my 
Republican colleagues should call up the President and say: Withdraw 
this nominee and send us another.
  I happen to disagree with his judicial philosophy as well. We are in 
a battle in this country between the ``we the people'' vision of the 
Constitution, as it was written, and a rewrite done by a group of 
lawyers who want to have government not by and for the people but by 
and for the powerful: Don't worry about those consumers. Let the 
company run over the top of them. Don't worry about those healthcare 
opportunities. Snatch them away. Don't worry about those environmental 
laws. Knock them down.
  It is government by and for the powerful. That is Kavanaugh. 
Kavanaugh has gone through decades of a process designed to prepare him 
to execute that philosophy--government by and for the powerful on the 
Court. They are so happy. The powerful in this country are so happy to 
jam him through that they are putting extreme pressure on my colleagues 
to approve him despite his horrific personal record.
  I say to my colleagues: Stand up for the integrity of the Senate. 
Stand up for the legitimacy of the Supreme Court. Don't allow 
yourselves to be brought into a vortex of determined outside power 
saying: This must be done, and this must be done now, and this must be 
done with this flawed individual.
  I am deeply disturbed--deeply disturbed--about where we stand right 
now with the vote to close debate tomorrow and to send this body into 
30 hours of final debate before a decision. That timeline gives us no 
chance that the courts can provide us the documents that have been 
censored by the President of the United States. It gives no chance to 
reawaken the opportunity of the committee to hear from those 28 
individuals whom the FBI did not investigate because the President of 
the United States wouldn't let them--no chance to get to true justice.
  Remember that phrase across the front of the Supreme Court: ``Equal 
justice under law.'' That phrase will be tarnished, the Court deeply 
diminished, and the people deeply divided, if we proceed to the 
confirmation of Brett Kavanaugh.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. BENNET. Mr. President, the nomination of Judge Kavanaugh by 
Donald Trump has left this body and the American people deeply divided, 
but I think it has also united every American in the belief that this 
cannot be the standard for how the Senate or the Federal Government 
should operate. This cannot be how our Founders expected us to consider 
lifetime appointments to the Supreme Court of the United States.
  As recently as when I was in law school, confirmations of a Supreme 
Court Justice used to be a chance for the American people to learn 
about our system of checks and balances and the rule of law--what made 
America so special. No student in Colorado watching our conduct over 
the past few weeks would have anything to be proud of. Instead of 
modeling our checks and balances, we have been demolishing them. 
Somewhere along the way, we began to treat the courts as just another 
front of our endless partisan war, with each vacancy as an opportunity 
to bloody the other side and secure an ephemeral political win. And the 
latest, lowest point in that story is this shambles of a confirmation 
process.

  Weeks ago, I announced that I intended to oppose Judge Kavanaugh's 
nomination. It was after the first round of hearings and before the 
later allegations of misconduct arose. Then and now, I worried about 
what his confirmation would mean to the people of Colorado--for those 
with preexisting conditions who depend on the Affordable Care Act for 
lifesaving treatment, for our farmers and ranchers who are so worried 
about climate change, for our children with asthma who are vulnerable 
to harmful pollutants, for same-sex couples in loving marriages, and 
for the women across our State who have a constitutional right to make 
their own healthcare decisions.
  I worried that Judge Kavanaugh would threaten hard-won progress for 
all Coloradans, taking us from the independent majority under Justice 
Kennedy to an ideological majority, deeply out of step with the values 
of

