[Congressional Record Volume 164, Number 166 (Friday, October 5, 2018)]
[Senate]
[Pages S6564-S6628]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Cloture Motion
The ACTING PRESIDENT pro tempore. Pursuant to rule XXII, the Chair
lays before the Senate the pending cloture motion, which the clerk will
state.
The senior assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the nomination
of Brett M. Kavanaugh, of Maryland, to be an Associate
Justice of the Supreme Court of the United States.
Mitch McConnell, Orrin G. Hatch, Thom Tillis, Roger F.
Wicker, Tim Scott, Deb Fischer, Roy Blunt, Cindy Hyde-
Smith, John Cornyn, Johnny Isakson, Lamar Alexander,
John Boozman, Joni Ernst, Mike Crapo, John Thune, John
Barrasso, Pat Roberts.
Mr. McCONNELL. I ask unanimous consent that the mandatory quorum call
be waived.
The ACTING PRESIDENT pro tempore. Is there objection?
Without objection, it is so ordered.
[[Page S6565]]
By unanimous consent, the mandatory quorum call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of Brett M. Kavanaugh, of Maryland, to be an Associate
Justice of the Supreme Court of the United States shall be brought to a
close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
The yeas and nays resulted--yeas 51, nays 49, as follows:
[Rollcall Vote No. 222 Ex.]
YEAS--51
Alexander
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Collins
Corker
Cornyn
Cotton
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Flake
Gardner
Graham
Grassley
Hatch
Heller
Hoeven
Hyde-Smith
Inhofe
Isakson
Johnson
Kennedy
Kyl
Lankford
Lee
Manchin
McConnell
Moran
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NAYS--49
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Donnelly
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Heitkamp
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Markey
McCaskill
Menendez
Merkley
Murkowski
Murphy
Murray
Nelson
Peters
Reed
Sanders
Schatz
Schumer
Shaheen
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
(Disturbance in the Visitors' Galleries.)
The ACTING PRESIDENT pro tempore. As a reminder to our guests in the
Galleries, expressions of approval or disapproval are not permitted in
the Senate Galleries.
On this vote, the yeas are 51, the nays are 49.
The motion is agreed to.
The ACTING PRESIDENT pro tempore. The Senator from Texas.
Mr. CORNYN. Madam President, as the world knows now, we just held a
successful cloture vote on the nomination of Brett Kavanaugh to become
the next Associate Justice on the U.S. Supreme Court.
I am glad we were successful in closing off debate. We now know that
under the Senate rules, 30 hours are available for Senators to debate,
and I am sure there will be many Senators who will be coming to the
floor and offering their thoughts.
To my mind, what the Senate just voted for was to end the games, the
character assassination, and the intimidation tactics that
unfortunately have characterized so much of this confirmation process.
Our vote today was important, not only because it will allow us to move
forward and conclude this confirmation process, but it was important
because it showed the Senate will not be intimidated. We will not be
bullied by the streams of paid protesters and name-calling by the mob.
We will not be complicit in the attempts to tarnish a good man's
character, destroy his career, and further delay this confirmation
process--a constitutional process of advice and consent.
What has been particularly galling on the part of some of our
colleagues over the last 24 hours is the fact that the FBI
investigation they called for, they are virtually ignoring or, in some
cases, disparaging. They called for that supplemental background
investigation just last Friday. Let's all remember what our friend the
senior Senator from Minnesota said last weekend. He said: Let's give
this 1 week. Well, that is what we gave them. The junior Senator from
Delaware asked for the same period of time at the hearing--a 1-week-
long FBI investigation.
Our colleagues got what they asked for, and unfortunately, since they
had already decided to vote against the nomination, they must have been
somewhat disappointed that the supplemental background investigation
came up with no new information, no corroboration at all.
I actually think, in some ways, our colleagues who called for a 1-
week delay have done us a favor because every lead that could be
followed has been followed and exhausted. As the majority leader was
saying earlier, in America, under our constitutional system, where we
don't presume you are guilty and require you to prove your innocence
and where we believe in due process of law, I think the FBI
investigation was a useful way to demonstrate to the American people
that none of these allegations that had been made against Judge
Kavanaugh of sexual misconduct has been proven.
It also, I think, gives us a chance to pivot from what has been a
shameful and disgraceful confirmation process. If this is the new norm
for the Senate--that somebody could be denied a confirmation based on
an unproven allegation--I can't imagine people would be willing to
subject themselves to that in the future. It would be a dark day for
the Senate, for the United States, and for our system of justice that
believes in a fair process and a constitutional presumption of
innocence. When an allegation is made, the person making that
allegation actually has to come forward with some evidence.
A number of Senators--actually, it was a bipartisan consensus--wanted
the FBI to conduct a limited investigation into current, credible
allegations that were pending. They wanted the FBI to interview
individuals like Mark Judge, who had already offered a sworn statement
under penalty of felony, and others who may have had information who
were identified by Dr. Ford as being present on the day this alleged
activity took place. There was no confirmation. There was no
corroboration.
In fact, there was a refutation. The people she said were there and
could be witnesses to what happened said: I have no knowledge of that.
Dr. Ford's best friend, Leland Kaiser, said: I don't even know Brett
Kavanaugh. I never met him.
Well, we have all had an opportunity to read the confidential report.
We have seen who was interviewed, what they were asked. Any doubts
people may have had should now have been put to rest by what the
contents reveal. These fantasies about Judge Kavanaugh being some sort
of serial high school or college predator have been exposed as only
that--myths not based on fact. There is no reliable evidence,
whatsoever, to support any of these baseless allegations against Judge
Kavanaugh.
As we know, this wasn't exactly designed to be a truth-finding
process. This wasn't a search for the truth. Our colleagues across the
aisle already made up their mind a long time ago, some even before
Judge Kavanaugh had been nominated. This was more of, as the majority
leader said earlier today, not a search for the truth but a search-and-
destroy mission.
Obviously, as they continue to move the goalposts, calling for more
delays, more investigations, there have been seven background
investigations by the FBI of Judge Kavanaugh during his public service.
The FBI talked to more than 150 witnesses. Don't you think, if there
were anything to these outrageous allegations, some of that would have
come up at some point in the seven FBI background investigations that
have been conducted?
But our colleagues across the aisle continue to resist, putting a
definitive end to this process and unfortunately caring little, if any,
about the reputation of somebody who has demonstrated his outstanding
qualifications and his commitment to public service. I think some of
these attacks have become exhausting, politically exhausting, quite
frankly.
Our colleagues don't realize what they have unleashed when Senators
get coat hangers mailed to their home, paid protesters show up on their
doorstep or at their office or they are accosted in the Halls of the
U.S. Congress. These paid protesters reportedly, once they get
arrested, actually make more money from their funders than they do if
they don't get arrested. That is what has been unleashed.
Chairman Grassley called it mob rule, and that is exactly right--
where the Judiciary Committee, during the first confirmation hearing
for Judge Kavanaugh, Senators said: I am breaking the rules. I am
releasing committee confidential information. I know the rules prohibit
me from doing that--and they don't care.
[[Page S6566]]
If there are no rules and there are no norms and if we don't have
enough respect for this institution and the people whose lives we
touch, this is what gets unleashed.
I feel bad for Dr. Ford, in particular. She wanted none of this
three-ring circus. She sent a letter to the ranking member and asked
that her identity remain confidential, only to find, after the first
confirmation hearing, that it was leaked to the press. Then the press
came to talk to her, and I guess she figured she had no other recourse
but to actually tell her story to the press once her wishes were
violated. She didn't consent to that. She didn't authorize the release
of that confidential letter to the press, but that is what happened.
When we gave her an opportunity to have a bipartisan, professional
investigation, to have staff go out to California and interview her
confidentially, she said: Nobody explained to me that was an option.
Well, the lawyers that the ranking member referred her to apparently
didn't even tell their own client she had the opportunity to avoid this
three-ring circus and the embarrassment associated with it by doing
something confidentially.
That is how the Judiciary Committee ordinarily operates when
allegations are made. They are investigated by committee staff or by
the FBI--actually by both--but that didn't happen here until after this
mob rule unleashed what we have seen here in the last few weeks.
We know, when Dr. Ford sent her letter to the ranking member, it
wasn't shared with the FBI initially. It wasn't shared with Judiciary
Committee investigators. It wasn't shared with the committee itself in
a closed-door session, which followed the open session, where Judge
Kavanaugh was asked about other personal matters that came up during
the course of the background investigation. The ranking member didn't
even attend that closed-door session, nor did anybody mention it to the
judge when he went to talk to some 60-plus Members of the Senate one-
on-one.
The ranking member, when she had that one-on-one meeting with Judge
Kavanaugh, said nothing to him about the allegations. She could have
asked him about the allegations, generally, without revealing the
identity of Dr. Ford. We know at that point, she had already talked to
Dr. Ford and recommended partisan lawyers. We know those lawyers
arranged for a polygraph examination to be administered. Other
preparations were being made, plans were being hatched. Our colleague
from California said nothing.
I really think that Dr. Ford has been treated terribly by this
ambush, by this hiding of evidence and allegations that could have been
investigated and should have been investigated in a more dignified and
appropriate sort of way.
Once Dr. Ford was identified, in consultation with colleagues--both
Republicans and Democrats--we decided Dr. Ford should be given an
opportunity to tell her side of the story. Unfortunately, we were not
able to mitigate or reverse a lot of the awful circumstances under
which she had found herself because of what had already been unleashed,
but we did our best. We tried to do whatever we could to accommodate
her. As I said, investigators offered to go to California. We brought
in an experienced sexual crimes investigating attorney to ask questions
in a respectful sort of way in order to illicit as much information as
we possibly could get about her claim even though it was 35 years old.
Throughout the hearing, we listened to Dr. Ford, and we tried to
understand what she was telling us. We took her allegations seriously
and treated her in the same way we would have wanted our wives or our
daughters to have been treated if they had found themselves in similar
circumstances. Yet we knew, at the end of the day, there was no other
witness to corroborate or to confirm what she had said, even by the
ones she had identified as having been present.
This is not about believing women or believing men. It is not a zero-
sum game. As the junior Senator from Nebraska said the other day, it is
not about being for the #MeToo movement or against it. Who could be
against it?
I hope there is some good that comes out of this disgraceful display.
One of the things that might be good would be that more women would
feel confident in coming forward and telling their stories to the
appropriate authorities and producing the sort of information that
would be necessary to make a criminal case--to investigate the case, to
charge the case, to try the case, and to convict the people who commit
sexual offenses. I hope there is some good that comes out of this.
There is also, maybe, some legislation that we could work on together
to try to heal the wounds that have been caused by this abominable
process.
I have worked a lot with colleagues here to pass anti-human
trafficking legislation, to end the rape kit backlog, and on other
things to try to help victims. I think, maybe--just maybe--in putting
our heads together, in talking with each other, and in working in good
faith, we could come up with some legislative response that might find
some good from this terrible situation.
The other thing about these allegations that have been made against
Judge Kavanaugh is that they are completely out of character. We know
he has been a circuit court judge for 12 years, authored more than 300
opinions, clerked for Anthony Kennedy on the Supreme Court, worked at
the White House as a lawyer and as Staff Secretary for the President,
taught at Harvard, and had been hired by now Justice Elena Kagan to
teach at Harvard, as well as having taught at Georgetown and Yale.
By all accounts--every account of anyone with personal knowledge of
Judge Kavanaugh's character and treatment of women--he has treated
women with respect. And it is not just conservatives who sing his
praises. A liberal law school professor at Yale called Judge
Kavanaugh's selection the President's finest hour, his classiest move.
The same professor complimented Judge Kavanaugh's studiousness and said
he has already shown flashes of greatness. Lisa Blatt, a self-described
liberal feminist lawyer who has argued numerous cases before the U.S.
Supreme Court, has said Judge Kavanaugh is supremely qualified. That
echoes what the American Bar Association has said--the gold standard
for some of our colleagues when it comes to judicial nominees. The
American Bar Association has said that Judge Kavanaugh is unanimously
well qualified. That goes for his temperament as well. So I believe
this nominee is about as good as it gets.
On July 10, the day after Judge Kavanaugh was nominated, I said that
my Republican colleagues and I would not back down from this all-out
assault on this nominee, but never in my wildest dreams could I have
imagined that this fight would devolve into the mob rule that we have
seen--of Senators and staffs taunted, threatened, and of millions of
dollars spent in advertising and in paying protesters to show up on
Senators' front lawns, to harass them at restaurants, and to attack
them in the halls of Congress. I never imagined that this would get
this bad, when Senators would say ``I am breaking the rules'' and would
dare anybody to do anything about it. This has turned into the kind of
nasty and venomous politics that I had hoped never to experience.
This also has demonstrated the dark underbelly of Washington, DC,
where power is so important to some people that they will do anything
to get it. They will destroy you. They will tarnish your good name.
They will condone threats on family members, including on children.
They will harass you. This has really been disgusting.
I am an optimist, so I don't believe this is our fate. I don't
believe we are condemned to work in a Senate and live in a country
where this kind of activity is condoned or ignored. Actually, I think,
by defeating Judge Kavanaugh's nomination, we would be signaling that
this is somehow the new normal. We would be setting the precedent of,
yes, that kind of thing works, so let's try it again. I am not saying
it is just one party or the other.
The day after Judge Kavanaugh was nominated, I also said we would
defend the record of Judge Kavanaugh, who is a thoughtful public
servant, against deliberate attempts to denigrate him. I stand by that
statement, and we have defended him. Yet we have not just defended him
but have defended the Constitution, fundamental notions of fairness and
fair play that are reflected in
[[Page S6567]]
our commitment to the due process of law, and the rights of somebody
who has been accused of a crime, which Judge Kavanaugh has been accused
of on multiple occasions.
Even as the mud has been slung on all of us, even as insults have
been hurled against this nominee and as his family has faced ridicule
over atrocious exploits that never even happened, at least, I think, we
can be proud of the fact we have tried to defend the Constitution, this
institution of the Senate, and have pushed back with everything we have
had against mob rule.
Unfortunately, those who wanted to take down this nominee viewed
Judge Kavanaugh as a sacrificial lamb in some sort of vengeance
campaign. Thankfully, they have now failed to stop his nomination from
going forward.
This nomination is no longer simply about Judge Kavanaugh and the
current vacancy on the Supreme Court; it is also about the principles
we must stand up for and defend. It is about validating public service
and decades of honorable conduct. It is not about forgetting all that a
man has done, all that he is, and all that he has worked for at the
drop of a hat based on unsubstantiated, uncorroborated allegations. It
is about standing firm in the turbulent political winds. If I think
about any institution in this country, I think about the Senate and how
it ought to be the place in which standing firm against the turbulent
political winds occurs.
We all had a chance to read the FBI report, which failed to
corroborate Dr. Ford's allegations. Then we did exactly what we needed
to do today, which was to vote--to stop the circus, to stop the high
jinks, to stop the character assassination, and vote. I am glad our
colleagues decided to close off debate now as this 30-hour postcloture
period ensues. I look forward to concluding the confirmation process
and confirming Judge Kavanaugh to be the next Associate Justice on the
U.S. Supreme Court.
The ACTING PRESIDENT pro tempore. The Senator from Illinois.
Mr. DURBIN. Madam President, I would like to respond to my colleague
from Texas with regard to at least one or two aspects of what he said.
He has characterized the opposition to Judge Kavanaugh as ``mob
rule.'' I don't think that is a fair characterization. The opposition
to Judge Kavanaugh is on many different levels. My colleagues on both
sides of the aisle have looked at this nomination seriously, and they
have come to opposite positions. I don't believe we are influenced,
frightened, or in any way moved by mob rule. I just don't get it.
Have I seen conduct that I think is untoward and really should not be
condoned by people who feel strongly about this issue? Of course. Do I
believe that people should have their freedom of speech limited or
stifled? No, I don't. Even if it is something I don't want to hear,
people have a right to speak. Of course, I will never condone violence
or any physical activities against anyone, including Members of
Congress. Some people have either come close to that line or have
stepped over it, but I don't condone that in any way, shape or form.
If we are truly committed to the Constitution that we have sworn to
uphold and defend, the First Amendment creates opportunities for
American citizens that others around the world long for and never see
once in their lives. Part of that is freedom of speech. Part of that is
the right to petition your government. So if some have stepped over the
line, I will not defend them when it comes to violent conduct, but in
expressing their points of view with a sign or a march or even a chant,
I have to say that it is part of our constitutional birthright, thank
goodness, in the United States of America.
Last week, I saw Dr. Christine Blasey Ford for the first time. I had
heard her name for a week or more. I had seen one photo of her in
sunglasses, but I had never seen her or heard her speak. She came
forward at great risk to herself and to her family after having been
dislocated, with her kids, from two different homes. She came here to
face the Senate Judiciary Committee and the Nation and to speak under
oath. She had absolutely nothing to gain by coming forward. She did it,
as she said, out of a sense of civic duty. She wanted to, in her own
words, be helpful so that the Senate and leaders of this Nation would
know what had happened to her before there would be any vote on the
confirmation of Brett Kavanaugh to the Supreme Court. Her testimony was
credible and powerful. She answered every question and tried to be
helpful whenever she could.
I was struck by the statement from the Senator from Texas. He said
that in some way, we want to make sure that our wives and daughters are
treated fairly if they come forward with this kind of information. I
couldn't agree with him more, but we all know what happened after her
testimony. Even President Trump, before a Mississippi rally, ridiculed
and belittled Dr. Ford. After once calling her a credible witness, she
became the butt of his joke at a rally in Mississippi. That is
unfortunate.
When Dr. Ford came before us, she had nothing to hide. The
Republicans on the committee were so concerned about her testimony and
their relationship in the questioning of her that they were unwilling
to risk direct questioning as she sat in front of them. They pointedly
enlisted a woman prosecutor to do their job. The prosecutor's
examination was meandering and without any clear focus other than as an
attempt to try to discredit Dr. Ford. That Republican prosecutor failed
as Dr. Ford calmly replied to all of her questions.
It was clear, however, that despite this testimony, even despite this
hearing, many Republicans had made up their minds, as the majority
leader had characterized it, to plow right through regardless of Dr.
Ford's testimony. We hear so many tributes to Dr. Ford from the
Republican side out of one side of their mouth, and then they turn
around and say that it is a smear. A smear is a lie.
I don't believe she was lying. They can't praise her on one hand and
call her testimony a smear on the other. The majority leader did that
for 3 successive days on the floor of the U.S. Senate.
They even went so far as to schedule a committee vote before that
hearing with Dr. Ford and Judge Kavanaugh had started.
Then, last Friday, two of our colleagues, Republican Senator Jeff
Flake and Democratic Senator Chris Coons, came together and joined Dr.
Ford's call for a nonpartisan and thorough FBI investigation into the
pending allegations against Judge Kavanaugh. That should have happened
long before. Make no mistake. There would not have been a hearing with
Dr. Ford were it not for Senator Flake, a Republican Senator, demanding
it, and there would not have been an FBI investigation if he hadn't
demanded it as well. I thank him for his leadership in doing that.
Those were two reasonable requests, and I am glad that he was in a
position to make it happen when Democrats could not. It was the right
request.
Of course it would have been helpful for Senators exercising the
advice and consent role if neutral investigators at the FBI were
allowed to question all of the relevant witnesses, follow the facts
wherever they may have led, and get to the bottom of the allegations
brought by Dr. Ford, Deborah Ramirez, and Julie Swetnick.
Unfortunately, the White House and Senate Republicans were determined
not to let such an FBI investigation go forward.
A Whitehouse spokesman, Raj Shah, has now publicly acknowledged that
Senate Republicans were allowed to severely constrain the scope of the
FBI investigation. He said it. He said it publicly. He said it before
the cameras.
Senate Republicans allowed only a handful of witnesses to be
interviewed by the FBI. Deputy Press Secretary Raj Shah said: ``There
was an initial list of four''--four--``provided to us by the Senate.''
There were reportedly almost 40 corroborating or character witnesses
who have been trying to share information with the FBI. The FBI has
refused to contact them, even though their names had been provided.
Dr. Ford's and Deborah Ramirez's attorneys both sent letters
yesterday with lists of corroborating witnesses who were not
interviewed by the FBI. There is no good explanation as to why these
witnesses weren't interviewed by the FBI, nor can I explain why Dr.
Ford and Judge Kavanaugh themselves weren't interviewed. Those are
basic steps for a legitimate and credible investigation.
[[Page S6568]]
Some of my Republican colleagues have claimed that the FBI's
supplemental investigation provides no corroboration of Dr. Ford's or
Ms. Ramirez's complaints, but, of course, you will not find
corroboration if the investigation systematically excludes
corroborating witnesses.
Unfortunately, the effort by the White House and Senate Republicans
to tie the FBI's hands in the Kavanaugh investigation is part of a
pattern of concealment when it comes to the background of Brett
Kavanaugh.
The Senator from Texas says: I hope this isn't a new standard for
hearings on Supreme Court nominations. I hope it isn't either. There
are some things we have done in this particular nomination hearing that
were unheard of.
Millions of pages of Judge Kavanaugh's public service record have
been blocked from release to the public and even to the Senate. There
was a time when Senator Jeff Sessions--now Attorney General--demanded
documentation on Democratic nominees, and at that time the Democratic
chairman agreed with him. We provided all of the information requested,
as we should have. In this case, with Republicans controlling the
committee, we were limited.
We have been denied access to an entire 35-month period in Judge
Kavanaugh's White House career when he worked as one of the President's
closest advisers as the White House Staff Secretary. During that time,
he worked on controversial issues, such as same-sex marriage, abortion,
torture, and Executive power.
It is likely that there are documents in Kavanaugh's Staff Secretary
record that would impact how Senators would vote on his nomination, and
that is why they were hidden.
There was also an unprecedented partisan effort to screen and limit
the documents that the committee itself could see. I listened as the
Senator from Texas said: Dr. Ford had a partisan lawyer. Well, guess
who screened the documents that were going to go from the official
archives to our Judiciary Committee to review for the nomination of
Brett Kavanaugh. The man's name is Bill Burck. He is Kavanaugh's former
deputy. By every measure, Bill Burck is a partisan lawyer. I guess it
is no surprise. What I was surprised was to find that an individual
lawyer would have such power over a constitutional provision of advice
and consent.
Overall, when all is said and done, after the denials from the White
House of certain records, after the claims of Executive privilege,
after Bill Burck went through and screened what he considered to be
appropriate and inappropriate documents for the American people to see,
less than 10 percent of Judge Kavanaugh's White House record has been
disclosed.
Those documents are going to come out some day, and those who are
quickly voting for him now without reading them run the risk that they
are making a mistake, which they are going to have to explain at a
later time.
Just yesterday we learned from a FOIA lawsuit that the National
Archives has hundreds of documents concerning Brett Kavanaugh's work in
the White House on warrantless surveillance programs. We will not see
those documents before tomorrow's vote. The White House apparently
fears their contents and prefers to plow through.
Why has so much of Judge Kavanaugh's record been concealed? Most
likely because these documents contradict what he said. We have seen a
pattern with Judge Kavanaugh from his Senate testimony in 2004, 2006,
and again last month. When he is asked about controversial issues that
he has been involved with in the past, he tries to deny or downplay
them. He has done this repeatedly when testifying about matters he
worked on at the White House, including the rules governing detention
of combatants; warrantless surveillance; controversial judicial
nominations, such as Pryor, Pickering, and Haynes; communicating with
the press during the Starr investigation; and his work with Manny
Miranda, a Republican Senate staffer who stole documents from
Democratic Senators' computers, including my own, and shared them with
Brett Kavanaugh when he was working at the White House.
On each issue, we have seen documents and reports showing that Judge
Kavanaugh had far more involvement than his testimony let on. On issue
after issue, Judge Kavanaugh's sworn testimony was either misleading or
false.
This is a judge who claims that words matter. He says that he is a
strict textualist who holds other people accountable for their words,
but when it comes to his own words, he is happy to take liberties and
refuses to take responsibility. We have been forewarned of what we can
expect if he is given a lifetime appointment on the Court.
We saw this pattern again last week when he was asked about his high
school yearbook and excessive drinking. They were legitimate questions
that were relevant to the sexual assault allegations at hand. Many of
Kavanaugh's answers to these questions simply weren't credible. His
explanation of things he wrote in the yearbook didn't pass the laugh
test. Multiple people who knew him and socialized with him quickly and
publicly rebutted his denial that he ever drank, in their words, ``to
the point that it would be impossible for him to state with any degree
of certainty that he remembered everything that he did.''
I was particularly struck when Senator Amy Klobuchar of Minnesota
explained that she understands alcohol abuse because her father was an
alcoholic and then asked Judge Kavanaugh if he had ever blacked out.
Instead of responding, Kavanaugh said: ``Have you?'' Conservative
columnist Jennifer Rubin has written: ``It was a moment of singular
cruelty and disrespect.''
It has been hard to take Judge Kavanaugh's testimony at his word on
matters both large and small. That matters a lot when we are talking
about a nominee's judgment, temperament, and integrity.
Judge Kavanaugh's judicial record and his academic writings raise
even more concerns. Not only did he check the box on President Trump's
litmus test of opposition to the Affordable Care Act and Roe v. Wade,
his judicial opinions consistently find ways to favor big business and
undermine protection for workers, consumers, women, and the
environment.
He claims to be a textualist, but he has a habit of creatively
defining words. In the Agriprocessors case, which I asked him about
directly in the hearing, his dissent abandoned the text of the
controlling statute. Instead, he borrowed a definition from another
statute in order to argue against the right of slaughterhouse workers
to vote to form a union. When I asked Judge Kavanaugh whether he ever
worked in a job himself that was dirty and dangerous, as dangerous as a
slaughterhouse, he told me he used to cut grass and worked one summer
in construction.
Look at his dissents in the White Stallion and Mingo Logan cases,
where the judge gave his own definitions to key terms in the Clean Air
and Clean Water Acts--so much for stare decisis.
Judge Kavanaugh claims he follows precedent, but as we have seen in
case after case, he goes his own way.
Look at his interpretation in the Supreme Court's 2008 Heller
decision. Judge Kavanaugh believes the Supreme Court created a history
and tradition test for considering challenges to gun safety laws. This
test would have courts ignore the public safety impact of gun laws.
Judge Kavanaugh admitted that he is ``a lonely voice in reading Heller
that way.''
His approach would put at risk many commonsense laws, such as keeping
guns out of the hands of domestic abusers. Judge Kavanaugh is not a
lonely voice on gun safety; he is an extreme and frightening voice on
gun safety.
After he wrote a dissent laying out his interpretation of the Heller
precedent, a majority panel of DC Circuit judges--all of them
Republican appointees--said this of his interpretation: ``Unlike our
dissenting colleague, we read Heller straightforwardly.''
Judge Kavanaugh's reading of Heller may be music to the ears of the
gun lobby, but it is manipulating precedent, nothing else.
Judge Kavanaugh's claim that he follows precedent is also
contradicted by his view of the Supreme Court decision Morrison v.
Olson. Rather than admit the majority's decision in the case still
holds, Judge Kavanaugh clings to Justice Scalia's dissent, which lays
out the so-called ``unitary executive theory'' of Presidential power.
Judge Kavanaugh has been explicit that he would overturn Morrison.
Let's
[[Page S6569]]
be clear. While Judge Kavanaugh may claim that he will scrupulously
follow precedent, he has shown he is willing to overturn it when it
suits him. I have cited just a few examples.
Also particularly troubling is this judge's view of Presidential
power. Judge Kavanaugh wrote a striking passage in the Seven-Sky
decision, dissenting from the majority's upholding of the Affordable
Care Act. He wrote: ``Under the Constitution, the President may decline
to enforce a statute that regulates private individuals when the
President deems the statute unconstitutional, even if a court has held
or would hold the statute constitutional.''
This is a truly breathtaking claim of Presidential power, a claim
particularly problematic at this moment in history.
Then there is Judge Kavanaugh's evolving view on investigations of
sitting Presidents. When he was working for Ken Starr and investigating
President Clinton, he was pretty ferocious. But in 2008, he gave a
speech and wrote a law review article arguing that sitting Presidents
should be immunized from criminal investigations and civil suit. This
was after Judge Kavanaugh spent a period of time working in the Bush
White House.
He claims that he has an open mind on the constitutionality of
criminal investigations of sitting Presidents, but consider what he
wrote in that law review article in the Minnesota Law Review:
If the President does something dastardly, the impeachment
process is available. No single prosecutor, judge, or jury
should be able to accomplish what the Constitution assigns to
Congress.
These are not the words of a judge with an open mind.
It was a telling moment when Judge Kavanaugh at his hearing would not
answer whether he believed a President should comply with a grand jury
subpoena.
Here is the reality: We have to consider why this President chose
this Supreme Court nominee at this moment in history when the Mueller
investigation is closing in.
Just a few weeks ago, Judge Kavanaugh himself said: ``The Supreme
Court must never be viewed as a partisan institution.'' But the
testimony and demeanor of Judge Kavanaugh last Thursday belies any
claim he makes of nonpartisanship.
I can understand emotion and indignation from Judge Kavanaugh when
one considers the gravity of the charges against him and the pain he
and his family must feel, but there was fire in his eyes when he read
the words he assured us he had personally written.
Benjamin Wittes has been a colleague of Brett Kavanaugh. He has
published his writings, and he even lent his name as a character
reference for the judge. He called Judge Kavanaugh's performance before
the Senate Judiciary Committee ``a howl of rage.'' Wittes went on to
describe Kavanaugh's partisanship as ``raw, undisguised, naked and
conspiratorial.''
Charlie Sykes, a conservative commentator, said of Kavanaugh's
statement before the committee last Thursday: ``Even if you support
Brett Kavanaugh . . . that was breathtaking as an abandonment of any
pretense of having a judicial temperament.''
Judge Kavanaugh abandoned any veneer of neutrality last week before
our committee.
Out of one side of his mouth, he claimed that he bore ``no ill will''
toward Dr. Ford. Then he called her allegations ``a calculated and
orchestrated political hit,'' citing ``apparent pent-up anger about
President Trump and the 2016 election and revenge on behalf of the
Clintons.'' He even threatened Democrats when he said: ``What goes
around comes around.''
In my 20 years on the Judiciary Committee, I have never heard
anything like that--or even close to that--from a judicial nominee. It
is hard to imagine how a nominee who has displayed such raw
partisanship could then claim to serve as a neutral umpire on the
Supreme Court. Judge Kavanaugh, through his testimony, has called his
own impartiality into serious doubt.
Retired Supreme Court Justice John Paul Stevens, a man who is
respected for his integrity and service to this Nation, said this week
that the performance by Judge Kavanaugh shows he should not serve on
the Supreme Court. I agree. At a time when our President plumbs the
depths of bad behavior on a daily basis, we should not allow the
highest Court in our land to now sink to that same standard in their
ranks.
From a broader perspective, let's be clear what is at stake in this
decision. We are at a moment in American history where our system of
checks and balances is being profoundly tested. We have a President who
has shown disrespect for the rule of law and the role of an independent
judiciary. It is likely the Supreme Court will soon consider
fundamental questions about Presidential authority and accountability.
With so much at stake, we should not confirm a nominee to the Court
unless we are sure of that nominee's credibility, integrity,
independence, and judgment.
Serious questions have been raised about Brett Kavanaugh. Dr. Ford's
testimony was serious and credible. When I asked her directly what
degree of certainty do you have that Brett Kavanaugh was your attacker,
Dr. Ford answered, without hesitation: ``100 percent.''
I believe her.
Judge Kavanaugh's testimony was simply not credible. From his
contrived explanations of his embarrassing yearbook entries, to his ``I
love beer'' declarations, he was a sharp contrast to Dr. Ford's
measured accounting of a horrible day in her life she cannot forget.
I had hoped the FBI would be able to provide us with information to
resolve unanswered questions, but they can't do their job if their
hands are tied. When the Republicans in the committee and the White
House decided to limit the number of witnesses, unfortunately, the
investigation could not be completed to meet professional standards.
I will say this to my colleagues. We have to think about what it
would mean if Judge Kavanaugh were to be confirmed to the Supreme Court
with credible sexual assault allegations against him. Specifically,
what it would mean to the millions of women across America who are
survivors of sexual assault--women who have been scared to come forward
with their stories for fear of being mocked, ridiculed, and shunned.
What would it mean for them to see Brett Kavanaugh sitting on that
bench in that Court across the street, day after day, for decades,
casting what may be the deciding vote on cases that profoundly affect
their rights. It would shake the confidence of millions of Americans in
the integrity of our Supreme Court. We should not take that risk.
There are other qualified lawyers besides Brett Kavanaugh who could
be nominated for this vacant seat--nominees whose legal views I may not
agree with but who do not have serious questions about their fitness
for office. If there are serious questions about a nominee's
temperament, credibility, or judgment--as there clearly are for Judge
Brett Kavanaugh--we owe a duty of caution. We should give the benefit
of the doubt to protect the integrity of the Supreme Court.
With so much at stake, we should not confirm a nominee to the Court
unless we are sure the nominee's qualifications are beyond question. I
do not have that confidence in Brett Kavanaugh. I will vote no on his
nomination.
The PRESIDING OFFICER (Mr. Kennedy). The Senator from North Carolina.
Mr. TILLIS. Mr. President, I would like to summarize. The Presiding
Officer and I have had a front row seat in this process. We both serve
on the Judiciary Committee.
I think oftentimes people come to the floor, and they want to just
give the American public a little slice of what is going on that
benefits their narrative rather than stepping back and thinking about
what has happened since early July when Judge Kavanaugh was nominated
to be on the Supreme Court. That happened on July 9.
Before July 9, there were many people on the other side of the aisle
who had already announced their opposition not to Judge Kavanaugh but
to anyone whom President Trump would nominate. We know who they are.
They are very well publicized. I understand that. As a Member of the
Democratic conference, I wouldn't deny them their
[[Page S6570]]
right to do that. They oppose the President and anything he stands for.
Then, on July 10, there was a press conference, now that we knew who
the nominee was, and a majority of the Democratic Members also said
they opposed him. As a matter of fact, the minority leader said he
would fight the nomination with everything he has, and he has, but
there are some pieces to the mechanics that I think are important for
people to understand.
Briefly, after Judge Kavanaugh was nominated, the chair and the
ranking member got together, and they tried to come up with a framework
for releasing as many documents as possible. In fact, that went on for
2 or 3 weeks. In fact, the documents some of my colleagues on the other
side of the aisle said the Republicans refused to produce were going to
be made available on a very focused basis but with what they call
search terms--the way to get into those 100,000 secret documents they
are talking about. We estimate that if our colleagues on the other side
of the aisle would have done what they have traditionally done--that
is, come up with an agreement on document production--they would have
gained a lot of insights into the documents we considered relevant but
not necessarily the documents they would like to use to create another
political narrative, but they refused to cooperate, and we moved
forward. As a matter of fact, we moved forward and provided more
documents for this Supreme Court nominee than the total number of
documents provided for all, in total, of the last three or four Supreme
Court nominees.
We also went on to question--they call it questions for the record.
What that means is that any member on the committee is entitled to
compel the nominee to answer questions after the hearing. Judge
Kavanaugh was subjected to over 1,200 questions for the record, under
oath, that he had to submit back to the committee members. Those
questions for the record are a multiple of any one nominee in the past;
and, in fact, I understand it is probably the sum total of questions
for the record that all the nominees on the bench were subjected to.
So the questions were asked. The documents were presented. All of
that document production was going on in the latter part of July and
August; the first tranche of documents came in about the second week of
August.
What else was going on in the latter part of July and August? A
letter, which was first submitted to a Congresswoman from California,
was then routed to the ranking member, the senior Senator from
California, at the end of July--a document that was expected to be held
in confidence. It is a document we now know was authored by Dr. Ford,
provided to the Judiciary Committee, with the understanding that her
name would not become public.
In the past, the chair and the ranking member have a great
relationship. They have a trusting relationship. In the past, when you
had something you thought was material to the consideration of a
nominee, a ranking member and a chair would try to figure out how to
actually assess that information to treat the person in question--in
this case, Dr. Ford--fairly and to hold her information in confidence.
That didn't happen here. Actually, there was no communication with the
chair by the ranking member.
A few weeks into it, we do know there was some consultation from what
Dr. Ford says was a committee staffer to retain an attorney who has a
very well-publicized reputation for being partisan. I don't have any
problem with that because we have partisan attorneys on both sides of
the aisle, but at the recommendation of the committee staff, which is
what Dr. Ford said under oath, they retained an attorney who is working
pro bono.
Now, I am really wondering whether some--not all but some--of the
people on the other side of the aisle genuinely cared about what I
believe is a traumatic experience in Dr. Ford's life, genuinely care
about trying to go through a process that would provide Dr. Ford with
some closure because if they had, maybe they would have gotten someone
who could interview her in the way that people experienced with sex
crimes interview persons who have experienced a traumatic event. These
attorneys who were retained didn't do that. Maybe, when the attorneys
she retained, who are pro bono attorneys--that means they are not being
paid, they are doing it at no cost or at least no cost to Dr. Ford--if
the attorneys really cared about Dr. Ford versus the outcome, maybe
they should have recommended to Dr. Ford to have the hearing, but that
didn't happen either.
Now we move further through, and at the hearing--we had 32 hours of
hearings. The letter was known to the ranking member. I don't believe
it was known to any other member on the committee--32 hours of
hearings. Each one of us had two rounds, virtually an hour to ask
questions of Judge Kavanaugh, not even an abstracted series of
questions protecting the identity of Dr. Ford but questions that could
have potentially raised the issues we now saw after the hearing.
Thirty-two hours of hearings, nothing mentioned. An hour and a half
private hearing that, unfortunately, Senator Feinstein, for whatever
reason, wasn't able to attend, never brought up. After the hearing,
then we heard about these allegations.
Now, I have had some people on the other side of the aisle say we
rushed the committee process. The fact is, it was delayed for 2 weeks
after we found out about the allegation; 1 week was to get to a point
to where we could accommodate Dr. Ford and have her come and testify
before the committee. Chairman Grassley was criticized by some of the
folks on my side of the aisle because they said he shouldn't be
accommodating, delaying; set a deadline and moving forward. He didn't.
He spent the weekend trying to figure out a setting, a method, that Dr.
Ford would be comfortable with.
Let me back up a week earlier. A week earlier, the chairman and the
committee offered to Dr. Ford to go to California to interview her
outside of the lights, outside of the circus that sometimes occurs
here, and have the attorneys present during the interview. In the
hearing we had with Dr. Ford, the question was asked: Were you aware
that the committee offered to come to California in a confidential
setting and allow you to give your testimony? Her response to that
question was: I did not understand that. So that really raises a lot of
doubts in my mind about either the competence or the agenda of her
counsel.
So now, at this point, I believe there are two sets of people who are
opposed to Judge Kavanaugh's nomination. There are some who just
genuinely disagree with his judicial philosophy. I actually vote for
some judges when I disagree with their judicial philosophy. There are
some on the agenda that I will again, but I am going to vote for them--
and I am going to get criticized by people on the right side of the
aisle--because they are considered unanimously ``well qualified'' and
just because I don't like the way they rule in certain cases, that is
not enough reason to vote against them, but maybe for people on the
other side of the aisle there is.
Then there is another group of people over there who I genuinely
believe have used witnesses, have used this process, to just advance a
political message and a political agenda.
Another reason I believe that is how the narrative changes depending
on what sticks. We have received the additional background
investigation. I should mention Judge Kavanaugh has had seven
background investigations over the last 25 years. I saw a stack of
documents in a secure facility that is about that thick; I would
estimate 600 to 1,000 pages of prior Federal FBI background
investigations to clear him for other roles he has had, as well as in
this case. Over 25 years talking to 150 people, some as recently as
about 10 years, or less than 10 years after he was in college, and not
a whiff of any of the allegations we have seen put forward--not a
single note.
So as more information comes up, we see the narrative going from the
weight of the allegations--because, honestly, in every instance where
an accuser has made an allegation and said these people were present,
those people have been interviewed if they were willing to, and none of
them have corroborated the allegations that were made--none. In the
followup investigation, it even further undermined the sort of
inference you draw when somebody says: Yes, these people were there.
Check with them. We went back
[[Page S6571]]
and checked with them, and it further undermined the veracity of the
allegations that were made.
Now it looks like the narrative on the allegations is beginning to
wane, so now the new narrative--and this is the last I will be talking
about--is that, well, even if the allegations are untrue, the way Judge
Kavanaugh behaved in the hearing--he was angry--raises a question about
his judicial temperament.
Ladies and gentlemen, first, the American Bar Association has voted
Judge Kavanaugh unanimously ``well qualified'' twice. In at least the
most recent rating, they even spoke specifically to his temperament on
the bench. I saw his temperament during the hearing for 32 hours. He
sat in that chair in some cases for 2 or 3 hours without getting up and
was patient when some unfair questions were being asked. He was cut off
repeatedly, and he maintained his composure. He did well in about 31,
32 hours' worth of testimony.
Last week, I didn't see Judge Kavanaugh in the hearing; I saw Brett
Kavanaugh. I saw a father, I saw a husband, I saw a son who was
defending his honor. I saw somebody dragged through the mud without a
single allegation with any corroborating testimony defending himself as
a human being, and he did well for about 2 hours.
One final note. I firmly believe that Judge Kavanaugh is going to go
to the Bench, and I firmly believe that because of his independence, he
is going to make some rulings that I am not going to like, but he is
going to do it for the right reasons.
What he is going to say is ``Instead of treating us like a nine-
member legislature, go do your job, Congress. Change the law if you
want me to have a different opinion'' when it comes to the Court. We
should now be in that light, thinking about how we work together on a
bipartisan basis to change things that we don't like, not expecting a
nine-member legislature to do our job.
This has been a very difficult process. I know it has been
extraordinarily difficult for the Kavanaugh family and for Dr. Ford. I
pray for Dr. Ford's peace. I hope she finds closure. I hope there is
some way she will be able to reexamine the facts of that summer in 1982
or 1983 and identify precisely what happened, precisely who can
corroborate it, and have someone held accountable for that act. But I
don't believe by any stretch of the imagination, based on the
information presented to us, that that is Judge Brett Kavanaugh. For
that reason, I will be voting no tomorrow--I will not be voting no
tomorrow; I will be voting yes tomorrow.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, the deeply misguided vote to move forward
on Brett Kavanaugh's nomination has taken the Senate a step closer to a
moment that will cause enormous pain for millions of Americans,
particularly women and survivors of assault.
Some may say that the Senate is rolling back the clock on women in
America by confirming Brett Kavanaugh. After seeing what has happened
to the women who have spoken out and talking to women in Oregon, I
question how much the clock ever ticked forward. Indeed, this process
has shone a spotlight on the double standard women across this country
face just so they will be believed.
On the other hand, Dr. Ford never wanted any of this. The way she has
been treated by Republicans in the Senate and the President of the
United States is inexcusable. In one of the most un-Presidential
speeches I have ever seen or heard, the President belittled a survivor
in front of a crowd of thousands.
