[Congressional Record Volume 164, Number 166 (Friday, October 5, 2018)]
[Senate]
[Pages S6559-S6562]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE CALENDAR

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to resume consideration of the 
following nomination, which the clerk will report.
  The bill clerk read the nomination of Brett M. Kavanaugh, of 
Maryland, to be an Associate Justice of the Supreme Court of the United 
States.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, would you inform me of the amount of 
time I have to speak.
  The ACTING PRESIDENT pro tempore. There has been no time agreement 
made.
  Mr. GRASSLEY. I thank the Acting President pro tempore.
  Madam President, 100 days ago, Justice Kennedy announced his 
retirement from the Supreme Court. Shortly thereafter, on July 9, the 
President announced the nomination of Judge Brett Kavanaugh to serve as 
the newest Justice.
  Judge Kavanaugh has spent 25 years of his career in public service. 
He spent the last 12 years on the DC Circuit--considered the second 
most important Federal court in the country. His record there has been 
extremely impressive because the Supreme Court adopted a position 
advanced in Judge Kavanaugh's opinions no fewer than a dozen times.
  Judge Kavanaugh is also a pillar of his community and in the legal 
profession. He serves underprivileged communities, coaches girls' 
basketball, and is a lector at his church. He has shown a deep 
commitment to preparing young lawyers for their careers. He has been a 
law professor at three prestigious law schools and a mentor to dozens 
of judicial law clerks.
  This should have been a respectable and dignified confirmation 
process. In a previous era, this highly qualified nominee would have 
received unanimous support in the Senate. Before leftwing, outside 
groups and Democratic leaders had him in their sights, Judge Kavanaugh 
possessed an impeccable reputation and was held in high esteem by the 
bench and the bar alike. Even the American Bar Association, which the 
Democrats say is their gold standard for judges, gave him its unanimous 
``well-qualified'' rating.
  What leftwing groups and their Democratic allies have done to Judge 
Kavanaugh is nothing short of monstrous. I saw what they did to Robert 
Bork. I saw what they did to Clarence Thomas. That was nothing compared 
to what we have witnessed in the last 3 months. The conduct of 
leftwing, dark money groups and their allies in this body has shamed us 
all.
  The fix was in from the very beginning. Before the ink was even dry 
on the nomination, the minority leader announced he would oppose Judge 
Kavanaugh's nomination with everything he had. Even before he knew the 
President's nominee, the minority leader said he was opposed to all 25

[[Page S6560]]