[[Page S6554]]

people in my State and, I would say, throughout the United States.
  I worried that Judge Kavanaugh would block reforms we need to break 
the fever gripping our politics--a fever on full display over the last 
few weeks. If confirmed, it is very likely that Judge Kavanaugh would 
provide a fifth vote against reforms to end partisan gerrymandering, to 
help workers organize, to help people vote and curb the corrupting 
power of money in our politics.
  In the age of President Trump, I have particular concerns about the 
nominee's expansive views with respect to Presidential power and 
oversight, views that made me question the extent to which he would 
fulfill the Court's role as a check on the executive branch.
  Finally, I had concerns that Judge Kavanaugh had an unusually 
partisan background for a judicial nominee--a concern borne out during 
the hearing last week.
  All of this led me to oppose Judge Kavanaugh's nomination.
  Soon after, Dr. Ford came forward with these serious allegations of 
misconduct. She came before the Senate Judiciary Committee and gave 
very credible testimony. She had no reason to make anything up, and she 
had every reason to stay quiet, but she came forward anyway because she 
believed, as she said, it was her civic duty. Her courage has inspired 
hundreds of thousands, if not millions, of women across the country, 
including Debbie Ramirez of Colorado, to share their own stories. She 
inspired other survivors from my State to call, write, and even fly to 
Washington and meet with me earlier today.
  For her courage alone, Dr. Ford deserved far better than the casual 
dismissal we saw from Members of this body or the juvenile taunting we 
saw the other night by President Trump, who continues the same politics 
of distraction and division that managed to get him elected and that 
continue now to threaten to tear our country apart.
  But President Trump is not the issue here. For all the damage he has 
done, he is not the cause of our dysfunction. He is a symptom of it, 
and that dysfunction is what we have to confront, especially now as we 
find ourselves days away from a party-line vote for a lifetime 
appointment to the Supreme Court.
  I recognize that both sides had their own argument or story about how 
we got to this point. I know that ever since the majority demolished 
the rule requiring 60 votes for a Supreme Court nominee, there has been 
no incentive to select a mainstream candidate who can earn the support 
of both parties. In fact, all the incentives now run in exactly the 
opposite direction--selecting a nominee who can appease the base of the 
party and earn the narrowest partisan majority in the Senate. That 
reality helps to explain why this process has been so divisive.
  If we still had the 60-vote threshold, it is hard to imagine the 
Senate moving forward on a nominee without disclosing their full record 
and without giving the minority party time to review that record so 
they can ask informed questions of the nominee. That would never happen 
if you still needed 60 votes, if you still needed the other party as 
part of the decision making, as part of advise and consent.
  We would expect the nominee to have to answer directly direct 
questions. It would have been unfathomable that the majority would 
downplay serious allegations of misconduct, and, in the case of Debbie 
Ramirez, refuse to even interview many of the potential witnesses that 
she identified.
  None of this makes any sense if our interest is in protecting the 
integrity of the Supreme Court. It only makes sense if we have now 
reduced our responsibility and our duty under the Constitution to 
advise and consent to a completely partisan exercise. That is where we 
have gotten to.
  I have said on this floor before that I deeply regret the vote we 
took to change the rules for lower level officials and judges. I don't 
think we should have done that.
  I certainly don't think the majority leader should have prevented 
Merrick Garland from coming to a vote on the floor of the Senate. That 
was outrageous, unprecedented in our history. I don't think he should 
have invoked the nuclear option for the Supreme Court. I think that was 
a huge mistake.