Dr. Ford came to us as a citizen who was doing her civic duty to
provide the Senate with crucial information about a nominee before us.
She called the front desk of her Congressperson; she didn't run to the
news media or the cable shows or try to sell a book. She volunteered to
tell her story under oath. She recounted the details of her assault in
18 minutes of testimony that will not soon be forgotten. It was
heartbreaking to watch. At times, it was just excruciating.
What did Dr. Ford get for her courage? She was put on trial by the
Republicans on the Judiciary Committee, who actually hired an
experienced prosecutor to grill her. The questioning was clearly
designed to tar Dr. Ford as a political pawn. It attempted to
delegitimize the trauma caused by her assault. It attempted to paint
her as a liar.
It was stunning how little of the questioning Republicans subjected
her to was focused on what Brett Kavanaugh did on the night in
question. It is clear now that the focus was on undermining Dr. Ford's
story and destroying her credibility. But Dr. Ford's credibility held
up. I have said that I can't imagine a more credible witness, nor can I
imagine how difficult it must have been for her to relive that
experience and maintain such extraordinary composure. What she did took
unknowable strength. Her testimony, delivered under what amounted to
prosecution, was unforgettable. She is trained in psychology. She was
even forced to act as the expert witness in her own trial, diagnosing
the lifelong effects of her own trauma. She explained to the committee
how memories of traumatic events implant themselves on the brain.
At one point, she described what she remembered most about the
assault by Mr. Kavanaugh and Mark Judge. She answered, delivering on
her training, that ``indelible in the hippocampus is the laughter.''
I believe Dr. Ford when she says she was assaulted in that room in
1982. I believe Dr. Ford when she says that her attackers locked the
door, a hand was pressed over her mouth, and she feared for her life. I
believe her when she says she remembers them laughing.
For all the grueling prosecution the Republicans put Dr. Ford
through, it is important to compare that to the treatment of Brett
Kavanaugh. When it was Kavanaugh's turn to deliver testimony, he was
seething. He was raging in a manner completely unbecoming a Federal
judge. He behaved in a manner that directly contradicted what Brett
Kavanaugh said in a widely publicized speech a judge should be all
about. In his own words, Mr. Kavanaugh said judges need to keep their
emotions in check, to be calm amidst the storm. Mr. Kavanaugh failed
his own test--his own test--last week. He offered the most partisan
testimony I can recall when he talked about the Clintons and said
``what goes around comes around.''
Imagine if a female nominee had snapped at a male Senator about his
drinking habits. The President of the Senate is an experienced judge
and prosecutor. I am telling you, if a female nominee had done that,
game over right there--right there. There again, you have the double
standard.
When a few questions posed by the Republican prosecutor actually got
to relevant questions, the majority side of the committee told her to
just take off.
For that to be the only hearing on these allegations I think is just
plain disgraceful. The committee should not have moved on to the vote.
The allegations brought forward demanded a robust investigation. Yet
the Senate has ended up light-years away from that. What kind of
investigation looks to settle matters and doesn't interview the accuser
and the accused? That just doesn't pass the smell test.
This is not about tarnishing Brett Kavanaugh's reputation or digging
up salacious details from his high school days. The accusations against
Mr. Kavanaugh and the possibility of perjury--both of which he denies--
relate directly to his binge drinking and sexual behavior. That is why
the FBI background check should have been a robust inquiry into those
matters. It is clear now that didn't happen. You ask yourself, why not?
It is hard to find an explanation other than the investigation was
handcuffed to predetermine the outcome.
Dr. Ford has said publicly that the FBI didn't talk to her, and they
didn't look at the therapy notes she offered to turn over. They didn't
talk to Mr. Kavanaugh. They didn't talk to the dozens of individuals
who Deborah Ramirez said could potentially corroborate her story. They
closed the investigation a full day ahead of the arbitrary deadline,
and it is not clear why.
Based on that, in my view, this investigation was a whitewash. It was
not legitimate. It was the product of intense political meddling, in my
view, by the Trump administration. That means, if Brett Kavanaugh's
nomination is confirmed, there are going to be questions about his
legitimacy looming large for years to come.
[[Page S6572]]
I believe Dr. Ford. I have heard the Presiding Officer discussing
this this morning on television. I respectfully would say I know the
Presiding Officer doesn't share my view. But I felt that Brett
Kavanaugh's behavior before the Senate last week ought to be
disqualifying on its own. If you compare what he said last week to what
he wrote ought to be the requirements for how a judge behaves, there is
a very large gap between what Brett Kavanaugh said ought to be expected
of a judge's behavior and what we saw last week when he testified.
From the time his nomination was announced, Kavanaugh portrayed
himself as a trustworthy individual who had the kind of levelheaded
temperament Americans expect and deserve from members of the judiciary.
My view was that appearance last week before the committee my colleague
serves on was a textbook case of raw partisanship.
In his afternoon testimony last week, Brett Kavanaugh was disdainful
and sarcastic toward the Democratic Senators who questioned him. Brett
Kavanaugh responded to what he considered to be unsubstantiated
allegations by making truly unsubstantiated allegations of his own.
Without any evidence, he declared the credible accusations that had
been brought forward a ``calculated and orchestrated political hit'' by
the Democrats. He pushed these baseless, conspiratorial comments about
how this was all just revenge for the Clintons. And in a tone that just
struck me as dripping with menace, he just said: ``What goes around
comes around.''
If you look last week at how he presented himself to the chairman of
the Senate's committee, I think you have to ask yourself: How can
anybody expect that Brett Kavanaugh would offer a fair hearing in a
politically charged case?
My conclusion, based on what I have described, is pretty simple. You
just do not get to behave the way Brett Kavanaugh behaved last week and
get to serve on the United States Supreme Court.
Finally, my concerns go further than the temper tantrum we saw last
week. There is hard evidence that shows that Brett Kavanaugh lied
repeatedly and on a variety of subjects. For example, just yesterday,
there was new evidence in scores of emails that the nominee lied about
his involvement in government wiretapping programs.
The Presiding Officer of the Senate has been very gracious over the
years in talking to me about these issues. He knows I care deeply, as a
member of the Senate Intelligence Committee, about government
wiretapping programs. I am here this afternoon to say I am not alone.
Millions of Americans care about this issue. As I have said in my
conversations with the Presiding Officer of the Senate, security and
liberty are not mutually exclusive. You can have both.
What these emails--scores of them yesterday--prove is there is new
evidence that Brett Kavanaugh did not tell the truth about his
involvement in government wiretapping programs. There is hard evidence
that shows he lied about using stolen documents, hard evidence that
shows he lied about his involvement in the confirmation process of
certain Bush nominees, hard evidence about the statements made by the
other individuals who were present at the party where Dr. Ford was
assaulted, hard evidence the nominee lied about when he learned of the
second set of allegations made against him. The nominee even lied about
small stuff. When you can't trust somebody to tell the truth, they
don't belong on the Supreme Court.
It is important, before I wrap this up, to take a hard look at what
has happened to the Court over the last few years. In 2016, Senate
Republicans blocked a mainstream nominee to the Court--an individual
who many Republicans had praised extensively--extensively--in the past.
They held a Supreme Court seat open for nearly a year until a
Republican President picked someone to their liking.
In 2018, the Trump White House interfered with the vetting of a
second nominee, hiding key information from the Senate and the American
people.
The floor debate on this nomination is going to be cut off before all
the questions about sexual misconduct can be answered and before the
statements I have outlined here today--ones where there is hard
evidence--can be examined for perjury. These actions by the Republicans
and the Trump White House, in my view, are taking a sledgehammer to the
public's trust in the Court as an institution.
The Court used to have a healthy separation from the partisan battles
that take place here in the Congress. I heard my colleague talking
about that this morning on television. That healthy separation doesn't
exist today. I just say, we have a lot of heavy lifting to do in the
U.S. Senate to revive the vision of the Supreme Court held by the
Founding Fathers after what has happened.
I am going to close by going back to the question of whether anything
has changed since 1991 and the tragedy of Professor Hill. When
Professor Hill testified in 1991, she was dragged through the mud. She
was called a scorned woman. Perhaps you can say it represents some
measure of progress that Dr. Ford wasn't slandered and insulted in
quite the same way. But I don't know how much that matters if this
nominee is confirmed.
The language used during the debate might sound different, but the
outcome is the same. The failure by my colleagues on the other side to
step back, suspend the partisan warfare, and recognize the seriousness
and legitimacy of this information, in my view, will go down over time
as a historic disappointment.
This was never a smear campaign. It wasn't a political hit job. Dr.
Ford came forward out of a sense of civic duty. She knew the sacrifice
she faced, and she wondered to herself if it would really make a
difference. Why suffer through annihilation if it will not matter, she
asked. Over and over again, she told us she only wanted to be helpful.
I have never seen a witness--like my colleague presiding today, I have
seen a lot of witnesses. She was a textbook case of being courteous,
always saying: What can I do to be helpful?
Senators ought to consider the dangerous signal being sent to
survivors of assault and to young people across the country from this
debate. Dr. Ford wasn't on trial; nonetheless, she was prosecuted by
the majority party. She got smeared as a political pawn, a liar,
belittled, with her accusations dismissed by many almost immediately.
I made notion of how, a few days ago, the President mocked Dr. Ford,
mocked her in front of thousands. What a cruel and un-Presidential
moment. If the mockery and dismissiveness are not bad enough--if they
weren't bad enough, there is the return of the sickening old notion
that boys will be boys, what happened in the bedroom was
``roughhousing,'' and what happened was just too long ago. Today,
survivors from sea to shining sea are asking: How are we going to be
heard? How will we find justice?
I fear many survivors are going to conclude that coming forward with
their story is going to be pointless, and there is very little
likelihood of justice--very little likelihood of justice. Even if you
are strong, composed, and constantly courteous, it will not help.
On the other hand, the signal to boys is this: Even if you engage in
violence against women and lie about your conduct, the power structure
is going to step up and protect you. The Senate has to be better than
this.
I hope Senators are going to recognize that it is time to take these
horribly outdated attitudes towards women and sweep them out like the
cobwebs from an abandoned theater stage and start over. It can begin by
rejecting this nomination today.
I will be voting no.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. RUBIO. Mr. President, as a Member of the U.S. Senate, my role in
providing advice and consent to the President on his or her nominations
to the Supreme Court is among our most important constitutional duties.
In fulfilling that duty, I have a pretty clear criteria on how I go
about making these decisions. The first is whether the nominee has the
character to serve on the Supreme Court; the second is whether the
nominee has the intellect and the experience and the academic
credentials to serve on a Court that hears complex and difficult
questions of law; and the third is does the nominee believe in the
proper role of
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the Supreme Court, which, in my opinion, is to interpret and to apply
the Constitution, not to change or manipulate it to reach a certain
policy goal.
There is broad bipartisan support for the first two parts of my
criteria. We can all agree that people who serve on the Court should
have the character to do so. We can all agree our nominees and those
who serve on the Court have to have the intellect and the experience
and the academic credentials to be on the Court.
Much of our fights around here center around the third part of my
criteria. In fact, it goes to the heart of most of the nomination
fights we have. There are some who would like the Supreme Court to
become a policymaking branch, a place that makes policy and makes laws,
but I believe the job of an appellate court is to decide whether a
policy decision of the political branches is constitutional. Appellate
courts and trial courts are different. Trial courts are triers of fact.
Appellate courts are triers of law.
The debate about the proper role of the Court plays out most vividly
on some of the most divisive cultural issues, and it always has. For
example, on the difficult issue of abortion, the question before the
Court in Roe v. Wade was not whether it was good or bad for abortion to
be criminalized or constricted, the question was whether the
Constitution gave the State or Federal Government the authority to pass
laws that banned or restricted abortions.
The question before the Court in Obergefell v. Hodges was not whether
same-sex marriages were good or bad for America. The question was
whether the Constitution allowed States to define marriage as being
between one man and one woman.
In deciding these kinds of questions, I believe Justices, both on the
Supreme Court and appellate-level judges, should apply the strictest
interpretation of the Constitution according to its original intent,
irrespective of whether the policy result of their decision is
something they personally agree with. The reason for that is because if
the Constitution can mean whatever people at a given moment want it to
mean, then the Constitution doesn't really mean anything at all. We can
change our laws. That is why Congress has to respond to the electorate,
why we debate laws, and then are held accountable for it, but the
Constitution has to be something that is constant, irrespective of the
political tides of the moment.
Now, you can change the Constitution. The Founders gave us a process
to do that through Article V, the constitutional amendment process, and
that has been used in this country. They would not have given us that
process if it were their intent that the Supreme Court be the one that
could change the Constitution.
The reason I outline that criteria is because that is the criteria I
used to evaluate Judge Kavanaugh's nomination when it was first
presented. I found myself with no doubts about his intellectual ability
or his academic credentials, and I don't think anyone has raised those.
I have seen seven FBI background checks that turned up no issues with
his character, and I had 12 years of his service as a Federal appellate
judge as proof that he shared my criteria for the proper role of the
Court and the proper standard for constitutional review.
So it was based on that and on those facts that in August I announced
I supported Judge Kavanaugh's nomination.
Then, several weeks ago, the allegations, first by Dr. Ford and then
by others, emerged. Sexual harassment and assault is something I feel
very strongly about. It is, for example, one of the reasons I have been
involved for a number of years now in a bipartisan effort to reform and
improve how we handle claims of sexual assault on our college campuses.
Our Nation is now facing a reckoning for decades of not addressing
sexual violence appropriately.
While I obviously will not betray anyone's confidence or privacy, I
have personally seen how victims of sexual assault often find their
claims dismissed and ignored. I have seen how sometimes they are told
things like: You are partially to blame for putting yourself in that
position. I have seen how so many never came forward and don't want to
come forward because they don't think anyone will believe them or they
don't believe anything will ever happen.
That is why I believe anytime anyone comes forward with allegations
of sexual assault or harassment, abuse, these allegations cannot be
swept aside, and they cannot be ignored. When these allegations emerged
in this case, my immediate reaction was to say these claims should be
taken seriously and his accusers should be fully heard. I said I would
have no further comment on his nomination until we knew more about
these allegations. What that meant was, my support of Judge Kavanaugh
was now contingent on the information that emerged from the hearings
and the investigation and the work that needed to be done.
I will say today what I said at this time last week. I believe
neither Dr. Ford nor Judge Kavanaugh have been treated fairly in many
instances. Some--I saw you--immediately basically dismissed these
claims as a political ploy. Others went on television almost
immediately and said they believed Judge Kavanaugh was guilty without
any information before them.
Despite the shameful behavior of so many, a process did ensue.
Through all the noise, that did produce additional information. The
Senate's Judiciary Committee and then the Federal Bureau of
Investigation gathered and made available to every single Member of the
Senate additional relevant information.
The committee took sworn testimony from several named witnesses. I
know for a fact they chased down and investigated a seemingly endless
stream of incoming information every single day, and it provided both
Dr. Ford and Judge Kavanaugh the opportunity to give written statements
and then participate in hours of public testimony, not just before the
committee but before the entire Nation.
When that hearing ended last Thursday, the information before us was
as follows: The sworn and unequivocal allegations by Dr. Ford, the
sworn and equally unequivocal denial from Judge Kavanaugh, no witnesses
with knowledge of these allegations, and no independent evidence to
corroborate them.
After the hearing, a week ago today, some of the Senators on the
committee wanted a short delay. I watched that hearing. It was agreed
to by everyone there, a short delay, 7 days, so the Federal Bureau of
Investigation could gather even more information, and I had no
objection to that.
Over the last week, the FBI interviewed 10 additional witnesses and
gathered additional relevant information for every single Senator to
review.
First, I was briefed on these interviews and information; then I had
occasion to review them for myself. Here is what I know now about the
allegations against Judge Kavanaugh. I have the sworn and unequivocal
testimony of Dr. Ford and Ms. Ramirez making these allegations against
Judge Kavanaugh. I have the sworn and unequivocal denial of these
allegations from Judge Kavanaugh. I now have before me the testimony of
10 additional witnesses, including those identified by Dr. Ford and Ms.
Ramirez as having been present when Judge Kavanaugh allegedly assaulted
them, and not a single one of them had any recollection of the alleged
gatherings, much less any knowledge of these allegations, and I still
have no independent evidence which corroborates these allegations as
well.
That is the information before me as I stand here at 1 p.m. eastern
time on the 5th of October with regard to the nomination of Judge
Kavanaugh to the Supreme Court of the United States. That is the same
information that is before every other Member of the Senate who has
access to the exact same information that I saw, that I read, and that
I was briefed on.
I have listened to the arguments made by some of my colleagues and
others urging me to still vote against the nomination. The most direct
argument made to vote no is that the FBI did not interview enough
people.
First, my view is that the only people who could corroborate those
claims are those who were there when it happened because anything other
than that is hearsay. If you didn't see it happen, all you can testify
to is what someone else told you. The only people who could corroborate
that something happened are either people who received physical
evidence or people who
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witnessed it. From what I read yesterday, every single person the
accuser said was present when it happened testified that they do not
know anything about it.
By the way, the other point I would make is that these interviews
that we saw yesterday, the 10 additional ones--it would be unfair to
view them in a vacuum, as if they were the only information we have to
go off of. Here is a fact: Over nearly the last two decades, the
Federal Bureau of Investigation has interviewed over 150 people, asking
questions about Judge Kavanaugh's background and past. Over 150 people
have been interviewed about Judge Kavanaugh over the last two decades
and across seven background checks, and not a single one of them has
ever testified as to any sexual assault against anyone at any time.
It struck me that there isn't a single Member of the U.S. Senate, I
think--maybe I am wrong, but I doubt seriously that there is any Member
in the U.S. Senate who has had the FBI question over 150 people about
what they have done throughout their life. In fact, I would venture to
guess that there are probably few, if any, Americans who have had the
FBI interview over 150 people about what they have done throughout the
course of their lives. I believe it is reasonable to assume that if
Judge Kavanaugh was someone who had engaged in a pattern of abusive
behavior toward women--on a pattern--at least one of these 150-some-odd
people would have noticed and would have said something about it. Yet
not a single one of them did.
I would be remiss if I didn't mention that there is clearly another
factor that is driving much of the anger and passion around this
nomination, and it has nothing to do with partisan politics or politics
at all, for that matter. It is the fact, as I mentioned earlier, that,
sadly, far too often, particularly women who come forward with
allegations of harassment, abuse, or assault are ignored, dismissed,
and even blamed. The fact is, because of this, there are potentially
millions of victims who have never come forward and who suffer in
silence.
I understand that for the victims and for those who love them and for
those who are survivors, to hear about these allegations brings back
powerful and painful memories of what happened to them, of how they
were ignored, how they were not believed, how they were blamed, and how
their abuser got away with it. What has happened to these survivors is
an injustice. It is wrong. It is something that we as a nation must
reckon with and we as a people must fix. But the solution to injustice
is never injustice, and it would be unjust to turn this nomination into
a proxy fight over the broader, important issue of how we have treated
victims of sexual assault in America. As important as that topic is,
this debate is about a specific case involving specific people and
specific allegations. Fairness and justice require us to make our
decision on this matter based on the facts before us on this matter.
It was wrong for some to immediately dismiss these allegations almost
as a reflex, but it is also wrong to claim that a vote for Judge
Kavanaugh's nomination means that you do not care about and do not as a
matter of course believe victims of sexual violence.
My colleagues and my fellow Americans, this case is about this case,
and although the ways in which both the accuser and the accused have
been treated are shameful, we must still make our decision based on
what we know.
I want to make one thing abundantly clear: I do want people on the
Supreme Court who believe that the proper role of that Court is to
interpret the Constitution according to its original intent, but if I
had any evidence--or if any evidence emerges that corroborates these or
any allegations of this kind--I would have voted against this
nomination in a heartbeat because someone who has committed sexual
assault shouldn't be on the Bench, they should be in jail. If you lie
about it to Congress, you should also be charged with perjury. But
after 7 background checks and over 150 people having been interviewed,
we don't have any independent evidence to corroborate these allegations
against him--none.
So with regard to this specific case, on the basis of the facts that
I have before me, that we have before us--on the basis of what facts am
I supposed to not just vote down this nomination but in the process of
doing so, render what will forever be perceived as a verdict of guilt?
On the basis of what facts can anyone say or do that?
It is legitimate to vote against him because you don't agree with his
judicial philosophy, but it isn't fair to say you are voting against
him, as some imply, because we are on the verge of putting someone who
is a confirmed and verified sexual abuser on the Bench. That isn't
justice, and no matter how just the cause is, a just cause never, never
justifies an unjust means.
Based on the specific facts before us regarding this specific
nomination and this specific case, I already voted to end debate on the
nomination of Judge Kavanaugh, and tomorrow I will vote to confirm him
as an Associate Justice of the Supreme Court of the United States.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. CARPER. Mr. President, good afternoon. I rise today to address
the nomination of Judge Brett Kavanaugh to serve on the U.S. Supreme
Court.
As we all know, the stakes are always high when this Chamber vets and
debates and votes to confirm any of the President's Supreme Court
nominees, as they should be. This is, as we know, the highest Court in
our land. The job comes with a lifetime appointment--not 2 years, like
they have in the House of Representatives; not 4 years, like the
President; not 6 years, as we have--a lifetime. As we know, looking at
one of the Justices on the Supreme Court who is, I think, now 85 years
old, that could be a long, long time.
Those who serve on the Supreme Court make decisions that will affect
the lives of millions of Americans almost every day. That is precisely
why we expect Presidents to look for the best and brightest candidates
possible. That is why the vetting process in the Senate should be
serious and thoughtful. That is why nominees should strive to be above
reproach. Indeed, we all should strive to be above reproach. This
absolutely should be one of the toughest job interviews around because
the stakes surrounding any Supreme Court seat are just that high.
The stakes surrounding the seat vacated by Justice Kennedy may be
even higher. The next Justice may shift the balance of our Nation's
highest Court for a generation, maybe even longer. The next Justice may
very well be asked to rule on questions of Executive power that test
our democracy.
We are fooling ourselves if we refuse to acknowledge that the stakes
are so high in large part because this Chamber has yet to reckon with
the grave injustice that was done to Merrick Garland and to our
Constitution in 2016.
As many will recall, Judge Garland, who serves as the chief judge of
the DC Circuit Court--the highest Federal appeals court in our land--
was nominated by President Obama over 2 years ago to fill the seat held
by the late Justice Scalia on the Supreme Court. Shamefully, he was
denied any kind of consideration by this body. He waited 293 days for a
hearing and a vote that never came. Most Republican Senators refused to
even meet with him. A good man was treated badly, and so was our
Constitution.
The unprecedented obstruction our Republican colleagues mounted
against Judge Garland was a shameful chapter of the U.S. Senate. I am
still deeply troubled by those 293 days. I know some of my colleagues
are as well. It is likely that I will continue to be troubled by them
for the rest of my life.
We may never agree which side pulled the pin out of the grenade, but
we must all recognize that this institution will never be the same if
stealing Supreme Court seats and creating one set of rules for
Democratic Presidents and another set for Republican Presidents is the
new norm.
Despite the injustice done to Merrick Garland, Judge Gorsuch was
ultimately confirmed last year--on a bipartisan basis, I might add.
When Justice Kennedy retired earlier this year, President Trump
nominated, as we know, Judge Brett Kavanaugh to fill that seat. More
than 12 years ago, I met with Judge Kavanaugh in my office here in the
Capitol when the Senate considered his nomination to the
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DC Circuit Court of Appeals. Back in 2006, I voted my hopes over my
fears. Unfortunately, over the last decade, many of my worst fears have
come true.
I believe that Judge Kavanaugh's extreme record on the bench that has
unfolded over the past dozen years stands in stark contrast to the
views of most Americans on too many important issues. For example,
Americans overwhelmingly support protection for those living with
preexisting conditions. Brett Kavanaugh ruled against upholding the
Affordable Care Act in 2011. That is why we expected he would side with
conservative Justices if and when cases like Texas v. United States
come before the Court. If he does, the ACA's protection for people with
preexisting conditions will be invalidated for tens of millions of
Americans.
Speaking of healthcare, Americans overwhelmingly support women having
the freedom to make their own healthcare decisions. Brett Kavanaugh,
while working in the Bush White House in 2003, wrote an internal memo
stating that Roe v. Wade may not be considered ``settled law of the
land'' because the Supreme Court ``can always overrule its precedent.''
Americans also overwhelmingly support independent checks on Executive
power. We believe no one in America is above the law. Yet Brett
Kavanaugh, in a July 2009 Minnesota Law Review article, wrote that
Congress should pass a law to exempt a sitting President from criminal
prosecution or investigation. When I learned of this, my reaction was:
You have got to be kidding. Apparently, he was not kidding. Ironically,
that declaration came 11 years after Brett Kavanaugh played a key role
in drafting the Starr Report, which laid out grounds for impeachment of
then-President Bill Clinton.
The greatest threat Brett Kavanaugh may pose to this country and its
people is with respect to our environment. In all my years, I have yet
to meet anyone who doesn't want to make sure we have clean air to
breathe and clean water to drink. A review of Judge Kavanaugh's nearly
300 opinions over the last 12 years, both concurrencies and dissents,
shows Judge Kavanaugh has voted to weaken or block environmental
protections a staggering 89 percent of the time. In fact, Judge
Kavanaugh has never dissented in a case that would weaken environmental
protections and admitted as much in his response to questions for the
record from Senators Feinstein and Harris. In other words, almost 9 out
of 10 times, he has sided with those who weaken environmental
protections over those who would strengthen it.
I fear that if confirmed, Judge Kavanaugh could well turn out to be
the next Scott Pruitt. We remember him. However, unlike former EPA
Administrator Pruitt, whose tenure ended finally after 18 tortuous
months, Brett Kavanaugh could damage our environment for a quarter
century or more if he serves on the Supreme Court.
For example, just last year, Scott Pruitt's attempt to delay rules
limiting methane emissions from oil and gas drilling was challenged in
the DC Circuit Court, where Judge Kavanaugh now serves. In that case,
Judge Kavanaugh sided with Scott Pruitt and the fossil fuel industry,
voting against his colleagues who found Pruitt's delay illegal.
Judge Kavanaugh also attempted to severely limit EPA's authority to
regulate toxic emissions and greenhouse gases under the Clean Air Act.
In 2012, he blocked the air pollution restrictions that covered nearly
half of our country, endangering thousands of lives. This is especially
concerning to those of us who live in downward States like Delaware,
where over 90 percent of our air pollution comes from dirty emissions
in States to our west that drift across our borders.
When I was Governor, I could have shut down my State, taken every
car, truck, van off the road, shut down every business, and we would
have still been out of compliance for clean air requirements because of
the upwind States putting their pollution up in the air, and it is
simply blowing to Delaware or Maryland or New Jersey or any other State
that happens to live along America's tailpipe on the east coast.
Strictly based on Judge Kavanaugh's environmental record on the bench
over the past 12 years, I was prepared to vote no on his nomination
many weeks ago. Then last week the Senate and much of our country was
riveted by compelling and, I believe, powerful testimony from a private
citizen and a victim, Dr. Christine Ford. She came forward to share the
most dramatic experience of her life.
She stepped forward despite the serious threats it posed for both her
and her family--death threats, having to move out of her house. She
testified despite being terrified. She did so despite being unsure that
her story would make any difference at all. She did so because she said
it was her civic duty to share the truth. She showed a whole lot of
courage.
Like many of my colleagues, I have been contacted by sexual assault
survivors since Dr. Ford's testimony who have been inspired to come
forward and share their stories. It serves as further proof that this
problem is not only underreported but that men and women who are
victims of sexual assault can and do bury this trauma, not for weeks,
not for months, not for years but for decades.
Some of our Republican colleagues have acknowledged that Dr. Ford's
testimony was credible, but despite her credibility, they say they
don't see her testimony as reason enough to deny Judge Kavanaugh a
lifetime appointment to the Supreme Court. They say they don't have
enough evidence to believe her. Instead, they painted this as something
of a he said, she said situation involving young people.
Well, let's look at what he said then. Last week, Judge Kavanaugh,
who currently sits on our Nation's second highest court, came before
the Senate and unleashed a torrent of unbelievably partisan attacks. I
have never seen anything like it in testimony before any committee I
have served on or known of.
He claimed that the allegations against him were fueled by ``pent-up
anger about Trump and the 2016 election.'' He went so far as to say the
claims were merely ``revenge on behalf of the Clintons.'' He threatened
Democratic Members saying: ``What goes around comes around.''
There is an old saying, adversity does not build character, it
reveals it. Well, that day, Judge Kavanaugh revealed himself to be a
partisan during that hearing. After witnessing the vitriol Judge
Kavanaugh spewed, how could any left-leaning cause think they would
ever possibly get a fair shake from him should their case come before
the Supreme Court? His temperament was clearly unbecoming of a judge,
let alone a Supreme Court Justice.
What is perhaps even more disturbing is, it seems clear Judge
Kavanaugh was willing to be so brazenly partisan in order to appeal to
an audience of one watching the proceedings from 1600 Pennsylvania
Avenue.
Judge Kavanaugh's testimony last week also raised additional
questions regarding his truthfulness. For weeks, my colleagues on the
Judiciary Committee, including Senators Durbin and Senator Leahy,
raised serious concerns that Judge Kavanaugh may have misled the
Judiciary Committee about the extent of his role in the Bush
administration helping several controversial judicial nominees navigate
the Senate confirmation process.
Judge Kavanaugh may have also misled the Judiciary Committee about
the extent of his role in the Bush administration helping shape several
controversial decisions in the wake of the September 11 terrorist
attacks, including warrantless wiretapping and the rights of enemy
combatants.
During his most recent hearing about the allegations brought forward
by Dr. Ford, Judge Kavanaugh answered several questions about his
younger days in ways that were, at best, misleading and, at worst, lies
under oath. Judge Kavanaugh's less-than-truthful answers on matters
large and small point to a troubling pattern and raise serious
questions about his credibility.
Even if my Republican colleagues don't want to believe Dr. Ford, and
even if they agree with Judge Kavanaugh's judicial record, the fact
that he came before this body and so brazenly misled our fellow
Senators should, I believe, by itself be disqualifying.
Before coming to the Senate, I was privileged to serve, as you may
recall, as Governor of Delaware for 8 years. In that role, I nominated
dozens of men and women to serve as judges in several courts of
national prominence--including the Delaware Supreme Court,
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the Delaware Superior Court, and the Delaware Court of Chancery, to
name a few. While the roles of those courts differed, the qualities I
looked for in my judicial nominees were similar. I looked for men and
women who were bright. I looked for men and women who knew the law. I
looked for men and women who had good judgment, who are able and
willing to make a decision, including a difficult decision. I looked
for men and women with a strong work ethic. I didn't want to nominate
somebody for tribunal chairman so I could watch them retire on the job.
I looked for nominees who were collegial and able to build consensus
in courts that had a larger panel, but there were three qualities that
were most important to me: judicial temperament, impartiality--treating
everyone before them fairly and not showing partiality--and, finally,
truthfulness.
In fact, in my first term as Governor, I denied a sitting Justice of
the Delaware Supreme Court the opportunity to serve an additional 12-
year term because he lacked appropriate judicial temperament. I am told
that was unprecedented, but his judicial temperament and what I thought
was appropriate were not one and the same.
It gives me no joy to say what I am about to say, but the temperament
Judge Kavanaugh exhibited at the Judiciary Committee last week was not
just unacceptable for a Supreme Court Justice, it would be unacceptable
for a judge in Delaware serving on the Delaware Court of Common Pleas.
Last week, in an effort to actually get to the truth and ensure that
body could have all the facts before taking such an important and
consequential vote, my Delaware colleagues and I called for the FBI to
conduct a nonpartisan investigation. Unfortunately, what we ended up
with falls far short of what the Senate deserves and certainly what the
American people deserve.
What we got was a process that was certainly not designed to inform.
If this process was designed to inform, the White House and Republicans
would have actually allowed the FBI to speak to the more than 40
individuals whose names Dr. Ford and Ms. Ramirez submitted as people
who could potentially corroborate their accounts. The FBI never talked
to any of those people.
If this were a process designed to inform, the dozens of individuals
who contacted the FBI to share potentially helpful accounts and
information would have received calls in response to those concerns;
they did not.
If this process were designed to inform, the White House and Senate
Republicans would have allowed the FBI to expand the scope of this
investigation; they did not.
If this process were designed to inform the majority leader, he would
have at least waited to schedule a vote on Brett Kavanaugh's nomination
until after we received and read the FBI report; he did not.
Sadly, this process has been a sham from the start. I know our
Presiding Officer is proud to hail from the State of Louisiana. I am
equally proud to hail from the First State. As you may know, we are
called the First State because we were the first State to ratify the
U.S. Constitution--the longest living, most emulated Constitution in
the history of the world.
One of the fundamental reasons our Constitution and our democracy has
endured is because of the intricate system of checks and balances our
Founding Fathers crafted just up the road in Philadelphia some 231
years ago.
The process we have been through in the last several weeks,
unfortunately, makes a mockery of that system of checks and balances. I
believe we all must recognize that, to use the majority leader's words,
``plowing through'' with Judge Kavanaugh's nomination will diminish the
credibility of the Supreme Court as an institution that stays above the
political fray. In fact, confirming Judge Kavanaugh will enshrine doubt
in every controversial 5-to-4 decision in our moving forward from this
time. It also calls into question the legitimacy of us, of this very
Chamber.
Let me say to my colleagues who are still wavering on Judge
Kavanaugh's nomination--and I will leave you with this--that we will
not only be judged by voters this November; we will be judged by
history. We say that a lot. Sometimes it is trite and overstated. In
this case, it is not. We are going to be judged by history in this
regard.
I would implore each of you who is still thinking this through, who
is trying to figure out what is the right thing to do, to show that we
are still worthy of being called the world's greatest deliberative
body. Let's show that we have made progress since 1991 in a previous
Supreme Court nomination-confirmation episode. Let's show that we are
willing to take a stand and do the right thing because if we are not,
any short-term political wins will be forever eclipsed by the permanent
stain left on our legacy in this body from which there may be no
recovery.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. INHOFE. Will the Senator yield?
Mr. BLUNT. I yield to the Senator.
Mr. INHOFE. Mr. President, at the conclusion of the remarks of the
Senator from Missouri, I ask unanimous consent that I be recognized for
such time as I may consume.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BLUNT. Mr. President, I want to talk a little bit about what my
good friend from Delaware talked about with regard to our being judged
by history. Some of what I want to talk about today is of the history
of this system and of others who have served.
I have read several times in the last 30 days, particularly, that the
Democrats feel they can do anything because of the way Merrick Garland
was treated. I don't think there is any comparison between the way
Merrick Garland was treated and the way Judge Kavanaugh has been
treated. The only comparison I can think of is that they are both on
the DC Court of Appeals and that they have both said very kind things
about each other, but there is no comparison.
Merrick Garland was nominated in the last year of a Presidency. The
last time someone was put on the Supreme Court who was nominated in the
last year of a Presidency was in 1932. The last time that happened was
in 1932. The last time someone went on the Supreme Court when the
President was of one party and the Senate was of the other and when it
was a Presidential election year was in 1888. There is no comparison.
In fact, Vice President Biden--then-Senator Biden--said on June 25 of
1992, in what turned out to be the last year of the Bush Presidency: If
there is a vacancy, there will be no hearing until after the election.
There was not a vacancy, by the way. They were just putting that
historical marker down that if there were a vacancy, there would not be
a hearing until after the election. Of course, that meant there would
not be a hearing that mattered. Unless the President were to be
reelected and the majority in the Senate were to stay the same, there
would be no reason to assume there would be a judge appointed by this
President this year.
Senator Schumer said in July of 2007, in his not wanting to wait
until election year but just wanting to put his position on the table
even earlier in the last year of another Bush Presidency, that we
should not confirm any Bush nominee--I think he meant--from that moment
on. As a matter of fact, he did say we shouldn't confirm any Bush
nominee from that moment on except in extraordinary circumstances. I am
sure he didn't mean one vacancy on the Supreme Court would be an
extraordinary circumstance but a circumstance that would be dealt with
just like Judge Garland's was dealt with, and people were heard. Yet
that is not what this is about, and it sets no precedent any more than
Senator Biden or Senator Schumer set a precedent that should have been
a surprise for anybody.
So what do we have with Judge Kavanaugh as we decide in the next few
hours or in the next day or so whether he becomes Justice Kavanaugh?
This was the seventh background check of this judge by the FBI. There
had never been a more extensive review of a Supreme Court nominee--
seven times in slightly more than a dozen years--in going through this
background check.
More than 150 people had been interviewed.
He had 36 hours of testimony before the Senate, during which you and
others on the Judiciary Committee could
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have asked him anything you had wanted to ask.
He had 65 private meetings with Senators, during which they could
have asked him everything they wanted to ask--including, by the way,
the ranking member on the Judiciary Committee, who had had this
information available to talk about.
More than 500,000 pages of executive branch documents had been
provided--more than for the last 4 nominees. Of all of his opinions as
a judge and of all the cases he was part of, there were about 300 of
those. By the way, that is the best way to look at what kind of judge
he would be.
He was asked over 1,200 questions for the record. That is like, after
you have asked all of the questions you could publicly think of, then
one has about a week to answer any questions that have been submitted
for the record. He had 1,200 questions submitted for the record that he
had to answer in that short period of time.
There were three confidential calls with the committee.
Then, last Friday, our colleagues decided--and I think, as it turned
out, maybe wisely so--to do one more final FBI review of whatever they
might not have asked about in the other seven FBI interviews that had
occurred over the years. The outside number was 1 week. A week ago, 1
week was what was going to be plenty of time. I think some Members in
the minority at that time said: Well, maybe even 3 or 4 days. That is
what it took with the Clarence Thomas hearing. By the way, that was
before these issues became public, because it was turned over to the
FBI like it should have been, and in 3 or 4 days, they had talked to
everybody they could talk to. So, last week, 3 or 4 days might have
been enough, but certainly a week would have been enough, according to
the other side. Of course, that was never going to be the case. A week
was never going to be enough.
By the way, in background checks, when you are asked to be part of
that--if it is your background check--one of the questions you are
asked is, are there any drinking problems? Are there any drug problems?
He had been asked that over and over again. I think anybody who is
interviewed is always asked, do you know of any problems like that?
Usually, a question is, Have you ever heard of anything that we would
be interested in if we had heard about it?
Another question often is, Would you tell us three people whom we
might not have talked to who might know something about Judge Kavanaugh
that we should know?
Over a decade and a half, there have been 7 FBI interviews and 150
people interviewed, the behavioral question, the drinking question, the
drug question, which hasn't come up as far as I know, but it is always
asked. It has been asked over and over again.
Then you and I and Senator Inhofe went the other morning to hear a
review of this last set of interviews, wherein people who possibly
would have been able to corroborate something were interviewed and
couldn't corroborate it. In many ways, the case got weaker as that
moved forward, but we heard that.
Then I heard that afternoon that Senator Schumer said that this is
full of hints of misconduct. So I went back this morning and looked
through the six prior background checks, and I looked through this
background check. As it turns out, I agree with Senator Grassley, who
said there was no hint of misconduct.
If there had been a hint of misconduct in the previous five, he would
have never been nominated. If there had been a hint of misconduct in
the sixth one, he wouldn't have been nominated. It wouldn't have
sustained itself. If you look at the pages that are new, there is none
there now. So you can say anything you want to say. You can say it is
not time enough. You can say, even though no witness ever saw any of
these events, you just haven't talked to enough people yet, even though
you have talked to everybody who has been mentioned, as far as I know,
with any credible charges.
So here we are. Now it is temperament. I don't think there are many
Senators who would not have had his same indignation in being accused
of something that he, without equivocation, swore did not happen, not
only in those instances but in any other instance.
It took 43 days for Ruth Bader Ginsburg to be confirmed. We are at
about 83 days, or something like that, now. I looked up a couple of
articles just to refresh my memory. When she shows some fire--and she
has plenty of it, and I admire that--the description of her is her
``well-known candor.'' That is how you describe it when Justice
Ginsburg has her own opinion, like what she said about the Republican
nominee last year: He is a faker. He has no consistency about him. He
should withdraw. She said: I can't imagine what this place would be and
can't imagine what the country would be with Donald Trump as our
President.
Now, is that a temperament issue, or is that too political?
By the way, I am not offended by political. The Court never was
either. John Marshall, one of the great Justices of the Court, was the
Secretary of State for the person who appointed him. Earl Warren, who
certainly set a standard for the Court, had never been in any public
office except politically elected office before he became the Chief
Justice. When he joined the Court in 1953, there were three former
Senators sitting on the Court. There were two former Attorneys General
sitting on the Court. Both had been appointed by the Presidents for
whom they had been Attorneys General. Elena Kagan was the principal
lawyer for President Obama. Yet, suddenly, political becomes a problem
or temperament becomes a problem.
Thurgood Marshall said while he was on the Court--by the way, I
admire him in so many ways. I admire Thurgood Marshall's work and what
he did as a lawyer, and the decision that President Johnson made was
clearly historic.
As a Justice, Thurgood Marshall said: I wouldn't do the job of
dogcatcher for Ronald Reagan.
About President Bush, while he was still a Justice, Thurgood Marshall
said: It is said, if you can't say something good about a dead person,
don't say it. Well, I consider him dead.
Obviously, he considers him dead and takes the first injunction that
he doesn't have anything to say, but there is nothing wrong with people
on the Court having opinions.
In this case, we have a judge for whom you could look at 12 years of
judging, and you could look at 300 opinions, and you could look at his
law school classes he taught. There is plenty to look at. It all, I
believe, leads to a couple of conclusions:
One, the way this nomination has been treated has been outrageous. I
think my good friend who spoke before said he had never seen anything
like it. Well, there has never been anything like this: Hold on to
information that can't be corroborated. Only release it after it is
clear that the judge has the votes to be confirmed and when you want to
do, as the majority leader said, anything you can possibly do as the
minority leader to slow down and stop this nomination.
We have plenty to look at here. We cannot set a standard of guilty
until proven innocent because then anybody can make any charge at any
time, particularly when there are many reasons to believe that there is
nothing in 7 background checks, that there is nothing in 150
interviews, that there is nothing in a very visible public career to
ever suggest that Judge Kavanaugh is anything different from what he
said he was and those of us who will vote for him believe him to be.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, before the Senator from Missouri leaves,
confession is good for the soul, and I want to share something that
will shock him, which is that there are a number of things that I did
when I was in high school and in college that are not very prominently
displayed in my campaign material. So, there, I have said it.
We had a vote this morning, but a lot of people who have been on the
phone today have not really been sure what we did with that vote this
morning. We had the vote this morning because we had to move forward in
order to have the final consideration of this great nominee
tomorrow. It was filibustered by the Democrats, and, of course, we had
to do a cloture vote. I know this is somewhat in the weeds here, but
that is what we have to do. That vote took place.
[[Page S6578]]
At some time tomorrow we will actually have this vote. I start by
saying that I am enthusiastically a ``yes'' vote tomorrow. I think that
goes without saying.