well-qualified potential nominees listed by this President. One member 
of my committee said those who would vote to confirm Judge Kavanaugh 
would be ``complicit in evil.'' Another member of the committee 
revealed the endgame when she suggested that Senate Democrats could 
hold the vacancy open for 2 years if they defeated Judge Kavanaugh and 
took control of the Senate in these midterm elections.
  I oversaw the most transparent confirmation process in Senate history 
based on the fact of the more than 500,000 pages of judicial writings, 
publications, and documents from Judge Kavanaugh's executive branch 
service. This is on top of the 307 judicial opinions he authored. 
Despite the Democrats' efforts to bury the committee in even more 
paperwork, the Senate Judiciary Committee held a timely, 4-day hearing 
on Judge Kavanaugh's nomination last month. Judge Kavanaugh testified 
for more than 32 hours over the course of 3 days. Judge Kavanaugh 
showed the Nation exactly why he deserves to be on the Supreme Court--
because of his qualifications.
  Judge Kavanaugh's antagonizers couldn't land a punch on him during 
his 3 days of testimony. Even when they made false or misleading 
arguments, they couldn't touch him. Some of my colleagues accused Judge 
Kavanaugh of committing perjury. For that false claim, the Washington 
Post Fact Checker awarded my colleague three Pinocchios. Another 
colleague claimed Judge Kavanaugh described contraceptives as 
``abortion-inducing'' drugs. The video my colleague shared on the 
internet was doctored to omit the fact that Judge Kavanaugh was 
describing the plaintiffs' claims in a case that he had decided and not 
his own views. My colleague was awarded four Pinocchios. Those, of 
course, are the most Pinocchios you can get.
  Yet they still had one big card to play, which they had kept way up 
their sleeves for a month--actually, for 45 days, I think. In July, the 
ranking member received a letter from Dr. Christine Blasey Ford, 
alleging that Judge Kavanaugh sexually assaulted her in high school 36 
years ago. Instead of referring Dr. Ford to the FBI or sharing these 
allegations with her colleagues--either of which would have respected 
and preserved Dr. Ford's confidentiality and is what Dr. Ford 
requested--the ranking member referred Dr. Ford to Democratic-activist 
attorneys who were closely tied to the Clintons. The ranking member 
shamefully sat on these allegations for nearly 7 weeks, only to reveal 
them at the eleventh hour, when it appeared that Judge Kavanaugh was 
headed toward confirmation because he was so qualified.
  The ranking member had numerous opportunities to raise these 
allegations with Judge Kavanaugh personally. I will give you six 
examples.
  She could have discussed them with Judge Kavanaugh during their 
private meeting on August 20--a meeting which took place after her 
staff had sent Dr. Ford to Democratic lawyers--or shared them with 64 
of her Senate colleagues who had also met with him individually; the 
ranking member's staff could have raised them with Judge Kavanaugh 
during a background investigation followup call in late August; 
Senators could have asked Judge Kavanaugh about the allegations during 
his 32 hours of testimony over the course of 3 days; Judiciary 
Committee members could have asked Judge Kavanaugh about this in the 
closed session of the hearing, which the ranking member didn't attend. 
The closed session is the appropriate place to bring up issues about 
which confidentiality is supposed to be respected, and there were no 
questions about these allegations among the 1,300 written questions 
that had been sent to Judge Kavanaugh after the hearing. This amounts 
to more written questions being submitted to this nominee after a 
hearing than to all Supreme Court nominees combined.
  Keeping the July 30 letter secret deprived Senators of having all the 
facts they needed to have about this nomination.
  It was not until September 13--July 30 to September 13, nearly 7 
weeks after the ranking member received these allegations and on the 
eve of the confirmation vote--that the ranking member referred them to 
the FBI. Then, somehow, they were leaked to the press. It was not until 
those news reports on September 16 that I even learned of Dr. Ford's 
identity. This is an outrage. The political motives behind the 
Democrats' actions should be obvious to everyone.
  Dr. Ford requested the opportunity to tell her story to the Senate 
Judiciary Committee. After a lot of foot-dragging by Dr. Ford's 
attorneys, they finally agreed to a public hearing. As promised, I 
provided a safe, comfortable, and dignified forum for Dr. Ford as well 
as for Judge Kavanaugh. Dr. Ford was sincere in her testimony, as was 
Judge Kavanaugh, who emphatically denied the allegations.
  It is true that confirmation hearings aren't a trial, but trials have 
rules based on commonsense notions of fairness and due process, not the 
other way around. It is a fundamental aspect of fairness and a 
fundamental aspect of due process that the accuser have the burden of 
proving allegations. Judge Kavanaugh was publicly accused of a crime, 
and his reputation and livelihood were at stake. So it was only fair 
that his accuser have the burden of proof. The consensus is, the burden 
was not met.
  Ultimately, the existing evidence, including the statements of the 
three alleged eyewitnesses named by Dr. Ford, refuted Dr. Ford's 
version of the facts. Our investigative nominations counsel, Rachel 
Mitchell, who has nearly 25 years of experience in advocating for 
sexual assault victims and in investigating sex crimes, concluded there 
was a lack of specificity and simply too many inconsistencies in Dr. 
Ford's allegations to establish that Judge Kavanaugh committed sexual 
assault even under the lowest standard of proof.
  She concluded:

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

  We have thoroughly investigated Judge Kavanaugh's background.
  In addition to the prior six FBI full-field background investigations 
with the interviews of nearly 150 people who have known Judge Kavanaugh 
his entire life, the committee also separately and thoroughly 
investigated every credible allegation we received. Our more than 20 
committee staff members have worked night and day over the last many 
weeks in tracking down virtually all leads, and at the request of 
undecided members, the FBI reopened Judge Kavanaugh's background 
investigation for another week.
  The FBI interviewed 10 more people related to the latest credible 
sexual assault allegations, and the FBI confirmed what the Senate 
investigators already concluded, which is this: There is nothing in the 
supplemental FBI background investigation report that we didn't already 
know.
  These uncorroborated accusations have been unequivocally and 
repeatedly rejected by Judge Kavanaugh, and neither the Judiciary 
Committee nor the FBI could locate any third parties who can attest to 
any of the allegations. There also is no contemporaneous evidence.
  This investigation found no hint of misconduct, and the same is true 
of six prior FBI investigations conducted during Judge Kavanaugh's 25 
years of public service. Nothing an investigator, including career FBI 
special agents, does could ever be good enough to satisfy the 
Democratic leadership in Washington, who staked out opposition to Judge 
Kavanaugh before he was even nominated.
  There is simply no reason, then, to deny Judge Kavanaugh a seat on 
the Supreme Court on the basis of the evidence presented to us. The 
Democratic strategy used against Judge Kavanaugh has made one thing 
clear: They will never be satisfied, no matter how fair and thorough 
the process is.
  Thirty-one years after the Senate Democrats' treatment of Robert 
Bork, their playbook remains the same. For the leftwing, advice and 
consent has become search and destroy, a demolition derby.
  I am pleased to support Judge Kavanaugh's confirmation. I am sorry 
for what the whole family has gone through the last several weeks. We