  We are going to have a partisan process forever unless we can find 
some way back there. This new majority rule when it comes to judicial 
nominees is why we now have Supreme Court nominees audition on cable 
television networks--in this case, FOX News. It is why the President 
held a political rally and used it as an occasion to mock the accusers. 
It is why the White House limited the investigation to ignore key 
witnesses, allowing the majority leader to declare, as he did this 
morning, that it uncovered ``no backup from any witnesses.'' Well, they 
weren't interviewed.
  It is important to remember what the majority leader did to Judge 
Garland when Justice Scalia died. He left open a vacancy on the Supreme 
Court for more than 400 days, and we can't take the time to interview 
witnesses from a serious allegation from somebody living in Boulder, 
CO? I forget exactly how many days it was, but it was more than 400 
days. Then we have a 4-day investigation that doesn't interview the 
witnesses that have been named, and the majority leader has the gall to 
come to the floor and say that the investigation had uncovered ``no 
backup from any witnesses.''
  All of this--most importantly, that lack of investigation--is 
evidence of a confirmation process that has been overrun by politics, 
like everything else around here. Only, unlike many other things, this 
is a solemn responsibility granted to this body exclusively by the 
Constitution of the United States, by the Founders who wrote that 
Constitution, and the Americans who ratified it.
  This may help one party win Presidential or Senate elections, but it 
is toxic to our institutions. We have exported what hopefully will be 
the temporary, mindless, empty, counterproductive, unimaginative, 
meaningless partisanship from the floor of this Senate to the U.S. 
Supreme Court. We should be ashamed of that. We should be ashamed of 
that on the floor of this Senate, and we should be ashamed that we are 
doing that to an independent branch of our government.
  Earlier today, I had the chance to meet students who were visiting 
here from Aspen, CO. When I meet with students, I sometimes get the 
impression they think that all of this was just here--that the Capitol 
was here, that the Supreme Court was here, that the White House was 
just here, that somehow it all just fell from the sky. I always remind 
them that it wasn't just here.
  The only reason we have any of this is because previous generations 
of Americans overcame enormous difficulty to write and ratify the 
Constitution. We forget that Americans were sharply divided over 
whether to ratify the Constitution. Some worried that the new 
government would grow too powerful and become the very tyranny they had 
just fought a war to escape.
  By the way, think about that for a second--that generation of 
Americans accomplished two things that had never been done in human 
history before. They led an armed insurrection that was successful 
against a colonial empire, and they wrote a Constitution that was 
ratified by a people who would live under it. No humans had ever been 
asked permission for the form of government they would live under until 
Americans got that opportunity. We set an example for the world.
  It also must be said that the same Founders perpetuated human 
slavery, which is a terrible stain on their work, but another 
generation of Americans, who I think of as Founders, just like the 
people who wrote the Constitution, abolished slavery. They made sure 
women had the right to vote and passed the civil rights laws in the 
1960s. Generation after generation after generation of Americans has 
seen their responsibility to democratize the Republic that the Founders 
created and to preserve the institutions that we created so that we 
could render thoughtful decisions in our Republic.
  Our process for advice and consent looks nothing like that heritage. 
When Americans were having that big division about whether to ratify 
the Constitution at all, Alexander Hamilton wandered into the debate, 
and he responded to those who were worried

[[Page S6555]]