I met with Judge Kavanaugh in my office back when he was first
nominated. In fact, I have studied him before. I remembered him when he
was nominated the first time, about 6 years ago, and I talked to him at
that time. I thought: Well, has he really changed that much? Is it
necessary? I even said: It is really not necessary; I have followed his
career and all of that. But he came by anyway.
The things that I like--and I am not a lawyer--are the things that he
did that show him as a human being, more than just a nominee to be a
Justice on the U.S. Supreme Court--the human things that he did. I know
for a fact because I talked to her--one of his good friends who died
had a wife and two girls, like his two girls. When back-to-school night
comes, he takes those two girls with his to back-to-school night. This
is the type of thing he does.
We have heard all of the warm things about what he has done as a
coach and other things. That is the human being I know. Meeting with
him wasn't necessary because I was sold on him anyway after looking at
his record.
On the eve of Kavanaugh's nomination, heading toward certain
nomination, we were hit by a bomb. It was an uncorroborated attack that
the Democrats sat on for 2 months. That is critical. You have to stop
and think about that. Why would they take something they thought was so
important to destroy this fine man and wait for 2 months and sit on it?
I am surprised they didn't let it slip. It is just because they wanted
to make sure people were talking about it.
The details of the allegation were of the worst kind--an aggressive,
ugly sexual attack.
Sexual assault and violence is wrong, period. It is wrong, and so
many women who experience sexual assault and harassment do not feel
empowered to come forward even years later--maybe never.
It is also unjust for someone to be accused of a crime that he or she
did not commit and be convicted in the court of public opinion without
any evidence or corroborated accounts.
It is hard to wrap your head around the fact that someone who has
been in the public eye for decades, respected by his colleagues, his
law clerks, his students, his friends, his family--everyone--and never
had a whisper of wrongdoing in all of those years, and all of a sudden
he is accused of such a heinous crime.
Like many Americans, I watched the hearing last Thursday in the hope
that it would provide more clarity and some answers, and I think it
did. It would be easy to get wrapped up in the conflicting media
coverage and all the spin and so on; instead, I looked at what we know
to be true--what we know to be true.
The people Dr. Ford places at the scene that night have either denied
the events or do not recall any party or gathering that matches her
description, so that is an idle accusation.
Her lifelong friend--in fact, some people characterize her as her
best friend--is a person Dr. Ford named in her allegations as the only
other girl at that small gathering. So here is a small gathering; she
is accusing him of this behavior. There was one other girl there, and
the other girl says that she does not know Brett Kavanaugh and has
never attended a party where he was there. It can't be more definite
than that, and that is from her best friend.
When Dr. Ford's testimony is compared to other statements that she
made to her therapist, to the Washington Post, to the ranking member,
and her statement for the polygraph exam, there are various
inconsistencies that should not be ignored.
Dr. Ford's inability to remember key details of the alleged attack--
things like the date, the place, and other circumstances surrounding
the event--places Judge Kavanaugh in a difficult position to defend
himself as Democrats and the media unjustly shift the burden of proof
from the accuser to the accused. I don't remember that happening
before. This is still America.
From the beginning, Judge Kavanaugh has categorically denied the
accusations and has not wavered or equivocated on this point.
He has cooperated with the Judiciary Committee's investigation--that
is Senator Grassley's committee--every step of the way, including
speaking with committee staff under oath several times over the course
of the last couple of weeks and providing documentation to help clear
his name. He has done it all. Everything we have asked of him, he has
done.
On the other hand, Dr. Ford's attorneys have refused to turn over key
evidence that her testimony relied on to corroborate her claims: her
therapist's notes that were shown to the Washington Post but not to the
committee, messages she exchanged with the reporter, the documentation,
and the recordings related to the polygraph test she took in early
August. They were refusing to turn over key evidence. They didn't have
any evidence they could turn over, so no wonder there are no witnesses
who can corroborate the accusations that have been made against this
fine man.
I am not going to go into the other allegations. There are two others
that came along.
The timing of this is kind of interesting. First of all, they
withheld this document that Dr. Ford had for 2 months. It is hard to
keep a secret around this place, and I am surprised that didn't come
out. They did it for a purpose. What do you think that purpose was?
What other purpose could it have been, other than they were waiting for
the last minute to come out with something that was never discussed
before? No other accusation had been made. That is what happened.
Based on the totality of what we know, to condemn anyone for an
offense that has been denied and not proven--I would caution anyone
against doing the same thing.
John Adams, our second President of the United States, wrote--now
listen to this--``But if innocence itself is brought to the bar and
condemned, perhaps to die, then the citizen will say `whether I do good
or whether I do evil is immaterial, for innocence itself is no
protection,' and if such an idea as that were to take hold in the mind
of the citizen that would be the end of security whatsoever.'' That is
what he said.
Let's look at what Scripture says. Numbers 35:30 says:
If anyone kills a person, the murderer shall be put to
death on the evidence of witnesses. But no person--
No person--
shall be put to death on the testimony of one witness.
Think about that. That is a direct violation of what they are trying
to do.
So you have Adams, you have the Bible, and then there is our judicial
system. It is reflected in our judicial system as well: innocent until
proven guilty. It is more than just a phrase; it is a cornerstone of
the rule of law since before our founding, and its wisdom has been
borne out time and again throughout history: Innocent until proven
guilty.
That is really what is on trial here: innocent until proven guilty. I
have never seen this happen before, and I have been around for a long
time. It cuts through the drama and focuses on the facts. That is why I
continue to support Judge Kavanaugh's confirmation.
Judge Kavanaugh's name has been unjustly run through the mud by these
subsequent allegations that even the New York Times did not deem fit to
print and that were brought forth by a known publicity seeker with an
ax to grind against the President, looking for nothing but attention
and more fame for himself
I am dismayed that my colleagues on the other side of the aisle have
taken these uncorroborated and fantastical allegations at face value
and run with them. I feel the Democrats showed their hand in the days
since last week's hearing when the agreement on the supplemental FBI
background investigation was made. The narrative has shifted from
allegations of sexual misconduct to ones of judicial temperament, as my
friend from Missouri pointed out.
I am not a lawyer, but everyone knows the saying that if the law is
on your side, argue the law. If the facts are on your side, argue the
facts. If neither the facts nor the law are on your side, pound the
table. That is what we are hearing right now. The difference here is
that the Democrats are trying to outdo each other in pounding the
table.
[[Page S6579]]
They know the allegations are not proven. They know that Judge
Kavanaugh remains committed to his innocence and the process, and they
know that Republicans will remain committed to the facts, so they must
change tactics, move the goalpost one more time, and attack him on
other grounds.
The first of these is to question his temperament. Because he
defended himself, his family, career, and his name so forcefully and
passionately, he did not demonstrate the calm, measured, and detached
demeanor that one should expect of a judge. Well, the problem with this
characterization is that it ignores the fact that Judge Kavanaugh was
not a disinterested party while hearing the arguments of opposing
counsel. He was the subject of the accusations, and it was he who was
being attacked and condemned. There is a big difference there.
I dare anyone to be calm and dispassionate if they had to sit by for
10 days and watch and listen to everything they have worked for and
have built over a long career of public service be torn down in an
instant without any proof--without any proof at all--to see your high
school yearbook picked apart by conspiracy theorists who seek nefarious
meanings behind juvenile jokes and 30-year-old slang, to see your
friends and family be threatened and harassed, and you can do nothing
to stop the angry mob.
This idea completely ignores the fact that Judge Kavanaugh has
proved, over the 12 years that he has been on the bench of the second
most powerful court in the country, that he does have the temperament
we look for in our judges. This fact is supported by an ABA ranking of
unanimously ``well qualified''--which is considered to be the gold
standard for Democrats--and the countless testimonies by people across
the political spectrum who have worked with him, who have argued a case
in front of him, and who know him well.
In the last few days, the discourse has further devolved into perjury
claims based on the judge's drinking habits in high school and college.
I will leave the legal arguments to those more knowledgeable than I in
that department who have thoroughly debunked that particular myth.
Suffice it to say, he testified that he liked beer. He drank beer, and
sometimes he drank too much. He did some things in high school and
college that maybe he now thinks he shouldn't have done, but that is
what he did. He wasn't hiding anything when it came to drinking in his
youth. He said that right up front in one of the earlier hearings.
There were six background investigations by the FBI over the course
of lengthy public service, decades in the public eye, and never has
anyone brought any allegations or concerns to the attention of the
investigators or the press in all of that time.
I was here when he was up for the appellate judgeship, and none of
this came up at that time. There is a difference here. I think the
other side is--let's face it. The Democrats said at the very beginning:
It doesn't matter who our President nominates to be on the Federal
bench, we are going to oppose him. So here we have them opposing him.
Well, with each new breathlessly reported account of a party, alleged
ice-throwing incident, or juvenile jokes about passing gas or cussing
from the early to the mid-1980s, it becomes clearer and clearer that
Democrats are not serious in their concern about the more serious
allegations as the focus of their attacks become more and more absurd
and desperate.
The fact that they have to focus on Judge Kavanaugh's school days
further reinforces the idea that Brett has led an exemplary life as a
husband, a father, and a public servant.
I would like to take just a moment to commend my good friend from
Iowa, the chairman of the Judiciary Committee. My wife called this
morning, and she said: Be sure you single him out and sit him down and
tell him how proud I am of him. My wife and I have been married for 59
years, and when my wife is proud, I am proud.
Once he was made aware of the allegations that the Democrats kept
from him for weeks, he and his staff went right to work to investigate.
They postponed the committee--this is the chairman we are talking
about. They postponed the committee vote, gathered statements and other
evidence, and offered Dr. Ford the opportunity to provide her testimony
in any way that would be comfortable for her, eventually scheduling a
follow-up hearing. All along the way, Dr. Ford and Judge Kavanaugh were
treated by our chairman of the Judiciary Committee with the respect
they deserve and should have received, starting when the allegations
were first brought to our attention.
He and his staff have kept us informed in the Senate of the various
investigations at almost every step in the process. The chairman has
built a well-deserved reputation for protecting whistleblowers. This is
one of the things he has been outspoken about for a long time, and he
has protected them over the course of his career. He has proven himself
once again during this process.
I look forward to voting for Judge Kavanaugh. I would hope that we
could put an end to the search-and-destroy campaign that is being waged
by the Democrats and their enablers and this media, but I won't hold my
breath.
Thank you, Mr. President.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Boozman). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. HIRONO. Mr. President, I rise today in opposition to the
nomination of Brett Kavanaugh to the Supreme Court of the United
States. Based on an in-depth examination of his legal career, academic
writings, and judicial record, I conclude that he has a long pattern of
misstating facts and misapplying the law in order to further his
partisan political agenda.
His partisan, ideologically driven agenda is particularly troubling
in cases involving women's intimate personal decisions.
Roe v. Wade and its progeny represent an acknowledgment in American
law and life that women ought to have control over whether and when to
bear children, but it is more than that. As Justice O'Connor explained
in Casey v. Planned Parenthood, ``It is a promise of the Constitution
that there is a realm of personal liberty which the government may not
enter.''
The Supreme Court's jurisprudence on reproductive rights is based on
case law going back decades that has assured Americans the right to
educate their children as they see fit; to marry anyone, no matter
their race; and to decide whether to use contraception inside or
outside of marriage. It is part of a jurisprudence of privacy and
autonomy that became a bedrock of American society that we have all
relied on to create families, choose professions, and raise children.
But Brett Kavanaugh, through his political choices and affiliations, as
well as his legal and judicial writing, has told us loud and clear that
he does not respect a woman's right to make her own intimate, personal
decisions and will do whatever he can, once confirmed, if confirmed, to
narrow and overturn Roe v. Wade.
A recent speech Kavanaugh delivered gives us further insight into his
own legal views on the topic. In 2017, at the American Enterprise
Institute, Kavanaugh gave a speech in tribute to the late Chief Justice
William Rehnquist. In his remarks, Kavanaugh praised Rehnquist's
dissent--dissent--in Roe v. Wade where the late Chief Justice found no
constitutional right to abortion because the right was not ``rooted in
the traditions and conscience of our people.'' Thank goodness the rest
of the Supreme Court did not follow Chief Justice Rehnquist.
To learn about Brett Kavanaugh's own legal views on reproductive
rights, we need only look at his dissent in last year's DC Circuit case
Garza v. Hargan. Here, a 17-year-old undocumented immigrant sought
release from government custody to obtain an abortion.
Kavanaugh's first fundamental misstatement in this case was
mischaracterizing it as a ``parental consent'' case. It was not. The
young woman had already received a proper judicial bypass from a Texas
judge and therefore did not need parental consent.
[[Page S6580]]
For a judge applying for a promotion to the Supreme Court to
completely misstate the issue in the case was astounding to me. In my
view, a first-year law student would not have deemed the Garza case to
be a parental consent case, but that is what he said.
Then, when applying the legal test under Roe and Casey to determine
whether the young woman's rights were being subject to an ``undue
burden,'' Judge Kavanaugh would have ruled against her. He thought
nothing of keeping a 17-year-old as a prisoner of the government Office
of Refugee Resettlement instead of releasing her to get an abortion
that was entirely within her rights to seek.
Compare that to the ease with which Judge Kavanaugh found that
religious employers, in the case of Priests for Life v. Department of
Health and Human Services, were burdened by filling out a two-page
form. The employers there were seeking to avoid paying for any
employee's health insurance that covered contraception, saying it
burdened their free exercise of religion.
The majority of the DC Circuit held that asking the employers to fill
out a brief form to let the government know of their objection was not
a substantial burden, but Judge Kavanaugh disagreed and would have
ruled to deny the female employees their proper health coverage, siding
with the Priests for Life. Judge Kavanaugh's colleague on the DC
Circuit went out of her way to write a concurring opinion to directly
rebut Judge Kavanaugh's dissent and correct his misstatements of the
case.
To Judge Kavanaugh, holding a woman in government custody
unnecessarily and against her will does not represent an undue burden
on the exercise of her constitutional right to an abortion, but when it
comes to a religious employer opting out of providing contraceptive
coverage to an employee, a two-page form is too great a burden.
The pattern of Judge Kavanaugh's views on the right to abortion is
clear. Anyone who feels assured he will uphold Roe v. Wade is living in
a fantasy world.
Laws that narrow women's reproductive rights in States like Texas,
Iowa, and Louisiana are currently making their way to the Supreme
Court, and all evidence shows that Judge Kavanaugh will side with them.
Advocates for women's reproductive rights are against Judge Kavanaugh's
ascent to the Supreme Court with good reason.
Another aspect of his judicial record that argues against
confirmation is Judge Kavanaugh's pattern of dissents. Dissents are
revealing. It is where judges go out of their way to voice their
disagreement with the majority on the court to show what their views
are. Judge Kavanaugh has the highest dissent rate among active DC
Circuit judges at 5.1 dissents per year.
One study I introduced at his hearing showed that he consistently
sided against workers and immigrants and only once favored consumers in
his dissents.
Another study showed he consistently sided against protecting the air
we breathe and the water we drink. So environmental and consumer rights
groups are against Judge Kavanaugh's ascent to the Supreme Court with
good reason.
Yet another study analyzed his dissents and found that Judge
Kavanaugh tended to dissent more often along partisan lines than his
colleagues and his ``divisiveness . . . ramped up during political
campaigns'' before Presidential elections. This is more than mere
coincidence. It also found that he had the highest rate of what the
study called ``partisan dissents''--where the other judges in the
majority were appointed by the opposing party; in other words, by
Democratic Presidents. Again, this is not the sort of fairminded
consideration of the facts and the law necessary for a Supreme Court
Justice.
His partisanship was clearly on display for all to see at his
Thursday hearing.
For me, as a Senator from Hawaii, Judge Kavanaugh's pattern of
misstating the facts and misapplying the law is evident in his work on
the case of Rice v. Cayetano and the rights of Native peoples.
President Trump has demonstrate through signing statements, budget
proposals, and proposed regulations that he views programs for our
indigenous communities as unconstitutional racial classifications, and
he found a like-minded Supreme Court nominee in Brett Kavanaugh.
Brett Kavanaugh has a long history of misstating facts and
misapplying the law in order to curtail the rights of indigenous
peoples--Native Hawaiians, Alaska Natives, and American Indians.
As an attorney in private practice in 1999, Brett Kavanaugh
coauthored a friend-of-the-court brief in support Harold ``Freddy''
Rice's challenge to the voting structure of the Office of Hawaiian
Affairs--a State office established in Hawaii to work for the
betterment of Native Hawaiians. Mr. Rice sued then-Governor of Hawaii
Benjamin Cayetano, and the case made its way to the U.S. Supreme Court.
Judge Kavanaugh coauthored his amicus brief with other highly
conservative legal advocates, including Robert Bork--a harsh critic of
the Civil Rights Act of 1964 when it was proposed. Judge Kavanaugh
separately, in addition to working on this amicus brief, wrote an op-ed
for the Wall Street Journal titled ``Are Hawaiians Indians?'' that made
false and offensive arguments.
In his op-ed and amicus brief, Judge Kavanaugh relied on incorrect
facts and misstatements, ignoring obvious truths that contradict his
position. He relied on these incorrect facts in order to reach his
political conclusion that Native Hawaiians and arguably other
indigenous communities who do not fit his limited view of Tribal
structure are not afforded any special protections by the Constitution.
He called OHA's voting structure into question under the 14th
Amendment, calling it a ``naked racial spoils system.'' In describing
the Native Hawaiian community, he went out of his way to ignore their
history, cobble together blatant falsehoods, and call into question
their status as an indigenous people.
His op-ed argues that Native Hawaiians are not entitled to
constitutional protections given to indigenous Americans because, as he
put it, ``They don't have their own government. They don't have their
own system of laws. They don't have their own elected leaders. They
don't live on reservations or on territorial enclaves. They don't even
live together in Hawaii.''
Judge Kavanaugh is saying that Native groups in the United States
derive their rights from having been herded onto reservations and
cheated out of their land and that they surrender their rights when
they move outside of these artificial boundaries. It is not only
factually wrong but deeply offensive. Kavanaugh argues that an
indigenous community must have its own government, system of laws, its
own elected leaders, and live together on a reservation to be
considered indigenous. By that, he means that only federally recognized
Tribes in the lower 48 States are afforded any protections.
After Judge Kavanaugh made his troubling and misleading arguments in
the amicus brief and op-ed, the U.S. Supreme Court decided Rice v.
Cayetano. They ruled that Hawaii's voting structure for the Office of
Hawaiian Affairs violated the 15th Amendment's voting rights
guarantees. The Supreme Court, in Rice, relied only on the 15th
Amendment. It did not address the 14th Amendment argument Judge
Kavanaugh made in his amicus brief, which claimed that the Office of
Hawaiian Affairs' voting structure was an unconstitutional ``racial
voting set-aside.'' But Judge Kavanaugh and his conservative allies
continued to misstate and misconstrue the holding in Rice for their own
political purposes.
In the Bush White House, Judge Kavanaugh continued to misapply the
law in Rice to argue that Native Hawaiians could not be the
beneficiaries of targeted programs, when clearly the case stands for a
much narrower proposition having nothing to do with government
benefits.
In fact, the Supreme Court declined to address Judge Kavanaugh's
question of whether the Office of Hawaiian Affairs' voting structure
could be an unconstitutional, race-based classification under the 14th
Amendment.
In one email, when he was in the Bush White House, Kavanaugh wrote:
``I think the testimony needs to make clear that any program targeting
Native Hawaiians as a group is subject to strict scrutiny and of
questionable validity under the Constitution.''
In another, he wrote: ``White House Counsel objects and raises
questions
[[Page S6581]]
about the constitutionality of this bill, including but not limited to
the portions that refer to Native Hawaiians. See Rice v. Cayetano.''
At his hearing in front of the Judiciary Committee, when I asked him
about his misapplication of the law, Judge Kavanaugh again misstated
the holding of Rice and refused to correct his misstatement when I
asked him to clarify. He testified before the Judiciary Committee that
Rice ``was a straightforward violation of the 14th and 15th amendments
of the U.S. Constitution.'' He was wrong, but when I pressed him on
this point and asked him to show me where the majority decision in Rice
cited the 14th amendment, he refused to answer. Why? Because he was
clearly wrong.
It is deeply troubling to have a Supreme Court nominee for a lifetime
position who doesn't adhere to facts or correctly present the law.
Judge Kavanaugh's answers on this topic fit his pattern of evading and
skirting the truth.
His reliance on these stereotypes and bigoted tropes about Native
Hawaiians, as well as his misapplication of the law, represent a clear
and present danger to Native people all over this country, including in
Hawaii.
Notably, in his writings against Native Hawaiians, Judge Kavanaugh
completely avoided any reference to the Alaska Native Claims Settlement
Act, ANSCA. Under ANSCA, Alaska Natives organized themselves not as a
tribe in Judge Kavanaugh's understanding of the word but as village and
regional corporations with shares that individual Alaska Natives hold.
This is a novel and unique system for facilitating the U.S. trust
responsibilities and arguably not at all in keeping with what Judge
Kavanaugh believes deserves constitutional protection. That is why
Native communities across the country, including the Office of Hawaiian
Affairs, Council for Native Hawaiian Advancement, Alaska Federation of
Natives, and the National Congress of American Indians have come
together to express deep concern over Judge Kavanaugh's nomination.
In the context of his views on Native peoples, I no longer find it
curious that Judge Kavanaugh devoted so much time back then to writing
an amicus brief and an op-ed on a case that involved Native Hawaiians.
I will have more to say tomorrow about other aspects of this
nomination--in particular, what Dr. Christine Blasey Ford's account of
her attack by Brett Kavanaugh reveals about the nominee, the Senate,
and the American culture.
For now, I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Ms. HARRIS. Mr. President, I ask unanimous consent to enter into a
colloquy with my colleagues, the Senators from Washington and
Connecticut. I also ask to be notified when we have used 45 minutes of
the Democrats' time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. HARRIS. Mr. President, given the serious and troubling
allegations against Judge Brett Kavanaugh, I am deeply disturbed that
the Senate is moving forward with this nomination.
When it was announced that the FBI could investigate these serious
and credible allegations, I had hoped there would be a legitimate
investigation. As the former Attorney General of California, I have
tremendous, tremendous respect for the sworn law enforcement officers
at the FBI. This should have been a search for the truth. They should
have been allowed to do their full job, but instead, the White House
did not allow it. This was not a search for the truth. Instead, this
was about politics and raw power to push through an unfit nominee.
I am a former prosecutor. I have led investigations, and I have
prosecuted all types of crime--particularly violent crimes, including a
specialization in sexual assault cases--as a prosecutor. I have tried
these cases in a courtroom. I have spent hours--hours--with assault
victims, and I can tell you that when we look at what happened during
the course of these days--these few days--in reviewing and giving
regard and respect to Dr. Ford, we have fallen short. We have fallen
short.
Sixty-three percent of sexual assaults are not reported to the police
in our country. Delayed reporting is normal. I will tell you that when
I was personally prosecuting sexual assault cases, we would be in a
courtroom. I would be there as the prosecutor, with the accused, the
accused's attorney, a judge, and a courtroom full of prospective
jurors, and we would engage in a process called voir dire, where we
would talk with prospective jurors to determine if they would be able
to sit as a juror and, without bias, listen to the case and then make a
determination about the facts and the law.
I cannot tell you the number of times, colleagues, that a prospective
juror would raise their hand and ask could they quietly speak with me
and the defense attorney and the judge in the judge's chambers outside
of the courtroom and outside of the sight and the ability for anyone
else in the courtroom to hear. We would go into the judge's chambers,
and I cannot tell you the number of people who would sit in a chair,
and, with tears in their eyes, tell us that they had been a victim of
sexual assault and had never told anyone, not even their spouse, but
because of what they had experienced, they knew they could not possibly
sit in a courtroom and hear the testimony they knew would come related
to the charges they knew the case was about.
This is an issue that impacts so many Americans, most of whom don't
report it and don't tell anyone, and usually when they do, it is
because something precipitated the telling of their story that was
beyond the time during which they endured the assault itself.
Dr. Ford's experience in this regard is no different from the
majority of sexual assault victims, and she should be believed. I know
what it means to engage in an investigation and a search for the truth,
having been a part of investigations to determine what has happened
and, in particular, if a crime has occurred.
Now, let's be clear about one thing. There has been a lot of
conflation around here about the subject and the need for an
investigation into Dr. Ford's allegations. Ours was not a search to
determine whether a crime occurred. Ours was not a search to determine
whether we had enough facts to prove beyond a reasonable doubt that a
crime had occurred. No. Ours was an investigation to figure out enough
about what happened to determine if Brett Kavanaugh is fit to serve on
the highest Court in our land. Is he fit to be a jurist in the place
where we have said justice in our country occurs, in the house where we
listen to evidence and truth and make determinations based on the
veracity and truthfulness of what has occurred? That is our role when
it comes to Dr. Ford's allegations, and we fell short. We fell short.
We did not do her justice, and we did not do the American people
justice.
We were given 1 week to investigate. The Republicans said: You will
get 1 week. They threw out 1 week--an arbitrary amount of time--and in
less than 1 week we were presented with paltry documents. Clearly, when
the White House directed the FBI to do its work, it appears from
everything I have seen, the FBI was not permitted to look at all of the
allegations. That is clear to me. It is clear the White House did not
permit the FBI to request Mark Judge's Safeway employment records. It
is clear, from everything I have seen, the White House did not permit
the FBI to investigate the dishonest testimony of Brett Kavanaugh or to
examine and listen to the evidence that would have been provided by a
list of over two dozen witnesses who would have been, at the very
least, able to corroborate or deny the allegations that were made. This
was not a meaningful investigation into the allegations that are before
us, and this, most importantly, was not a search for the truth.
Media outlets have reported that there are more than 40 people with
potential relevant information who are willing to share their
information but only 9 people were interviewed. This is a travesty.
They did not interview the Georgetown Prep alumni or others from that
era who contradict Kavanaugh's testimony. They did not interview Dr.
Ford's husband or a number of her friends who she told of the assault
before--before--Kavanaugh's nomination. They did not interview the
former FBI special agent who conducted Dr. Ford's polygraph. They did
not interview Kavanaugh's roommate at Yale who has contradicted
Kavanaugh's testimony. They did not
[[Page S6582]]
interview another one of Kavanaugh's neighbors in the dorm at Yale.
They did not interview three of Kavanaugh's friends from Yale who wrote
in the Washington Post just last night:
Brett also belonged to a Yale senior secret society called
Truth and Courage. We believe that Brett neither tells the
former nor embodies the latter.
They did not interview Dr. Ford at all--they did not interview Dr.
Ford at all. They did not give her the ability to speak her truth
during the so-called investigation, and they did not interview Judge
Kavanaugh about these allegations.
This was not a search for the truth. This was not an investigation.
This was an abdication of responsibility and duty. This is on the heels
of a process that began with hiding more than 90 percent of Judge
Kavanaugh's record. We only received approximately 400,000 pages out of
an estimated 6.9 million pages of documents. The Republicans have been
saying: You should be happy you received thousands of pages of
documents because they want us to treat crumbs on the table like it is
a feast. These were crumbs on the table compared to the vast amount of
information that is available to some about his background.
This process has left the American people with more questions than
answers. This has not been a search for the truth.
The minimum standard for a Supreme Court nominee should be someone
who we are confident will demonstrate impartiality, integrity, and
truthfulness, but the nominee we are voting on has not demonstrated
those qualities.
Every American is entitled to the benefit of the doubt, but nobody is
entitled to a seat on the U.S. Supreme Court.
I yield to my colleague Senator Murray.
Mrs. MURRAY. Mr. President, I thank the Senator from California for
very clearly outlining, for all of us to hear, why this was not a
search for truth on an issue that affects so many people in this
country, the victims of sexual assault who often, as she just
described, do not talk about it, do not speak about it, do not ever
tell anyone until there is a reason to, which is what Dr. Ford did.
While the Senator from California is here, you said this was not a
search for truth. When it comes to victims of sexual assault--and you
have dealt with them time and again as a district attorney and attorney
general in the State of California--what message does this send when
they see the U.S. Senate?
Ms. HARRIS. Senator Murray, you and I have talked about it. We all
talked about it. Part of the pain of this process is a real concern
that sexual assault victims and survivors may take away from this
process that their stories will not be heard or believed. Part of the
pain I am taking away from this process is those who have a story to
tell or might have been prepared to have the courage to report may
decide: Look what happened to Dr. Ford. It doesn't matter. No one will
believe me, and why should I go through that?
I have to say this. You and I have discussed it, and Senator
Blumenthal and I have discussed it together. Part of what we must
message--even if our Republican colleagues will not--is to all of the
women and men out there who have experienced this: We will hear you. We
will see you. We will respect you. We will give you dignity. Speak your
truth. Do not be afraid. Do not let this system or any aspect of it
bully you into silence.
It is critical we talk about this issue. I believe this is an issue
right now that is where the issue of domestic violence was about 30
years ago. There was a perception about domestic violence I hope we
have gotten beyond. There was a perception about domestic violence: Oh,
you know, what happens in the King's castle is the King's business.
That is private business. That is not our business.
Then we evolved as a society and realized, no, she is walking around
with a black eye or a busted lip; that is everybody's business. She
deserves to be safe, and we must stand up for her. I believe this is an
inflection moment on the issue of sexual assault, and I hope and pray
this is a moment where everyone will agree, no one should silently
suffer. Let's talk about this. Let's talk about the fact that every 98
seconds in the United States of America, someone is sexually assaulted.
Let's talk about the fact that 63 percent of sexual assaults are not
reported to the police. Let's talk about the fact, since Dr. Ford had
the courage to speak out, one of the biggest national organizations
that addresses sexual assault saw a 738-percent increase in the calls
they received from survivors of these cases.
Mrs. MURRAY. I thank the Senator from California, and I so agree.
This is one of my biggest fears about this moment. Let me talk about
why that is true. I was a mom at home in 1991. I was a State senator
but not interested in what was happening here at all. My interest came
because I watched the Clarence Thomas-Hill hearings, and I watched how
a woman shared a very difficult story with an all-male panel of the
Judiciary Committee at the time. She was disbelieved. She was swept
aside. She was treated as if her voice wasn't important, and she was
not believed.
I was so angry as a woman because like so many women in this country,
I knew of so many people with experiences much like hers who, too, at
work at that time had been dismissed, not believed, and were afraid to
speak up. I was angry, and I went to a gathering that night and told
some of my friends in 1991, the night of the hearing, I am going to
have to run for the U.S. Senate because I need to be inside that to
speak up for these women.
That is what motivated me to run. I was not given one chance of
winning that Senate race. Here I am today, 27 years later. Why? Because
so many women and men who understood shared that experience and knew
that voice needed to be here. That is what brought me to the U.S.
Senate.
Let me talk about Dr. Ford because I listened to her, like everyone
else did, and I heard her voice and it rang so true to me. I watched
her with tears in my eyes because she was honest, she was sincere, she
was persuasive, she was credible. She had no reason to lie--none. In
fact, I think we should remember, she did not want to come forward
initially. She was worried about the attacks that would come. She knew
the history, as every one of us do, what happens to those courageous
voices when they speak up, the invasion of privacy they have. She knew
what it would mean for her family.
She only came forward when Judge Kavanaugh was on the very short list
for the Supreme Court, before he was ever sent to us. She came forward
and spoke out, but no one called her. She didn't want to do it
publicly. She didn't want to have this become what she was known for in
her life, but she did. If it weren't for her, we would not be at this
point.
Judge Kavanaugh was selected, and only then was Dr. Ford able to get
her information to the people who would pay attention. She insisted it
be kept confidential, to none of our surprise. She didn't want a
spectacle. She didn't want a show. Why did she do that? She felt it was
her civic duty that we as U.S. Senators--who were giving, essentially,
a job interview to a man who wanted a position on the highest Court of
the land and would be judging people in front of him--should know what
his character was.
Her story was compelling. She took a polygraph test. She did
everything right. She had told people before. She presented her case
credibly. It is extremely disconcerting to me, as someone who watched
the Clarence Thomas-Hill hearings and is sitting here, that I have
heard people dismiss her, put her down, all the way up to the President
of the United States. What message does that send across the country
today and to other women who are so bravely now telling their stories
so it will not happen to anyone else? What does this say to them? What
does it say to young girls in high school and college today? They are
going to get away with it, so be quiet because it will only ruin your
life, not theirs.
I have heard my colleagues say: Well, it was high school, it was
college.
Really? Is that what we want young boys in high school today to
think; that it is OK, don't worry, whatever you do in high school does
not count--whatever you do in college doesn't count?
I do not want my grandson to hear that message. I do not want my
granddaughters to hear that message. I want
[[Page S6583]]
my country to be better than that. Dr. Ford is a real person. She is
not alone.
If any Senator in the U.S. Senate is listening, they will hear voices
in their own States, from places they know, from their own relatives,
from friends they have not ever known about, bravely come forward
because Dr. Ford did. This Senate, with the action we are pursuing,
could crush those voices forever.
To my friends out there and to everyone who has a story, do not be
silent. That is not how we win this for the future, but know we do
believe you. The Senate has changed since then. I was proud of the
Judiciary Committee members on our side, because unlike when I watched
the Senate in 1991, there were women and men there who were listening,
and they are today.
We have to, in this Senate, think about the consequence of this vote
to so many people who are listening today and asking: Do I say anything
or do I let it happen?
I urge my colleagues to remember the lesson of 1991, where too many
people felt ``I can't speak out.'' We are changing. We are growing. We
are speaking out. It is so imperative this Senate stand behind those
women. We hear you. We believe you. We know that happened to you. You
need to tell your story. You need to have the courage, and we will be
behind you.
I say to the Senators who are joining me today, both who have been
involved in these cases, I am concerned this message could be the wrong
one for young men and women who are coming behind us. We have to stand
up for them.
I yield to the Senator from Connecticut.
Mr. BLUMENTHAL. Mr. President, I am honored to join these two
eloquent colleagues who have each been champions for this cause as
women speaking about the problem of sexual assault in our country--the
epidemic of sexual assault that continues to be a scourge across our
country. Most of my career in law enforcement, like my distinguished
colleague from California, has been involved in making laws work for
people and deterring exactly this kind of heinous lawbreaking. It is
criminal. It is a crime, but it is one of the least reported crimes
because of the public shaming and character assassination and mocking
and ridiculing we have seen from men in power over just the last few
days and weeks.
I want to say, as a man speaking on the Senate floor--and greatly
honored to do so--to other men in this country, those men in power who
have mocked and ridiculed Dr. Blasey Ford cannot be our role model.
Those men in power--they may be colleagues and they may be the
President of the United States who have belittled and demeaned and
dismissed Dr. Blasey Ford and Deborah Ramirez and survivors across the
country--do not speak for us. I believe Dr. Blasey Ford. I believe Dr.
Blasey Ford because she was credible and powerful as a witness before
us in what she remembered and what she so candidly said she couldn't
remember. I believe Deborah Ramirez. I believe all of you who have
written my office or called us, as many of you have done in other
States to my colleagues, who have recounted the horrors of your
personal experience with sexual assault, who have come to me as I have
been in airports or rallies or other public meetings and shared with me
your horrific story. I believe you. America believes you.
Let me say to Dr. Blasey Ford's sons, you should be proud of your
mom. You should be proud of your mom because she is a profile in
courage.
To Mr. Ford, you should be proud of your wife.
To all the men in America, we need to believe survivors of sexual
assault. We need to protect and respect them, not just in word but in
deed so they will come forward and tell us their stories so we can
conquer scourge.
We should be proud of the brave women who have brought us truth that
cannot be denied no matter how much character assassination and public
shaming they have endured. We know their truth. This issue of how
America moves forward on sexual assault is bigger than this nomination.
It will last beyond the vote tomorrow. It will be a defining question
for each of us as men, as human beings.
Judge Kavanaugh, in facing these allegations, has also revealed
something profoundly significant about himself. When he came to the
committee after Dr. Blasey Ford, he revealed his true character. He
pulled back the mask on the judge and revealed the man. What we saw was
someone filled with rage and spite, self-pitying and arrogant, deeply
partisan, and threatening. We can disagree on Judge Kavanaugh's views
on jurisprudential issues and policy and law. We can disagree on issues
relating to his out-of-the-mainstream, far-right ideological
position, but what cannot be denied is that picture of Judge Kavanaugh
before our committee that indicated profoundly a lack of temperament
and trustworthiness. That picture led former Justice John Paul Stevens
to revoke his endorsement and to say his performance was disqualifying.
What we saw--as they say, a picture is worth a thousand words--was a
man who refused to answer questions; he snapped at my colleagues; he
spouted partisan conspiracy theories. That is the real Brett
Kavanaugh--the Brett Kavanaugh who characterized Dr. Ford's serious and
credible allegations as nothing more than ``a calculated and
orchestrated political hit.'' He, in effect, depicted her as a puppet
or a pawn of Senators or political figures, not people who came forward
voluntarily in their own right and on their own initiative, as truly
they did.
He was the Brett Kavanaugh who alleged that it was all ``revenge on
behalf of the Clintons.'' He is the Brett Kavanaugh who, as the
Portland Press Herald characterized it, ``ripped off the nonpartisan
mask'' and never looked back.
He is the Brett Kavanaugh who threatened us, saying, ``What goes
around, comes around.''
In Brett Kavanaugh's own words, a judge must be someone who is
``even-handed, unbiased, impartial, courteous yet firm, and dedicated
to a process, not a result.'' Those are his own words. That is not
Brett Kavanaugh the man. It will not be Brett Kavanaugh the Justice if
he is confirmed.
Brett Kavanaugh revealed himself to be a partisan--an angry and
bitter partisan--not an impartial jurist, and he did so in prepared
remarks, planned and premeditated, well calculated, written word for
word, and delivered word for word as he angrily turned the pages, and
that is the message that, for me, resonates because I have argued cases
in the Supreme Court. I have spent a career standing before judges.
Some of their rulings I liked; some of them I disliked. Some of their
conclusions I thought were maybe incorrect. But I knew that those men
and women wanted to be impartial. When they put those robes on, as
Brett Kavanaugh has done, they left party and partisan interests at the
door.
Now, when I go to the U.S. Supreme Court, if Brett Kavanaugh is
confirmed, there can be no trust or confidence that he will be that
impartial jurist. It is and will be a stain, a cloud, on the U.S.
Supreme Court. All the Supreme Court has in the way of power is the
trust and credibility and confidence of the American people, which will
be diminished forever.
So let me pose a question to my colleague from California because she
has so well described the voir dire process. It is jury selection,
where we make an effort to pick jurors who are impartial and
nonpartisan.
I say to Senator Harris, if Brett Kavanaugh came to a courtroom where
the Senator was trying a case as an attorney general, and he were in
the jury pool to be picked for a jury, would the Senator pick him as a
juror? After that appearance before our committee, would the Senator
allow him to sit on a case where the Senator was litigating?
Ms. HARRIS. I say to Senator Blumenthal, my response would be no. My
response is no, and I will tell you why--because one of the most
important qualities of a juror in our system of justice is that they
have the ability to receive information without bias, without any
interest in the outcome, and Judge Kavanaugh has made it very clear to
the American public that he is biased, that he is perceiving
information and perceives it through the lens of a partisan and through
the lens of the person he has been his entire career, which is a
partisan operative.
There were moments, perhaps during his initial testimony, where he
may have distracted us from that part of his
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history, where he talked in a calm voice about certain things. He
certainly knows case law and talked about it. But when the issues got
hot, when it became about fundamental issues, the veneer was stripped
away, and Brett Kavanaugh showed us who he really is.
On the point of temperament, I think it is important for a number of
reasons that the American people really review his testimony during
those hearings these last days of this process because what he showed
us also are two things in the way that he responded to our colleagues
and approached the issue.
One, he showed us that he lacks credibility, and I will tell you why
I say that. When I was trying cases, I recall an instruction the jury
would receive at the close of a case; the judge would give the jury
instructions about how they could evaluate--it was a tool to help them
evaluate the credibility of a witness, and one of the instructions was
that it is relevant and significant for you to analyze the demeanor of
this witness toward the proceedings. On this point, let's recall Dr.
Ford's demeanor and Judge Kavanaugh's demeanor.
Dr. Ford went out of her way to be helpful and truthful. She
corrected herself when she thought there was more to offer. She
yielded: Would the committee like a break? If so, I will take one. If
not, I can keep going.
By contrast, Judge Kavanaugh was arrogant, he was aggressive, he was
accusatory, and, clearly, he was not in control of himself. But I have
to believe he was in control of his words because, as the Senator has
pointed out, he told us he wrote his speech the night before. He said:
I didn't show my staff. I just wrote these.
Well, you know, we often advise people when you are feeling hot about
something, write it all out and then sleep on it. Then look at those
words the next day, and see if you really want to stand by them.
This is a judge who is meticulous, he says, in everything he does. I
believe that he wrote those words the night before. I am sure he slept
on it. I am sure he looked at those notes again, and he decided that is
what he was going with because it wasn't just about the heat of that
moment. These are the things he really believes. That is why he said
it, so let's believe him at his word. He is a partisan.
For that reason, I answer the Senator's question by saying, no, I
would not select him to be on a jury.
Mr. BLUMENTHAL. I think this issue of temperament--and I am going to
pose a question to my colleague from Washington--is fundamental to our
system of justice in this country. Courtrooms are sometimes really
emotional places, and sometimes they are angry places. The function of
the judge is to remove the emotion and the anger, to be impartial and
balanced and even keeled.
So for a judge on the DC Circuit Court of Appeals to engage in the
kind of angry outburst--it was not spontaneous; it was not the result
of some accusation in the moment. It was calculated. It was
premeditated. It was written the day before. It was inexcusable and
unacceptable.
I will ask my colleague from the State of Washington, since she is
not a lawyer, perhaps to her credit: If the Senator were appearing in a
courtroom with Judge Kavanaugh, wouldn't the Senator ask that he step
away from the case, that he recuse himself in light of what he has said
about all Democrats, about vast classes of people--this anger that he
has expressed?
Mrs. MURRAY. I thank the Senator from Connecticut. No, I am not a
lawyer. I was a preschool teacher, and one of the things I do know is
that I wanted my students to know it is not OK to bully. You have to
take a pause and do what is right.
But let me tell you, what I would want for every one of the kids I
have ever taught in preschool is to know that if anything they deeply
care about--an issue or they themselves--ever appears in a court, then
they should feel, in the United States of America, that they would be
given a fair shot, and win or lose, the judge presiding over them would
leave them with that feeling at the end of the day. That, to me, is why
temperament is so important.
If Americans lose the sense that no matter who they are or what their
issue is or where they come from or how much money they make in our
court of law, they stand a chance to be heard, even if they lose or if
they win--that is why temperament is so important to me as a nonlawyer
and someone who cares deeply about this country.