[[Page S6561]]

should all admire Kavanaugh's willingness to serve his country, despite 
the way he has been treated. It would be a travesty if the Senate did 
not confirm the most qualified nominee in our Nation's history.
  The multitude of allegations against him have proved to be false. 
They have also proved that no discussion of his qualifications have 
shown he wasn't qualified. We had a campaign of distraction from his 
outstanding qualifications, a campaign of destruction of this fine 
individual.
  What we have learned is the resistance that has existed since the day 
after the November 2016 election is centered right here on Capitol 
Hill. They have encouraged mob rule.
  When you hear about things like ``Get in their face; bother people at 
every restaurant where you can find a Cabinet Member''--these are 
coming from public servants who ought to set an example of civility in 
American society, and it has been made worse by what has happened to 
Judge Kavanaugh.
  I hope we can say no to mob rule by voting to confirm Judge 
Kavanaugh.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I understand that in the order I 
have 15 minutes; is that correct?
  The ACTING PRESIDENT pro tempore. The Senator is recognized.
  Mrs. FEINSTEIN. Thank you very much.
  Madam President, this has been my ninth Supreme Court nomination 
hearing, and I must say, I have never experienced anything like this.
  Never before have we had a Supreme Court nominee where over 90 
percent of his record has been hidden from the public and the Senate. 
Never before have we had a nominee display such flagrant partisanship 
and open hostility at a hearing, and never before have we had a nominee 
facing allegations of sexual assault.
  The nominee before us being considered for a pivotal swing seat, if 
confirmed, would be the deciding vote on some of the most important and 
divisive issues of our day.
  I would like to start by speaking about some of the issues in 
relation to Judge Kavanaugh.
  President Trump promised to nominate to the Supreme Court only 
individuals who would be pro-life and pro-gun nominees and who would 
automatically overturn Roe v. Wade. In my judgment, Judge Kavanaugh 
clearly meets the test.
  In a speech in 2017, Judge Kavanaugh focused on praising Justice 
Rehnquist and his dissent in Roe v. Wade, where he challenged the right 
to women's privacy as protected in the Constitution.
  Also, last year, Judge Kavanaugh argued in a dissent in a Texas case 
that a Jane Doe should not be able to exercise her right to choose 
because she did not have family and friends help her make the decision. 
If adopted, this argument could rewrite Supreme Court precedent and 
require courts to determine whether a young woman has a sufficient 
support network when making her decision, even in cases--as is in this 
one--where she had gone before a court.
  His reasoning demonstrates that Judge Kavanaugh not only is willing 
to disregard precedent, but his opinions fail to appreciate the 
challenging realities women face when making these most difficult 
decisions.
  When I asked him about whether Roe and Casey were settled law and 
whether they were correctly decided, he refused to answer. He would say 
only that these cases are ``entitled to respect.''
  As we all know, Roe v. Wade is one of a series of cases that upheld 
an individual's right to decide who to marry, where to send your 
children to school, what kind of medical care you can receive at the 
end of life, as well as whether and when to have a family. According to 
these cases, the government cannot interfere with these decisions.
  Another issue that gives me great pause is Judge Kavanaugh's extreme 
view on guns. In reviewing his record and judicial opinions, it is 
clear his views go well beyond simply being pro-gun.
  During a lecture at Notre Dame Law School, Judge Kavanaugh himself 
said he would be ``the first to acknowledge that most lower-court 
judges have disagreed'' with his views on the Second Amendment.
  Specifically, in District of Columbia v. Heller, Judge Kavanaugh 
wrote in a dissenting opinion that ``unless guns were regulated either 
at the time the Constitution was written or traditionally throughout 
history, they cannot be regulated now.''
  In his own words, he said gun laws are unconstitutional unless they 
are ``traditional or common in the United States.''
  Judge Kavanaugh would have struck down DC's assault weapons ban 
because they have not historically been banned. This logic means that 
as weapons become more advanced and more dangerous, they cannot be 
regulated at all.
  When I asked Judge Kavanaugh about his views that if a gun is in 
``common use,'' it cannot it be regulated, he replied this way:

       There are millions and millions and millions of semi-
     automatic rifles that are possessed. So that seemed to fit 
     ``common use'' and not be a dangerous and unusual weapon.