that the government would become too powerful or become a tyranny just 
like the one they had escaped. He pointed out the importance of the 
courts and the rule of law as a check against tyranny. He wrote that 
``the complete independence of the courts of justice is peculiarly 
essential in a limited constitution.'' ``Without this,'' he said, ``all 
the reservations of particular rights or privileges would amount to 
nothing.''
  Hamilton did not say that independent courts were optional. He did 
not say they were contingent on political convenience. He said they 
were essential to the working of this Republic, and it is for this 
reason the Founders designed the extraordinary mechanism of checks and 
balances, including the unique duties we bear in the U.S. Senate.
  Yet the Founders also knew that this mechanism alone was 
insufficient. It required elected officials to act responsibly--to 
treat advice and consent, for example, as an opportunity to confirm 
judges of the highest intellect, integrity, and independence, judges 
who could maintain the confidence of the American people in our courts 
and rule of law. Today, we have fallen so short of Hamilton's standard. 
Instead of insulating the courts from partisanship, we have infected 
the courts with partisanship.
  I have not met a single Coloradan who believes that confirming judges 
with 51 Republicans or 51 Democrats instead of 90 votes from both 
parties serves the independence of our judiciary. It does the opposite 
in that it makes the courts an extension of our partisanship. This is 
exactly what Hamilton feared. He warned: ``Liberty can have nothing to 
fear from the judiciary alone, but would have everything to fear from 
its union with either of the other departments.''
  Hamilton's warning echoes loudly in the age of President Trump--a man 
who has called for jailing his political opponents, deporting 
immigrants without due process, banning entire religious groups, 
bringing back torture ``and a hell of a lot worse''; a man who fired 
the FBI Director in the middle of an investigation into his campaign 
and who has tried to discredit that investigation with routine 
falsehoods ever since.
  If there were ever a time to stand up for our checks and balances and 
the rule of law, it is now. Instead, with this vote, the Senate is, 
once again, acceding to the White House and undermining the Supreme 
Court in the process. The result is that we are going to continue to 
barrel down this dangerous path.
  Unless we change what we are doing, one of two things will happen: We 
will replay this process every time, that of confirming Supreme Court 
Justices with the barest partisan majority and tearing the country 
apart in the process, or if the Senate and the White House are not of 
the same party, we will never fill a Supreme Court vacancy. That is not 
what the Founders expected. It is certainly not what the people of 
Colorado expect.
  We are playing with fire. Unlike us, the Founders knew their history. 
They knew about the fall of Athens, whose history taught them that, 
more than anything, the greatest threat to freedom is faction. The 
Founders read the Athenian historian Thucydides, who tells us about a 
civil war that consumed the city of Corcyra 2,400 years ago.
  According to Thucydides, the city descended into factionalism. Both 
parties spared ``no means in their struggles for ascendancy. . . . In 
their acts of vengeance, they went to even greater lengths, not 
stopping at what justice or the good of the state demanded, but making 
the party caprice of the moment their only standard.'' As the civil war 
intensified, both sides struggled to end it because ``there was neither 
promise to be depended upon, nor oath that could command respect; but 
all parties dwelling rather in their calculations upon the hopelessness 
of a permanent state of things, were more intent upon self-defense than 
capable of confidence.''
  How familiar that sounds today. In our acts of vengeance, we have 
gone to greater and greater lengths and fallen to greater and greater 
depths. We have ignored what justice or the good of the state demands. 
In doing so, we have degraded the courts as we have degraded ourselves.
  Yet this is a human enterprise, just as it has been since the 
founding of the United States of America. Yet our situation is not 
hopeless. This dysfunction does not need to be a permanent state of 
things. We can and we must be capable of confidence in ourselves and 
our institutions once more, for unlike the stories told of ancient 
kingdoms and empires in history, we still live in a republic, and in 
the story of our Republic, we alone are responsible for writing its 
ending or its continuance for the next 100 or 200 years.
  I think every American is probably disturbed by what has happened, 
and they all know we can create a better ending. The question they have 
is whether their elected Representatives in Washington will do so. We 
need an ending that upholds the independence of our courts, where we 
return to an honorable bipartisan tradition in the Senate, where we 
build a culture that has no place for sexual assault and that provides 
an opportunity for people who have been assaulted to be heard and to be 
heard in a way that doesn't shame them or embarrass them or make their 
difficulties even worse.
  I know there are a lot of people out there--and I agree with them--
who don't see a lot of hope for that in the process that we have had 
here. What I would say to them is that, tonight, there are survivors 
from all over our country, including from my home State of Colorado, 
who are arrayed around the Capitol. Their being here testifies to the 
resilience of the human spirit. It gives us all hope that however 
difficult this moment in the United States, progress is always in our 
hands, that it is always our responsibility, and that we need to act 
with the kind of courage they are showing tonight by being here.
  I say thank you to the Presiding Officer, and I thank my colleague 
from Ohio for his indulgence. I have gone over about 5 minutes. I 
apologize for that.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Daines). The Senator from Ohio.
  Mr. PORTMAN. Mr. President, I rise to talk about my vote on the 
confirmation of Judge Brett Kavanaugh to serve on the Supreme Court.
  Sadly, over the past couple of weeks, the confirmation process has 
become a bitter partisan fight that has deeply divided this body and 
has divided our country in the midst of all the passion, the anger, and 
the emotion from both sides. Now I want to talk about something else. I 
want to talk about the facts. I want to talk about the facts as I know 
them.
  First, I know Brett Kavanaugh. I have known Brett and his wife Ashley 
for more than 15 years since we worked together in the George W. Bush 
White House. I have seen them in tough situations. I have seen them 
tested. I have seen their character. I have known Brett not so much as 
a legal scholar or a judge or a professor but as a colleague and a 
friend and a father and a husband. I have known him as someone who is 
smart, thoughtful, and compassionate.
  Among White House colleagues, I know that he is universally viewed 
that way. He was at the time, and he still is today as we have seen 
from the testimony of so many men and women who have worked with him. I 
also know that Brett Kavanaugh has been a widely respected public 
servant for nearly three decades, including the last 12 years as a 
judge on the DC Circuit Court--what most view as the second highest 
court in the land.
  I know he has received praise from his fellow judges and his many law 
clerks, the majority of whom have been women, and from the students in 
his classes of Harvard, Yale, and Georgetown Law Schools--students from 
across the political spectrum--also from litigants who have been before 
him, including Lisa Blatt, who is a self-described liberal who has 
argued more cases before the Supreme Court than any other woman. When 
Lisa Blatt joined Condoleezza Rice and me in introducing Brett 
Kavanaugh before the committee, she said, ``He is unquestionably 
qualified by his extraordinary intellect, experience, and 
temperament.'' All of this seems to have been lost in the past couple 
of weeks.
  I also know that Brett Kavanaugh is highly qualified to serve on the 
Supreme Court. In fact, frankly, I have