Mr. BLUMENTHAL. I will yield back to my colleague from California,
but let me just close my part of this colloquy by saying that we saw
the real Brett Kavanaugh before us on that day at that moment, and I
think my colleagues, if they review that picture, a picture is worth a
thousand words. If they apply common sense--we should not leave common
sense at the door. If they put themselves in the shoes of someone
appearing, seeking justice, they will vote against Brett Kavanaugh and
the disrespect that he showed that brave survivor, Dr. Blasey Ford.
I yield back to my colleague from California.
Ms. HARRIS. I thank my colleagues from Washington and from
Connecticut. I agree, we can find a better nominee, and I yield to the
Senator from the great State of Virginia.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. KAINE. Mr. President, I also rise to speak on the nomination of
Judge Brett Kavanaugh to the Supreme Court.
When he was nominated to fill the vacancy occasioned by the
retirement of Justice Kennedy, I immediately began to read all I could
about his record. I reviewed his judicial opinions, law review
articles, speeches, and I reviewed, such as they were made available,
documents produced from his time working with the Bush administration
and his work with the special prosecutor, Ken Starr.
Following the review, I met with him to ask him serious questions
about his record. I then watched his Judiciary Committee hearing with
interest. After that hearing, based on all I had seen and read, I
announced my opposition to his nomination for two reasons.
First, the Nation needs a Justice with the backbone to stand up as an
independent check against both the President and Congress. That is why
our Nation gives judges life tenure, so they can render independent
rulings without fear of losing their jobs.
In a whole series of writings, speeches, and rulings over the course
of many years, both as a lawyer and as a judge, Judge Kavanaugh has
embraced an unusual deference to Executive power. I think this is one
of the reasons the President nominated him, and I don't have confidence
that Judge Kavanaugh will hold the President accountable to the law.
Second, Judge Kavanaugh's writings as a Bush administration lawyer--
at least those that the majority has allowed us to see--demonstrate his
personal view that settled law is settled only until five Justices
decide to do something different.
This is true, as a matter of realpolitik, but I am left with serious
questions about what other areas of settled law might be unsettled,
should he ascend to the Court.
I can understand how my colleagues might reach different conclusions
on the two issues that led me to oppose this nominee, but since I
announced my position, two additional issues of great importance have
arisen.
The first is how the Senate, as an institution charged with
leadership, will respond to the real and pervasive problem of sexual
assault. The second issue is how blatantly partisan we would want the
Supreme Court to be.
Christine Blasey Ford has come forward alleging that Judge Kavanaugh
sexually assaulted her in high school. Deborah Ramirez has come forward
to allege that he sexually humiliated her during a party during his
time at Yale.
The two allegations by two people who do not know each other, about
instances that happened in different times at different places, have
striking similarities. Both Ford and Ramirez allege that Kavanaugh was
under the influence of alcohol and, in the presence of other people,
assaulted or sexually humiliated them while others stood by laughing--
laughing. In both allegations, the sexual abuse of a woman was treated
as some form of entertainment for other persons.
People who have suffered from sexual assault or harassment are
watching to see how the Senate responds to these serious charges. And
what do they see?
[[Page S6585]]
A hearing where Dr. Ford described her experience calmly, credibly, and
candidly, while Judge Kavanaugh attacked her claims, as well as those
of Ms. Ramirez, as nothing more than a partisan political conspiracy; a
narrowly limited, 5-day investigation by the FBI, which, under orders
from the White House, contacted a handful of witnesses, while dozens of
witnesses proffered by Dr. Ford and Ms. Ramirez were ignored; and a
single copy of the FBI investigation notes made available for Senators
to read, provided that its meager contents not be shared with the press
or public.
Even that minimal investigation raises serious concerns about these
claims and Judge Kavanaugh's general truthfulness, but by moving
forward to a vote anyway, the unmistakable message to survivors is that
the Senate does not take allegations of sexual assault seriously.
More than 150 survivors of sexual abuse from Virginia have reached
out to me to share their personal stories and ask that the Senate show
we care about survivors. Some of these people are women I have known
for decades who had never shared their stories with me.
A woman from Alexandria wrote:
As a citizen, veteran, assistant professor, mother,
grandmother, wife and sexual assault victim at age 17 in
1968, I want to thank Dr. Blasey Ford for her testimony. I
have never told anyone of the sexual attack, and I am 68
years old.
A woman from Sterling wrote:
I want my future daughters to grow up in a country where
sexual assault and abuse is taken seriously by every official
and legal professional in the United States.
A man from Chesapeake wrote:
As a male sexual assault victim, I understand how difficult
it is to come forward. I strongly and respectfully urge you
to attempt to empathize with those of us who have been
abused.
A survivor from Radford wrote expressing dissatisfaction with the
minimal investigation, saying, ``It makes me feel like if my attacker
were nominated for the Supreme Court, that I wouldn't be taken
seriously either.''
A woman from Williamsburg wrote:
Dr. Ford has agreed to full investigations into her
experiences, but our leaders are failing her and every
American citizen. I watch this unfold with anticipation,
hoping that my representatives will listen to us.
An immigrant from Henrico:
When my family immigrated, an American couple who had
helped sponsor our family became my temporary legal
guardians. My sponsor mother was wonderful but did not know
that her husband repeatedly molested and raped me. It started
at age five until I returned to my family at age nine--my
older daughter's current age.
What are these survivors asking? First, that a real investigation
into the charges be conducted; that the dozens of witnesses proffered
by Ms. Ramirez and Dr. Ford not be ignored; and finally, that the
Senate not confirm to the Supreme Court a person with a question mark
by his name.
To confirm Judge Kavanaugh under these circumstances would send a
powerful message that the Senate--and now possibly the Supreme Court--
is a hostile environment for survivors of sexual assault.
The second issue raised by these allegations is how partisan we want
the Court to be. A person accused of any offense--especially sexual
assault--is entitled to defend themselves. It is natural to be
emotional and even angry of such an offense if one felt falsely
accused. But Judge Kavanaugh went far beyond that. He claimed that the
allegations of Dr. Ford and Ms. Ramirez were part of a political
conspiracy connected to the Democratic Party, outside activists, and
the Clintons.
The performance was insulting, and the conspiracy charge was a
complete fabrication. There is no evidence to suggest that politics
created Dr. Ford's account of being attacked at a party, her history of
seeking counseling years before the nomination, the notes from her
therapist, her willingness to take a polygraph, the results of that
polygraph, the extensive corroboration of her story of alcohol-fueled
house parties in the DC suburbs in 1982, or the admitted exploits of
the alleged co-assailant, Mark Judge.
There is no evidence to suggest that politics created Ms. Ramirez's
account of being sexually humiliated at Yale. Indeed, if the FBI were
willing to interview witnesses who are now speaking publicly, there is
ample evidence corroborating the account.
So when a nominee who in the past advocated slash-and-burn partisan
tactics as part of the Starr investigation reveals that he still
harbors partisan resentment and attempts to shrug off serious claims of
sexual assault as a political conspiracy connected to ``outside
leftwing . . . groups'' or the Clintons, he reveals a temperament that
would be very dangerous if added to the Supreme Court. That is why
retired Justice John Paul Stevens has come out urging a ``no'' vote on
this nomination.
The good news is that there is a solution to this. There is a
solution. We need not settle for a nominee burdened by questions
regarding sexual assault allegations or excessive partisanship. There
are numerous jurists who could meet the standards of a Republican
President and a Republican Senate majority who do not have these
issues. Why approve a nominee whose approval would send a hostile
message to sexual assault survivors? Why approve a nominee whose
nomination and approval would send a message of concern for those who
don't share his political views? We can find a nominee who will not
cause sexual assault survivors, litigants, or lawyers to fear how they
will be treated by the Nation's highest Court.
For the good of the Senate and for the good of the Court, I urge my
colleagues to vote no on the Kavanaugh nomination, and I ask the
President to send up a nominee who will not hurt the reputation of
either institution.
With that, I yield the floor.
The PRESIDING OFFICER (Mr. Young). The Senator from Maine.
(Disturbance in the Visitors' Galleries.)
The PRESIDING OFFICER. As a reminder to our guests in the Galleries,
expressions of approval or disapproval are not permitted in the Senate
Gallery.
The Senator from Maine.
Ms. COLLINS. Thank you, Mr. President.
Mr. President, the five previous times that I have come to the floor
to explain my vote on the nomination of a Justice to the U.S. Supreme
Court, I have begun my floor remarks explaining my decision with a
recognition of the solemn nature and the importance of the occasion.
But today we have come to the conclusion of a confirmation process that
has become so dysfunctional, it looks more like a caricature of a
gutter-level political campaign than a solemn occasion.
The President nominated Brett Kavanaugh on July 9. Within moments of
that announcement, special interest groups raced to be the first to
oppose him, including one organization that didn't even bother to fill
in the judge's name on its prewritten press release--they simply wrote
that they opposed ``Donald Trump's nomination of XX to the Supreme
Court of the United States.'' A number of Senators joined the race to
announce their opposition, but they were beaten to the punch by one of
our colleagues who actually announced opposition before the nominee's
identity was even known.
Since that time, we have seen special interest groups whip their
followers into a frenzy by spreading misrepresentations and outright
falsehoods about Judge Kavanaugh's judicial record. Over-the-top
rhetoric and distortions of his record and testimony at his first
hearing produced short-lived headlines which, although debunked hours
later, continued to live on and be spread through social media.
Interest groups have also spent an unprecedented amount of dark money
opposing this nomination.
Our Supreme Court confirmation process has been in steady decline for
more than 30 years. One can only hope that the Kavanaugh nomination is
where the process has finally hit rock bottom.
Against this backdrop, it is up to each individual Senator to decide
what the Constitution's advice-and-consent duty means. Informed by
Alexander Hamilton's Federalist 76, I have interpreted this to mean
that the President has broad discretion to consider a nominee's
philosophy, whereas my duty as a Senator is to focus on the nominee's
qualifications as long as that nominee's philosophy is within the
mainstream of judicial thought.
I have always opposed litmus tests for judicial nominees with respect
to
[[Page S6586]]
their personal views or politics, but I fully expect them to be able to
put aside any and all personal preferences in deciding the cases that
come before them. I have never considered the President's identity or
party when evaluating Supreme Court nominations. As a result, I voted
in favor of Justices Roberts and Alito, who were nominated by President
Bush; Justices Sotomayor and Kagan, who were nominated by President
Obama; and Justice Gorsuch, who was nominated by President Trump.
I began my evaluation of Judge Kavanaugh's nomination by reviewing
his 12-year record on the DC Circuit Court of Appeals, including his
more than 300 opinions and his many speeches and law review articles.
Nineteen attorneys, including lawyers from the nonpartisan
Congressional Research Service, briefed me many times each week and
assisted me in evaluating the judge's extensive record. I met with
Judge Kavanaugh for more than 2 hours in my office. I listened
carefully to the testimony at the committee hearings. I spoke with
people who knew him personally, such as Condoleezza Rice and many
others. I talked with Judge Kavanaugh a second time by phone for
another hour to ask him very specific additional questions.
I also have met with thousands of my constituents, both advocates and
many opponents, regarding Judge Kavanaugh. One concern that I
frequently heard was that the judge would be likely to eliminate the
Affordable Care Act's vital protections for people with preexisting
conditions. I disagree with this contention. In a dissent in Seven-Sky
v. Holder, Judge Kavanaugh rejected a challenge to the ACA on narrow
procedural grounds, preserving the law in full. Many experts have said
that his dissent informed Justice Roberts' opinion upholding the ACA at
the Supreme Court.
Furthermore, Judge Kavanaugh's approach toward the doctrine of
severability is narrow. When a part of a statute is challenged on
constitutional grounds, he has argued for severing the invalid clause
as surgically as possible while allowing the overall law to remain
intact.
This was his approach in his dissent in a case that involved a
challenge to the structure of the Consumer Financial Protection Bureau.
In his dissent, Judge Kavanaugh argued for ``severing any problematic
portions while leaving the remainder intact.'' Given the current
challenges to the ACA, proponents, including myself, of protections for
people with preexisting conditions should want a Justice who would take
just this kind of approach.
Another assertion I have heard often is that Judge Kavanaugh cannot
be trusted if a case involving alleged wrongdoing by the President were
to come before the Court. The basis for this argument seems to be
twofold.
First, Judge Kavanaugh has written he believes Congress should enact
legislation to protect Presidents from criminal prosecution or civil
liability while in office. I believe opponents miss the mark on this
issue. The fact that Judge Kavanaugh offered this legislative proposal
suggests he believes the President does not have such protection
currently.
Second, there are some who argue that given the current special
counsel investigation, President Trump should not even be allowed to
nominate a Justice. That argument ignores our recent history. President
Clinton, in 1993, nominated Justice Ginsburg after the Whitewater
investigation was already underway, and she was confirmed 96 to 3.
The next year, just 3 months after Independent Counsel Robert Fiske
was named to lead the Watergate investigation, President Clinton
nominated Justice Breyer. He was confirmed 87 to 9.
Supreme Court Justices have not hesitated to rule against the
Presidents who have nominated them. Perhaps most notably in United
States v. Nixon, the three Nixon appointees who heard the case joined
the unanimous opinion against him.
Judge Kavanaugh has been unequivocal in his belief that no President
is above the law. He has stated that Marbury v. Madison, Youngstown
Steel v. Sawyer, and United States v. Nixon are three of the four
greatest Supreme Court cases in history. What do they have in common?
Each of them is a case where Congress served as a check on Presidential
power. I would note, the fourth case Judge Kavanaugh has pointed to as
the greatest in history was Brown v. Board of Education.
One Kavanaugh decision illustrates the point about the check on
Presidential power directly. He wrote the opinion in Hamdan v. United
States, a case that challenged the Bush administration's military
commission prosecution of an associate of Osama Bin Laden. This
conviction was very important to the Bush administration, but Judge
Kavanaugh, who had been appointed to the DC Circuit by President Bush
and had worked in President Bush's White House, ruled that the
conviction was unlawful. As he explained during the hearing: ``We don't
make decisions based on who people are, or their policy preferences, or
the moment. We base decisions on the law. . . . ''
Others I have met with have expressed concerns that Justice Kennedy's
retirement threatens the right of same-sex couples to marry. Yet Judge
Kavanaugh described the Obergefell decision, which legalized same-
gender marriages, as an important landmark precedent. He also cited
Justice Kennedy's recent Masterpiece Cakeshop opinion for the Court's
majority stating that ``the days of treating gay and lesbian Americans
or gay and lesbian couples as second class citizens who are inferior in
dignity and worth are over in the Supreme Court.''
Others have suggested that the judge holds extreme views on birth
control. In one case, Judge Kavanaugh incurred the disfavor of both
sides of the political spectrum for seeking to ensure the availability
of contraceptive services for women while minimizing the involvement of
employers with religious objections. Although his critics frequently
overlook this point, Judge Kavanaugh's dissent rejected arguments that
the government did not have a compelling interest in facilitating
access to contraception. In fact, he wrote that the Supreme Court
precedent ``strongly suggested'' that there was a ``compelling
interest'' in facilitating access to birth control.
There has also been considerable focus on the future of abortion
rights based on the concern that Judge Kavanaugh would seek to overturn
Roe v. Wade. Protecting this right is important to me. To my knowledge,
Judge Kavanaugh is the first Supreme Court nominee to express the view
that precedent is not merely a practice and tradition but rooted in
article III of our Constitution itself.
He believes precedent ``is not just a judicial policy . . . it is
constitutionally dictated to pay attention and pay heed to rules of
precedent.'' In other words, precedent isn't a goal or an aspiration;
it is a constitutional tenet that has to be followed except in the most
extraordinary circumstances.
The judge further explained that precedent provides stability,
predictability, reliance, and fairness. There are, of course, rare and
extraordinary times where the Supreme Court would rightly overturn a
precedent. The most famous example was when the Supreme Court, in Brown
v. Board of Education, overruled Plessy v. Ferguson, correcting a
``grievously wrong'' decision, to use the judge's term, allowing racial
inequality.
But someone who believes the importance of precedent has been rooted
in the Constitution would follow long-established precedent except in
those rare circumstances in which a decision is ``grievously wrong'' or
``deeply inconsistent with the law.'' Those are Judge Kavanaugh's
phrases.
As the judge asserted to me, a long-established precedent is not
something to be trimmed, narrowed, discarded, or overlooked. Its roots
in the Constitution give the concept of stare decisis greater weight
such that the precedent can't be trimmed or narrowed simply because a
judge might want to on a whim. In short, his views on honoring
precedent would preclude attempts to do by stealth that which one has
committed not to do overtly.
Noting that Roe v. Wade was decided 45 years ago and reaffirmed 19
years later in Planned Parenthood v. Casey, I asked Judge Kavanaugh
whether the passage of time is relevant to following precedent. He said
decisions become part of our legal framework with the passage of time
and that honoring precedent is essential to maintaining public
confidence.
Our discussion then turned to the right of privacy, on which the
Supreme
[[Page S6587]]
Court relied in Griswold v. Connecticut, a case that struck down a law
banning the use and sale of contraceptives. Griswold established the
legal foundation that led to Roe 8 years later. In describing Griswold
as ``settled law,'' Judge Kavanaugh observed that it was the correct
application of two famous cases from the 1920s, Meyer and Pierce, that
are not seriously challenged by anyone today.
Finally, in his testimony, he noted repeatedly that Roe had been
upheld by Planned Parenthood v. Casey, describing it as precedent on
precedent. When I asked him whether it would be sufficient to overturn
a long-established precedent if five current Justices believed it was
wrongly decided, he emphatically said no.
Opponents frequently cite then-candidate Donald Trump's campaign
pledge to nominate only judges who would overturn Roe. The Republican
platform for all Presidential campaigns has included this pledge since
at least 1980. During this time, Republican Presidents have appointed
Justices O'Connor, Souter, and Kennedy to the Supreme Court. These are
the very three Republican President-appointed Justices who authored the
Casey decision which reaffirmed Roe.
Furthermore, pro-choice groups vigorously opposed each of these
Justices' nominations. Incredibly, they even circulated buttons with
the slogan: ``Stop Souter or Women Will Die!'' Just 2 years later,
Justice Souter coauthored that Casey opinion, reaffirming a woman's
right to choose. Suffice it to say, prominent advocacy organizations
have been wrong.
These same interest groups have speculated that Judge Kavanaugh was
selected to do the bidding of conservative ideologues, despite his
record of judicial independence. I asked the judge point-blank whether
he had made any commitments or pledges to anyone at the White House, to
the Federalist Society, or to any outside group on how he would decide
cases. He unequivocally assured me he had not.
Judge Kavanaugh has received rave reviews for his 12-year track
record as a judge, including for his judicial temperament. The American
Bar Association gave him its highest possible rating. Its Standing
Committee on the Federal Judiciary conducted an extraordinarily
thorough assessment, soliciting input from almost 500 people, including
his judicial colleagues. The ABA concluded that ``his integrity,
judicial temperament, and professional confidence met the highest
standard.''
Lisa Blatt, who has argued more cases before the Supreme Court than
any other woman in history, testified:
By any objective measure, Judge Kavanaugh is clearly
qualified to serve on the Supreme Court.
His opinions are invariably thoughtful and fair.
Ms. Blatt, who clerked for and is an ardent admirer of Justice
Ginsburg, and who is, in her own words, ``an unapologetic defender of a
woman's right to choose,'' said Judge Kavanaugh ``fit[s] within the
mainstream of legal thought.'' She also observed ``Judge Kavanaugh is
remarkably committed to promoting women in the legal profession.''
That Judge Kavanaugh is more of a centrist than some of his critics
maintain is reflected in the fact that he and Chief Judge Merrick
Garland voted the same way in 93 percent of the cases they heard
together. Indeed, Chief Judge Garland joined in more than 96 percent of
the majority opinions authored by Judge Kavanaugh, dissenting only
once.
Despite all of this, after weeks of reviewing Judge Kavanaugh's
record and in listening to 32 hours of his testimony, the Senate's
advice and consent role was thrown into a tailspin following the
allegation of sexual assault by Professor Christine Blasey Ford. The
confirmation process now involves evaluating whether Judge Kavanaugh
committed sexual assault and lied about it to the Judiciary Committee.
Some argue that because this is a lifetime appointment to our highest
Court, the public interest requires that doubts be resolved against the
nominee. Others see the public interest as embodied in our long-
established tradition of affording to those accused of misconduct a
presumption of innocence. In cases in which the facts are unclear, they
would argue the question should be resolved in favor of the nominee.
I understand both viewpoints. This debate is complicated further by
the fact that the Senate confirmation process is not a trial. But
certain fundamental legal principles about due process, the presumption
of innocence, and fairness do bear on my thinking, and I cannot abandon
them.
In evaluating any given claim of misconduct, we will be ill-served in
the long run if we abandon the presumption of innocence and fairness,
tempting though it may be. We must always remember it is when passions
are most inflamed that fairness is most in jeopardy.
The presumption of innocence is relevant to the advice and consent
function when an accusation departs from a nominee's otherwise
exemplary record. I worry that departing from this presumption could
lead to a lack of public faith in the judiciary and would be hugely
damaging to the confirmation process moving forward.
Some of the allegations levied against Judge Kavanaugh illustrate why
the presumption of innocence is so important. I am thinking, in
particular, not of the allegations raised by Professor Ford but of the
allegation that when he was a teenager, Judge Kavanaugh drugged
multiple girls and used their weakened states to facilitate gang rape.
This outlandish allegation was put forth without any credible
supporting evidence and simply parroted the public statements of
others. That such an allegation can find its way into the Supreme Court
confirmation process is a stark reminder of why the presumption of
innocence is so ingrained in our American consciousness.
Mr. President, I listened carefully to Christine Blasey Ford's
testimony before the Judiciary Committee. I found her testimony to be
sincere, painful, and compelling. I believe she is a survivor of a
sexual assault and that this trauma has upended her life. Nevertheless,
the four witnesses she named could not corroborate any of the events of
the evening gathering where she said the assault occurred. None of the
individuals Professor Ford said were at the party has any recollection
at all of that night.
Judge Kavanaugh forcefully denied the allegations under penalty of
perjury. Mark Judge denied, under penalty of felony, that he had
witnessed an assault. PJ Smyth, another person allegedly at the party,
denied, under penalty of felony, that he was there. Professor Ford's
lifelong friend, Leland Keyser, indicated that under penalty of felony,
she does not remember that party. Ms. Keyser went further. She
indicated that not only does she not remember a night like that but
also that she does not even know Brett Kavanaugh.
In addition to the lack of corroborating evidence, we also learned
some facts that raised more questions. For instance, since these
allegations have become public, Professor Ford testified that not a
single person has contacted her to say: ``I was at the party that
night.''
Furthermore, the professor testified that although she does not
remember how she got home that evening, she knew, because of the
distance, she would have needed a ride. Yet not a single person has
come forward to say that he or she was the one who drove her home or
was in the car with her that night. Professor Ford also indicated that
even though she left that small gathering of six or so people abruptly
and without saying goodbye and was distraught, none of them called her
the next day--or ever--to ask why she left or was she OK, not even her
closest friend, Ms. Keyser.
The Constitution does not provide guidance on how we are supposed to
evaluate these competing claims. It leaves that decision up to each
Senator. This is not a criminal trial, and I do not believe claims such
as these need to be proven beyond a reasonable doubt. Nevertheless,
fairness would dictate that the claims should at least meet a threshold
of ``more likely than not'' as our standard.
The facts presented do not mean Professor Ford was not sexually
assaulted that night or at some other time, but they do lead me to
conclude that the allegations fail to meet the ``more likely than not''
standard. Therefore, I do not believe these charges can fairly prevent
Judge Kavanaugh from serving on the Court.
[[Page S6588]]
Let me emphasize that my approach to this question should not be
misconstrued as suggesting that unwanted sexual contact of any nature
is not a serious problem in this country. To the contrary, if any good
at all has come from this ugly confirmation process, it has been to
create an awareness that we have underestimated the pervasiveness of
this terrible problem.
I have been alarmed and disturbed, however, by some who have
suggested that unless Judge Kavanaugh's nomination is rejected, the
Senate is somehow condoning sexual assault. Nothing could be further
from the truth.
Every person--man or woman--who makes a charge of sexual assault
deserves to be heard and treated with respect. The #MeToo movement is
real; it matters; it is needed; and it is long overdue. We know rape
and sexual assault are less likely to be reported to the police than
other forms of assault. On average, an estimated 211,000 rapes and
sexual assaults go unreported every year. We must listen to survivors,
and every day we must seek to stop the criminal behavior that has hurt
so many. We owe this to ourselves, our children, and generations to
come.
Since the hearing, I have listened to many survivors of sexual
assault. Many were total strangers who told me their heart-wrenching
stories for the first times in their lives. Some were friends whom I
have known for decades. Yet, with the exception of one woman who had
confided in me years ago, I had no idea they had been the victims of
sexual attacks. I am grateful for their courage and their willingness
to come forward, and I hope that in heightening public awareness, they
have also lightened the burden they have been quietly bearing for so
many years. To them, I pledge to do all I can to ensure that their
daughters and granddaughters never share their experiences.
Over the past few weeks, I have been emphatic that the Senate has an
obligation to investigate and evaluate the serious allegations of
sexual assault. I called for and supported the additional hearing to
hear from both Professor Ford and Judge Kavanaugh. I also pushed for
and supported the FBI's supplemental background investigation. This was
the right thing to do.
Christine Ford never sought the spotlight. She indicated she was
terrified to appear before the Senate Judiciary Committee, and she has
shunned attention since then. She seemed completely unaware of Chairman
Grassley's offer to allow her to testify confidentially in California.
In watching her, I could not help but feel that some people who wanted
to engineer the defeat of this nomination cared little, if at all, for
her well-being.
Professor Ford testified that a very limited number of people had
access to her letter. Yet that letter found its way into the public
domain. She testified she never gave permission for that very private
letter to be released. Yet here we are. We are in the middle of a fight
she never sought, arguing about claims she wanted to raise
confidentially.
One theory I have heard espoused repeatedly is that our colleague
Senator Feinstein leaked Professor Ford's letter at the eleventh hour
to derail this process. I want to state this very clearly: I know
Senator Dianne Feinstein extremely well, and I believe she would never
do that. I knew that to be the case before she even stated it at the
hearing. She is a person of integrity, and I stand by her.
I have also heard some argue that the chairman of the committee
somehow treated Professor Ford unfairly. Nothing could be further from
the truth. Chairman Grassley, along with his excellent staff, treated
Professor Ford with compassion and respect throughout the entire
process. That is the way the Senator from Iowa has conducted himself
throughout a lifetime dedicated to public service.
The fact remains that someone leaked this letter against Professor
Ford's express wishes. I suspect, regrettably, that we will never know
for certain who did it.
To that leaker, who I hope is listening now, let me say that what you
did was unconscionable. You have taken a survivor who was not only
entitled to your respect but who also trusted you to protect her, and
you have sacrificed her well-being in a misguided attempt to win
whatever political crusade you think you are fighting. My only hope is
that your callous act has turned this process into such a dysfunctional
circus that it will cause the Senate--and, indeed, all Americans--to
reconsider how we evaluate Supreme Court nominees. If that happens,
then the appalling lack of compassion you afforded Professor Ford will
at least have some unintended positive consequences.
The politically charged atmosphere surrounding this nomination had
reached a fever pitch even before these allegations were known, and it
was challenging even then to separate fact from fiction.
We live in a time of such great disunity, as the bitter fight over
this nomination both in the Senate and among the public clearly
demonstrates. It is not merely a case of differing groups having
different opinions; it is a case of people bearing extreme ill will
toward those who disagree with them.
In our intense focus on our differences, we have forgotten the common
values that bind us together as Americans. With some of our best minds
seeking to develop ever more sophisticated algorithms designed to link
us to websites that only reinforce and cater to our views, we can only
expect our differences to intensify.
This would have alarmed the drafters of our Constitution, who were
acutely aware that different values and interests could prevent
Americans from becoming and remaining a single people. Indeed, of the
six objectives they invoked in the preamble to the Constitution, the
one that they put first was the formation of ``a more perfect Union.''
Their vision of ``a more perfect Union'' does not exist today. If
anything, we appear to be moving far away from it. It is particularly
worrisome that the Supreme Court--the institution that most Americans
see as the principal guardian of our shared constitutional heritage--is
viewed as part of the problem through a political lens.
Mr. President, we have heard a lot of charges and countercharges
about Judge Kavanaugh, but, as those who have known him best have
attested, he has been an exemplary public servant, judge, teacher,
coach, husband, and father.
Despite the turbulent and bitter fights surrounding his nomination,
my fervent hope is that Brett Kavanaugh will work to lessen the
divisions in the Supreme Court so that we have far fewer 5-4 decisions
and that public confidence in our judiciary and our highest Court is
restored.
Mr. President, I will vote to confirm Judge Kavanaugh.
Thank you.
(Applause, Senators rising.)
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, it is sometimes said that today's
Senate does not measure up to the Senate's previous years because we
have no eloquent Senators who make compelling speeches. I think Senator
Collins has just disproved that today. Whether or not one agrees with
her, she was eloquent. Her speech was compelling, and she has presented
her case in the tradition of another Senator from Maine who was serving
here when I first came many years ago as a young Senate aide, Senator
Margaret Chase Smith. It is that tradition of independence and
diligence which is so valuable and so important, especially in times of
stress like this.
I had thought of following Senator Collins with some remarks of my
own about what I found when I read the background checks today. I went
to the section where we read classified documents. I saw that over 25
years, 150 people had been interviewed about Judge Kavanaugh. They had
specifically been asked a question about whether they saw any evidence
of alcohol abuse, and every single one said no and that there was no
evidence of sexual impropriety.
I want to thank Senator Collins for her insistence on an extra week
so that we could have a seventh FBI investigation. I took the time to
review that as well. I saw that no matter how credible Dr. Ford
seemed--and she did seem credible to me--no one except Dr. Ford
remembers that alleged incident. And the other four, as Senator Collins
said, who Dr. Ford said were there either don't remember it or said
that it didn't happen.
I think the takeaway from what the Senator from Maine has said is
that we
[[Page S6589]]
have reached what she said she hopes is the rock bottom in the Senate
confirmation process. This is not the way things should be. Whether you
are a Democrat or a Republican, we know that the most awful
allegations--sexual assault certainly is as awful as any--deserve a
modicum--there is a standard of fairness. She used the words ``more
likely than not'' in her case. But in the U.S. Senate, we should be
able to deal with such issues in a much better way than we have dealt
with this.
We--all of us; the confirmation process--have victimized Dr. Ford,
and we have victimized Judge Kavanaugh. Until 2 weeks ago, Judge
Kavanaugh had a reputation among most people who had ever heard of him
as one of the leading scholars, judges, and teachers in America. I
believe he is that, which is why I am voting for him. I am glad we are
voting for him.
I hope we all pause for a moment and listen to what Senator Collins
said.
I will conclude where I started. There may have been a time when
there were more eloquent Senators who made more compelling speeches
down the hall in the Old Senate Chamber--we know their great names--but
her speech today stacks up with the best of them.
I have heard speeches in this body for nearly half a century, both as
a young aide and as a Member of the U.S. Senate, and I will remember
this one. It is not just because I happen to agree with her, but
because she showed characteristic diligence, independence, fairness,
and a suggestion of the lessons that we should have for the future of
this unique institution and this unique country that we prize so much.
I am going to think about what she has said. I hope other Members of
the body do, and I hope many other Americans do as well.
Thank you.
The PRESIDING OFFICER. The majority leader.
Mr. McCONNELL. Mr. President, in listening to the Senator from
Tennessee, I am reminded that he and I were here in those days as young
staffers. I was working for the Senator from Kentucky when Margaret
Chase Smith was still here. She had already made her reputation by
being the first Member of the U.S. Senate to take on Joseph McCarthy
and his tactics. It took the Senate a couple of years to finally
develop the courage to stand up to this demagogue and the tactics he
employed.
Those of us who are in the Chamber today have had a unique
opportunity to listen to a great statesman from Maine once again talk
about this institution and how it ought to treat matters like this and
to think about how we can rise above the depths to which we have sunk
during this process.
I want to thank the Senator from Maine. I have not heard a better
speech in my time here, and I have been here a while. It was absolutely
inspirational.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. This is as close to McCarthyism as I hope we get in my
lifetime. You are guilty until you are proven innocent. Whatever it
takes to take you down, we will do. If one allegation is not enough,
how about five? To the people who have come forward, we will do
whatever we have to do to you to get the outcome we want.
There are two ways of doing this: Senator Collins's way or what we
have seen in the committee. If you want to go down the road of the
committee, God help those who will follow.
The biggest winners today are those who still want to be judges. You
may have saved those who want to come after Judge Kavanaugh from
humiliation to the nth degree because you rejected it today.
For every woman who comes forward about a sexual assault, only God
knows how many never say a word. But to right one wrong, seldom does it
help to create another.
Senator Collins explained the dilemma we face as a society and
rejected the idea that sacrificing Judge Kavanaugh's good name would
make anything better.
To the extent that individuals matter in America, you rose to the
occasion. To the extent that you rejected the mob rule and accepted the
rule of law, we will all be better.
You have to have some way of judging. Yes, we want people to come
forward. They deserve to be heard. But there needs to be a process, for
the good of us all, to make sure it is disposed of right. If this is
enough, to be accused of something that happened 36 years ago and
nobody can corroborate it, God help us all in any line of public
service.
All I can say is that it is not about you. I have never admired you
more, and we often agree, and sometimes we don't. It is about the
system that you stood by today that has stood the test of time. I don't
know what kind of pressure there has been for you. I can only imagine
because you are in a purple State.
I remember what Sotomayor and Kagan were for me--not very
comfortable, but I tried to embrace a system that has stood the test of
time. But whatever happened to me, it has been 100 times worse for you.
Senator Flake, thank you. Without Susan Collins and Jeff Flake, we
would not have heard from Dr. Ford, maybe, but you stood up and said
that she needs to be heard. Without their insistence that the FBI check
the committee's homework, we wouldn't be where we are today. So you did
a good thing.
The one thing you wouldn't do is be intimidated. The one thing you
wouldn't do is destroy Judge Kavanaugh's life for no good reason. The
one thing you wouldn't do is play politics with the law. God bless you.
I doubt if I will ever hear anybody more courageous in my political
life.
So when they write the history of our times, you will be in it. If
John McCain were here, he would be your greatest cheerleader.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I wish my colleagues were here to share
in this dialogue because there is such an absence of other Members
sharing with each other their perspectives. We have a world that is
enhanced by a media world that lives in a different universe that
accentuates the differences between the parties.
I think we are on a course that does deepen the differences across
America. I hope there is some way we can find in this Senate to be able
to communicate across that growing chasm in a more effective manner.
I have heard many of my colleagues speak to the issue of fairness on
this floor. I offer just a brief, couple of sentences of points for you
to consider as to why not all of America shares the perspective that
this has been fair.
When Dr. Ford was invited to come to speak to the committee, she said
that she would like to come, but she wanted some time, and she would
like to have corroborating individuals be able to appear before the
committee. That was denied by the committee, and that bothered many
people in this Chamber a great deal. Even in 1991, Anita Hill was given
that opportunity.
What is also very bothersome to individuals is that Dr. Ford had put
forward a list of eight individuals whom she had asked the FBI to talk
to, to be corroborating witnesses, and the FBI could talk only to those
within the scoping document that comes from the White House because, at
that moment, they are not doing a criminal investigation, they are
doing a background investigation, and they have to follow the
President's instructions. Those instructions, we are told, were not to
talk to any of the corroborating witnesses, not the 8 she put forward
and not the 20 who were put forward by Debbie Ramirez. So 28
individuals were not brought before the committee and not talked to by
the FBI.
I hope we have lots of opportunities to share our perspectives across
the aisle to understand as we struggle with the issue of fairness
because for many of us, fairness has not been achieved. The bigger
message to these two women who came forward to share their journeys, to
share their experiences, is that the U.S. Senate was unwilling to hear
them out, unfortunately.
Thank you.
The PRESIDING OFFICER (Mr. Sasse). The Senator from Michigan.
Ms. STABENOW. Mr. President, I am rising today at a very important
time for our country because who sits on the Supreme Court matters. It
really matters. From healthcare to civil rights, to the safety of the
air we breathe and the water we drink, to the ability to raise our
families and pursue the
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American dream, to the very health of our democracy, decisions made by
the Supreme Court affect us every single day.
As my colleagues know, I was born in Michigan. I have lived in
Michigan my whole life. My whole family is still in Michigan. I am so
grateful for that. Every decision I make in the U.S. Senate puts the
people of Michigan first. My decision to oppose Judge Brett Kavanaugh
is no exception.
The allegations that have been made against Judge Kavanaugh deserve
to be taken extremely seriously. Even before the allegations came to
light, Judge Kavanaugh's record and his writings too often have gone
against what is best for Michigan families.
When confronted with cases that have special interests on one side
and people on the other side, he has consistently sided with the
special interests. That is certainly true when it comes to healthcare.
Healthcare isn't political; it is personal for every single one of us.
Michigan families know what they need: quality, affordable healthcare,
including prescription drugs, and Michigan women deserve to make their
own reproductive health decisions.
Right now, a court case is pending in which the Trump administration
is refusing to defend the law that protects people with preexisting
conditions--people like Amy, a small business owner with chronic
leukemia, and Louisa, a beautiful little girl born with half a heart.
Half of Michigan families include someone with a preexisting condition,
like high blood pressure, heart disease, asthma, diabetes, cancer. They
deserve to know that healthcare will be there when they need it.
Yet, if this case were to come before the U.S. Supreme Court and if
Judge Kavanaugh were a member, I believe many families in Michigan
would find themselves with no coverage and no care. We need judges who
will make decisions based on what is best for people--not drug
companies, not insurance companies, but for people.
A second issue on the minds of our families is our water and the
Great Lakes, just like the people of Flint who still struggle with lead
in their water. Ask the people in at least 15 Michigan communities
whose water is contaminated with what we now call PFAS chemicals. That
is an industrial chemical that has been linked to cancer and other
diseases. Again and again, Judge Kavanaugh has ruled on behalf of
polluters, not people.
In one case, he argued that the Environmental Protection Agency
exceeded its authority by trying to address pollution from one State
that drifted into another State--as if somehow the air was going to
stop at the border. Thankfully, the Supreme Court voted 6 to 2 to
overturn his decision. What would happen to our air and water if he is
one of the people who is deciding this, particularly if he were to be
the tie vote?
Third, I am deeply concerned by his belief in essentially unlimited
Presidential power. In 2016, when asked what single case he would like
to see overturned, Judge Kavanaugh said he would like to ``put the
final nail'' in a three-decades-old Supreme Court decision that said
independent counsels investigating the President are constitutional.
Judge Kavanaugh has also written that if a President doesn't like the
law, he can simply decide it is unconstitutional. He can simply refuse
to enforce it. That might be how things work in Russia, in North Korea,
and in Syria. It is not how things are supposed to work in America
under our democracy.
We have three separate branches of government. We need judges who
will ensure that no one--no one, not even the President of the United
States--is above the law.
Also, Judge Kavanaugh's views on what we now call dark money in our
elections also concerns me greatly. In one 2011 case, Judge Kavanaugh
ruled that foreign nationals could not campaign for or contribute money
to candidates. That sounds good. Unfortunately, he then went on to say
that foreign nationals can take part in issue advocacy--giving money
for issue advocacy in American elections. In other words, Russians can
contribute as much as they want to an issue group, which can then spend
on behalf of candidates.
In this way, Judge Kavanaugh opened the door for unlimited dark money
from foreign nationals--foreign entities in our American elections. Do
we imagine he will rule differently from a seat on the U.S. Supreme
Court?
Finally, there are the very serious allegations made against Judge
Kavanaugh and serious questions about how he has responded to them.
In this country, we have due process. We want accusers to be heard
and the accused to be able to defend themselves. That is why it is so
important that we heard from both Judge Kavanaugh and Dr. Christine
Ford.
I found Dr. Ford to be highly credible. Her testimony was heart-
wrenching. I believe Dr. Ford. Her story resonated with so many women
because many of us have felt that same fear and heard the same laughter
that she described. It takes an incredible amount of courage to speak
up, and I know women across the country are grateful to Dr. Ford for
doing so. I am grateful for the countless women who have called or
written me with their stories of what has happened to them, oftentimes
decades ago. I hope we are going to come to a point when all of this is
over and use this as an opportunity to make sure that when something
happens, women feel they can report it immediately and will be taken
seriously, and we will have a due process system that works immediately
to address these issues.
I reviewed the FBI background file on Judge Kavanaugh. Unfortunately,
I was very disappointed in the very limited scope. It did nothing to
alleviate my concerns about the allegations, his truthfulness before
the Senate Judiciary Committee, or his suitability to sit on the
Supreme Court.
Judge Kavanaugh's demeanor during the hearing was a shocking display
of entitlement. No one is promised a Supreme Court seat or entitled to
a job interview. There are many people qualified to hold that kind of a
position. But his sense of entitlement and condescension toward members
of the Senate committee who were simply doing their jobs was shocking
to me.
Again, no one is owed a seat on the U.S. Supreme Court. We are
talking about a lifetime appointment and an immense amount of power
over people's lives.
Someone once said this: ``The Supreme Court must never be viewed as a
partisan institution. The Justices on the Supreme Court do not sit on
opposite sides of an aisle. They do not caucus in separate rooms.''
That person was Brett Kavanaugh. He clearly has failed to meet his
own standard. I know he has failed to meet mine.
The people of Michigan deserve better. The people of America deserve
better. They deserve someone on the Supreme Court who understands their
lives and will stand up for them, not special interests.
They deserve someone on the Supreme Court who understands that
nobody--not even the President of the United States--is above the law.
They deserve someone on the Supreme Court who will work to keep dark
money from foreign entities out of our elections.
And they deserve someone on the Supreme Court who has consistently
lived up to the high standards we ought to demand of our Nation's
leaders.
In Michigan, we teach our children that character matters. Now it is
time to show that we mean it.
I urge my colleagues to vote no on Brett Kavanaugh's confirmation to
the U.S. Supreme Court.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Ms. HASSAN. Mr. President, I rise today to join my colleagues in
expressing my opposition to Judge Kavanaugh's nomination. I will speak
later in the evening about my overall assessment of Judge Kavanaugh's
record and nomination and about why I think some of my colleagues on
the other side of the aisle are focusing on the wrong thing in deciding
to support him.
To echo my colleague from Michigan just now, no one has a right to a
seat on the U.S. Supreme Court. What we should be focused on is that
the country has a right to an impartial, nonpartisan U.S. Supreme
Court. They have a right to Justices whose character and fitness for
the office is beyond reproach and beyond doubt. Despite everything I
have heard from Judge Kavanaugh's supporters, I do not think they can
make that case.
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My purpose in speaking right now is to express my deep concerns with
Judge Kavanaugh's record of ruling against access to healthcare.
If confirmed, Judge Kavanaugh will be a deciding factor in the lives
and livelihoods of millions of Americans. Yet, time and again, he has
demonstrated a commitment to a partisan agenda that would strip away
care from some of our most vulnerable people.