  Think about that. Judge Kavanaugh made up a new standard that had 
nothing to do with ``common use'' but instead relied on whether a gun 
is widely possessed and owned as determinative of whether it is subject 
to any regulation.
  The United States makes up 4 percent of the worldwide population, but 
we own 42 percent of the world's guns. By Judge Kavanaugh's standard, 
no State or locality will be able to place any limitation on guns 
because of widespread ownership in this country.
  I am also concerned about his views on Presidential power. 
Specifically, he has said that sitting Presidents cannot be indicted, 
cannot be prosecuted, should not be investigated, and should have the 
authority to fire a special counsel at will. In other words, the 
President of the United States is above and outside the law.
  These views raise serious concerns that should concern us all, 
especially at a time when the President continually threatens to fire 
the leadership of the Department of Justice for failing to be loyal and 
reigning in the Mueller investigation.
  These views alone are sufficient for me to vote against Judge 
Kavanaugh, but what we have seen and experienced in the past several 
weeks has raised serious new concerns--concerns I believe should worry 
us all.
  Judges are expected to be ``evenhanded, unbiased, impartial, [and] 
courteous''; however, at the hearing last week, we saw a man filled 
with anger and aggression. Judge Kavanaugh raised his voice. He 
interrupted Senators. He accused Democrats of ``lying in wait,'' and 
replacing ``advice and consent with search and destroy.''
  He even went so far as to say that Dr. Ford's allegations were 
nothing more than ``a calculated and orchestrated political hit, fueled 
with pent-up anger about President Trump and the 2016 election,'' and 
``revenge on behalf of the Clintons.'' How could he?
  This behavior revealed a hostility and belligerence that is 
unbecoming of someone seeking to be elevated to the U.S. Supreme Court. 
His display was so shocking that more than 2,400 law professors from 
around the country have expressed their opposition.
  They wrote: ``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.''
  The professors concluded: ``We have differing views about other 
qualifications of Judge Kavanaugh. But we are united as professors of 
law and scholars of judicial institutions, in believing he did not 
display the impartiality and judicial temperament requisite to sit on 
the highest court of our land.''
  Madam President, finally, I want to mention the serious and credible 
allegations raised by Dr. Christine Blasey Ford and Deborah Ramirez, 
the two women who came forward to tell their experiences facing sexual 
assault.
  When Dr. Ford decided to make her story public, she faced all her 
worst fears. She was harassed. She received death threats. She had to 
relocate her home, her husband, and two children. Yet, in less than a 
week, she came before the Senate and told 21 Senators she had never 
met, along with millions

[[Page S6562]]

of Americans, about the most tragic, traumatic, and difficult 
experience of her life. She did so with poise, grace, and, most 
importantly, bravery.
  Unfortunately, she was met with partisanship and hostility. My 
Republican colleagues have largely chosen to ignore her powerful 
testimony.
  Senators weren't allowed to hear from any witnesses who could 
corroborate or refute her account. They refused to gather evidence or 
do an impartial investigation into her allegations.
  Deborah Ramirez also reluctantly came forward to tell her story. Like 
Dr. Ford, Ms. Ramirez offered to speak to the FBI. Both Ford and 
Ramirez submitted evidence to support their allegations, including 
naming over two dozen witnesses each.
  Unfortunately, the limited investigation that was conducted by the 
FBI failed to interview any one of the witnesses these who women 
identified who could support her account.
  Let me say that again. They refused to investigate--to talk with--any 
of the 24 witnesses that could have supported their accounts.
  I think it is important to remember why we are here today. We are 
here to determine whether Judge Kavanaugh has demonstrated the 
impartiality, the temperament, and the even-handedness that is needed 
to serve on this great High Court of our land.
  If confirmed, he will join eight other individuals who are charged 
with deciding how the laws of the land are interpreted and applied. He 
would be a deciding vote on the most important issues affecting our 
country and every American for generations to come.
  Based on all of the factors we have before us, I do not believe Judge 
Kavanaugh has earned this seat.
  Thank you.