[[Page S6556]]

heard that from a number of my Democratic colleagues who were quick to 
say they don't support him for other reasons, but they don't question 
his legal experience and his qualifications. You really can't.
  The American Bar Association, not known for being very friendly to 
Conservatives, has given Brett Kavanaugh its highest rating 
unanimously. I know that in more than 20 hours of testimony before the 
Judiciary Committee--in fact, I think it was 32 hours of testimony--he 
showed an encyclopedic knowledge of the Constitution, of Supreme Court 
cases, an appreciation for Supreme Court precedent, and, overall, has 
an impressive grasp of the law.
  Only a couple of weeks ago, he had successfully navigated the arduous 
process of meetings, interviews, and tough questions during 32 hours in 
front of the Senate Judiciary Committee. As a result, he had the votes 
in the committee, and he seemed to be headed toward confirmation here 
on the floor of the Senate. After 12 weeks of consideration and 5 days 
of hearings--by the way, more days of consideration and more days of 
hearings than we have had for any confirmation of any judge for the 
Supreme Court in recent history--the committee was ready to vote. Just 
before the vote in committee came the allegations of sexual assault and 
calls for delay.
  As wrong as it was for Members of the U.S. Senate to have kept the 
allegations of Dr. Ford's secret until after the normal process had 
been completed and then to have sprung it on the committee, the Senate, 
and the country, I thought that because of the seriousness of the 
allegations, it would also have been wrong not to have taken a pause 
and to have heard from Dr. Ford and Judge Kavanaugh, and we did. 
Chairman Chuck Grassley, of the Judiciary Committee, was accused by 
someone on my side of the aisle of bending over backward when he should 
have pushed ahead, but he reopened the process and allowed the painful 
ordeal to play out as, I think, we were compelled to do--painful for 
Dr. Ford, painful for Brett Kavanaugh, the Senate, and the country.
  I believe sexual assault is a serious problem in our Nation, and many 
women and girls--survivors, victims--choose not to come forward, choose 
not to report it for understandable reasons. Therefore, I think we 
should take allegations seriously. We must take allegations of sexual 
assault very seriously, and I do. Dr. Ford deserved the opportunity to 
tell her story and be heard, and, of course, Judge Kavanaugh deserved 
the opportunity to defend himself. That is why I supported not only 
having the additional committee investigation and hearing but also of 
taking another week to have a supplemental FBI investigation after the 
normal Judiciary Committee process was completed. I watched that 
additional Judiciary Committee hearing, and I listened carefully to 
both Dr. Ford's and Judge Kavanaugh's testimony. I am sure many 
Americans did.
  I have now been briefed on it and have read the supplemental FBI 
report, which arrived early this morning. I went to a secure room here 
in the Capitol. To do so, I went three times today to be sure I could 
be fully briefed on it and could read it. Again, my job, my obligation, 
is to assess the facts, and the facts before us are that no 
corroboration exists regarding the allegations. No evidence prepared 
before or in the supplemental FBI investigation corroborates the 
allegations--none.
  Judge Kavanaugh, of course, has adamantly denied the allegations. His 
testimony is supported by multiple other statements. Simply put, based 
on the hearings, the Judiciary Committee's investigation, and the FBI's 
supplemental investigation, there is no evidence to support the serious 
allegations against Judge Kavanaugh. Of course, in his 25 years of 
public service, there had also been six previous FBI investigations.