As recently as 2017, Judge Kavanaugh criticized Chief Justice
Roberts' decision upholding the Affordable Care Act, and in his
confirmation hearing, Judge Kavanaugh would not commit to upholding
legal protections for people with preexisting conditions--preexisting
conditions such as asthma, cancer, diabetes, and more.
Confirming Judge Kavanaugh to the Supreme Court would put those
protections at risk. I have heard from people across New Hampshire who
are concerned about what will happen to them if they are denied
coverage because of their preexisting condition. People like Kristen
from Derry, NH. Kristen relies on medications that cost more than
$1,200 every month to stay healthy, but if she lost her insurance
because of her preexisting condition, she would not be able to afford
that medication. Kristen said:
I wouldn't be able to breathe correctly. My COPD would
worsen. My current standard of living--working full time as a
social worker, a runner, active with my children--would
quickly come to an end.
That is what is at stake with this vote.
Republican attorneys general, backed by the Trump administration, are
suing to eliminate protections for preexisting conditions. This case
will soon be in front of the Supreme Court, and the next Supreme Court
Justice could very well be the deciding vote in that decision.
We need a Justice who would rise above partisanship, someone who will
act impartially and rule on behalf of what is right for the American
people. It is evident Judge Kavanaugh is not that person, and there is
no reason to believe he would be an impartial arbiter when it comes to
issues related to healthcare.
Throughout this confirmation process, Judge Kavanaugh has revealed
himself to be staunchly partisan, and never was that more clear than
during his hearing on the allegations raised by Dr. Christine Blasey
Ford.
During that hearing, he called those credible allegations against him
``revenge on behalf of the Clintons'' and seemed to threaten his
political enemies by saying: ``What goes around comes around.''
There is ample reason to believe that Judge Kavanaugh would be an
ally on the Supreme Court for the Trump administration and Republicans
in Congress who are seeking to undermine our healthcare system, and for
the health and well-being of Granite Staters and all Americans, I
cannot support his nomination.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. MENENDEZ. Mr. President, I rise today to oppose Brett Kavanaugh's
nomination to the Supreme Court and to ask my colleagues--Republicans
and Democrats alike--to recognize exactly what is at stake here. The
philosopher Nietzsche once said that if you stare long enough into the
abyss, the abyss will stare back into you.
My friends, we here in the U.S. Senate are staring into the abyss.
What is staring back at us is a future in which the American people's
trust in the Supreme Court is being irreparably damaged.
To vote yes on Brett Kavanaugh is to send a message to every woman in
America that your voice doesn't matter. If you risk everything--your
security, your stability, your reputation--to come forward and speak
truth to power about a sexual assault, they will call you credible.
They will call you courageous. Yet they will not believe you.
It is a message that says, if you have survived a sexual assault,
don't bother telling anyone because you must be mistaken. This
traumatic and unforgettable moment in your life never happened. It must
have been someone else.
My friends, to confirm Judge Brett Kavanaugh with what we now know
would be to forever tarnish the credibility and reputation of the
highest Court in our land. Here is what we know. We know Judge
Kavanaugh faces multiple credible allegations of sexual assault. Yet
the investigation that was conducted looks nothing like the FBI
investigation that was promised--not by President Trump, not by the
Senators who called for it, or by anyone else.
We know neither Dr. Ford nor Judge Kavanaugh was interviewed by law
enforcement--the very essence of what the subject of the investigation
is. Neither of them was interviewed. We know dozens of people with
corroborating evidence were flatout ignored by investigators.
I have heard some of my colleagues call this investigation thorough.
How do you call an investigation thorough when neither the accused nor
the accuser was interviewed by the FBI?
How do you call an investigation thorough when 40 corroborating
witnesses who volunteered information to the FBI in recent days were
reportedly ignored? You can't get corroboration if you don't talk to
corroborating witnesses. The answer is simple: It is not thorough, and
it is not trustworthy.
This entire process, including the use of Executive privilege to deny
the Senate access to hundreds of thousands of documents of Judge
Kavanaugh's, has been shrouded in secrecy. And why the secrecy? Because
President Trump and his team are desperate to get Judge Kavanaugh
confirmed by any means necessary.
Let's remember what is going on. The President of the United States
is the subject of a Federal investigation into whether his campaign
accepted assistance from a hostile foreign power during the 2016
election. Already, the President's campaign chairman, Foreign Policy
Advisor, and former National Security Advisor have pled guilty to
Federal crimes.
He could have chosen any of the judges included on the rightwing list
assembled by the Heritage Foundation and the Federalist Society.
Instead, he picked the one judge with unprecedented views of
Presidential power. There is no other explanation for President Trump
choosing Brett Kavanaugh that I can think of other than he hopes this
will be his get-out-of-jail card.
The last few weeks have been a flurry of breaking news alerts and
breathless gossiping in the halls. I am thankful for Dr. Ford's courage
and candor. She spoke her truth and has inspired countless others to
break their silence. I believe her. I believe survivors. New Jersey is
home to 1.8 million survivors. That is 1.8 million reasons to oppose
Brett Kavanaugh.
According to the Bureau of Justice Statistics, less than a quarter of
sexual assault victims reported those incidents to police in 2016.
After this past week, it is all too easy to see why.
Leader McConnell has called the allegations of Dr. Ford
``unsubstantiated smears.'' What an insulting statement. When will we
as a society begin to believe women, to trust women? It can't come soon
enough.
I was in the midst of my first campaign for Congress when Anita
Hill's allegations of sexual assault against Justice Clarence Thomas
were investigated but ultimately disregarded by the Senate. I am proud
to have been elected to the House in 1992, the so-called Year of the
Woman.
Across the Capitol, a record four women were elected to the Senate.
My colleague Patty Murray decided to run after watching what happened
to Anita Hill. She is still here fighting for survivors, and I am proud
to have her as my colleague.
We look back at the Clarence Thomas hearings as a moment that failed
America and failed all survivors of sexual assault. Yet here we are in
2018, and it appears as though we have made little progress.
After Dr. Ford's testimony, my Republican colleagues and even
conservative pundits praised her credibility. It only took Judge
Kavanaugh's outrageous performance--a performance we now know was
misleading at best and untruthful at worst--for these same Republicans
to cast her aside. The message they have sent to survivors who are
brave enough to come forward is clear: We will listen to you, but we
will not believe you, and we will not trust you.
Despite having the cards stacked against her, I was shaken to the
core
[[Page S6592]]
by Dr. Christine Blasey Ford's words last week. She answered every
question with bravery, with candor, and with humility. Meanwhile, Judge
Kavanaugh was evasive, belligerent, and, according to many of his
acquaintances, repeatedly untruthful.
What my Republican colleagues can't seem to grasp is that you can be
at the top of your wealthy prep school class and still abuse women. You
can be a Yale Law School graduate and still abuse women. Unfortunately,
you can even be the President of the United States and still abuse
women.
Furthermore, Judge Kavanaugh's partisan outburst was downright
disturbing for a potential Supreme Court Justice. How many norms did
Judge Kavanaugh shatter in that hearing room? It is one thing to be
emotional; it is another to call the allegations of Dr. Ford or Deborah
Ramirez and others a coordinated leftwing conspiracy and an act of
political retribution for the Clintons. He said the questions posed by
Democratic Senators during his confirmation hearing were ``an
embarrassment'' and called the process a circus--this coming from a man
who pressed Ken Starr to ask President Clinton sexually explicit
questions. And we all know the circus the Starr investigation turned
out to be. But I guess the same standards don't apply to Brett
Kavanaugh. If you are Brett Kavanaugh, you can lie under oath about
things big and small and never face the consequences.
At the end of the day, Judge Kavanaugh's hysterical political rant
confirmed what many of us already knew about this man: He is a
political operative cloaked in judicial robes. As Kavanaugh himself
said, ``What goes around, comes around.'' Do those sound like the words
of an impartial, independent judge?
Never before in my life have I seen a nominee, let alone a Supreme
Court nominee, behave as though he were entitled to this lifetime
appointment. He is not. It is the American people who are entitled to a
Justice who tells the truth, who conducts himself in a dignified
manner, a Justice who doesn't face credible accusations of sexual
assault.
The Supreme Court deserves better than Brett Kavanaugh, and so do the
American people. More than 1,000 legal scholars--and counting--agree,
coming out against Kavanaugh's nomination because his partisan and
venomous rhetoric has no place on the Supreme Court.
This process has further poisoned the confirmation process. It was
Senate Republicans who orchestrated the theft of a Supreme Court seat
with more than 9 months left in President Obama's term. Apparently,
being nominated by President Obama is more disqualifying than being
accused by multiple women of sexual assault. It is clear my colleagues
will stop at nothing to tip the scales of justice against women,
consumers, and patients for generations to come.
For women, the stakes couldn't be higher. President Trump promised to
only nominate judges who would overturn Roe v. Wade. And, yes, earlier
today, a colleague of mine pointed out that the Republican National
Committee platform has long included overturning Roe v. Wade. In my
view, that is precisely why we cannot trust a longtime GOP political
operative like Brett Kavanaugh to uphold a woman's right to choose.
There is a difference between saying that precedent deserves respect
and saying that it cannot be overturned. They are not the same. I think
some of the things I have heard about the aspirations of some of my
colleagues about Judge Kavanaugh are unlikely to be realized.
This is what is at stake here: the basic principle that women have a
right to make their own private medical decisions. My daughter has
grown up never knowing what it was to live in a country where women
were denied reproductive rights. Now I fear my granddaughter may grow
up never knowing what it was like to live in a country where women had
reproductive rights.
It isn't just women's health that is at stake. The Trump
administration is arguing in Federal court as we speak that the ACA's
protections for preexisting conditions are unconstitutional, which
makes Judge Kavanaugh's record of ruling against consumers and siding
with corporate interests all the more troubling.
There are 3.8 million New Jerseyans who have preexisting conditions--
some illness during the course of their lives, heart attack, diabetes,
Parkinson's, maybe some birth defect that in the past had denied them
insurance coverage. We eliminated that under the Affordable Care Act.
No more discrimination. There are 3.8 million New Jerseyans who have
preexisting conditions. For me, those are another 3.8 million reasons
to oppose Kavanaugh's confirmation.
So, yes, the stakes have never been higher. The threat to our
democracy is real. The decisions coming down from a Supreme Court with
Kavanaugh will change the course of America for decades to come.
The Republican majority views the Supreme Court as an instrument to
force an unpopular, anti-woman, anti-worker, anti-civil rights agenda
on the American people. Meanwhile, President Trump views the Court as
yet another weapon to flout the rule of law.
Well, it is time we take a stand for the integrity of our democratic
institutions. It is time we live up to our duty set forth by article II
of the Constitution to provide advice and consent on Supreme Court
nominations. In bestowing on us this responsibility, the Framers
entrusted us with protecting the reputation and credibility of the
highest Court in our land.
To confirm Judge Kavanaugh in the face of these allegations; in the
face of the secrecy of the documents we could not obtain; in the face
of the positions he took that are clearly, in the minds of many of us,
untruthful before the committee, risks forever tarnishing one of the
crown jewels of our democracy.
My friends, we are standing on the edge of a cliff. Should we blindly
go over that edge, we risk doing irreparable damage to the reputation
and credibility of the Supreme Court. I implore my colleagues in the
majority to pull us back in the direction of truth and decency. This
isn't about right or left; this is about right and wrong.
A vote to confirm Brett Kavanaugh is a vote against survivors of
sexual violence. A vote to confirm Brett Kavanaugh is a vote to
overturn Roe v. Wade and end safe and legal abortion in this country. A
vote to confirm Brett Kavanaugh is a vote to overturn protections for
preexisting conditions. A vote to confirm Brett Kavanaugh is a vote to
roll back civil rights and voting rights. It is a vote that will take
us back to a time and place none of us, I believe, wants to go to. And
it is a vote the American people will not forget--not today, not
tomorrow, not this November, not ever.
I yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Johnson). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, it is an understatement to say that the last
few weeks have been unusual in Senate history. I have never seen
anything like it in the 8 years that I have been serving in this body.
Every day when we show up to work, as we walk to our offices, we have
to walk through a sea, a mob, of angry protestors, people screaming,
shouting, yelling things at us--not pleasant things. In many instances,
Members have to be accompanied as they walk to and from their offices,
to and from the Senate floor where they cast their votes, to and from
their committee hearings, in and out of rooms where they have to
conduct their business.
This is unusual. It is unpleasant. It is relatively unprecedented,
certainly, in the time that I have been here. It is unfortunate and
unnecessary. You see, this is not how the process is supposed to work.
This is not what the Constitution contemplates or requires in
connection with the confirmation of a Supreme Court nominee. It doesn't
need to work this way, but in this case, it did. It did because a lot
of people, starting with a small handful of people, made a deliberate
choice to depart from the norm,
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to depart from rules, practices, and operating procedures that are
designed to protect the innocent and the guilty, designed to protect
accusers and the accused, designed to protect the privacy of people who
come forward with allegations as well as those who have been nominated
to serve in high positions.
The allegations brought forward by Dr. Christine Blasey Ford were
serious. I still remember and will never forget the precise moment when
I was briefed on the nature of these allegations on September 13, 2018.
I was briefed by a small handful of Judiciary Committee staffers who
had clearance to read to me an FBI document they had just received. I
wasn't allowed to share the details of that communication with anyone--
not even members of my own staff--because at the time they were
confidential, couldn't be discussed with the public, and couldn't be
discussed with anyone who hadn't received specific clearance from the
FBI to do so. At the time these allegations were brought forward, I was
able to tell my staff only the following: The allegations raised by
this individual--I didn't know her name at the time--are serious. They
are serious to the point that I will not support this nominee. I cannot
and will not vote to confirm this nominee if these allegations are
true, but the allegations are of such a nature that they could be
looked into. We can discern whether or not they could be corroborated.
We can interview witnesses in an effort to get to the truth.
Over the last roughly 3 weeks, that is what has happened. We have
undertaken everything we know how to do to get to the truth.
We have had FBI agents interviewing witnesses. We have had witnesses
interviewed by committee staff. We ourselves have interviewed Dr. Ford
and Judge Kavanaugh. It was at the hearing where we heard from Dr. Ford
and Judge Kavanaugh when we learned for the first time that Dr. Ford's
attorneys--I will just state here parenthetically--were oddly
recommended by the ranking Democrat on the Senate Judiciary Committee.
But Dr. Ford's attorneys--those same attorneys recommended by the
ranking Democrat on the Senate Judiciary Committee--failed to ever
inform Dr. Ford that, from the outset, she wouldn't have to go through
the process this way. From the outset, she could have and would have
been given the opportunity to tell her story in private to FBI agents
who would have met her at her home in Palo Alto, CA, interviewing her
in the privacy and comfort and protection of her own home with
confidentiality.
That separate group of FBI agents could have and would have then
visited Judge Kavanaugh and any of the other alleged eyewitnesses to
this event, and at that point those reports would have been collected
and eventually handed over to the Senate Judiciary Committee.
The committee then could have and would have had the opportunity to
convene a closed hearing and to investigate these allegations without
having to subject anyone to the indignity of discussing very detailed
private circumstances of their lives in front of the American people.
It remains clear to me that Dr. Ford never wanted a circus. She never
asked for any of this. She was reluctant to come forward. Ultimately,
she agreed to allow her name to be released at the moment she
recognized that there were enough people who were going to figure out
who she was, but she didn't want to have to tell her story in public.
She could have and would have and should have been given the
opportunity to tell her story in private, but that is not how it
happened because her lawyers didn't tell her.
Even after her name came forward, even after she felt compelled to
disclose her name, her lawyers apparently didn't tell her that
Judiciary Committee staff would be willing to fly out to California and
meet with her in private in her home or anywhere else she wanted to
meet. That apparently was not communicated to her. One must ask the
question why. Why didn't they tell her that? I don't know. At this
point I can't know that.
The conversations that occur between attorneys and their clients are
typically and permanently confidential, but just as an objective
witness to a lot of this and, again, not privy to their private
conversations, I have to wonder whether at best her lawyers may have
been neglectful in telling her that she had those options. At worst,
they may have deliberately sacrificed her privacy, her comfort, and her
interests in pursuit of their own vain ambitions or perhaps a political
agenda. Either outcome is unfortunate. Either way we got there led to
the same outcome, and we are where we are.
For the last 3 weeks we have done everything we can to get to the
bottom of these allegations. We have had witnesses interviewed. We
ourselves have interviewed Dr. Ford and Judge Kavanaugh.
At the end of this, what we see is someone who has been badly hurt.
It is apparent to me that Dr. Ford was harmed and has endured deep
pain. Someone hurt her, and they hurt her badly, but there is nothing
to corroborate her allegation that it was Judge Kavanaugh who hurt her.
Not one of the alleged eyewitnesses to this event can confirm that
such a gathering ever occurred, either in the summer of 1982 or at any
other time--not one. A number of the witnesses have said that not only
do they not remember such an event ever occurring but that this type of
event with this set of circumstances and with this combination and
number of people would not have happened. This is not how they
gathered.
So we are left with an uncorroborated accusation against an
individual who has led an exemplary life, a life of public service that
includes now 7 FBI background investigations and some 150-plus
interviews conducted by the FBI. Again, a lot of that was conducted
prior to his appointment to the U.S. Court of Appeals for the DC
Circuit, where he served for 12 years and published some 300 opinions,
in which he has had no objective other than to find the right answer
under the law.
This is someone who is a model, exemplary citizen from everything we
can tell. He serves his community. He feeds the hungry. He clothes the
naked. He serves his fellow beings with a love and an admiration for
them that is genuine, distinct, and consistent. Against this backdrop,
we cannot, we will not, we must not take a single uncorroborated
allegation and sink this man's hard-earned good name. The demands of
justice are such that we have to hear accusers and those who have been
harmed, but without corroboration we cannot assume someone to be guilty
in the absence of an adequate evidentiary foundation.
So I would add here that maybe we do know something more than that
because other allegations have come forward. Well, yes, there are other
allegations, but let's talk about the other allegations for a minute.
The Ramirez allegation came forward about a week after the Washington
Post announced Dr. Ford's name. A story by The New Yorker was itself
debunked less than 24 hours after the story was run--debunked by the
New York Times, which acknowledged having interviewed literally dozens
upon dozens of witnesses in an effort to find corroboration for the
Ramirez allegations. Not one person could or would corroborate the
story--not one. Moreover, as the New York Times concluded, there were a
number of instances in which Ms. Ramirez herself, in calling former
classmates from Yale, acknowledged that she didn't know whether or not
it was Brett Kavanaugh who engaged in the conduct she alleged.
The other allegation brought forward by the client of Mr. Avenatti
was itself on its face of a different sort than the others. This
allegation was brazen in what it assumed about Judge Kavanaugh and what
it asked the public to believe. It accused this man, this lifelong
public servant, of engaging deliberately in a sustained criminal
enterprise that had as its object the deliberate drugging and gang rape
of young women. Here, again, is a story that could not find a single
shred of corroboration and was severely undercut by a number of other
factors, including the fact that the accuser herself was not even in
high school at the same time as Judge Kavanaugh, and no one alleged to
have been present had any recollection either of the parties described
or of any of the circumstances surrounding these alleged events.
But the timing of these other allegations coming forward was
nonetheless
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used to smear the good name of Judge Kavanaugh and to imply some sort
of guilt on the part of Judge Kavanaugh and some sort of corroboration
of the Ford allegation. Again, the Ford allegation was itself serious
and had a lot of indicia of credibility on its face. That is why I was
so concerned the moment I heard about it. That is why we have now spent
3 weeks doing everything we can to get to the bottom of it and finding
no corroboration.
But here we are with these protests going on, with a sea of angry
people shouting at us everywhere we go; chasing Senator Cruz and his
wife out of a restaurant as they were peacefully enjoying dinner;
verbally and physically assaulting Senator Perdue and his wife as they
were making their way from a flight into Reagan National Airport to
their vehicle, for a sustained period of 30 minutes, including a moment
when Mrs. Perdue was nearly pushed down a flight of stairs. These
incidents come in the wake of other unfortunate events, including a
moment when Rand Paul was attacked at his home and broke six ribs,
causing him excruciating pain and injuries that have the potential of
affecting him for the rest of his life. This same Rand Paul was himself
also the potential victim of a shooting when a crazed leftist decided
to show up at a Republican baseball practice and opened fire on
Republican Members of Congress simply because they were Republican
Members of Congress, almost killing Congressman Steve Scalise in the
process.
This moment of emotional intensity came as a result of a process that
some are now struggling to say is broken. I insist that it is not. The
process isn't broken. There is nothing wrong with the Constitution. It
certainly is not broken. To the extent something wrong happened here,
it is not because the thing itself doesn't work or because it is flawed
by its very nature. It is because in this instance, the left broke it.
The left sabotaged it. The left deliberately impeded its ability to do
what it was supposed to do.
It is not as though this isn't without precedent. They have done this
in the past. They have done it for decades. They did it with Judge
Bork, when they converted his last name into a verb when they accused
him of being a racist and a sexist. They pretended to be outraged when
they found out that Judge Ginsburg had smoked marijuana. Then, a few
years later, they engaged in a high-tech public lynching of Clarence
Thomas. They later did it again to Sam Alito, calling him a racist.
Then they did it to Neil Gorsuch, calling him a sexist.
These efforts aren't limited, of course, to Supreme Court nominees.
They also deliberately went after Miguel Estrada, specifically and
admittedly because he was Latino. They tried to take down Amy Coney
Barrett's nomination to a Federal appellate court because they
considered her ``too Catholic.''
This is unacceptable. We have been asked to settle for this. It is
not time to settle. It is time to expect more. It is time to demand
more. It is time to demand a process that is respectful of human
beings--of the accusers and the accused in the world. It is time to do
this in a manner that respects this institution and allows us to
respect each other.
You have to remember that when we reduce our arguments from matters
of policy, in which we acknowledge good faith disagreements, to simple
and emotional questions of good versus evil, people are going to tend
to believe that characterization. Ultimately, they are going to tend to
act on that characterization.
The results will not always be pretty. At some point, this descends
to a moment when the victim will no longer be someone's character or
reputation or pride or the quiet enjoyment of someone's dinner or the
ability of someone not to be injured while mowing his lawn. At some
point, this is going to be one of us or it is going to be someone's
husband or wife, someone's children.
Earlier this week, we received news that someone had deliberately
released personal, private information regarding Members of the
Senate--Republican Members of the Senate, not coincidentally--with the
promise and the threat that even more information would be released,
including information about medical records and histories of our
children, for the specific purpose of influencing and intimidating
Members into taking a particular position on this nomination. This is
unacceptable.
It is also unacceptable that in the response to the attack on Rand
Paul, which I mentioned a moment ago, an MSNBC anchor actually referred
to that horrific event for Senator Paul and his family as one of her
favorite stories. That is not OK.
All of this hurts real people, not just Members of the Senate, not
just Dr. Ford and her family or Judge Kavanaugh and his family,
although it certainly hurt them. It also hurts the Senate. It hurts the
Supreme Court. It hurts our very constitutional Republic as it was set
up, as it was designed.
So again, we get back to this question: Why does this happen? I think
a lot of it has to do with the fact that it happens because you cannot
take this many eggs from the American people and put them in one basket
without creating a lot of really high, intense emotions.
You cannot require the American people to work many weeks or many
months out of any year just to pay their Federal taxes and not have
them be very emotional about what happens in Washington.
You cannot concentrate this much power in Washington, DC, and take
power away from the American people, where the power is supposed to be
mostly exercised at the State and local levels, and move it away from
them in two steps: first, from the people to Washington and then,
within Washington, from the people's elected representatives, who are
supposed to make law, to unelected, unaccountable bureaucrats, who make
law without any accountability to the people. You cannot do that
without unavoidably, inevitably, and unsustainably raising the
political temperature in this country. It cannot be done. It is the
nature of the thing itself.
Sometimes we have to stop giving in to the impulse to expand the size
and scope and reach of the Federal Government because it tends to make
the people less powerful. The whole system was set up so as to lower
the political temperature in the country.
We are a diverse country. In one way or another, there has always
been great diversity within the country, among and between the States
and their different populations. This was understood by the Founders;
it is understood today. This is one of the reasons why, by divine
design, this whole thing was set up in such a way as to lower the
political temperature in Washington by keeping most decisions close to
the people at the State and local levels, recognizing that there is a
whole lot more unity at the State and local levels than there is at the
national level. That is why most powers are supposed to remain close to
the people through the States and localities.
Sometimes our instincts are wrong. Sometimes our instincts lead us
into danger. Sometimes we fear the wrong things.
People in this country, understandably, are terrified, scared to
death of rattlesnakes. I myself am scared to death of rattlesnakes. We
have them in my State of Utah. We don't like them. Most people are
shocked, however, to discover there are many times more people killed
every year as a result of deer than rattlesnakes. Deer, it turns out,
cause all kind of accidents, which, in turn, result in a lot of
deaths--many more deaths, many times more deaths every year than
rattlesnakes. But we fear the rattlesnake more because it looks scary.
Sometimes our instinct leads us in the wrong direction. Sometimes our
instinct is to do something through government that might make matters
worse rather than better.
It reminds me of a time when I worked across the street at the
Supreme Court of the United States. I was a law clerk to Justice Alito.
My co-clerks and I worked in a relatively small office. We discovered
something during the summer when we started our job. The air
conditioning in our office made our office unbearably cold. It was so
cold as we sat at our desk and wrote memoranda to the Justices and did
our jobs, sometimes our hands would get so cold that we almost couldn't
feel them. What did we do? We went over to the thermostat and turned up
the thermostat, thinking that would solve the problem. But after
[[Page S6595]]
we turned up the thermostat, it didn't do any good. It was still
freezing cold. At that point, we opened the window and let in the hot,
muggy air that is known to inhabit and pervade Washington, DC, during
the summer months. It was inefficient, but we couldn't figure out
another way. We talked to the maintenance people in the building. They
weren't sure what to make of it, so we moved on.
As summer faded into fall and fall became winter, it got cold. We had
a very similar problem, but in the other direction. When it got to be
winter, when it was really cold outside, it was burning hot inside our
office. It was so hot, we were sweating, so hot we felt compelled to
walk over to the thermostat and turn the thermostat down, hoping and
expecting, reasonably, that it would lower the temperature and
alleviate our discomfort.
It didn't do a bit of good. It was still burning hot. What did we do?
We opened the windows. It was inefficient and created a weird feeling
in the office--at times burning hot, at times freezing cold, depending
how close you were to the window.
After many months of this, the head maintenance inspector for the
whole building came in and looked at the heating and air conditioning
system within the office. After taking it all apart, he came to us and
said: I think I have found your problem. Your thermostat was installed
backward. Every time you were turning the thermostat up to raise the
temperature, it was lowering the temperature. Every time you lowered
the thermostat, it was, in fact, raising the temperature.
Sometimes things have the opposite effect from what we want. I
believe it has often been with the best of motives and instincts and
intentions that we have taken power to Washington, DC, concentrating,
centralizing more power here in Washington, DC, and then allocating it
to unelected, unaccountable bureaucrats, and, in some cases, Federal
judges.
In the process, we disempowered the American people. We disconnected
them from their own government. This, in turn, has raised the
temperature when it comes to things like confirming a Supreme Court
Justice. This, by the way, was often done in the past by a voice vote
without even the need for a roll call vote. Sometimes it was done
unanimously; sometimes it was done overwhelmingly. Not every nominee
was confirmed. I don't think that should ever be the case.
Even in George Washington's administration, not every nominee to the
Supreme Court was confirmed, but nominees were treated with dignity and
with respect. This occurred in part, I believe, because the
Constitution kept the temperature appropriately moderated; the Federal
Government was doing only those things that the Constitution
unmistakably placed in the hands of the Federal Government and of
Congress, which sets policy for the Federal Government. The people, in
turn, remained in touch and connected to that government, to the extent
it affected them, because that policy was still being set by the
people's elected representatives in Congress and not by unelected,
unaccountable jurists or bureaucrats.
The opposite has happened since then. It is not the case that every
Supreme Court nominee in recent history has brought about so much
contention. You look at the confirmation process that led to the
ultimate appointment of Ruth Bader Ginsburg, of Stephen Breyer, of
Elena Kagan, of Sonia Sotomayor. These occurred in recent decades.
These Justices were confirmed overwhelmingly, and they were confirmed
with a lot of votes from Members of both political parties.
It doesn't have to be as contentious as it always is, but in this
instance, with Republican nominees--with conservative nominees--the
left has been unwilling to allow the process to even move forward as it
should and has chosen instead to smear these individuals and to treat
them in an unkind, undignified manner.
No mother and no father would want to see a son or a daughter
subjected to this kind of treatment, not in our country, not for a
position like this. No one would want that. It does not have to be this
way.
If we can correct course, if we can figure out that we have in some
ways been working with a broken thermostat, if we can acknowledge the
fact that in trying to make things better, sometimes we make them worse
by bringing more power to Washington and then handing this power over
to unelected, unaccountable bureaucrats and judges, we can do this. We
can lower the temperature, lower the stakes in the United States of
America.
We live in a diverse Republic. We need to allow the people in all of
their diverse viewpoints throughout the various States to work things
out as they deem fit. Let Utah be Utah; let New York be New York; let
Nebraska be Nebraska. We don't have to make as many decisions in
Washington, DC, as we have been.
I believe, ultimately, this will come down to a question like this.
We have a choice to make--a choice between federalism; that is,
restoring the proper balance of power between different actors within
our system of government on the one hand, or contention and,
ultimately, violence on the other hand.
I choose the peaceful way. I choose the way that doesn't result in as
much contention. I choose the constitutional way. I believe that
document was written in such a way as to protect our liberty, to
respect our divergent interests, and to allow the American people to
flourish and prosper because not every decision would have to be made
by the same people, and the government would remain accountable to the
government. Federalism is the answer.
At the end of this long and grueling process, I am grateful for the
system we have. I hope we can return to its constitutional origins and
respect the letter and the spirit of the Constitution of the United
States.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CRUZ. Mr. President, I rise today to discuss the impending
confirmation of Judge Brett Kavanaugh. It now appears that tomorrow,
Judge Brett Kavanaugh will become Justice Brett Kavanaugh, an Associate
Justice on the United States Supreme Court.
It is worth pausing for a moment to reflect why that is of such great
consequence for our country. In recent decades, the courts have seized
more and more policymaking authority, have intruded into the authority
of the democratically elected legislature, and have taken policy issue
after policy issue from the hands of the American people and usurped it
instead into the hands of five unelected judges.
Given those stakes, the 2016 election in a very real sense was waged
over what direction the Supreme Court would go, and there was a
markedly different vision, a markedly different promise that was made
by Donald Trump and Hillary Clinton. Donald Trump promised to nominate
constitutionalists who would defend the Constitution and who would
defend the Bill of Rights. That is what the people of Texas want, and I
believe that is what the American people want--judges who will follow
the law, who will be faithful to the Constitution, who will uphold our
fundamental liberties--free speech, religious liberty, the Second
Amendment, the 10th Amendment--the fundamental liberties protective of
every American in the U.S. Constitution.
The stakes here are high, particularly with this seat--the seat that
was held by Justice Kennedy, a Justice who has been the swing vote for
three decades now.
Even though the stakes are high, what we have witnessed the last
several weeks is unprecedented in the annals of confirmation battles.
We saw initially a confirmation hearing that was relatively
straightforward. It was marred by protests, coordinated with Democratic
Senators, according to media reports. On the first day of the hearing,
70 individuals were arrested for protesting and disrupting the hearing.
But at the end of that opening week of hearings, not a single Senator
on the committee had made the argument that Justice Kavanaugh was not
qualified to be a Justice--by any measure, he is one of the most
respected Federal appellate judges in the country--nor did any of the
Senators on the Judiciary Committee make any meaningful argument that
raised serious concerns about Judge Kavanaugh's jurisprudence. He has
been a court of appeals judge for over a decade.
It appeared at that point that the confirmation was a forgone
conclusion and that indeed Judge Kavanaugh was
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likely to get a substantially bipartisan confirmation. Then, on the eve
of the vote, it was leaked in the press that there were allegations of
sexual misconduct and sexual assault. Those allegations sadly had been
in the possession of the ranking Democratic member of the committee
since July 30 in the form of a written letter that had been submitted
by Dr. Ford on July 30 detailing the allegations. The allegations were
serious. The allegations deserved to be treated with respect.
In that letter, Dr. Ford requested to stay confidential. She did not
want her name thrust into the national news. The Judiciary Committee
has a process for handling allegations. As nominations go forward,
there are all sorts of allegations that are raised, and the ordinary
process would be for the ranking member to refer that letter to the
full committee, to the chairman, refer it to the FBI for an
investigation, and then the committee has a standing process to engage
in a confidential hearing--a closed hearing--where the allegations
raised by Dr. Ford could have been considered without dragging her name
into the public.
That would have been the right way to do that. That would have been
the Senate operating the way it is supposed to operate, but sadly it
didn't operate that way. Instead, it appears the Democratic Members of
Congress made the decision to leak the letter to the press and to drag
Dr. Ford unwillingly into the public square. That did enormous damage
to Dr. Ford and her family, and it did enormous damage to Judge
Kavanaugh and his family.
When that happened, the Judiciary Committee--the Republican members
of the committee met, and I urged my colleagues, once these allegations
were made public, that there needed to be a public hearing and that Dr.
Ford deserved a full and fair opportunity to tell her story; that she
needed to be treated with respect. That, I am glad to say, is exactly
what happened.
I also believed Judge Kavanaugh deserved a full and fair opportunity
to defend himself and that he, too, should be treated with respect.
That, sadly, is not what happened. The hearing we had last week
featured one Democratic member of the committee after another dragging
Judge Kavanaugh and his family through the mud, raising smear after
smear after smear--not just the allegations that Dr. Ford had raised
but other, more farfetched and in some cases absurd allegations.
Apparently, the threshold for dragging a man's character and
besmirching his family in Washington is nonexistent.
At that Thursday hearing, we heard powerful testimony from two
witnesses--Dr. Ford and Judge Kavanaugh. It was clear that both were
hurting. It was clear that both had been done enormous damage by the
politicized way in which Democratic Members of this body launched these
allegations in the media. But even though we were seeing political
games, that didn't relieve any Members of this body from the solemn
obligation we have to advise and consent, the obligation we have to
have a fair process, to consider the allegations, and to make the best
judgment we can.
After two witnesses presented powerful testimony, it became clear
that their testimony was directly contradictory, so we were called to
assess the evidence before us. Typically in a court of law, when you
have conflicting testimony, the way a court of law will assess that is
to look to other corroborating evidence--what other evidence is there
that indicates whether particular allegations are true.
In this instance, Dr. Ford had identified three fact witnesses--three
named fact witnesses--all of whom gave statements to the Judiciary
Committee under penalty of perjury. All three of the named fact
witnesses--not only did they not corroborate the allegations, but they
affirmatively refuted the allegations. They did so on penalty of
perjury, meaning if they were lying, they could face up to 5 years in
prison.
For me, the fact that all of the corroborating evidence contradicted
the allegations and the fact that Judge Kavanaugh has a many-decades-
long record as a distinguished public servant with no allegations
whatsoever prior to the eleventh-hour political allegations that were
launched by the Democrats--the balance of that, I believe, leads a fair
decision maker to make the decision that I have made and that this body
is preparing to make, which is to confirm Judge Kavanaugh.
Even so, at the insistence of a number of Senators, the Judiciary
Committee went further: Last week, it asked the FBI to conduct a
supplemental background investigation, investigate these allegations.
The instructions to the FBI were to investigate all current, credible
allegations.
The FBI did 10 interviews. I flew back to DC from Texas last night.
At 10 o'clock last night, I came to the Capitol and in a classified
setting read all 10 of those 302s--the reports the FBI agents prepare
coming out of those interviews. Having read every single one of those
reports, not a one of them provides additional corroborating evidence
for Dr. Ford's allegations. Indeed, the key fact witnesses who had
previously given statements--unsurprisingly, their statements are very
much the same. They are more detailed, and they are more extensive
because the FBI agents questioned them at greater length, but at the
end of the day, all three named fact witnesses still continue to refute
the allegations. That means that this body, if we are to be fair and
impartial, I believe, should confirm Judge Kavanaugh.
That does not mean, as some have seen in this deeply politicized time
in our country, that allegations of sexual assault should not be taken
seriously--to the contrary. The fact that we had an extensive public
hearing to hear those allegations, to treat Dr. Ford with the utmost
respect, that the FBI investigated those allegations, sought out the
fact witnesses, looked for corroborating evidence--all of that
demonstrates the seriousness with which those charges should be taken.
Sexual assault is a growing problem in our Nation. It is a pervasive
problem in our Nation. The #MeToo movement--we have seen powerful men
in Hollywood, powerful men in journalism, powerful men in politics, and
powerful men in business abusing their position of power and harassing
or assaulting women. That is unacceptable.
I am glad to have worked with my colleagues on both sides of the
aisle in passing legislation through this body ensuring that there are
tough standards and that we end the process of secret taxpayer
settlements if a Member of Congress is guilty of harassment or assault.
We should have no tolerance for that sort of misconduct.
So anyone at home who is watching these proceedings, it would be a
mistake to take the politicized charge of Democrats who wanted to
defeat Judge Kavanaugh before these charges came along--virtually every
Democrat who is voting no was going to vote no before any allegation
had been made. Indeed, a great many of the Democratic Senators
announced their opposition to Judge Kavanaugh within minutes or hours
of his being named. Every Democratic member of the Judiciary Committee
announced their opposition to Judge Kavanaugh before the opening
minutes of the confirmation hearing, before hearing a word Judge
Kavanaugh had to say.
The circus we saw last week was a whole lot of political theater. It
featured some Democratic Senators, I believe, vying for the 2020
Presidential nomination and seeing who could be more extreme and put on
a bigger spectacle. But the American people expect this body to be
fair. The American people expect this body to respect the law and the
rule of law. We have been through a process that I believe has been
fair, has heard out these claims.
It is my hope that, coming out of this, the anger and rage that have
been stoked dissipates. It is my hope that Members on both sides of
this aisle and, more importantly, Americans on both sides of the
political aisle across the country can remember who we are, can
remember how to disagree, to disagree passionately. We can have
passionate arguments about whether taxes should be higher or lower. We
can have passionate arguments about immigration policy or any other
policy matter. But I hope that we can remember how to disagree without
being disagreeable, to disagree while being civil, to disagree while
respecting each other, while respecting each other's humanity.
It would have been wrong to vilify and demonize Dr. Ford, and I am
glad the Judiciary Committee did not go down that road, but it is
equally wrong
[[Page S6597]]
for Democratic Senators to demonize and vilify Judge Kavanaugh based on
a lone accusation without corroborating evidence. That is not fair, and
that is not right. It is empty politics. And if we continue down this
politics of personal destruction, we are going to find fewer and fewer
people willing to step forward and serve, fewer and fewer people
willing to serve on the Federal judiciary, willing to serve in the
Cabinet.
There was a time when this body was called the world's greatest
deliberative body. That was a long time ago, but I do think it is
possible for us to get back to that, for us to keep disagreements
focused on substance and issues and remember the fundamental humanity
even of those who disagree with us.
The American people--certainly the people of Texas--I think a great
many were horrified by what they saw last week. Some in the media have
characterized that women should necessarily oppose Judge Kavanaugh's
confirmation because they are women. I don't think that is right--that
is certainly not true from the women I have heard from the State of
Texas--because women, like men, want the Constitution followed
faithfully, want the Bill of Rights protected, and want our fundamental
liberties upheld. Women, like men, want a system of rule of law and a
presumption of innocence that is fair. Yes, if there is serious,
credible evidence of sexual assault, it should be dealt with seriously.
But women and men are mothers and fathers, are husbands and wives, are
sons and daughters, and brothers and sisters. Every parent of sons
should want a system where due process is protected and where one lone
and uncorroborated allegation is not enough to end the career and
reputation of their son. And every parent of daughters--and I am the
parent of two daughters--should want a regime where your daughters are
protected and their lives can't be ruined with an uncorroborated
allegation either. But if, God forbid, they face assault or harassment,
there is a system of accountability, and the wrongdoers are held
accountable.
We want a fair system. We want a just system. We want a system that
recognizes the rule of law. There are many countries that are ruled by
mob, ruled by accusation, and ruled by insinuation. But we need a
process. In this case, we have gone through a process that was designed
to be fair. And given the evidence, the right decision, I believe, is
the decision this body will make tomorrow to confirm Judge Kavanaugh as
Justice Kavanaugh, the newest Associate Justice on the U.S. Supreme
Court.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. President, I come to the floor today to speak on
the nomination of Judge Brett Kavanaugh to serve as an Associate
Justice on the U.S. Supreme Court. As a member of the Senate Judiciary
Committee, I said on the first day that Judge Kavanaugh appeared before
the Senate that this proceeding was not normal. On its face, it looked
like a normal confirmation hearing. The family was there. He was
sitting in the chair with the table in front of him, ready to address
the committee. The cameras were on. The Senators were all seated,
prepared to ask questions. All of it looked normal, but nothing about
this confirmation process has been normal.
These hearings began at a time when we had access to only a tiny
fraction of the documents from Judge Kavanaugh's record. In fact, the
night before the proceedings started, we got a document dump of 42,000
pages. Even less of the information--the 3 years of his time as a Staff
Secretary in the White House--has been available to the American people
or to us. That is still true today.
These hearings were about a nominee, in the end, who was handpicked
by a President--a nominee who had good credentials. There is absolutely
no doubt about that. There are many nominees--potential nominees--who
have good credentials. In this case, this particular person was picked
at a time in our history with perhaps the most expansive view of
Presidential power possible--a nominee who has actually written in an
opinion that a President should be able to declare laws
unconstitutional.
These views go beyond the mainstream, and this confirmation process
has only gone farther astray. With what happened during the last 2
weeks and in light of Dr. Ford's compelling testimony, it was deeply
troubling. I will talk about this at length.
I want to begin where I first started--what we know about Judge
Kavanaugh's record and what it suggests about the kind of Justice he
would be. In the last decades, the Supreme Court of the United States
has decided whom you can marry, where you can go to school, who can
vote, and for people like my grandpa, who worked 1,500 feet underground
in the mines in Ely, MN, his entire life, the Supreme Court has decided
how safe your workplace is.
The next Supreme Court Justice will make decisions that affect people
across the country--their lives--forever. The next Supreme Court
Justice will rule on cases that could determine whether health insurers
can deny coverage to people who are sick or who have preexisting
conditions and whether women's rights are protected. The next Supreme
Court Justice will be in a position to serve as a check and balance on
the other branches of government. That person must be someone who is
fair and impartial and who demonstrates a commitment to the truth
without consideration of politics or partisanship.
It has been our responsibility--every Senator in this Chamber--to
determine if Judge Kavanaugh would protect the careful balance of power
among the three coequal branches that our Founders designed. We must
determine if he would stand up for the rule of law without
consideration of politics or partisanship, if he believes in the simple
idea that no one is above the law.
We knew coming into the hearing that Judge Kavanaugh's views of
Executive power were among the most expansive we have ever seen and
that he has been making the case for strong Presidential powers for
decades. In a 2009 piece in the University of Minnesota Law Review,
Judge Kavanaugh wrote that a sitting President should not be the
subject of an investigation or even be required to answer questions as
part of a special counsel's investigation. In that article, he argued,
it is not a good use of the President's time to prepare for an
interview or questioning by special counsel. He made no exception for
an investigation addressing threats to our national security, even when
a foreign power has somehow interfered in our country's affairs.
It is not hard to see why these views are relevant during this
critical constitutional moment. There is an extensive, ongoing
investigation by a special counsel, and the President's private lawyer
and campaign chairman have been found guilty of multiple Federal
crimes.
The man appointed as special counsel--a man who has served with
distinction under Presidents from both parties--has been under siege,
as well as the Attorney General and the Deputy Attorney General.
In the same article that Judge Kavanaugh wrote, he made the point
that if a President did something ``dastardly,'' then Congress could
act, arguing that a criminal investigation should be put on hold until
the end of the President's term. When I asked him what ``dastardly''
means, he could not answer, even when I asked about a President. Who
knows what he or she could do--commit murder, jeopardize our national
security, obstruct an investigation, or engage in white collar crime? I
still didn't get an answer about what ``dastardly'' means.
The judge's expansive view of Presidential power is part of a much
broader pattern of writing and commentary. More than a decade before,
in a 1998 piece in the Georgetown Law Journal, Judge Kavanaugh wrote
that the President should be able to remove a special counsel at will.
This is the opposite direction from what we did in the Judiciary
Committee when we passed bipartisan legislation earlier this year on a
14-to-7 vote to enact additional protections for the special counsel
and all future special counsels.
At a 2016 event at the American Enterprise Institute, the judge was
animated and almost gleeful when he said he would ``put the final
nail'' in Morrison v. Olson, a Supreme Court decision that upheld the
now-expired independent counsel statute. It is hard to imagine that he
would respect a 30-
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year-old precedent and protect the integrity of a special counsel
investigation in light of that statement.
At a roundtable discussion in 1999, he criticized the Supreme Court's
unanimous ruling in U.S. v. Nixon that compelled President Nixon to
comply with the subpoena to produce tapes and documents written by a
Minnesotan, Justice Warren Berger.
When this came up in the hearing, Judge Kavanaugh repeatedly
characterized the case as one of the greatest moments in our country's
judicial history, but he refused to answer, when asked, the question of
whether that case was correctly decided.
These are incredible statements with implications that are clear when
you think about what is going on in our country today. The dedicated
public servants who work in our Justice Department--including the
Attorney General, the Deputy Attorney General, the special counsel, and
the FBI--have been subjected to repeated threats and have had their
work politicized and their motives questioned.
I asked Judge Kavanaugh if these statements reflect his views today,
but he said only that he wasn't making constitutional arguments. He did
not dispute that he believes, as a matter of policy, that these are the
types of broad powers a President should be able to exercise. He said
that he was thinking of ways to make the Presidency more effective.
These are not just abstract legal concepts; they are ideas that could
directly impact the future of our democracy, as well as the lives of
Americans.
There are other pieces of this puzzle that make clear what a broad
view of Executive power Judge Kavanaugh has. To cite one example, his
opinion in Seven-Sky v. Holder discusses when a President can decline
to enforce a law, even if a court has upheld it as constitutional. The
judge wrote that ``the President may decline to enforce a statute . . .
when the President deems the statute unconstitutional.''
What does that mean? That means the President could decide he could
just hold a statute unconstitutional even if a court has held it is, in
fact, constitutional. That is what that means. It is not a law review
writing. It is not something written when he was in college or in law
school. It is actually something he wrote in a case.
What would that mean for women's health? What would that mean at a
time when the administration is challenging protections for people who
are sick or have preexisting conditions? I asked him if he believed the
President could declare these protections unconstitutional, even if a
court upheld them. This isn't a hypothetical example. The
administration is now arguing in a Texas district court that the
Affordable Care Act's preexisting conditions protection is
unconstitutional.
The judge refused to answer whether a President could simply ignore a
law, even one upheld by the courts. He didn't answer when Senator
Durbin asked it, when Senator Blumenthal asked it, and when Senator
Harris posed the same question.
The days of the divine rights of Kings ended with the Magna Carta in
1215. Centuries later, in the wake of the American Revolution, a check
on the executive was a major foundation of our country's Constitution,
for it was James Madison who wrote in Federalist 47: ``The accumulation
of all powers legislative, executive, and judiciary in the same hands .
. . may justly be pronounced the very definition of tyranny.''
There is more. None of the judge's colleagues joined the section of
his opinion in Aiken County outlining his views on when Presidents can
ignore the law, and one who was an appointee of President George H.W.
Bush stated explicitly that reaching that issue was unnecessary to
decide the case.
Judge Kavanaugh has made very clear over the years that he has an
incredibly broad view of the types of protections that should be
extended to a sitting President. Without further answers from him
during the hearing, we are left only with his writings and his previous
statements. These writings say that a sitting President should not have
to be subject to a criminal investigation; that a sitting President
should be able to remove a special counsel; that a sitting President
should not have to agree to an interview with the special counsel; and
that a sitting President has the legal authority to ignore the law.
At this time in our history, we need a Justice who is independent and
who will serve as a check on the other branches, which is what our
Founding Fathers set up--not a judge who would allow the President to
avoid accountability or who believes the President's views alone should
carry the day.
Despite many opportunities, Judge Kavanaugh did not convince me he
would be an independent jurist who would maintain the fundamental idea
we all learned in grade school. What is it? No one is above the law.
Another concern I have is what Judge Kavanaugh's views would mean for
American consumers. In one opinion that was later overturned by the
entire DC Circuit, Judge Kavanaugh argued that the Consumer Financial
Protection Bureau was unconstitutional, calling it a threat to
individual liberty. He said this about the Consumer Financial
Protection Bureau.
The Bureau was founded in the wake, as you know, of the financial
crisis and has now helped more than 30 million consumers obtain more
than $12 billion in relief. The Bureau helps protect consumers as they
deal with financial institutions that offer credit cards, loans, and
mortgages.
What did the judge say? He found it unconstitutional. Thankfully, the
full DC Circuit came to the opposite conclusion--all the other judges.
The majority recognized that millions of families were devastated by
the financial crisis, with about 4 million families losing their homes
in foreclosure and even more slipping seriously behind on their
mortgages.
Judges appointed by Presidents from both parties came to the opposite
conclusion of the nominee who is before us today, and the majority on
that court concluded that the Bureau should stay in place, as Congress
intended.
While the DC Circuit made the right decision in that case, what
struck me was just how far the judge had gone in his opinion. The judge
was not just talking about the Consumer Financial Protection Bureau in
that case. His opinion referred to independent agencies as a ``headless
fourth branch''--that is a quote--of government, and it could threaten
other agencies, like the Federal Trade Commission, which protects
consumers from scams and anti-competitive mergers, or the agencies that
helped to stabilize our economy after the financial crisis, like the
Federal Reserve and the Securities and Exchange Commission or the
Social Security Administration, which distributes benefits to more than
60 million elderly and disabled Americans and has had a single
director, just like the Consumer Financial Protection Bureau, for
decades, since 1994.
Judge Kavanaugh has called independent agencies a threat to
individual liberty not just once--no, more than once. In that same
Minnesota Law Review article I mentioned that outlined his expansive
view of Executive power, the judge criticized the 80-year-old precedent
that upheld the constitutionality of our independent agencies.
I asked Judge Kavanaugh about his conclusion that the Bureau was
unconstitutional. He did not dispute this conclusion, but he did say
his opinion simply called for a change to the law so the Director of
the Bureau could be fired by the President at will. I found that answer
problematic.
When Congress drafted the law that created the Bureau, it made the
choice--we made the choice right here in this Chamber--to give the
Director a 5-year term to provide some independence from politics. This
was a choice that we made in this Chamber. Not everyone agreed with it,
but by majority vote it passed. It passed in the Senate, and it passed
in the House. We made that decision.
During our discussion on the judge's expansive views of Executive
power at the hearing, he kept telling me that the scope of Presidential
authority was a matter of policy that Congress should decide. He
repeated this answer often to me and to others. When it comes to
Presidential power, he said that Congress should decide.
Look at what happened here when it comes to protecting consumers. In
this case, Congress did decide; we actually passed a law. We said we
wanted this independent Director to have a 5-year term over this very
important agency that returned $12 billion to consumers
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who have been victims of scams and mortgage fraud. It was Congress's
decision. Did that matter to the judge in this dissent that he wrote?
It did not.
It seems to me, just looking at all these opinions, that the judge's
record is this. When he likes what Congress decides, he says: Hey,
Congress has the final say. When he doesn't like what Congress decides,
he then thinks the judge should make decision.
What does that mean? In this case, he would have rewritten the
consumer protection law over the wishes of Congress. What would that
mean for the lives of Americans? After what this country has been
through, after families who worked hard and tried to save for the
future lost billions of dollars, he ruled that the agency that is
designed to protect them was unconstitutional, and it is not an
isolated example.
In another case, he argued that the net neutrality rules were
unconstitutional. Those were the guidelines developed by the FCC to
help consumers and small businesses have an even playing field when it
came to the internet. Those net neutrality protections would have
prevented internet service providers from blocking, slowing, and
prioritizing web traffic. One again, the full DC Circuit--those other
judges--decided against Judge Kavanaugh, and these key consumer
protections were upheld by a panel of judges appointed by Presidents of
both parties.
The question I always come back to is this: What will this mean to
Americans? Here is the kicker: The outcome that the judge went out of
his way to reach in the net neutrality case protects the First
Amendment rights of corporations at the expense of the First Amendment
rights of individuals. That is why that case is such a problem, but
these aren't the only reasons why there is great concern for consumers.
In announcing the judges's nomination, the White House touted the fact
that he has overruled Federal agency actions 75 times. The White House
also said in a document that it sent out that he led the efforts to
rein in executive agencies.
When I asked him about this in his hearing, he said that he had ruled
both for and against executive agencies, but his record makes clear
that he has ruled against them in the overwhelming majority of cases.
Judge Kavanaugh's record suggests that health and safety standards
and environmental standards would be at risk if he is confirmed to the
Supreme Court. He has called the 34-year-old precedent, a case called
Chevron--the same precedent that ensures these protections stay on the
books--an atextual invention of courts and a ``judicially orchestrated
shift of power.'' That is what he said.
To make it clear, this is not just one case that happens to be
sitting out there in the old dusty law books. No, it is the most cited
case in administrative law. It has been referenced in more than 15,000
legal decisions, and it has been championed by scholars and jurists
across the ideological spectrum, including Justice Scalia. That is that
case.
What would happen if we didn't have this case? Well, I guess we would
have the judge making decisions instead of agencies with technical
expertise. A judge with no scientific background should decide the best
reading of dictating how pollution is acceptable in our air, lakes, or
rivers rather than scientists.
These decisions have real implications for people across the country.
These are the rules that protect our drinking water and keep our
workplaces safe. In the end, it wasn't a Federal judge who was helped
by the DC Circuit's reliance on Chevron in interpreting a Labor
Department rule. It was an hourly Minnesota grocery store worker who
got to keep his hard-earned pension.
As a granddaughter of a miner, I can tell you that it wasn't a CEO or
a corporate board chair whose life was saved by mining safety rules. It
was the Minnesota iron ore workers who, like my grandpa, would go down
in a cage, 1,500 feet underground, every single day with their black
lunch bucket. That is what my grandpa did every day. All my grandpa,
who never got to even graduate from high school, wanted was to send my
dad and his brother to college. My dad ended up as the first kid in his
family to graduate from college--a community college, a 2-year
community college. From there he went to the University of Minnesota
and got his 4-year degree--all that because my grandpa went down in
that mining cage and saved money in a coffee can in his basement to
send my dad to college.
Everyone would gather at the mines and run over there every time the
sirens went off because it meant someone died or someone was hurt. My
dad still remembers the coffins in St. Anthony's Church lined up in the
front. That is what workplace safety rules have changed.
It was the worker protections, coupled with the ability to organize a
union, that finally made those miners' jobs safer. Americans rely on
these protections to keep them healthy and safe, and we can't have a
Supreme Court Justice who would throw those protections in doubt.
The final point I would make about the legal record is what would
happen to our antitrust laws. In recent years, the Supreme Court has
made it harder and harder to enforce the Nation's antitrust laws when
you have big consolidations and market dominance. There are cases
called Trinko, Twombly, Leegin, and Ohio v. American Express. There has
been a whole series of them.
Why does that matter to us? It matters. It couldn't be happening at a
more troubling time. We are seeing this wave of industry mergers.
Americans know it in their own life. Companies are getting bigger and
bigger and bigger. We have now two companies that have surpassed $1
trillion. Annual merger filings with our agencies here in Washington
have increased by more than 50 percent in just the last 5 years.
So we already have a Court that is going conservative right when I
think Americans need this protection, but, instead, we have a judge
that is before us today that has written two major cases in this area.
Both of them were even more conservative than where the Court was. Both
of them made it even harder for mergers to be checked by the Federal
Trade Commission--even by a Federal Trade Commission that was run by
the Republicans. They thought the merger was troubling in one case.
They brought it to court. This judge went the opposite way.
Our exchange in the hearing did not convince me that the American
people and all those in favor of strong antitrust enforcement that
promotes competition and protects consumers should not be concerned.
I think back to my favorite game growing up--Monopoly. The basic
premise of ``the more you own, the more you made'' has always been true
in American capitalism. If you monopolized the board by buying up
multiple properties in the same color or all those railroads, you could
take your opponents out of the game.
What does that mean today? Well, the failed merger between Norfolk
Southern Railway and Canadian Pacific, something I took on only
immediately when it was announced--we defeated that. But even without
that merger, where are we today? Ninety percent of the freight rail
traffic is handled by only four railroads. That is the same number of
railroads on the Monopoly board. I don't think that is a coincidence.
So as we look at his rulings in this area, we realize this isn't just
a game. No, this is our economy, and we want judges who are a check and
balance, just as the Founders wanted. The Founders cared a lot about
monopoly, actually, and they wanted a check and balance in our courts.
They set up an independent judiciary.
The last point I want to focus on is Judge Kavanaugh's record and his
views on campaign finance.
I requested a number of these campaign finance documents to become
public because I thought they raised serious concerns about Judge
Kavanaugh's views in this area of law. I actually got those documents
public, and it is one of the reasons that a number of my colleagues who
are opposed to the judge have been able to talk about those records
right here on the floor and the public has been able to see them.
In one email from March of 2002, he discussed limits on contributions
to candidates saying--these are his words: ``And I have heard very few
people say that the limits on contributions to candidates are
unconstitutional, although I for one tend to think those
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limits have some constitutional problems.'' That is a big deal because
we have very few campaign finance laws left that allow us to be
protected from dark money and unlimited money coming into companies.
He also described in another email his ``1A''--that is the First
Amendment--views as ``pure.'' This is very concerning when it comes to
campaign finance. I have serious doubts, based on his record, as to
whether he thinks that Congress has the authority to pass any campaign
finance reform and take action to rein in the flood of dark money that
has drowned out the voices of ordinary citizens.
What does that mean? Well, when the Court stripped away the rules
that opened that door to unlimited super-PAC spending--and that is what
we have right now--it wasn't the campaign financiers or the ad men who
were hurt. No, it was the grandma in Lanesboro, MN, who thought it
mattered when she sent in $10 to support her Senator. That is what we
are dealing with, and if we get even narrower or get rid of all the
limits on campaign finance, it is only going to get worse.
The American people would not have even known about Judge Kavanaugh's
extreme views on campaign finance if I had not sought to have those
documents made public. That is because there are still 186,000 pages of
documents that have been produced to the Judiciary Committee, but they
have not been made available to the American people.
Let me put it another way. Even now, only about 7 percent of Judge
Kavanaugh's White House record has been produced to the Judiciary
Committee, and even less--that is about 4 percent--is available to all
of you, to the public.
On top of that, we are missing 3 years of documents from his time as
Staff Secretary. So we have no records to review from that part of
Judge Kavanaugh's previous work in the White House.
We also don't have 102,000 pages of documents that the White House
has withheld under a claim of constitutional privilege, even though
executive privilege has never been used to block the release of
Presidential records to the Senate during a Supreme Court nomination
under Presidents from both parties.
As a former prosecutor, I know that no lawyer goes to court without
reviewing the evidence and the record, and a good judge would not
decide a case with only 7 percent of the key documents.
In fact, as I mentioned, we received 42,000 documents the night
before. We could not even look at them when we were starting to ask him
questions because we had only gotten them the night before.
So I asked him if he thought that a judge would grant a continuance
in a situation like that when one party dumped 42,000 pages of
documents on the other the night before trial. I didn't get much of an
answer.
We have already learned that the information in documents from Judge
Kavanaugh's time in the White House is relevant to our consideration of
his nomination. We should have those documents before we have this
vote, but we don't.
Having full information about the judge's record brings me to the
compelling testimony of Dr. Ford. Since Dr. Ford came forward, we have
all thought a lot about our justice system. Before I got to the Senate,
I was the Hennepin County Attorney in Minnesota. In that job, we used
to say that we were ministers of justice and that that meant that we
would work to convict the guilty but also to protect the innocent.
I hope my colleagues think about this question tomorrow: Are we truly
protecting the innocent in how we are moving forward? What have we
done?
A critical part of carrying out justice is having a fair process.
That is something that Judge Kavanaugh himself has repeatedly and
publicly said he wants.
I appreciate Dr. Ford's willingness to come before the Judiciary
Committee last week, but it was unfortunate that she had to do it
before the White House had asked for the FBI to reopen its background
investigation and follow up on what she had said.
When I think of my work, we always would have those investigations
and that information before any kind of a hearing. Back in Minnesota,
our office handled all the judicial matters in our county from the
juvenile area. In fact, we had about 12,000 cases every year, as well
as all adult felonies. We investigated reports like Dr. Ford's. That
job gave me a window into how these types of cases hurt women and
impact everyone.
I would always tell those stories of those coming before us. I would
tell them: You know what. This is going to be hard. You have to tell
your story to a jury box of strangers, but you are doing it for
justice. You are doing it for the right reason.
As for Dr. Ford, she had to tell her story to a nation. It was a
moment. So many people in our country were watching her. I don't think
people thought they were going to believe her when they first went in
there and they first turned on their TVs, but then they watched her.
They watched her grace and her dignity.
But, then, sadly, in the afternoon, for my colleagues on the other
side, we saw a lot of anger and chest beating. I believe the strategy
was to distract and deflect from the moving and incredible testimony of
someone who told her story to the Nation.
This was a woman with no political background, who made an attempt to
call the front office of her congressional Representative. That is all
she did. All this stuff about her being part of some kind of smear
campaign--she did it even before he was a nominee. She had read that he
was one of the people under consideration, and she thought she should
warn people.
Now, she wanted her name confidential. She explained all that during
the hearing. She simply called the front desk of her congressional
Representative.
This wasn't the first time that the Senate had confronted this type
of situation. When Anita Hill came forward with her allegations against
then-Judge Clarence Thomas, President George H.W. Bush immediately
requested that the FBI reopen its background investigation.
Dr. Ford was another person who made a credible claim. Chairman
Grassley actually thanked her for her bravery in coming forward last
week. Several of my Republican colleagues talked about how much they
respected her.
Well, I said: You know, if you really want to respect her and you
really want to be brave, then, you at least have to give her the
modicum of respect by following up on her allegations, and that should
have been done the minute that letter went public.
I found out about it, by the way, on the very same day that my
Republican colleagues found out about it, and that was just a few weeks
ago. I have heard a lot of complaints about that, and I am not going to
get into that issue except to say one thing: The justice system is
messy. Things come out at the very last minute sometimes. Evidence
comes out before trial, but the issue is, When that happens, what do
you do with it? What do you do with it when you are in a position of
power? Do you just sweep it under the rug, as has happened too many
times in this Chamber, in this building? No, you give them a chance to
make their case, but also to give them that underlying investigation,
and you reopen a background check--not a criminal background check,
simply a background check like we do for any other high-level
nomination in the Senate.
As I told my colleagues last week, if you want to make a political
speech about keeping nominees off the floor, here is exhibit A for you:
Merrick Garland, 10 months. For 10 months he was kept off the floor.
Yet people have acted in a sanctimonious way that this was some
cataclysmic event--to simply go back in and do an FBI investigation.
Dr. Ford's testimony was powerful. I asked her not about what she
remembers about that night but what she couldn't forget. Here is what
she said:
The stairwell. The living room. The bedroom. The bed on the
right side of the room. . . . The bathroom in close
proximity. The laughter, the uproarious laughter.
We also heard from Dr. Ford about how she came forward because she
felt she had a civic duty, just like we have a civic duty to look at
the record that I just laid out for you in the last hour. That is our
civic duty. That is why she came forward.
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She talked about how she brought this up in therapy 6 years before
and how she had given her husband the name of Judge Kavanaugh. This is
before he was famous. This is before he was up for the Supreme Court.
As a former prosecutor, I understand the critical role that law
enforcement has in gathering the information necessary to evaluate
reports like this one. I don't like living in an evidence-free zone,
and while I am glad the White House reopened the background check and
at least went in and talked to some of the witnesses, if you go down
there--which you can't do, but I could do and the other Senators could
do--you realize, and you can see this from the public reports, that a
lot of people weren't interviewed. For a lot of the names from Dr. Ford
and one of the other victims involved in some allegations, Ms. Ramirez,
they were not able to have those witnesses interviewed. That is what
you see when you are down there. So this was not a fair process that
Judge Kavanaugh said he wanted and that Dr. Ford wanted.
What we heard from the judge later in the day could not have been a
sharper contrast from what we heard from Dr. Ford in the morning. She
told her story, and it was a story that so many times in our Nation's
history has been, as I said, swept under the rug because for so long,
people have been told that what happens in a house should never end up
in a courthouse.
Now what we can say to Dr. Ford is, well, this may not end up the way
you wanted it, and it may not feel worth it to have come forward to
have your life turned upside down. But you know what--there is one
reason it was worth it, and that is because the American people learned
something and they are speaking out because the times, they are a
changing.
To conclude, I want to return to some of the thoughts on what this
nomination means at this uncertain moment in our history. This
nomination comes before us at a time when we are witnessing seismic
shifts in our democracy. Foundational elements of our government,
including the rule of law, have been challenged and undermined. Today
our democracy faces threats that would have seemed unbelievable not
long ago.
A man who was appointed special counsel in the investigation that is
going on right now involving a foreign country interfering in our
democracy--a man who served with distinction under Presidents from both
parties--is under siege. Dedicated persons in the Justice Department
are under siege. A third branch of government--our courts and our
individual judges--has been under assault, not by a solitary
disappointed litigant but by the President of the United States.
Our democracy is on trial. It is our duty to carry on the American
constitutional tradition that John Adams stood up for centuries ago,
and that is to be ``a government of laws and not of men.''
The next Supreme Court Justice should serve as a check on the other
branches of government, someone who is fairminded and independent, who
will uphold the motto on the Supreme Court building to help all
Americans achieve ``equal justice under law.''
We have all thought a lot about the separation of powers in the last
few weeks. All the attacks on the rule of law and our justice system
have made me--and, I would guess, some of my other colleagues--pause
and think many times about why we decided to come to the Senate in the
first place, and in my case, why I decided to go into law in the first
place. So I went back and I found an essay that I had written back in
high school.
I can tell you that not many girls in my high school class said they
dreamed of being a lawyer. We had no lawyers in our family, and both of
my parents were the first in their families to go to college. But
somehow, when I was in high school, my dad convinced me to spend a
morning sitting in a courtroom and watching a State court district
judge handle a routine calendar of criminal cases. The judge took
pleas, listened to arguments, and handed out misdemeanor sentences. It
was nothing glamorous--and nothing glamorous like the judge before us
is being nominated to do--but it was important just the same.
I realized that morning that behind each and every case, no matter
how small, there was a story, a person. Each and every decision that
judge made that day affected someone's life, and I noticed how he had
to make gut decisions and try his best to take account of what his
decisions would mean.
There is something I said back then in that essay that I still
believe today, and that is this: To be part of an imperfect system, to
have a chance to better that system, was and is a cause worth fighting
for, a job worth doing.
Our government is far from perfect, and so is our legal system, and
so was this hearing, but we are at a crossroads in our Nation's history
where we must make a choice: Are we going to dedicate ourselves to
improving the justice system or not? Is this nominee going to
administer the law with equal justice as it applies to all citizens
regardless of whether they live in a poor neighborhood or a rich one,
in a small house or the White House?
Many Americans are troubled today. When they watched the hearing,
they were given some hope. They wanted to be fair, and they wanted due
process, and I get that, but they also saw the blind partisanship of
Washington and its crushing weight.
For many of us, this nomination process does not look like it is
going to end the way we want it to, but Dr. Ford opened a window on
sexual assault that is never going to be closed. Anyone who works here
knows they have heard stories, and people tell stories they had never
told before. Then there are those who want to see change in government.
Well, they opened a door that will never close, and we welcome them. We
need some new people around here.
So I am going to end with a quote from a song I listened to this
morning, and it is a Minnesotan--not Prince; it is Bob Dylan. He was
born in Duluth, and he grew up very close to where my dad grew up on
the Iron Range of Minnesota. These are the last words of his song:
As the present now will later be past, the order is rapidly
fading, and the first one now will later be last, for the
times they are a changing.
And they are changing. People's reactions to what happened this week
and their focus on government and their focus on making things better--
that is changing.
As I said last Friday at the committee hearing, the Constitution does
not say ``we the ruling party''; the Constitution says ``We the
People.'' And last week, the American people responded like never
before. They stood up for something real, for something larger than
themselves, for the hope of tomorrow. So that is how we the people
prevail, because the times, they are a changing.
Thank you, Mr. President.
I yield the floor.
The PRESIDING OFFICER (Mr. Cassidy). The Senator from Alabama.
Mr. JONES. Mr. President, first of all, let me thank my colleague and
friend, Senator Klobuchar, for those sober words. As former
prosecutors, we share a lot of the same bonds and knowledge, and we
come to this in different ways sometimes than our colleagues. She
expressed so many sentiments that I am going to try--and not as
eloquently as she--to express today. So I say thank you for those
comments.
I come to the floor today both as a new Member of this body and as a
longtime admirer and student of the Senate to offer my perspective on
the situation in which this distinguished body finds itself today.
I am deeply disappointed and concerned by the process, the posturing,
and the partisanship that have degraded what should be one of the most
serious, deliberate, and thoughtful decisions we in the Senate are
entrusted to make.
Over the course of my almost 40-year career as a trial lawyer, I have
represented just about every kind of client you can imagine, from the
indigent to the CEO, major corporations and small business owners,
individuals charged with serious crimes and those charged with petty
offenses. I have also had the incredible honor of serving in the
Department of Justice and representing the United States of America.
Every one of my clients and every one of those who were on the other
side of the litigation in which I was engaged expected and deserved
fair, impartial treatment in our courts, and rightly so. But from the
moment Justice Kennedy
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announced his retirement, the conversation about his replacement seems
to have rarely been about fairness and impartiality; instead, it has
been about power and politics.
This Supreme Court nomination almost immediately turned into a
divisive political campaign, with millions of dollars being spent to
sway Senators on both sides of the aisle, including me. In his
partisan-fueled tirade last week, Judge Kavanaugh lashed out at the so-
called liberal groups who spent so much money attacking his nomination,
but he never acknowledged and others in this body have never
acknowledged that conservative groups have spent a like amount of
money, if not more, promoting Judge Kavanaugh.
I want to make my position clear today. I think that this kind of
political campaign for a seat on the Supreme Court of the United
States--a political campaign run by either political party--should be
condemned as completely contrary to the independence of the judicial
branch of our government.
Throughout this nomination process, I have repeatedly expressed my
concerns about the way it has been conducted. It was flawed from the
beginning, and it will be incomplete at the end because of a needless
rush to a confirmation. From the beginning, I have done my best, the
best that I know how, in my experience, to exercise my constitutional
duty--my duty of advice and consent--in a fair and impartial manner,
putting aside the political considerations that were being thrown at me
from every angle.
You know, I have often said in the last few months that it seems that
for those who supported Judge Kavanaugh's nomination, if I voted to
oppose, I would be seen as nothing but a puppet for my party. On the
other hand, for those people who opposed Judge Kavanaugh, if I were to
vote for Judge Kavanaugh, I would be seen as bending to a political way
to try to get reelected in a conservative State. Neither of those is
true.
My staff and I have dedicated an incredible amount of time almost
every single day since July 10 to reading Judge Kavanaugh's opinions,
his speeches, and his articles; reviewing documents at the time he
worked at the White House--at least those documents we were able to get
ahold of; watching his Senate hearing testimony and his television
appearances; meeting with my constituents and advocates; and reading
statements and emails both in support of and in opposition to Judge
Kavanaugh. This was all done in a very serious effort to give
thoughtful and fair consideration to Judge Kavanaugh's nomination
without regard to party or politics.
The one thing I did not get a chance to do was to meet with Judge
Kavanaugh. Judge Kavanaugh and the White House called my office a
couple of times early on in the process to try to get a meeting with
me, and I told them at that time or my staff told them that my process
was to listen and to read, to understand and do my deep dive into his
record and to know all that I can know about him. As a lawyer, I wanted
to watch that hearing. I wanted to see what would occur at the hearing
and how he would present himself, the questions that he answered and
the questions he avoided, so that when I did meet with him following
that hearing, it would be meaningful. It would not be a meet-and-greet,
like so many of us have in this body, but a meaningful meeting.
As soon as Chairman Grassley called for the hearing shortly after
Labor Day, as soon as that was called in August, my staff started
calling the White House to get a meeting. We were told that they would
still want a meeting, but we continued to get rebuffed. We never got
that meeting. We continued to call after the hearing, and we continued
to call at least until the time that Dr. Ford's allegations were made
public, and at that point, we knew a meeting was probably not likely to
happen.
So for all of those detractors who say that I didn't try to get a
meeting and that I didn't have the time, I did my best to follow the
process of deliberation that I felt appropriate in my due process to
make that meeting meaningful, and it never happened, through no fault
of mine or my staff.
After all that, we find ourselves in this moment of historical
significance, where we as a body have an opportunity to send a loud and
clear message to women and men throughout this country.
As I previously have said, I believe Dr. Ford made an incredibly
brave decision to come forward publicly and to testify to the full
Senate Judiciary Committee. It was hard to do, knowing how she would be
vilified. As a former prosecutor, I know how hard it is for victims to
talk about these experiences, particularly in cases of sexual assault.
I have been moved by the many reports of thousands of women who have
felt compelled by recent events to reveal similar stories that they
have buried for many years, some for decades. In the last few weeks,
women have shared with me intensely painful and personal descriptions
of assaults, some of whom I have known for a period of time but never
knew what they were carrying within them.
Many of these happened so many years ago--high school, college, as
young professionals. Often, they hadn't told anyone, not even their
closest friends and loved ones. Their experiences, while different in
detail, have so many similarities. Their feelings of fear and shame and
guilt were overwhelming at the time of their encounters. Those emotions
exert a powerful hold on these women's lives. Even if they go on to
find professional success and fulfilling relationships, it is still
buried within them, and they don't speak up because they do not want to
be known as victims or they don't want others to have to bear their
pain, knowing that nothing can undo what happened to them.
In last week's public hearing, I found Dr. Ford to be a compelling
and credible witness. Yes, there were gaps in her testimony. There
always are. There are always gaps and lapses of certain memories in
situations like these. Those who have worked with victims of assault
know that the most traumatic details are seared into their memories,
while extraneous facts may fade over time. Reactions of the women, when
they see their perpetrators, are different, depending on the
circumstances, but they never forget the pain. They never forget the
pain of what happened to them, but rather than relive it or face
condemnation or retribution, they simply keep it to themselves and go
on day after day after day.
If you watched our President this past week at his political rallies,
you can understand exactly why these women are afraid to speak out. I
am actually appalled at the President's attacks on Dr. Blasey Ford just
days after he called her a credible witness--just days after so many in
this body called her a credible and compelling witness. His message was
simply this: Keep quiet. Nothing happened here. Don't ruin this man's
life. Let's continue to stoke the political fires surrounding his
nomination.
We have heard time and again that victims must be heard--time and
again. So often have we heard that in the last 2 weeks, that victims
must be heard, but the message from the President of the United States
and those who have surrounded him is, yes, let them be heard. Just
don't listen. Just don't listen to them.
Unfortunately, that message isn't new. The President used his
platform to try to intimidate survivors into staying quiet and hiding
their pain from the world, but I think he is going to find that while
he is focused on stirring up his political base with misogynistic
comments, women around this country are rising up, and they are gaining
their strength. They are finding their foothold. They are finding their
voices in an effort to expose what for far too long has been swept
under the carpet.
Regardless of the vote tomorrow, we cannot and will not ignore where
we are in this moment of history. This is a movement that will not be
quieted, nor should it be quieted.
For Judge Kavanaugh's part, I was very disappointed in his testimony
last week. If the incident did not happen, then I understand full well
his frustration and his anger. I get it. Any man would be. It is
understandable. Both he and Dr. Ford have endured the ugliness of our
society. But, in my view, he simply went too far by leveling
unnecessary and inappropriate partisan attacks and accusations,
demonstrating a temperament that is unbecoming a sitting judge, much
less a Supreme
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Court nominee. His testimony ran completely counter to the image he
attempted to portray in his earlier hearing, in all of his interviews
on television, and in the photo opportunities with the various
Senators.
In addition--and this was incredibly important to me because I had
watched it for some time--in simply refusing to acknowledge the need
for further investigation, for a further review of his record, as
Senator Klobuchar discussed a few moments ago, by failing to
acknowledge the need for further review and investigation into these
allegations, he demonstrated anything but the independence necessary
for our judiciary. Instead, he has bowed to the White House and to the
majority of the Judiciary Committee to plow through this nomination
process without a full review of his record and without a full, fair,
and complete investigation into the very serious and credible
allegations made by Dr. Blasey Ford.
I am certainly not alone in my views. It is not just people in the
Democratic Party or Senators on my side of the aisle. At last count, I
saw that there are some 3,000 law professors, about 40 of which are at
Yale Law School, from which Judge Kavanaugh graduated. Those law
professors have called for his nomination to be either withdrawn or
rejected. Religious organizations, including the editors of the Jesuit
Review, have done the same. I am told that just this morning, the
American Bar Association--the gold standard of review for judicial
nominations--has notified the Judiciary Committee that they are
reopening their evaluation of Judge Kavanaugh's character and fitness
based on what they witnessed in the testimony last week. That is a
significant development that just occurred this morning shortly before
our vote to proceed.
Even before the recent serious allegations of sexual assault, I
called for a pause so that we could get the documents that are needed,
including those that Chairman Grassley himself had requested. The
National Archives reported that due to the volume, even producing those
documents on a rolling basis would not take place until sometime this
month, in October. Well, it is October now, and although we don't have
those documents, we have had two hearings and now are scheduled to vote
on confirmation tomorrow. Many of those documents that could have been
produced for review were withheld after being screened by a lawyer
representing a number of people under investigation or at least
witnesses in the investigation by Special Counsel Mueller, which raises
serious questions as to what documents we got, which ones were being
held, and why they were being held.
Despite the lack of documents, the Judiciary Committee forged ahead
and conducted its hearings. Before a vote was taken, Dr. Blasey Ford
courageously came forward with her very serious allegations regarding a
sexual assault that occurred when she and Judge Kavanaugh were in high
school. Again, not for the first time, I and others called for a pause
to allow for further investigation, to update the background check that
every nominee goes through. That call was rebuffed for some period of
time.
Finally, faced with mounting public pressure, the Judiciary Committee
agreed to a second hearing. Both the committee and the White House
subsequently rejected any additional background investigation to be
conducted by the FBI. As it turned out, my colleague Senator Flake felt
compelled to call for such an investigation on the morning of the vote,
which delayed the confirmation process for another week.
While I am certainly grateful and glad that the chairman and the
majority leader and the President agreed to delay the vote in order to
allow for an FBI investigation, I believe the investigation was far too
limited to have any real use, especially since no further hearings
would ever be held.
In my career of almost 40 years as a lawyer, I have examined many FBI
reports, and I have examined many background checks. In my review of
what was submitted as a result of Senator Flake's request, the FBI was
simply not allowed to do what it does best, which is to follow the
evidence and the leads. In this case, we put the proverbial cart before
the horse. The investigation should have taken place before the hearing
so that the Senators on the Judiciary Committee could have had the
benefit of all the information they needed when questioning witnesses
and evaluating credibility, which is where this is coming down.
I believe that in cases like this, the witnesses should be compelled
by subpoena--not just Dr. Ford, not just Judge Kavanaugh, but other
witnesses who are named should have been compelled by subpoena, if
necessary, to give testimony, whether in the public hearing or by
deposition--procedures that have been invoked by this body on many
occasions.
This leads me to another more procedural point. Many of those who
want to press forward with this nomination have been invoking the
presumption of innocence, and I understand that. The presumption of
innocence, however, is afforded to those in this country in our
criminal justice system. It is afforded to those who are accused of
criminal activity, and it requires the government to prove, to rebut
that presumption. In other words, that presumption stands between
someone accused of a crime and their going to prison and having their
liberty taken away from them.
They have now said that the presumption of innocence should be
applied to judicial nominations. But the presumption applies in a court
before we can deprive someone of their liberty, incarcerate them. It is
not necessarily applicable when we are simply looking to provide
someone with a lifetime appointment to the judiciary. The presumption
of innocence for a nominee would, in effect, turn into a presumption of
confirmability that I do not believe is called for in the Constitution.
I certainly would agree, however, that given the most recent
circumstances, we, as a body, need to establish some type of standard,
some guidelines for our nominees so that this doesn't happen again.
I would say that if we were to have anything close to the high
standard of a presumption of innocence, there has to be a full and
complete investigation before any hearing in order to determine whether
the presumption can be overcome. It is the only way to do it.
Remember, in this instance, there are no appeals; there is no review.
We get no do-overs once we make this vote. We have to take the time and
put forth the necessary effort to get it right--putting forth the time,
even if it means the Supreme Court operates with eight members for a
period of time. That is OK. I went to the arguments just the other day,
and they got along just fine, listening to the arguments that were
heard that day.
The American people are understandably disgusted by the way this has
been handled. They are disgusted with people on both sides of the
aisle, and they were disgusted even before these allegations came to
light. They have reason to doubt the integrity of our independent
judiciary now more than ever, with a Supreme Court that will be so
divided and appears to be so partisan. There will forever be a cloud
over this nomination and this nomination process, regardless of the
outcome of tomorrow's vote.
Many also have reason to doubt the integrity of this body for the way
this has been handled. When facing difficult decisions, I often reflect
on what I learned from one of my most influential mentors, the late
Senator Howell Heflin, a former chief justice of the Alabama Supreme
Court. Judge Heflin often talked about the Supreme Court as the
``People's Court.'' Every day, he said, the Supreme Court of the United
States deals with real people, their basic human rights and liberties.
It has a direct impact on the daily lives of every American, and the
people who serve on the Court should be held to the highest of
standards before being allowed the privilege of making those weighty
decisions.
I don't believe this process has led us to the person best suited to
hold this position. This isn't about politics; no, it far transcends
that. I have always said that I am inclined to vote for Presidential
nominees, but they do not have to have that ``presumption of
confirmability.'' We have serious doubts about this nominee that may
never be resolved. It certainly was not resolved by the limited
investigation that the Senators had to go view in bulk--one copy with
10 Senators sitting, passing it around. We have serious doubts
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about this nominee. People across this country have serious doubts
about this nominee. To quote the late Senator Robert Byrd:
No individual has a particular right to a Supreme Court
seat. If we are going to give the benefit of the doubt, let
us give it to the Court. Let us give it to the country.
It was my hope that this body would wind up being on the right side
of history with this vote and not a political side chosen in the
moment. My preference would have been for the President to send us a
new, consensus nominee, much as President Reagan did many years ago
when he nominated Justice Kennedy. Send us another nominee and give the
Senate a second chance to act as a uniter, not a divider. It now
appears, however, that we will need to find another way that we, as a
body--which has been described in the past as the most deliberative
body in the world; many would question that description today--must
find another way to show the American people that we can uphold the
lofty ideals we have ascribed to.
Tomorrow, this nomination process will have run its course, but our
work for our constituents and all of those sitting in the Galleries
tonight and all of those watching across this country who will see and
follow this vote tomorrow--our work for our constituents will go on.
Our work for this country will go on. Regardless of this vote tomorrow,
it will go on, and we, as a body, have to get to a place where we look
forward, not backward.
I am confident; I know in my heart that we can restore the Senate to
the place it was when I worked here as a young lawyer, a place where
compromise meant progress, not a lost battle. Think about that--
compromise meaning progress and not a lost battle or war. We must set
aside the divisiveness, shoulder our responsibilities, and work
together. We must do so for the good of this body, for the sake of the
country that we all love.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Ms. MURKOWSKI. Mr. President, I come to the floor this evening to
share my thoughts on what has been an extraordinarily long, difficult,
and truly painful process.
As we took up the cloture motion on the nomination of Brett Kavanaugh
to the U.S. Supreme Court, the process that led us to this vote today
has been, in my view, a horrible process, a gut-wrenching process,
where good people--good people--have been needlessly hurt, where a
woman who never sought the public spotlight was, I think, cruelly
thrust into the brightest of spotlights; a good man--a good man--with
sterling academic credentials, an unblemished professional record, both
as the professional lawyer and judge that he was and also as a husband
and father of two young girls, has been damaged--damaged terribly.
As both of these individuals, Dr. Ford and Judge Kavanaugh, have been
harmed, their families have, too, and we need to, we must, do better by
them. We must do better as a legislative branch. We have an obligation,
a moral obligation, to do better than this.
I have spent more time evaluating and considering the nomination of
Judge Kavanaugh than I have any of the previous nominations to the U.S.
Supreme Court that I have been privileged to review. I have had the
opportunity to vote on five Justices prior to this, and I took my time.
I was deliberate; I was thoughtful. Some accused me of being too
deliberate, too thoughtful, taking too much time, but this is important
to me. It should be important to all of us, and I know it is important
to all of us.
I studied the record. I sat with Judge Kavanaugh for a lengthy period
of time--about an hour and a half--and asked the questions that I had,
and then I did more due diligence, reviewed the cases, and did my
homework, listened to the concerns that were raised by many in my State
on issues that were all over the board, whether it was a woman's right
to choose, whether it was the Affordable Care Act, whether it was
Executive authority, deference to the agencies, Native issues. I took
considerable time.