  In America, there is a presumption of innocence. When there is no 
evidence to corroborate a charge, there is a presumption of innocence 
that we must be very careful to pay heed to.
  Just 1 day after Dr. Ford's allegations were made public, 65 women 
who knew Judge Kavanaugh in high school sent a letter to the Judiciary 
Committee in defense of his character. These 65 women put this letter 
together within a day's notice.
  The letter stated:

       Through the more than 35 years we have known him, Brett has 
     stood out for his friendship, character, and integrity. In 
     particular, he has always treated women with decency and 
     respect. That was when he was in high school, and it has 
     remained true to this day.

  These are women who knew Brett Kavanaugh. They knew him in high 
school. Importantly, that is the Brett Kavanaugh I have known these 
past 15 to 20 years.
  This confirmation debate could have and should have unfolded very 
differently. The process has become poisonous, and it is up to us in 
this Chamber to change it.
  It is going to take a while for the Senate and the country to heal 
from this ugly ordeal, but for now let me make a modest suggestion. 
Let's step back from the brink. Let's listen to each other. Let's argue 
passionately, but let's lower the volume. Let's treat disagreements 
like disagreements, not as proof that our opponents are bad people. 
Let's see if we can glorify quiet cooperation--at least every once in a 
while--instead of loud confrontation.
  Some may say this is trite or naive, but, my colleagues, we have 
crossed all these lines in recent weeks. For the state of this 
institution and for the country, we have to step back from the brink, 
and we have to do better.
  The way this process unfolded risks candidates with the kinds of 
qualifications and character we all want deciding to think twice before 
entering public service. If the new normal is eleventh-hour 
accusations, toxic rhetoric like calling a candidate ``evil'' and those 
who support him ``complicit in evil'' and guilt without any 
corroborating evidence, who would choose to go through that? How many 
good public servants have we already possibly turned away by this 
display? How many more will we turn away if we let uncorroborated 
allegations tarnish the career of a person who has dedicated 25 of the 
past 28 years to public service and who has done so with honor, again 
based on the testimony of so many people across the spectrum, men and 
women?
  These are questions the Senate is going to have to grapple with for 
possibly years to come, but right now I want to focus on something that 
hasn't gotten as much attention in the last couple of weeks, and that 
is what is known.
  I know Judge Kavanaugh as someone with a deserved reputation as a 
fair, smart, and independent judge. I know him as someone who is 
universally praised by his colleagues for his work ethic, his 
intelligence, and his integrity. I know him as someone who respects 
everyone and someone whose first introduction to law came from 
listening to his mom practicing closing arguments at the dinner table. 
Perhaps most importantly--most importantly--I know him as someone who 
has the ability to listen. It is something we need more of in this 
country and on the Court during turbulent times.
  In following facts, as I am obligated to do, I will support this 
nomination, and I will be proud to vote to confirm Brett Kavanaugh as 
the next Associate Justice of 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. PORTMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________