When the hearings came, not being on the Judiciary Committee, I paid
attention. I followed the testimony of the judge, the very critical
questioning from many of my colleagues on the other side of the aisle,
and then at the end of the process--or, seemingly, what we believed to
be the end of the process--there were more questions. I went back to
Judge Kavanaugh and had a good conversation with him.
Then the allegations that we have been discussing and trying to
understand more about came forward, and we all moved from focusing on
the issues to truly a discussion that none of us ever thought we would
be having when it came to a confirmation process for someone to the
highest Court in the land.
There was more work to be done. I was one who wanted to make sure
there was a process going forward, and when there were more questions
that were raised after the initial process, I was one who joined in
asking that the FBI step in and do further review.
I have been engaged in this lengthy and deliberative process for
months now, and I was truly leaning toward supporting Judge Kavanaugh
in his nomination as I looked to that record. But we know that in our
role of advice and consent, it is not just the record itself. There is
more that is attached to it. It is why, when in the State of Alaska,
nominations for judges go forward, you rate them not only on their
professional competence--what they have demonstrated through their
record--but also on matters of temperament and demeanor, which are
very, very important.
So we moved--we shifted--that conversation from so many of the issues
that I had been focused on to other areas that are also important in
evaluating a nominee for the courts. But I listened very carefully to
the remarks, the strong, well-articulated remarks, of my colleague and
my friend who sits next to me here, Senator Collins, and I found that I
agreed with many of the points that she raised on the floor earlier.
I do not think that Judge Kavanaugh will be a vote to overturn Roe v.
Wade, and I also join with her in saying that I do not think that
protections for those with preexisting conditions will be at risk.
I also do not think that he will be a threat to Alaska Natives. This
was an issue that certainly had been raised, but I had an extended
conversation with the judge on just these issues, and I believe that he
recognizes, as he told me, that Alaska Natives are not in a place
identical to Native Hawaiians. Alaskan Tribes are included on the list
of federally recognized tribes, and the fact remains that Native
Hawaiians are not. This is a distinction; this is a difference.
I am one in this body who has said that I would like to see Native
Hawaiians there, and I worked with my friend Senator Akaka when he was
in this body to help advance that; I supported that. But the fact
remains that the constitutional status of Alaska Natives and the Indian
Commerce Clause are simply not at play with this nomination. I don't
believe that. So the question is fairly asked: Do you think he is going
to be there on issues that matter to Alaskans, that you have taken
strong positions on?
The reason I could not support Judge Kavanaugh in this cloture motion
this afternoon is that in my role, in my responsibility as one Senator
on this floor, I take this obligation that we have in the role of
advice and consent as seriously as anything that I am obligated or
privileged to be able to vote on. I have a very high standard. I have a
very high bar for any nominee to the Supreme Court of the United
States.
The Code of Judicial Conduct rule 1.2--this is one that many, many
people in this body know--states that a ``judge shall act at all times
in a manner that promotes public confidence and the independence,
integrity, and impartiality of the judiciary and shall avoid
impropriety and the appearance of impropriety.''
I go back, and I look to that. It is pretty high; it is really high:
A judge shall act at all times--not just sometimes, when you are
wearing your robe, but a judge should act at all times in a manner that
promotes public confidence--public confidence. Where is the public
confidence?
So it is high, and even in the face of the worst thing that could
happen, a sexual assault allegation, even in the face of an overly and
overtly--overtly--political process, politicized process, and even when
one side of this Chamber is absolutely dead set on defeating his
nomination from the very
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get-go, before he was even named, even in these situations, the
standard is that a judge must act at all times in a manner that
promotes public confidence in the independence, integrity, and
impartiality of the judiciary and avoid impropriety and the appearance
of impropriety.
After the hearing that we all watched last week, last Thursday, it
became clear to me--or was becoming clearer--that the appearance of
impropriety has become unavoidable.
I have been deliberating, agonizing, about what is fair. Is this too
unfair a burden to place on somebody who is dealing with the worst, the
most horrific, allegations that go to your integrity, that go to
everything you are?
I think we all struggle with how we would respond, but I am reminded
that there are only nine seats on the Bench of the highest Court in the
land, and these seats are occupied by these men and women for their
lifetime. So those who seek one of these seats must meet the highest
standards in all respects at all times, and that is hard.
We are in a time when many in this country have lost faith in the
Executive branch, and it is not just with this administration. We saw
much of that in the last as well.
Here in Congress, many around the country have just given up on us.
They have completely said: We have had enough. But I maintain that the
public still views--I still view--that there is some small shred of
hope that remains with our judiciary, this judiciary that must be
perceived as independent, as nonpartisan, as fair and balanced in order
for our form of government to function.
It is that hope--it is that hope--that I seek to maintain, and I
think that is why I have demanded such a high standard to maintain or
regain that public confidence because it is so critical that we have
that public confidence in at least one of our three branches of
government.
I think we saw from the vote earlier today and we have seen from the
statements of several of our colleagues that it does appear that Judge
Kavanaugh will be seated on the Supreme Court without my vote. It is my
hope--it is truly my hope--that Judge Kavanaugh will share that same
hope of rebuilding, maintaining a level of public confidence, that he
will strive for that ideal every day. It is my hope that he will be
that neutral arbiter, the umpire who calls only the balls and the
strikes, and that he will be that force for stability.
I believe that Judge Kavanaugh is a good man. He is a good man. He is
clearly a learned judge, but in my conscience--because how I have to
vote at the end of the day with my conscience--I could not conclude
that he is the right person for the Court at this time.
This decision has been agonizing for me. It is as hard a choice,
probably as close a call as any that I can ever remember, and I hope--I
hope and I pray--that we don't find ourselves in this situation again.
But I am worried. I am really worried that this will become the new
normal, where we find new and even more creative ways to tear one
another down, and good people are just going to say: Forget it. It is
not worth it.
I am looking at some of the comments and the statements that are
being made against me and against my good friend, my dear friend from
Maine--the hateful, aggressive, truly, truly awful manner in which so
many are acting now. This is not who we are. This is not who we should
be. This is not who we raised our children to be.
So as we move forward, again, through a very difficult time for this
body and for this country, I want to urge us to a place where we are
able to engage in that civil discourse that the Senate is supposed to
be all about--that we show respect for one another's views and
differences and that when a hard vote is taken, there is a level of
respect for the decision that each of us makes.
There is something else that I do hope. Again, I refer to my friend
from Maine. I will note that if there has been a silver lining in these
bitter weeks--which, quite honestly, remains to be seen--I do think
what we have seen is a recognition by both sides that we must do more
to protect and prevent sexual assault and help the victims of these
assaults.
There has been a national discussion. There has been an outpouring of
discussions, conversations, fears, tears, frustration, and rage. There
is an emotion that really has been unleashed in these recent weeks, and
these are discussions that we need to have as a country.
We need to bring these survivors to a place where they feel they can
heal, but until they come out of the shadows and do so without shame,
it is pretty hard to heal.
I have met with so many survivors, and I know that every single one
of us has. I have heard from colleagues as they shared with me that
they have been truly surprised--many stunned--by what they are learning
is the prevalence of this, unfortunately, in our society today.
In Alaska and, as the Presiding Officer knows, in his State, the
levels of sexual assault we see within our Native American and Alaskan
Native communities are incredibly devastating. It is not something that
we can say we will get to tomorrow. We heard those voices, and I hope
that we have all learned something. We owe it to the victims of sexual
assault to do more and to do better and to do it now, with them.
I am going to close. I truly hope that we can be at a place where we
can move forward in a manner that shows greater respect, greater
comity. We owe it to the people of America to return to a less
rancorous confirmation process.
In the spirit of that comity--and again, while I voted no on cloture
today and I will be a no tomorrow--I will in the final tally be asked
to be recorded as present, and I do this because a friend, a colleague
of ours, is in Montana this evening, and tomorrow, at just about the
same hour that we are going to be voting, he is going to be walking his
daughter down the aisle, and he will not be present to vote. So I have
extended this as a courtesy to my friend. It will not change the
outcome of the vote, but I do hope that it reminds us that we can take
very small steps to be gracious with one another and maybe those small
gracious steps can lead to more.
I know that as hard as these matters are that we deal with, we are
human and we have families that we love. We don't spend nearly enough
time with them. I am sure we can do one small thing to make that family
a little bit better. That is a better way for tomorrow.
With that, I yield the floor.
The PRESIDING OFFICER (Mr. Hoeven). The Senator from New Jersey.
Mr. BOOKER. Mr. President, on September 16, Dr. Christine Blasey Ford
publicly came forward to share that Brett Kavanaugh had sexually
assaulted her when they were in high school. This was a remarkably
courageous act. It was one that she hesitated to do. It was something
that she struggled with, but she said time and again that she believed
it was her civic duty and her sense of citizenship--that act of grace,
that feeling that you have a commitment to country, to causes larger
than yourself. She put herself forward. She said she was terrified to
do so. She said she feared for what the impact would be on her family.
Indeed, the impact on her family was terrifying. She endured hatred
and vile poured out to her--death threats. She had to leave her family
home and split her family up at times. She had to engage security for
her own protection.
When Dr. Ford came before the Judiciary Committee to testify, she
reiterated that she was afraid. She reiterated how terrified she was,
but she stated again and again this ideal of patriotic duty and civic
responsibility because she believed that there is something about our
institutions that is sacred and that for the highest Court in the land,
there could be millions of qualified people in America, thousands of
folks. Indeed, the President's list itself has dozens of folks. She
said that this person who sexually assaulted her should not go on the
highest Court in the land for a lifetime appointment.
So she sat before us in the face of endless harassment, with glaring
public scrutiny into all aspects of her life and the threats against
her family. Dr. Ford gave testimony that was powerful and that, to
many, was jarring. She talked about her private truth, her experience,
and how it affected her life.
She said again and again that she wanted to be helpful to the
committee.
[[Page S6606]]
She treated every member of the committee on the Republican side and
the Democratic side with respect. She extended them grace. She was
cross-examined by a prosecutor for the Republicans. She engaged with
that prosecutor with a sense of decency and honor. She didn't stretch
the truth or try to dodge questions. She spoke honestly and candidly
and from her heart. She shared details that she said had been seared
into her memory.
She talked about the narrow set of stairs in that house that she
climbed to use the restroom. She talked about being pushed from behind
into a bedroom. She talked about the music being turned up louder as
she struggled. She talked about Brett Kavanaugh on top of her, hand
over her mouth, trying to stop her as she yelled for help. She said she
thought she was going to be raped. She said she thought she might be
accidentally killed.
There was Mark Judge, a person she identified, watching, refusing to
help her. Both Mark and Brett were laughing. Dr. Ford described that
laughter as searing into her memory. She talked about it as being
indelible. She told us she would never forget, and that she would
``never forget the uproarious laughter between the two and their having
fun at my expense.''
I believe her. I believe Dr. Ford. I still believe her, and many of
my colleagues on both sides of the aisle spoke up, calling Dr. Ford's
testimony credible. Many have said they believe her or, at least, that
they believe someone assaulted her. They gave credence to the power of
that experience--an experience that reflects that of many people who
experience trauma. You don't remember it like a video recording, but
there are moments that are seared into your mind. Her experience was
consistent with people who have experienced trauma. Even though the
Senate hearing would not allow experts to come in, we all know enough
now to know that the way she described her experiences and the things
she remembered all spoke to the ability of a courageous American doing
their civic duty.
I was surprised that even the President of the United States called
her sincere and called her testimony compelling. That was until he
stood at a rally and mocked her. The President of the United States,
the most powerful person in the country--perhaps the most powerful
person in the world--mocked her and got uproarious laughter. The same
thing that was seared in her memory: People were laughing at her. The
President ignited that in a crowd and made her again the focus of
laughter and mocking.
To this body that I revere, this body that I love; to my colleagues,
whom I respect, on both sides of the aisle; to this body that was
designed to be the world's most deliberative body; to this body that
was designed to be thoughtful, to take the time to analyze, the
question is this: We heard words about her testimony, but what followed
those words? Were they like dust in the wind or were they substantive
words that cause us to believe her, admiring and honoring her courage
for coming forward? Did we treat her that way?
Well, if they did believe her, if they did honor her words and her
courage and the risk she took, then this body and the Judiciary
Committee, of which I am a part, would have insisted on a full, fair,
thorough, and complete FBI investigation that included the many
witnesses who stepped forward who could have corroborated her testimony
and could have contradicted Judge Kavanaugh's testimony. This body
would have insisted that we take the time to do a thorough
investigation because it is not just about Dr. Ford. There are millions
of survivors, women and men, watching how this body will deal with the
seriousness of sexual assault.
Will we listen to survivors? Will we honor them enough to fully
investigate their charges? These are not just charges alone. These are
charges against someone who is up for one of the most important
positions in our Nation--a lifetime appointment to the Supreme Court.
No, they did not honor them. If they had honored them, they would
have insisted on a full FBI investigation. Indeed, when another
survivor, Ms. Ramirez, came forward, talking about her incident with
Judge Kavanaugh during college days--when Judge Kavanaugh diminished
his drinking, evasively talked about his drinking--classmate after
classmate, after his testimony, came forward and said he was lying and
he was misleading. Republican and Democratic classmates were offended
by the way he talked about his behavior. It was in those college days
that Ms. Ramirez said Judge Kavanaugh exposed himself to her. She
identified 20 witnesses that were either eyewitnesses or could have
corroborated the evidence.
She talked in detail about who could have substantiated her claims
about the kind of drunkenness that we heard in public statements from
his friends, which seemed consistent and seemed to implicate the
truthfulness of someone who was going to the highest Court. Did we
honor that woman? Did we honor that survivor by doing an investigation,
by going to and at least talking to the 20 witnesses that she put
forward--another woman who is being mocked, another woman who is a
victim of hate being spewed at her, belittling her? Did we honor a
survivor and simply listen and interview the 20 people she said could
have proved the factual nature of her allegation?
No, we didn't. We didn't honor a survivor. We didn't listen to a
survivor. We didn't take the time in the world's most deliberative body
to listen to a woman's claims and take the steps to see if they were
true or not.
This is what to me is so deeply offensive. It is that you have two
women who come forward making claims that even the President said, at
first, seemed sincere and compelling, but we didn't take the next step
to fully investigate their claims so that we could know what the facts
are.
The truth is something that the American public deserves. An
investigation that gets to the truth is something that the American
public deserves, that Dr. Ford deserves, that Ms. Ramirez deserves, and
that even Brett Kavanaugh deserves--to let the truth come out. But this
FBI investigation was part of a larger sham.
People on the right, colleagues of mine, accused Dr. Ford, with her
sincere testimony--they accused her of being part of a coordinated,
partisan smear campaign. Think about that. She told her husband in 2012
about the attack. Was she somehow coordinating with Democrats back in
2012 before Judge Kavanaugh was anywhere near being on the Supreme
Court? No.
She talked about it with her therapist. She talked about it with her
husband. She said it was Brett Kavanaugh years before Brett Kavanaugh
was even on a list of consideration by the President.
In 2013, she discussed the assault again in an individual therapy
session. In that same year, she told a close friend that she had been
assaulted as a teenager while she was trapped in the room with two
drunken boys. That was not a coordinated, partisan attack back in 2013.
In 2016, she told another friend she had been sexually assaulted in
high school by someone who went on to become a Federal judge. In 2017,
she told yet another friend about the assault. She told each of these
three friends that a person who had assaulted her had become a Federal
judge. This does not sound like some kind of partisan smear tactics;
this sounds like a woman who has been telling the truth for years about
Brett Kavanaugh.
The least this body could do is pause for a moment and not do a sham
FBI investigation where they talk to just a handful of people but do a
full FBI investigation, because these charges are serious.
Meanwhile, millions of Americans--survivors themselves and others--
are watching to see how we deal with something that the Centers for
Disease Control says happens to one out of every three women in
America. How do we deal with those charges? It happens to one out of
every six men in America. How do we deal with those charges? When a
survivor comes forward, how does the world's most deliberative body
honor that?
What we are seeing here is a coordinated, partisan effort to put
blinders on, to not seek the truth, and to rush this to tomorrow to a
final vote.
Long before Dr. Ford's bravery, I was one of those Democrats, one of
those Senators, one of those Americans who expressed their sincere and
deeply held concerns about Judge Kavanaugh's
[[Page S6607]]
record. I said early that I would not support him. I opposed his
nomination. Then, I opposed his nomination because I was deeply
concerned that we have a President of the United States who is the
subject of a criminal investigation, and that President picked the one
person from his Heritage Foundation and Federalist Society list who had
a view of Presidential power that I believed would give that President
immunity should issues relating to that investigation come before the
Supreme Court.
I am deeply troubled about his views on women's right to make their
own medical decisions. I am troubled about his views on workers' rights
to organize, on voting rights, on civil rights, and on the principle of
equal justice under the law. I am concerned about things that he said
about foreign dark money influencing our campaigns. His record
demonstrated very clearly to me that, if confirmed to the Supreme
Court, Judge Kavanaugh would continue to prioritize the interests of
the powerful few over the rights of everyday Americans and that we
would see an erosion of individual rights in this country. But I still
believed we needed to have a fair and thorough vetting of this nominee
consistent with our constitutional obligations and that it would
eventually get to the floor and we would have our vote.
In the many weeks leading up to Judge Kavanaugh's hearing before the
Judiciary Committee, many Democratic colleagues and I pushed for the
same kind of transparency and a process. Even if we knew where we were
going to go, the process should have been fair. The process should have
been bipartisan.
The Judiciary Committee has a long history of the majority and
minority working together to set ground rules for the committee
process. I watched the Judiciary Committee for many years before I came
to this body. It was the No. 1 committee I wanted to be on 5 years ago
when I came to the Senate. There are legends still on that committee,
statesmen on both sides of the aisle, men I respect. But this process
from the very beginning has been a sham. It has undermined the ability
of Senators to perform our constitutional duty to advise and consent on
the nominee because of the withholding of critical information that I
believe is absolutely necessary to evaluate someone.
This constitutional duty means that we should have a process that
allows transparency into that person's record. The public has a right
to know who the individual is that we are voting on tomorrow, what
their record is. The public has a right to know. Why would we hide
their record from public scrutiny?
Step 1 of the sham was the Republican majority's refusal to request
any records from Judge Kavanaugh's time as Staff Secretary to President
George Bush. Zero records were requested whatsoever. Brett Kavanaugh
himself held that position for 3 years. He called those 3 years of his
year the ``most interesting and most formative years'' of his career,
the most interesting and formative in shaping his approach to serving
as a judge and during which he presumably advised the President on
everything from national security policy to a proposed constitutional
ban on same-sex marriages. So many critical issues that are germane to
his job and his experience and the formation of his ideals were
happening during those times. But they said we could see nothing from
his record, even things that are not classified, not national security,
things that would give us a better window into who he is.
Step 2 of the sham was to create a wholly unaccountable process for
the fraction of the White House records that the Republican majority
did request from Kavanaugh's time in the White House Counsel's Office.
This process was essentially made up. It had no reflection on the
history of his body of work--no reflection at all.
What happened was they put into place a practice where a private
lawyer, Bill Burck--who happens to be a longtime political operative,
who was a former deputy to Brett Kavanaugh himself when he was Staff
Secretary--was put into part of the process as a choke hold on
documents getting to Senators for our evaluation. Most of the documents
of this candidate's work product have not been seen by any Senator
here. In fact, about 90 percent of his relevant work experience, his
relevant work product, has not been reviewed by any Senator here.
Imagine hiring somebody whose resume you have only seen 10 percent of
because 90 percent is obscured. Most of the folks here wouldn't hire an
intern in their office if somebody was hiding 90 percent of their
resume.
Then there is step 3 of the sham. In conjunction with Mr. Burck, the
committee chairman designated 186,000 pages something that was new
called ``committee confidential'' in order to hide them from the public
because they might harm the nomination. Imagine this: With the public
having a right to know, the public needing transparency, now they are
hiding yet again, under the name ``committee confidential,'' critical
documents. They withheld 102,000 pages from the committee altogether,
threatening to invoke some nebulous constitutional privilege. As a
result, today, just hours before the final vote, only 7 percent of
Kavanaugh's record from the Bush White House has been released to
Senators. We are making a decision knowing only 7 percent of his work
product.
When women's rights, workers' rights, LGBTQ rights, voting rights,
and affordable healthcare are all in the balance, we know so little
about this candidate. Because of all that is at stake, several
colleagues and I made a decision to release those documents, but it was
still just a fraction.
Meanwhile, Judge Kavanaugh's initial testimony before the Judiciary
Committee raised my concern because he continued to evade questions,
refused to answer our questions.
After Dr. Blasey Ford came forward, he gave his testimony, and I was
stunned. You see, at Judge Kavanaugh's initial hearing in early
September, he testified that he wanted to stay ``three zip codes away
from politics.'' He insisted that the Supreme Court must never--I
emphasize that word--never be viewed as a partisan institution. But
when he came before the Judiciary Committee again last week, Judge
Kavanaugh jettisoned his own advice, his own belief in judicial
temperament, his own belief in how a judge should behave and be
nonpartisan, and he leveled blatantly political accusations. He said
that the allegations against him were nothing more than ``an
orchestrated political hit,'' even speculating that they were motivated
by ``a revenge on behalf of the Clintons.'' He cast blame on outside,
leftwing opposition groups. He told the Democrats who were questioning
him that the hearings had been ``an embarrassment.'' He was
belligerent. He was evasive. At times, he was outright deceptive, and
at times, he was deeply disrespectful to my Senate colleagues. He
displayed the type of fierce partisanship that no American should ever
want to see in a Federal judge. He went on to say almost as a menacing
threat that ``what goes around, comes around.''
Is this someone who can sit on the highest Court in the land, where
political issues might come before him? Has he not already revealed
himself to be deeply partisan? Has he not already revealed himself to
have a deep-seeded anger toward people of certain political stripe? Is
this someone who shows the kind of judicial temperament, not for a
district court, not for a circuit court, but for the highest Court in
the land, the Court of last resort?
He didn't say all of this in response to questions. These weren't
off-the-cuff comments. This was part of his prepared testimony. Those
quotes were in his prepared testimony.
In another instance during his testimony, he warned that ``this is a
circus.'' He said, ``The consequences will extend long past my
nomination. The consequences will be with us for decades.''
That is how I want to end. What are the consequences for a sham
process, for a sham FBI investigation? What are the consequences in
relation to women who came forward before the world's most deliberative
body with credible accusations of sexual misconduct, of sexual assault,
of sexual violence? What are the consequences to a body that runs a
partisan process, that ignores the truth, that shields relevant aspects
of his record--90 percent--from the public? What are the consequences
as they rush to the Senate floor hoping nobody knows the truth and
ignoring investigating some of the most serious charges that could be
leveled against
[[Page S6608]]
someone--charges of violence, charges of assault? What are the
consequences for us in this body behaving in this way? What are the
consequences for Dr. Christine Blasey Ford, who has forever altered her
life for her civic duty, for her patriotism, for her love of country?
She sacrificed to come forward, and how do we treat her?
This has been an emotional week for so many. I have seen and heard
and witnessed the pain and the trauma that has been dredged up. I have
heard from some of my colleagues in private meetings about dozens of
people coming forward to them, having never told people about their
sexual assault, and now they come and tell their Senator, hoping that
their story and that their pain that they haven't even shared with
their spouse will somehow make a difference in the larger story of our
country, will somehow make a difference at this moment when two women
are not being listened to and when their stories are not getting worthy
recognition, worthy investigation. I heard colleague after colleague
tell me the stories, the painful stories.
I heard them myself from friends of mine who I never knew had been
assaulted. I never knew of their pain, never knew of their trauma. But
at this moment in American history, they felt they had to come forward.
They had to tell their truth, like Christine Blasey Ford, like Ms.
Ramirez. They felt now was the time to speak up and stop this Nation
from making a mistake and try to stop the injustice and try to end a
national nightmare where one out of three women is assaulted and most
of them don't feel comfortable coming forward. They don't feel safe
coming forward. They feel that if they come forward, they will be
maligned, hated, disrespected, disregarded; that their charges will be
swept under the rug; that their charges will be ignored. Yet a chorus
of women and men all across this country have been telling their
stories, screaming at this Nation, hoping the national conversation
will shift in this country from abusing those who have been abused to
elevating truth again.
This body has had a test, and we are failing that test. This body has
had a chance. This body has had a responsibility, and we have
surrendered that responsibility. So tomorrow we vote. It seems like the
die is cast.
I heard there were celebrations and cheering in the White House. And
in the last few hours, I also heard the pain and the anguish and the
hurt, and I have heard the tears. It seems so unjust. It seems so
unfair that two courageous women came forward to this body, and we
couldn't even investigate their claims. We couldn't even take time to
talk to witnesses. A lot of folks are now asking me: What now?
I want to conclude by reading some words from another painful period
where people didn't know what this body would do. There was injustice
in this land. People didn't know what this body would do. Hundreds of
thousands came forward to march and to protest and to sit in. They
didn't know what this body would do, but they stood anyway and they
fought anyway. Sometimes they were beaten. In one case, on a bridge in
Alabama, they were beaten and bloodied. One of my colleagues in the
other Chamber, John Lewis, had his head split open. They eventually
got over that bridge and got to Montgomery, and a man named King gave
this speech to those people who were tempted to surrender to cynicism
in that time. He gave this speech to those people who wanted to give
up. He gave this speech to those people who were hurting. This is what
he said:
I know you're asking today, ``How long will it take?
Somebody's asking, ``How long will prejudice blind the
visions of men, darken their understanding, and drive bright-
eyed wisdom from her sacred throne?'' Somebody's asking,
``When will wounded justice, lying in prostrate on the
streets . . . be lifted from this dust of shame to reign
supreme among the children of men?'' Somebody's asking,
``When will the radiant star of hope be plunged against the
nocturnal bosom of this lonely night, plucked from the weary
soul with chains of fear and the manacles of death? How long
will justice be crucified, and truth bear it?''
I come to say to you this afternoon, however difficult the
moment, however frustrating the hour, it will not be long,
because ``truth crushed to the earth will rise again.''
How long? Not long, because ``no lie can live forever.''
How long? Not long, because ``you shall reap what you
sow.''
How long? Not long, because the arc of the moral universe
is long, but it bends toward justice.
I say to every American who is hurting tonight, every American who is
angry tonight, tomorrow we face a defeat, but we shall not be defeated.
Tomorrow, it may seem like a loss, but all hope is not lost.
I have faith in us as a country. I know it has been a long journey. I
know we have suffered much, but I have a faith in this country that is
abiding and cannot be destroyed because we are a nation that always
finds a way to move forward, to learn, to grow. What is dependent upon
us doing that is for us to never ever give up. Never give up.
The days ahead will be difficult. It will not be easy, but I have
faith in America. We will learn. We will grow. We will get better. We
will come together if we never give up.
Tomorrow, the vote may be what it is. The die may be cast, but I will
never give up on this country. I will never give up on women. I will
never give up on the ideals and principles we all swear an oath to that
this Nation, one day, truly will be a nation of liberty and justice for
all.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. SANDERS. Mr. President, several of my Republican colleagues have
mentioned that some of us came out in opposition to Judge Kavanaugh
almost immediately after he was nominated by the President. Count me
in. I was one of those people. I say that without any apologies
whatsoever because I was familiar with the record of Brett Kavanaugh on
the court where he sits. I was familiar with his record as a member of
the Bush administration.
I didn't have all of the information, but I surely had enough to
understand that if confirmed and seated, he would absolutely be a
member of the hard-right majority, which has done so much harm to the
people of this country over the last many years. Right off, within 24
hours, I was opposed, and that was exactly the right decision. That is
why tomorrow I will vote against the seating of Judge Kavanaugh.
Many people in this country do not fully appreciate the role the
Supreme Court plays in our lives. They know what the President does.
Maybe they know what Congress does. They don't know what the Supreme
Court does.
I would suggest that in North Dakota and Vermont and all over this
country, you have people who are saying: What kind of corrupt campaign
finance system do we have? It is not just progressives who say that.
Conservatives say that. Republicans say that. Democrats say that. Who
believes in the United States of America that a handful of
billionaires--some Democrats, mostly Republicans--can spend hundreds
and hundreds of millions of dollars to elect candidates who represent
their interests? Who thinks that is right? Not many people do.
People do not understand that we are in that position today because
of a 5-to-4 Supreme Court decision regarding Citizens United--a
decision that is now undermining American democracy. There are those
who think Citizens United did not go far enough, that billionaires
should be able to give money directly to Senators and Congressmen, make
them directly their employees. I have zero doubt that Judge Kavanaugh
will continue that majority approach to allowing billionaires to
control our political system.
In 1965, an enormously important act was signed by Lyndon Johnson,
called the Voting Rights Act. It said that all of our people,
regardless of the color of their skin, should have the right to vote.
It is not a very radical idea. Yet a few years ago, the majority of the
Court gutted that decision and said that it wasn't necessary anymore.
States would do the right thing; time has come and gone. Days, hours
after that decision was made--a 5-to-4 decision--attorneys general all
over this country and Governors were working overtime to figure out how
they could suppress the vote, how they could make it easier on
themselves to deny people of color, poor people, and young people, the
right to vote. That was a Supreme Court decision.
If you are upset and you are wondering about how in America we have
States trying to make it harder for people to vote when our voter
turnout
[[Page S6609]]
numbers are pretty low compared to the rest of the world, that was a
Supreme Court decision. I have zero doubt again, when it comes to
protecting our democracy and the rights of people to vote, that Judge
Kavanaugh will be on the wrong side of that issue.
Today in America we are the only major country on Earth not to
guarantee healthcare to all people. The Affordable Care Act was an
important step forward. By a 5-to-4 decision, the Supreme Court ruled
that expanding Medicaid in a State was optional, and we had many--I
think 17--States that said: No, we are not going to expand Medicaid.
Millions of low-income people, children were denied the healthcare this
Congress voted to give them. I have zero doubt that Mr. Kavanaugh will
continue that effort to make it impossible for us to guarantee
healthcare to all of our people.
The Janus decision attacking unions was a 5-to-4 decision; the Muslim
travel ban, a 5-to-4 decision. I didn't need to hear about the issue of
sexual assault in the beginning before it arose. I knew this nominee
would be highly partisan, and that was only confirmed more strongly
just a couple of weeks ago when he went before the Judiciary Committee
again. That is issue No. 1.
If any of you out there are now dealing with cancer, diabetes, heart
disease, or other life-threatening illnesses, understand that
Republicans in a number of States in this country are trying to get the
U.S. Supreme Court to rule that major parts of the Affordable Care Act
are unconstitutional, including the protection for people who have
preexisting conditions. If you are struggling with diabetes, cancer,
heart disease, serious illness, worry, and worry a lot, about what Mr.
Kavanaugh will do with the other four members of the hard right in
taking away your ability to get the healthcare you desperately need at
an affordable cost.
If you are a woman or, in fact, a man or, in fact, 70 percent of the
American people who believe a woman has the right to control her own
body and you don't want to see Roe v. Wade overturned--and that is the
last poll I saw, 70 percent of the American people holding that
opinion--worry, and worry a lot, because I fear very much if a case--
and we think a case may come before the Supreme Court on Roe v. Wade--
worry about what Kavanaugh will do with the other four rightwing
members of the Court. That is issue No. 1.
If Brett Kavanaugh were a choir boy, if he were one of the most
wonderful human beings ever to walk the face of this Earth, based on
his policies, based on his decisions, I would vote against him. It
turns out that maybe he has not been a choir boy.
I could only concur with my colleague from New Jersey, Senator
Booker, in expressing what we are hearing in our own office. I come
from a small State. Yet as a result of Dr. Ford's testimony, we have
received comments from 11 Vermonters who relayed, to some degree, their
stories about sexual assault. We received a letter from a woman who was
70 years old, who told us about a horrific experience that happened to
her when she was 14 years of age. While almost all of the comments that
came in were from women, there were some from men who were abused as
boys.
Some 20 to 25 percent of women in this country have been sexually
abused. Wow, that is a crisis. That is an epidemic. Clearly, our goal
must be to do everything we can to make it easier for women to come
forward with these terribly painful and life-lasting experiences, make
it easier for them to speak their truth.
It is hard to talk about President Trump and continue to use the word
``unbelievable'' because things he does literally are unbelievable
every other day, but I think maybe he might have hit a new low, even
for Trump. Dr. Ford brought forth her testimony. I think the vast
majority of the American people believed her. The President of the
United States--the man who should be telling women we want to hear your
truth, we want to hear your pain--this President, in the most vulgar
way imaginable, actually mocked Dr. Ford. What kind of message does
that send to women all across this country who are suffering? It sends
the message that they will not be believed. They will be dismissed, and
the most powerful person in this country will mock them. Even for a
disgraceful President like Trump, this is, in fact, a new low.
It is not even the policies I am quite convinced that Kavanaugh will
pursue. It is not only the very serious and credible allegations
regarding sexual assault that were in no way fully investigated by the
FBI. I read the report, and it was a very limited report. It certainly
did not do justice to Dr. Ford. The FBI agents did not even interview
Dr. Ford or Judge Kavanaugh. I don't know how you have an investigation
in which you don't interview the two major figures in that charge, that
allegation.
It is not only the lingering question that came from two--at least
two--credible women, but it is also the very important question of
Judge Kavanaugh's veracity, his honesty. I think I heard more than one
Republican Member of this body say: Well, you know, if he is lying, he
should not be seated on the U.S. Supreme Court.
Yet there is, in fact, very strong evidence that the testimonies
Judge Kavanaugh gave recently and in years past, when he was first
appointed to a judgeship, were not honest. Let me give you a few
examples. In his previous testimony before the Judiciary Committee,
Judge Kavanaugh was asked more than 100 times if he knew about files
stolen by Republican staffers from Judiciary Committee Democrats.
Republican staffers stole files, and that was pretty clear. The
question that was asked of Judge Kavanaugh was, in fact, had he seen
those files; was he familiar with those files? The answer he gave was
no, he was not familiar with those files.
It turned out the emails released as part of these hearings show
these files were regularly shared with Kavanaugh while he was on the
White House staff. One of the emails, in fact, had the subject line
``spying.''
In 2006, Judge Kavanaugh told Congress he didn't know anything about
the NSA warrantless wiretapping program prior to its being reported by
the New York Times this year. An email revealed that while at the White
House, he might have been involved in some conversations about that
program. It sounds as though he was not telling the truth.
In 2004, Judge Kavanaugh testified that the nomination of William
Pryor to the Eleventh Circuit Court was not one that ``I worked on
personally.'' It turns out that may not have been true as well.
In 2006, Judge Kavanaugh testified: ``I was not involved and am not
involved in the questions about the rules governing detention of
combatants.'' New evidence released that is part of these confirmation
hearings suggests that statement may not have been true.
Judge Kavanaugh repeatedly said that he did not have a serious
drinking problem, that he had never blacked out, never acted in a
belligerent way. There are a number of his classmates who suggest
otherwise. In fact, there is a piece in the Washington Post today,
signed by three of his classmates, I believe, at Yale who suggested the
very opposite. Are they lying? Are these people coming forward into the
public eye to be abused? Are they lying or, in fact, is Judge Kavanaugh
not tell the truth?
Judge Kavanaugh testified he treated women ``as friends and equals''
and ``with ``dignity and respect.'' Numerous entries in his school
yearbook would seem to contradict this.
The issue is not just what he did; the issue is that he is not
telling the truth about what he did. Judge Kavanaugh was not the only
person in America to drink a lot in high school and in college, not the
only one. If he had come forward and said ``Yeah, you know, I did have
a drinking problem; I have overcome it, but I did,'' that would have
been perhaps telling the truth, but that is not what he said.
On it goes. It is likely, as I understand it, that those of us who
are opposed to Judge Kavanaugh will, in fact, be on the losing side of
that vote tomorrow. I am very sorry about that.
History has a funny way of responding to what goes on. I think this
nomination, to a much greater degree than I think anyone would have
expected, has aroused the American people from coast to coast. It has
aroused them in terms of the issue of sexual assault and whether we
deal with that issue honestly. It has aroused the American people in
terms of the issue of veracity
[[Page S6610]]
and whether or not we are going to have a member on the Supreme Court
who, in fact, is honest. It has aroused the American people in
understanding that the function of the U.S. Supreme Court is to render
justice with impartiality, with justice for all--not to simply
represent the wealthy and the powerful and billionaire campaign
contributors.
So I think this whole process has been an enormous learning
experience for the American people. While we may lose tomorrow, I think
the end result of what has taken place here--the disgrace of what has
taken place here--will reverberate in a very positive way for the
American people.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, as a U.S. Senator and a member of the
Judiciary Committee, giving careful consideration to Supreme Court
nominations is among my most important responsibilities. These lifetime
appointments can change not only the course of the Nation but the
course of lives.
I began with deep concerns about Judge Kavanaugh: his unfettered
views of executive power, effectively believing that the President is
beyond the law; his refusal to commit to well-established precedents on
critical issues, like women's constitutional rights regarding abortion;
his affinity for unlimited and dark political money and his studious
blindness to its harm to our democracy; and his very selection and
support by big special interest groups. I had significant concerns
about his truthfulness and temperament--concerns proven more than
justified over the course of these hearings.
Another warning sign was flashing. Senate Republicans were stopping
at nothing to get this nominee through. Why, it made we wonder. Why?
Behind all of the shattered norms and traditions of the Senate,
behind all of the hidden documents and unanswered questions, stands the
looming question: Why?
In my opening comments in the committee, I chronicled a pattern under
Chief Justice Roberts, an unpleasant pattern of 5-to-4 partisan rulings
for the big corporate and special interests that are the lifeblood of
the Republican Party--not 3 or 4 times, not even a dozen or two dozen
times, but 73 times--73 times and all 5-to-4 partisan decisions, all
wins for the big corporate and special interests that are the lifeblood
of the Republican party--73 times.
The pattern is clear in these 5-to-4 partisan decisions. Every time
big corporate and Republican special interests are involved, the big
interest wins--every time, 73 to 0.
On its way to delivering these Republican special interest victories,
the Roberts Court--or I should say the five of them who do this; call
it the ``Roberts Five''--leaves a trail--a trail of wrecked precedents,
a trail of sketchy, nonfactual fact-finding, a trail of longstanding
statutes ignored or rewritten, and a trail of supposedly conservative
judicial principles, like modesty, deference, originalism, and stare
decisis, all violated. The pattern of these 73 partisan ``Roberts
Five'' decisions explains why. It explains why big Republican interests
want Kavanaugh on the Court so badly and why Republicans shredded so
much Senate precedent to shove him through. The big Republican
interests want to be able to pull 5-to-4 wins out of the U.S. Supreme
Court as if it were a legislature they controlled.
What are the areas of law where the big Republican corporate and
special interests have a stake where the Roberts Five delivered for
those big Republican Party stakeholders?
Well, first, they helped Republicans to gerrymander elections in
Vieth v. Jubelirer, 5 to 4. This was a big deal. It let Republicans
gerrymander their way to control of Congress, to control of the House
of Representatives, in a year Republicans lost by a million votes. They
lost the House by a million votes and won it by gerrymandering.
The Roberts Five has helped Republicans to keep minority voters away
from the polls: Shelby County, 5 to 4; Bartlett v. Strickland, 5 to 4;
Abbott v. Perez, 5 to 4. Making it harder to vote--harder for
minorities or poor people or the elderly--is a Republican
electioneering tactic, and Republican State legislatures went right to
work, passing voter suppression laws right after these partisan
decisions.
The Roberts Five also helped to unleash big-money political
influence, giving big interests unlimited power to buy elections and
threaten and bully Congress. McCutcheon and Bullock and the infamous,
grotesque 5-to-4 Citizens United decision were their tools.
This is the sockdolager, the really big deal, by the way. There is a
very small world of very big interests that have unlimited money to
spend and a business strategy to spend it to influence politics. It is
not a big group, but it is a powerful group, and it is the heart of the
Republican funding machine. These few but big Republican interests were
given unprecedented political artillery by the Roberts Five, at least
unprecedented since Teddy Roosevelt cleaned house over a century ago.
Our politics since Citizens United has been contorted and corrupted,
but those big influences are, oh, so happy.
What else do the big influencers want to get out of courtrooms?
Big special interests that can muscle their way around Congress and
capture executive agencies hate courtrooms. There is this annoying
thing in courtrooms of being treated equally with regular people. There
is this annoying thing in courtrooms about having to turn over your
actual documents. There is this really annoying thing in courtrooms
about having to tell the truth. So, bingo, the Roberts Five protected
corporations from group class-action lawsuits--Walmart v. Dukes, 5 to
4; Comcast, 5 to 4; Epic Systems, 5 to 4--and helped corporations to
steer customers and workers away from courtrooms and into corporate
friendly mandatory arbitration--Concepcion, Italian Colors, and Rent-a-
Center, all 5 to 4 at the hands of the Roberts Five.
What else? Of course, to bust unions, a perennial Big Business
special interest classic, kind of a golden oldie for big Republican
influencers: Harris v. Quinn, 5 to 4; Janus v. AFSCME, 5 to 4.
And, of course, to protect polluters. Big polluters pour big money
into the Republican Party. They do this, they will tell you, to protect
your freedom. They talk a lot about freedom. It turns out that it is
your freedom to breath dirty air, drink dirty water, smell the river
going by, eat chemicals with your food, and have climate havoc and acid
oceans. It is all about freedom--indeed, the freedom for big polluters
to pollute for free and get away with it. Right with them there is the
Roberts Five over and over, for the polluters, even stopping the
Nation's Clean Power Plan 5 to 4 for the coal industry.
The list goes on. It totals 73 partisan 5-to-4 decisions under Chief
Justice Roberts, each giving big wins to big Republican interests. It
is an indelible pattern.
Although the American people might not be keeping exact score--they
might not know that the number is 73--they feel the Court is rigged,
and the Court is flying all the warning flags of a captured agency,
dancing to special interest tunes and rampaging through precedent and
principle to get there.
This pattern is a disaster for the Court, and I know Kavanaugh will
contribute to that disaster.
How do I know this? I know this because Kavanaugh's record tells me.
That is why he is the nominee, after all. That is the why. He has been
signaling the big influencers with over 50 speeches to the Federalist
Society. I think he has the human record for speeches to the Federalist
Society, signaling that he is their guy.
And he has been signaling with his record as a judge on the DC
Circuit Court of Appeals in the most controversial and salient civil
cases, those decided by bare 2-to-1 majorities. When Kavanaugh was in
the majority with another Republican-appointed judge, he voted to
advance the far-right and corporate interests a striking 91 percent of
the time. That is almost a perfect match for the Roberts Five majority
rulings in 5-to-4 cases where these conservative groups show up.
The Roberts Five gives conservative groups a 92-percent win rate.
Kavanaugh gives conservative groups a 91-percent win rate. No wonder he
is their guy.
Ninety-one percent--remember that number.
Kavanaugh reliably voted for polluters and for dark money and for
corporate interests with a healthy dollop of anti-choice, pro-gun,
religious-right
[[Page S6611]]
politics thrown in. Ninety-one percent is how he campaigned for this
job.
Big special interests have a habit of turning up regularly in
appellate courtrooms like the DC Circuit. Their tool of influence is
one of the worst policed tools of special-interest influence in
America--the so-called amicus brief, where big special interests fund
front groups to file these amicus briefs to instruct courts how they
want the courts to rule.
They are called amicus briefs because they are supposedly appearing
as a friend of the court, but this has nothing to do with friendship.
It is a scandal of secrecy, deception, and manipulation.
How does this involve Kavanaugh? In cases where conservative groups
weighed in with these amicus briefs before him, Judge Kavanaugh sided
with them--wait for it--91 percent of the time--again, 91 percent. Call
him ``Judge 91 percent,'' and you understand why those big interests
want him so badly on the Supreme Court and why the Republican Party
drove like drunk kids over the curbs and across the lawns, smashing
mailboxes of procedure and propriety to get him there.
The overlap between the groups in Kavanaugh's 91-percent club and the
groups who fund Leonard Leo, the Federalist Society architect of
Kavanaugh's nomination, is telling. The multimillion-dollar scorched-
earth ad campaign by groups like the Judicial Crisis Network is funded
by big dark money interests.
The NRA poured its own millions into campaigning for Kavanaugh. They
promised NRA members that Kavanaugh would break the tie. They are 91
percent sure.
In the face of all this, Kavanaugh feigned impartiality, but then
came the ``tell.'' When Kavanaugh returned to the Judiciary Committee
to defend himself against accusations of a sex assault, his veneer of
impartiality was pulled away, and we saw--America saw--the fierce and
rabid conspiracy-mongering partisan within. His performance was
recently described by a right-of-center columnist as his ``partisan,
unhinged diatribe and nonjudicial demeanor.''
Mr. President, I ask unanimous consent that the article from which I
am quoting be appended to the end of my remarks.
(Mr. LANKFORD assumed the Chair.) He even blamed Bill and Hillary
Clinton--seriously.
It shows where we are in this country that this display was not by
itself disqualifying. But for the big special interests behind ``Judge
91 Percent,'' this was not at all disqualifying. This was reassuring.
This was great stuff. It just confirmed what they knew: Judge 91
Percent would be their boy. The Roberts Five would get back in the
saddle, and they would get 73 more 5-to-4 partisan victories.
But that moment gave the rest of the country the opportunity to take
true measure of a man who claims he is impartial--a man who asks the
Senate to grant him a lifetime seat in judgment of others and claims he
will judge fairly--fat chance.
One longtime observer of the judiciary who was an early supporter of
Kavanaugh recently withdrew his support. He wrote in the Atlantic
magazine:
I cannot condone the partisanship which was raw,
undisguised, naked, and conspiratorial from someone who asks
for public faith as a dispassionate and impartial judicial
actor. His performance was wholly inconsistent with the
conduct we should expect from a member of the judiciary.
Extraordinarily, even former Supreme Court Justice Stevens has warned
against Kavanaugh for the same reasons. Kavanaugh's raw, undisguised,
naked, and conspiratorial partisan screed may have excited the donors,
but it did nothing to address the concerns that had prompted the
hearing in the first place. So in addition to an epic fail of any
reasonable test of impartiality, Judge Kavanaugh still bears credible
allegations of sexual assault levied against him.
I will confess, I believe Dr. Blasey Ford. We have a big dispute
here, but I do hope that in this Senate we at least can agree on one
thing. If Dr. Blasey Ford's testimony was true, I hope we can all agree
that Kavanaugh has no business on the Court.
Well, I believed her then, and I believe her now, and I did not find
him credible at all. I found him belligerent and aggressive--just as
his Yale drinking buddies said he was while drunk in college--and
evasive and nonresponsive.
Dr. Ford's allegations were credible enough to get her here before
the Senate. Her testimony here was quiet, open, and powerful. She was
calm, composed, and utterly believable. Even President Trump called her
testimony ``credible'' and ``compelling.'' So did many of my Republican
colleagues.
But then came the smear campaign to discredit and demean her, led by
the President's sickening taunts and mockery in Mississippi. Then came
the majority leader's criticisms. He knew it wouldn't do to say
outright that she lied, but his every accusation fell to pieces if she
was telling the truth. His attacks were a bank shot--a relentless,
indirect bank-shot smear of Dr. Ford's credibility.
One element of the smear of Dr. Blasey Ford was to describe her
testimony as ``uncorroborated.'' We have heard that over and over. The
majority leader said that again just this morning on the floor--
uncorroborated. Well, first, that just isn't true. Prior consistent
statements are a well-known form of corroboration, and Dr. Ford's prior
consistent statements are abundant. It is ironic to have Republicans
complain about a lack of corroboration when Republicans did everything
possible to prevent corroborating evidence from coming forward. It is
deeply unfair to Dr. Ford to disallow, prevent, and freeze out
corroborating evidence and then call her testimony uncorroborated,
which bring us to the, to put it politely, abridged FBI investigation.
First, the FBI background investigation was closed to this new
evidence in an unprecedented break from the entire history of
background investigations. Then, the investigation was limited by
secret orders from the White House we still have not seen.
What do we see? We see the dozens of credible, percipient, and
corroborating witnesses who came forward to say that they couldn't get
an interview from the FBI, who were never contacted when they made
themselves known to the FBI.
I ask unanimous consent that that two letters from the
representatives of Ms. Ramirez and Dr. Ford explaining this be added at
the end of my remarks.
Mr. President, many witnesses were fobbed off into a black hole of a
tip line--a tip line from which no tip appears ever to have been
pursued, a tip line that was just a dumping ground for unwelcome
evidence. As a U.S. attorney, had I received the set of witness
summaries we saw, I would have sent the package back for more
investigation.
A sincere and thorough investigation designed to get at the truth
would have broadly interviewed Kavanaugh and Blasey Ford's known
contemporaries to probe their recollections.
An investigation to get at the truth would have interviewed the
witnesses who corroborated Dr. Blasey Ford's prior consistent
statements.
An investigation designed to get at the truth would have tested
Kavanaugh's calendar and yearbook entries with contemporaneous
witnesses.
An investigation designed to get at the truth would have done
interviews of witnesses who corroborate the incident alleged by Ms.
Ramirez, like the classmate ``100 percent sure'' he was told at the
time that Kavanaugh had exposed himself to Ramirez.
An investigation designed to get at the truth would have interviewed
people who recalled Kavanaugh's propensity to drink to excess and his
behavior when drunk relevant to these incidents.
An investigation designed to get at the truth would have certainly
sought to interview the alleged victims, like Christine Blasey Ford and
the accused perpetrator, Brett Kavanaugh.
From public reporting, we know that none of this happened. It is
difficult to escape the conclusion that like everything else in this
nomination, such as hiding 90 percent of the records from the Bush
White House days, putting bogus ``Executive Privilege'' cover over
other documents, and claiming documents are ``committee confidential''
through a nonexistent process that was
[[Page S6612]]
partisan from start to finish--like everything else, it is hard to
escape the conclusion that this investigation was designed not to get
at the truth, but to step carefully around it.
I am a huge fan of the FBI. I admire that organization immensely. It
must have killed the agents to do such a half-baked and incomplete job
because of marching orders from the White House. My heart goes out to
the experienced FBI professionals hamstrung by the Trump White House
through this investigation. They know better than anyone the holes in
what they did, but in this matter they don't have the independence of a
criminal investigation. The White House is the client. They must do
what they are told. This was yet another Trump abuse of a proud
American institution.
So here we are.
A defendant in a criminal prosecution enjoys a presumption of
innocence until proven guilty. A defendant in a civil trial must be
found culpable by a preponderance of the evidence. An executive agency
must make decisions based on substantial evidence. But the question
before us is none of those. The question before us is whether Brett
Kavanaugh is a man with the character, credibility, impartiality, and
temperament to sit in judgment on America's highest Court.
We now know Brett Kavanaugh is not that. He is not close, and
Americans know it. But the big Republican interest groups don't care
because they see that 91 percent, and they yearn for 73 more 5-to-4
partisan victories.
Service to the law has at its heart an earnest pursuit of the truth.
In Kavanaugh's pursuit of office, truth has too often not been his goal
but his casualty. The history of falsehoods is well chronicled: denying
that he worked on the nomination of the controversial Judge Pryor,
denying that he knew of documents stolen from Judiciary Committee
Democrats when he was at the Bush White House, denying that he was
involved in questions about the knowledge of the secret detention
program or the warrantless wiretapping program, denying what he himself
said about Presidential immunity from investigation, and complicit in
the coverup of millions of documents we should have seen, and on and
on.
Once Dr. Blasey Ford and then Ms. Ramirez came forward with sexual
assault allegations, the lies came fast and furiously--that he knew
nothing about the Ramirez allegations until the ``New Yorker'' story
was published; that he had no alcohol problem and never drank to the
point of impairment of his memory; that he had unique definitions of
phrases in common parlance he related to binge drinking and sex; that
he ``always treated women with dignity and respect''; and that claiming
himself as a girl's ``Alumnius'' was a sign of affection. As the woman
herself retorted: ``There is nothing affectionate or respectful in
bragging about making sexual conquests that never happened.''
On they came, little lies and big lies about not having connections
to get into Yale, about honoring grand jury secrecy while helping the
Ken Starr investigation--none perhaps individually fatal but together
adding up to a pattern of dissembling and prevarication. Even before
Kavanaugh was nominated, Leader McConnell smelled trouble and urged the
President not to nominate someone he knew was a badly flawed nominee
with a lengthy paper trail that would likely disclose how extreme and
partisan Judge Kavanaugh truly is.
So much has been left by the wayside in the mad rush to jam this
nomination through--documents, facts, Senate rules and traditions, real
investigation, simple respect for truth--all smashed-up wreckage in the
wake of this nomination. But as my fellow New Englander John Adams
said, ``Facts are stubborn things.'' The truth has a way of coming out.
The millions of hidden pages of Kavanaugh's White House records will
come out. The nonassertion assertion of Executive privilege will fall
or yield to time. The unheard witnesses will ultimately be heard, and
others may come forward, which brings me back to the question I began
with: Why all the wreckage? Why all the rush? Why all the damage? Why
all the violation? The answer is in the numbers: 5 to 4, 73, and 91
percent. At the end of the day, we go back to a Supreme Court far too
often dancing to the tune of a handful of big Republican special
interests. The record of this--the pattern of this--is undeniable. As I
said, it will be a disaster for the Court, and Kavanaugh will eagerly
contribute to that disaster.
This whole mess has been a dark episode for the U.S. Senate, for the
Supreme Court, for our image around the world, for our democracy. But
there is one bright jewel that can be picked in the midst of all the
filth and wreckage and lies; that is that something very special is
happening out there. The testimony of Dr. Christine Blasey Ford of her
assault at the hands of Brett Kavanaugh, though studiously ignored by
so many Republicans and mocked by the President of the United States,
has lit a fire.
Just in my small State of Rhode Island, at least 10 women have
written to me to share their own personal stories of survival of sexual
assault. Like all of us, I get mail everyday about various policies
that are being debated here in the Senate. I am coming up on 12 years,
and I have never, never had mail like this. These women have come
forward from widely different ages and backgrounds--college students
and grandmothers--to tell their stories. Some have held these secrets
close for years, even for decades. Several of these women gave me
permission to share their words--words they have allowed me to free on
the Senate floor after years of silence. What a privilege it is. What
an honor for me to be trusted in this way by these remarkable women.
Some were moved to tell their stories because they see their own
fears reflected in Dr. Blasey Ford's brave testimony--the fear of not
being believed, the fear of losing the respect of family or of friends.
But they knew that Dr. Blasey Ford's memories were real, and they told
me they wanted me to trust that Dr. Blasey Ford's memories were real
because they knew that their own memories were real, because their own
memories of their assaults were seared into their minds. One told me:
``I am Dr. Ford.''
A woman wrote to me:
I am sure my rapist hasn't thought of me since that night
21 years ago either. In fact, he, like Kavanaugh, would
likely deny anything had ever happened. But here's the thing
about rape--the victims never forget.
The coverage of Dr. Blasey Ford's appearance before the Senate for
some stirred deep and disquieting emotions. As one woman wrote:
The past few weeks have been doubly difficult with Dr. Ford
coming forward and all of the constant news threads and
social media threads. I have been triggered with nightmares,
fear of being alone, and emotionally wrecked. PTSD and
triggers are real. No matter how much therapy and time goes
by, one small statement or physical interaction can trigger
someone who has experienced a traumatic assault.
One letter read:
As a rape survivor (I was 19 years old--I am now 66 years
old), I want you to know that that experience does color the
rest of a person's life, informing decisions that you make,
where and how you go somewhere, how you raise your children
and relate to your husband and all other people. Sometimes
through the decades, you think about it consciously and on
purpose, and sometimes outside events can bring it back
without your willing it to be so.
Dr. Blasey Ford's quietly compelling testimony has forced our Nation
to face up to the tough questions about how women have been treated.
The redemption, if there is one, for this foul nomination process is
for us to grasp the power of this moment, for our country to act on the
power of this moment. This is about far more than a troubled and
troubling nominee. Something big is happening. Women across the
country, like these extraordinary women in Rhode Island, are
reconciling with their truth, fighting through a long and deeply unfair
legacy of shame, fear, and stigma. They are stepping up. They are
coming forward, determined, as one wrote to me to leave a different
world for their daughters and granddaughters than the world that
silenced them for years, for decades.
For me, it is a true personal honor to share this moment with them,
to be trusted with these long-held stories, to have the chance to help
end that bitterly unfair legacy, and to support them toward that new
and better world for their daughters and granddaughters.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S6613]]
[From The Washington Post, Oct. 5, 2018]
Is The Supreme Court Salvageable?
(By Jennifer Rubin)
Judge Brett M. Kavanaugh's frantic op-ed in the Wall Street
Journal insisting that he is a fair, impartial judge--and
that we should disregard his partisan, unhinged diatribe and
nonjudicial demeanor during last week's Senate testimony--
serves as some recognition that the partisan wars in which he
has taken up arms now threaten the legitimacy of the Supreme
Court. Other than denying a seat to an overt partisan such as
Kavanaugh, what can be done to recapture at least the
illusion that the high court is something more than another
blue-vs.-red battlefield?
It helps to understand how we got here, how we got to the
point at which a Supreme Court nominee doesn't bother to
conceal his animosity toward an entire political party.
The federal judiciary and the selection process for it were
not intended as expressions of representative democracy. We
didn't even directly elect senators who in turn confirmed
judges until the 17th Amendment. It wasn't intended to be an
expression of popular will. The expansion of judicial power
in the 20th century was a mixed blessing to be sure, serving
as both a last line of defense for individual rights against
a growing administrative state and an imperfect, sometimes
counterproductive tool for ameliorating deep social
conflicts. (As an aside, an unelected judiciary with vastly
expanded power used to be the right's nemesis; now it is a
political prize and a midterm election base-pleaser.)
The high court certainly became a bone of contention for
the right during the tenure of Chief Justice Earl Warren, but
the nature of the justices and the institution itself changed
when our parties become more overtly ideological, with fewer
centrists. Still, matters were not dire for the court due to
a very undemocratic instrument--the filibuster. That required
some small degree of consensus for judicial confirmation and
bestowed greater legitimacy on the courts. A justice
acceptable to at least a small number of the opposition
party's members had to contain his or her partisanship; he or
she couldn't be a gladiator for one side or the other.
Sen. Mitch McConnell (R-Ky.) decided that he had enough of
that. He envisioned the Supreme Court as simply another arena
for bare-knuckle brawls. Custom and comity went out the door.
He denied a mainstream liberal judge, Merrick Garland, so
much as a hearing. He did away with the filibuster for the
high court. Post Opinions contributing columnist Ron Klain,
speaking to the New Yorker, put it brilliantly: ``If
[Republicans] can, they will.''
Republicans saw no need to release all of Kavanaugh's
records. What could Democrats do other than holler? They saw
no need to take Christine Blasey Ford's allegations seriously
(they'd ``plow right through,'' McConnell said). So what if
Democrats squawked? With impunity they could order an FBI
inquiry designed to hopscotch around problems for Kavanaugh
(e.g. his claims about drinking). Democrats didn't have the
votes to block him, and the GOP moderates could be counted on
to crumble. Hence we got a Supreme Court nominee pleading his
case on Fox News and the Wall Street Journal op-ed page.
In some respect, the fix for the Supreme Court is the same
as the fix for our politics--leveling a right-wing populist
party that abhors democratic norms and building a center-left
to center-right coalition. (Some structural reforms such as
ranked voting, eliminating gerrymandering and automatic voter
registration would help.)
In the near-term, the goal would be to depoliticize the
Supreme Court, reducing the vicious partisanship that
accompanies a lifetime appointment. A term limit of 12 to 15
years for justices and a 60-vote threshold seem increasingly
attractive. A constitutional amendment would be needed for
the former and probably for the latter (unless both sides
finally agree that losing the filibuster has been a
disaster). That's no easy task considering that an amendment
must be proposed by either a two-thirds vote by both houses
of Congress, or a call by two-thirds of the state
legislatures for a constitutional convention (a prospect so
alarming given the extremism and anti-democratic passions of
the day that it should be avoided at all costs). However,
given the right's former antipathy toward a powerful
executive and the left's recent experience in a hyper-
politicized nomination process, it might be doable.
The Supreme Court can do its part as well. It has resisted
adopting its own ethics rules, including guidelines for
recusal. That should end. Justices have become less reticent
about making public, political remarks. That should end as
well. Judges should eschew appearances before overtly
ideological groups. If they act more like judges of old, they
might recapture some of the luster the Supreme Court once
had.
We've witnessed the destruction of a slew of executive
branch norms and the collapse of Congress (which is now a
partisan handmaiden to the president rather than a coequal
branch of government). If we let the court go to seed, we
will have pulled off a trifecta. But it's not an
accomplishment that any of us should seek.
____
Katz, Marshall & Banks, llp,
Washington, DC, October 4, 2018.
Re Supplemental Background Investigation of Judge Brett M.
Kavanaugh--UPDATED
Hon. Christopher A. Wray,
Federal Bureau of Investigation.
Dear Director Wray: As you are aware, the Federal Bureau of
Investigation failed to interview our client, Dr. Christine
Blasey Ford, in connection with its Supplemental Background
Investigation of Judge Brett M. Kavanaugh. It also declined
to interview witnesses whose names we provided to the FBI as
possessing information highly relevant to Dr. Ford's
allegations. We write to provide you with the names of
several of the witnesses we requested that the FBI interview
in connection with this matter. None were contacted nor, to
our knowledge, were more than a dozen other names we provided
to the FBI whose interviews would have challenged the
credibility of Judge Kavanaugh's testimony before the Senate
Committee on the Judiciary on September 27, 2018. They remain
available to talk with law enforcement.
Jeremiah Hanafin:
Mr. Hanafin is a former FBI agent and professional
polygraph examiner. He conducted Dr. Ford's polygraph
examination on August 7, 2018, and determined that Dr. Ford's
responses were not indicative of deception. Mr. Hanafin had
the data from the examination reviewed by four independent
reviewers, who all agreed with his conclusions. Mr. Hanafin
would be able to discuss the examination with the FBI, as
well as provide the polygraph examination data to the FBI for
its independent review. He also would have been able to
refute the false statements made in Rachel Mitchell's report
about Dr. Ford's mental state on the day of the examination.
Russell Ford:
As described in his sworn declaration provided to the
Judiciary Committee, in 2012 Dr. Ford told her husband and
their couples therapist that she was sexually assaulted by
Brett Kavanaugh when she was in high school. He can explain
how and why this issue arose in therapy. Mr. Ford has been
married to Dr. Ford since 2002 and can attest to her
character and credibility.
Keith Koegler:
As described in his sworn declaration provided to the
Judiciary Committee, Dr. Ford told Mr. Koegler in 2016 that
she was assault led by a man who was then (in 2016) a federal
judge. Shortly after Justice Anthony Kennedy's resignation
and prior to Judge Kavanaugh's nomination, Dr. Ford sent an
email to Mr. Koegler naming Judge Kavanaugh as her assailant.
Mr. Koegler has been close friends with Dr. Ford for over
five years and can attest to her character and credibility.
Adela Gildo-Mazzon:
As described in her sworn declaration provided to the
Judiciary Committee, in 2013 Dr. Ford told Ms. Gildo-Mazzon
that she was previously sexually assaulted by a man who was
then (in 2013) a federal judge. Ms. Gildo-Mazzon has been
friends with Dr. Ford for over ten years and can attest to
her character and credibility.
Rebecca Olson:
As described in her sworn declaration provided to the
Judiciary Committee, in 2017 Dr. Ford told Ms. Olson that she
was previously sexually assaulted by a man who was then (in
2017) a federal judge. Ms. Olson has been friends with Dr.
Ford for over six years and can attest to her character and
credibility.
Kirsten Leimroth:
In interviews with the media, Ms. Leimroth described a
lunch meeting with Dr. Ford and Jim Gensheimer at a beachside
restaurant with Dr. Ford in early July 2018, before Judge
Kavanaugh was nominated. At that meeting, Ms. Leimroth says
Dr. Ford named Judge Kavanaugh as her assailant and described
her fears about what would happen if her name and her
accusations against Judge Kavanaugh became public. Ms.
Leimroth is a family friend of Dr. Ford's and can attest to
her character and credibility. See https://
www.mercurynews.com/2018/09/17/metoo-spurred-christine-
blasey-ford-to-open-up-about-alleged-attack-year-before-
kavanaugh-nomination-friends-say/.
Jim Gensheimer:
In interviews with the media, Mr. Gensheimer described a
lunch meeting at a beachside restaurant with Dr. Ford and Ms.
Leimroth in early July 2018--the same meeting as the one
described by Ms. Leimroth--before Judge Kavanaugh was
nominated. At that meeting, Mr. Gensheimer says Dr. Ford
named Judge Kavanaugh as her assailant and described her
fears about what would happen if her name and her accusations
against Judge Kavanaugh became public. Mr. Gensheimer has
been friends with Dr. Ford for over eight years and can
attest to her character and credibility. See https://
www.mercurynews.com/2018/09/17/metoo-spurred-christine-
blasey-ford-to-open-up-about-alleged-attack-year-before-
kavanaugh-nomination-friends-say/; https://www.cnn.com/2018/
09/18/politics/kavanaugh-accuser-friend/index.html.
Monica L. McLean:
Ms. McLean has been friends with Dr. Ford for many years. A
letter released to the public on the night of October 2,
2018, apparently written by Brian Merrick, an ex-boyfriend of
Dr. Ford during her 20's, falsely claims that Dr. Ford helped
Ms. McLean prepare for a potential polygraph examination
sometime in the 1990's. Ms. McLean can attest to the falsity
of the claims contained in this letter, as well as the
character and credibility of Dr. Ford and that of the former
boyfriend.
It has come to our attention that another person who
requested anonymity came forward to the FBI with information
highly relevant to Judge Kavanaugh's behavior in high
[[Page S6614]]
school and was turned away. His sworn statement was published
on October 3, 2018 in the New Yorker: https://
www.newyorker.com/news/news-desk/will-the-fbi-ignore-
testimonies-from-kavanaughs-former-classmates.
In addition, had the FBI interviewed Dr. Ford, she would
have provided her direct account of Judge Kavanaugh's assault
and answered any questions about it, including questions that
Ms. Mitchell and the Judiciary Committee members were
unwilling or unable to ask during the hearing. She would have
also provided corroborating evidence, including her medical
records and access to the phone from which she messaged The
Washington Post about Judge Kavanaugh's assault prior to his
nomination to the Supreme Court. The FBI could have also
asked her about her conversations with the witnesses
referenced above in order to establish those witnesses'
credibility. Such an interview would have played a crucial
role in providing the FBI with a full picture of all of the
facts involved in this important and serious matter.
We were heartened on September 28, 2018, when Senators
Flake and Coons announced that the FBI would conduct a
supplemental background investigation. All those mentioned
above, and more, could easily have been interviewed in the
time allotted. It took tremendous courage for Dr. Ford to
come forward. As she testified before the Judiciary
Committee, she was eager to talk to the FBI. The
``investigation'' conducted over the past five days is a
stain on the process, on the FBI and on our American ideal of
justice.
Sincerely,
Debra S. Katz,
Lisa J. Banks,
Michael R. Bromwich,
Attorneys for Dr. Christine Blasey Ford.
____
Kaiser Dillon pllc,
Washington, DC, October 4, 2018.
Hon. Christopher A. Wray,
Director, Federal Bureau of Investigation,
c/o Dana Boente, General Counsel.
Dear Director Wray: My firm represents Deborah Ramirez, as
does the law firm of Hutchinson Black and Cook, LLC. As you
likely know, a reporter recently reached out to Ms. Ramirez
to ask about an incident involving Brett Kavanaugh, President
Trump's nominee for the United States Supreme Court. Ms.
Ramirez answered the reporter's questions, and he, after
interviewing a number of additional witnesses, wrote a story:
https://www.newyorker.com/news/news-desk/senate-democrats-
investigate-a-new-allegation-of-sexual-misconduct-from-the-
supreme-court-nominee-brett-kavanaughs-college-years-deborah-
ramirez.
As you likely also are aware, two of your agents met with
Ms. Ramirez this past Sunday, September 30, 2018, in
Colorado. Ms. Ramirez spoke with the agents for approximately
two hours, answering a host of detailed questions. Ms.
Ramirez offered credible and compelling information--as
everyone in the room would acknowledge.
Later that day, Ms. Ramirez, through counsel, provided the
FBI with a list of more than twenty additional witnesses
likely to have relevant information. Ms. Ramirez suspected
that a number of those individuals could corroborate her
account of Mr. Kavanaugh's behavior.
Fewer than four days later, however, the FBI apparently has
concluded its investigation--without permitting its agents to
investigate. We are deeply disappointed by this failure. We
can only conclude that the FBI--or those controlling its
investigation--did not want to learn the truth behind Ms.
Ramirez's allegations.
We know this much, however: If your agents had been
permitted to investigate Ms. Ramirez's allegations, they
would have uncovered substantial corroboration. Just last
night, The New Yorker published a new article: https://
www.newyorker.com/news/news-desk/will-the-fbi-ignore-
testimonies-from-kavanaughs-former-classmates. That article
highlights Dr. Kenneth Appold, a professor at the Princeton
Theological Seminary. The article reports that, at the time
of the relevant incident, Dr. Appold was a Yale
undergraduate, a resident of the relevant dormitory (Lawrence
Hall), and a suitemate of Mr. Kavanaugh. The article further
reports that Dr. Appold has confirmed that, shortly after the
relevant incident occurred, he learned of it, including that
Ms. Ramirez was the victim and Mr. Kavanaugh the perpetrator.
Dr. Appold is one of the witnesses that Ms. Ramirez had
suggested that the FBI contact; the FBI never did.
Dr. Appold apparently himself recounted this incident,
years ago, to another individual, Michael Wetstone. The New
Yorker article cited immediately above reports that Mr.
Wetstone has confirmed that Dr. Appold in fact relayed the
story in late 1980s or early 1990s. Mr. Wetstone is another
of the witnesses that Ms. Ramirez had suggested that the FBI
contact; the FBI apparently never did.
If your agents had been permitted to investigate, they
would have uncovered still more corroboration:
Dr. Richard Oh is an emergency room doctor in Santa Clara,
California. He attended Yale for his undergraduate studies,
between 1983 and 1987, i.e., at the same time as Ms. Ramirez
and Mr. Kavanaugh. He recalls, during his freshman year at
Yale, a female student ``emotionally reporting'' what can
only have been the same incident as described by Ms. Ramirez.
See Decl. of Dr. Richard Oh (Oct. 3, 2018), attached. Dr. Oh
is another of the witnesses that Ms. Ramirez had suggested
that the FBI contact; the FBI never did.
There may be many additional witnesses who could offer
still further corroboration (if any additional corroboration
were needed, which it is not). But we likely never will know,
given that your agents were barred from investigating. What
we do know, despite that lack of investigation, is that
multiple witnesses have corroborated Ms. Ramirez's
allegations. Respectfully, your agents should have been
permitted to develop that information.
Sincerely,
William Pittard.
Mr. WHITEHOUSE. I yield the floor.
The PRESIDING OFFICER (Mr. Rounds). The Senator from Maine.
Mr. KING. Mr. President, first I want to congratulate and thank the
Senator from Rhode Island for his moving and eloquent remarks--so
moving and eloquent, in fact, that I contemplated foregoing my own.
The Senator expressed the feelings of many of us, particularly in his
closing, which was very powerful, and, I think, very well encapsulated
the one possible positive result from this sorry process.
I stated my opposition to Brett Kavanaugh's appointment to the U.S.
Supreme Court before Dr. Ford's allegations became public--before I had
ever heard about them, before anyone had ever heard about them, as far
as I know, except some members of the Judiciary Committee.
Therefore, I don't believe you have to believe Dr. Ford to conclude
that Judge Kavanaugh should not be elevated to the Supreme Court--
first, because of his judicial philosophy.
If you will pardon me, I want to digress for a moment into
constitutional history--preconstitutional history, if you will. There
is a basic paradox of government. We give power to something called the
government in order to protect our security, to protect us as
individuals, to protect our liberty. The paradox is that we then have
to worry about the government to which we have given the power abusing
us.
James Madison captured this in the 51st Federalist:
If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a
government which is to be administered by men over men--
And, of course, today Madison would say men and women over men and
women--
the great difficulty lies in this: you must first enable
the government to control the governed, and in the next place
oblige it to control itself.
The Romans put it this way: ``Quis custodiet ipsos custodes.'' Who
will guard the guardians?
The other philosopher who talked about this was the English
philosopher Lord Acton: ``All power corrupts and absolute power
corrupts absolutely.''
The American Constitution, in my view, is the most sublime answer to
this ancient question of any instrument of government ever formed by
people on this Earth. It is based upon a profound understanding of
human nature: If you give people power, there is the potential for it
to be abused--not the potential, the likelihood that it will be abused.
So the Constitution is an elaborate scheme for preventing that abuse.
The first line of defense is the structure of the government itself.
What Madison was talking about was obliging the government to control
itself--this herky-jerky, complicated, Rube Goldberg device involving
two Houses, checks and balances, the President, the veto, submitting
treaties, two-thirds votes, advise and consent, and then the whole
level of the State government and local government, the division of
responsibilities between the governments, and enumerated powers. The
Framers wanted it to be difficult for majorities to ride roughshod over
minorities. They wanted it to be difficult to legislate, and they
succeeded beyond their wildest dreams.
It is a very difficult piece of machinery to bring into action, but
even after the Framers had designed this elaborate structure
specifically in the name of protecting the rights of the people, they
weren't satisfied. They wanted to take another step, because going back
to our other fundamental document, the Declaration of Independence
talks about certain inalienable rights--life, liberty, and the pursuit
of happiness--and that word ``inalienable'' isn't defined much. Not
much attention is paid
[[Page S6615]]
to it. ``Inalienable'' means neither can you give it away nor can it be
taken from you. To alienate is to give away or have it taken from you.
That is what ``inalienable rights'' mean.
Going back to when they said we have this elaborate structure that
will be very complicated to operate, what if the majority makes this
structure work in such a way that is amicable to the fundamental rights
of people? The first thing Congress did was to adopt the Bill of
Rights. The Bill of Rights is the second shield for us as individuals.
I always thought of it as a force field around individuals that
protects the basic rights, even if the government follows all of the
procedures.
Congress shall make no law abridging the freedom of speech,
establishing religion, or controlling the free exercise thereof. Search
and seizure must be reasonable. You don't have to give testimony
against yourself. All of these rights in the Bill of Rights are
designed to protect us as individuals from the government.
The framers then had an interesting problem when they got to the Bill
of Rights, and they listed the rights. Somebody--and I can't remember
who it was right now--came up with the problem that if you list the
rights, then people will later say: Well those rights are listed.
Therefore, there aren't any other rights that can be protected. So they
added the Ninth Amendment, which is one of the most unappreciated and
undiscussed amendments to the Constitution. The Ninth Amendment says:
``The enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people.'' In
other words, there are rights that exist--they recognize that--that
aren't the ones listed that we all think of in the First through the
Fifth Amendment--rights such as freedom of speech, the press, freedom
from unreasonable searches, the right to bear arms. They were afraid
they would appear too exclusive. So they passed as part of the Bill the
Rights the Ninth Amendment.
What does this have to do with Judge Kavanaugh? To understand Judge
Kavanaugh's jurisprudence, what kind of judge he will be--by the way,
that is what we are all doing here. This is an exercise in forecasting
the future. What will this person decide? What kind of judge will they
be? That involves things like demeanor and temperament, but it also
involves judicial philosophy.
To understand the judicial philosophy of Judge Kavanaugh, you have to
understand the judicial philosophy of Justice William Rehnquist. Judge
Kavanaugh has characterized Justice Rehnquist as his judicial hero. He
gave a speech about him in 2017. He says that the article in the Texas
Law Review in 1976 written by Justice Rehnquist is one of the most
important legal documents ever written.
What do Justice Rehnquist and Justice Kavanaugh have in common? They
have a very expansive view of what States can do to limit your rights
and a narrow view of what the Federal Government can do to protect your
health, welfare, the environment--you name it.
Justice Rehnquist voted against Roe v. Wade. Justice Rehnquist
criticized Griswold v. Connecticut. He voted against Roe v. Wade
because he said the right of a woman to control her own reproductive
health is not enumerated in the Constitution. Obviously, it is not
listed in the first two or three Amendments, but the Court found that
it was a basic human right of women, and that is the basis of Roe v.
Wade.
The problem with Justice Rehnquist's approach and Judge Kavanaugh's
approach to unenumerated rights is that they say unenumerated rights
could be recognized by the courts only if the asserted right was rooted
in the Nation's history and tradition. That is called originalism, or
it is a piece of originalism. In other words, you can't assert a right
unless you can show that the Framers thought about it when they passed
the amendments, or that it was somehow rooted in the tradition. If
abortion was legal across the country in 1897 or 1867 or 1787, then you
couldn't do it. The Court would be making law.
The problem is that this approach freezes rights in history, and it
allows no room for the evolution of ethics and morality. A good example
is Loving v. Virginia, which is the case that overturned misogynation
laws that made it illegal in many States in the country, including
Virginia, at the time--and this was in the 1960s--for people of
different races to marry one another.
It is hard to argue using the Kavanaugh philosophy that that is a
legitimate exercise of judicial authority because certainly, at the
time of the passage of the Bill of Rights and the passage of the 14th
Amendment, anti-misogynation laws were all over the place. So Rehnquist
and Kavanaugh would say you can't do that. This isn't judicial
lawmaking. This is judicial protection of individuals' rights from
State incursion.
In Griswold v. Connecticut, in many ways, Griswold was the case that
said the State of Connecticut could not constitutionally prohibit the
sale of contraception to married couples. It has been widely criticized
in many ways. The Griswold case, I believe, was the founding document
of the Federalist Society. It was in reaction to Griswold and the
following cases that the Federalist Society arose in the 1980s.
So this philosophy is that the States have wide latitude to restrict
these rights--enumerated or not. That is why I believe there is--I
don't know--a 50-50 chance, 60-40, or 70-30 that a Justice Kavanaugh
would repeal Roe v. Wade. I give it 99 percent that he will gut Roe v.
Wade. There are something like 15 cases headed for the Supreme Court
right now from various States around the country where the right of a
woman to control her reproductive future is under assault. The
decisions may not be an outright repeal, but by piecemeal, chipping
away at that right, making it harder and harder to exercise Roe v.
Wade, it will be a hollow shell.
Judge Kavanaugh said in his hearing: I am not going to make these
value judgments, ideological judgments. I am going to call balls and
strikes like an umpire.
I have a new principle for judging Supreme Court nominees: Anybody
who says all they are going to do is call balls and strikes is an
automatic no because they are conning us. Deciding whether a particular
rule in a State that restricts the ability of a woman to control her
reproductive future is unduly burdensome is not a mechanical ball and
strike. It is a value-laden judgment call. Don't tell me there is some
easy ball-and-strike thing here. You are making judgment calls based
upon values.
I don't have any doubt that a Justice Kavanaugh is going to vote to
restrict, to control, to limit, and ultimately, to gut Roe v. Wade.
Indeed, that is what the President said he was going to do--to appoint
a judge who was going to take that step. That is why he is so widely
supported in some parts of the country.
By the way, he said Roe v. Wade is a precedent. That is like saying
this is a chair. That is a statement of fact. That is not a value. That
is not a philosophy. That is just a statement of fact. Then he says:
Well, we have Planned Parenthood v. Casey. So we have a precedent on a
precedent. That is like saying this is a chair and this is a desk. That
is a statement of fact. That is not anything that gives you any
indication of what he says he is going to do.
By the way, Justice Gorsuch sat in my office and talked to me about
precedent and how committed he was to precedent. He had written a whole
book about precedent. I don't think he was on the Court even a year,
and he voted in the Janus case to absolutely trample 40 years of
precedent in a very important area of American law. So when somebody
tells me it is a precedent or it is settled law, that doesn't convince
me of very much. That is not a predictor of what they will do.
He has an expansive view of the State power to restrict individual
rights. He has a narrow view of the national legislature's ability to
protect individuals, whether it is healthcare, and I will give you 75
percent that he is going to start voting to undercut and destroy the
Affordable Care Act.
In 16 out of 18 cases on the environment that came before his court,
the DC Court of Appeals, he voted with the polluters. He narrowed the
authority of the Environmental Protection Agency. In one case
particularly relevant to my State, he decided against the right of the
EPA to tell upwind States they had to control their pollution in order
to benefit downwind States. Maine is in
[[Page S6616]]
the tailpipe of the Northeast. All the air moves from west to east and
ends up in Maine. We could shut off every automobile and every factory
in Maine and still have air pollution problems. Telling the EPA they
can't regulate air that moves across State lines is a direct shot at
the State of Maine.
As for campaign finance reform, I predict he will join with the 5-to-
4 majority to continue the deregulation of campaign finance, one of the
most serious issues facing this country.
He even said that net neutrality was unconstitutional because of the
right of large internet service providers to have free speech. That is
a case that would deny free speech and freedom of activity to millions
of internet users across the country. You don't have to believe Dr.
Ford to oppose and believe that Brett Kavanaugh should not be elevated
to the Supreme Court.
You also don't have to believe Dr. Ford to believe that Brett
Kavanaugh should not be elevated to the Supreme Court because of his
views on Presidential power, but first let's establish what he said. In
the Minnesota Law Review, he said we should not burden a sitting
President with civil suits, criminal investigations, or criminal
prosecutions. He has an elaborate argument about that involving
impeachment and that the Congress should pass a statute and a whole lot
of other things. We can argue about that. They are legitimate disputes
about the meaning of article III and how it relates to impeachment and
how it relates to the subject of the President being subject to
criminal prosecutions. I understand that. I understand we can have
those arguments, but once he stated that position, he should have
announced that he would recuse himself from any case involving the
President who appointed him--the first rule of the judicial canons.
Canon No. 2 is that a judge shall avoid not only impropriety but the
appearance of impropriety, and 2a, from the Code of Judicial
Responsibility says that a ``judge should act at all times in a manner
that promotes public confidence in the integrity and impartiality of
the Judiciary. Let me read that again: ``A judge should act at all
times in a manner that promotes public confidence in the integrity and
impartiality of the Judiciary.'' The reason for that is obvious. The
Judiciary doesn't have the power of the purse. It doesn't have an army.
It has to rest on public confidence.
He already violated that principle in his testimony to the Judiciary
Committee last week. He violated that principle. Imagine the reaction
of the public if a newly minted Justice Kavanaugh, within the next
couple of years, votes in favor and, indeed, can provide the deciding
vote, the swing vote, on a case involving the President who appointed
him. I am not saying he can't take this position ever in his judicial
career, but to have not recused himself when he had an opportunity to
do so, to announce he would do so, to me, is disqualifying. It is
obvious and mandatory that he should not take a position on a case
coming before the Court involving the President who appointed him.
No. 3, we don't have to believe Dr. Ford to conclude that Judge
Kavanaugh should not be confirmed to a lifetime job because we have
been denied the ability to learn about his record.
Imagine, Mr. President, you are doing a job interview for a very
important job in your company, and a guy comes in and says: I would
like this job, and I am going to show you 10 percent of my work
product. The 10 percent that I am going to give you is going to be
picked out by an old buddy of mine whom I used to work for. In fact, he
used to work for me. Oh, and by the way, once you hire me, you can
never fire me; I am there for life.
Nobody would take that deal. Any employer in America would laugh at
that job applicant. Yet that is exactly what we are doing here this
week. We have seen 10 percent of his record in the White House and have
been given no reason whatsoever why we can't see it all. People talk
about, oh, we have seen 100,000 pages or 200,000 pages. That is not the
point. He has a huge record, so the number of pages isn't the issue; it
is how much of it we have seen as a percentage, and we have seen 10
percent of it.
If I were on the side of this case preparing to vote for this
gentleman, I would be terrified about what is going to come out because
it is all going to come out. The records of the Bush administration are
going to be available in 2020 under the Presidential Records Act--12
years from the end of the administration. In 2020, all of these records
will come out. In fact, I think they are going to start coming out in
the next couple of weeks from the National Archives. I don't know what
is in those records. There may be nothing. The fact that they are being
withheld raises my main suspicions. Are they worried that something is
in there that will derail this nomination, or do they know it?
Asking us to vote on this lifetime appointment, with no do-overs, no
amendments, no chances, no repeals, when we haven't seen the entire
record, is beyond me. There is no justification for it.
Even if I were inclined to vote yes, I would say: Wait a minute. You
can't ask me to vote for this until I see all his records.
We haven't done it. It is ridiculous. There is no other word for it.
No. 4, we don't have to believe Dr. Ford to conclude Judge Kavanaugh
should not be elevated to the Supreme Court because he has demonstrated
he lacks the temperament and demeanor to be a Justice of the Supreme
Court.
First, I think it is only fair to state the standard. What should be
the standard for temperament and demeanor for a judge? Here is the
standard, as I have seen it:
To be a good judge and a good umpire, it's important to
have the proper demeanor. Really important, I think. To walk
in the others' shoes, whether it be the other litigants, the
litigants in the case, the other judges. To understand them.
To keep our emotions in check. To be calm amidst the storm.
On the bench, to put it in the vernacular, don't be a jerk.
This isn't me; this is the standard published to show and help
display that you are trying to make the decision impartially and
dispassionately, based on the law and not based on your emotions. Who
established that standard? Who wrote it? Brett Kavanaugh. Those are his
words from a speech several years ago at Catholic University. Proper
demeanor. Calm amidst the storm. On the bench, don't be a jerk. Help
display that you are trying to make the decision impartially and
dispassionately based on the law and not based on your emotions. I
don't see how anybody, with a straight face, can argue that Brett
Kavanaugh met that standard last Thursday afternoon.
I had an interesting experience that day. I was in a hearing in the
afternoon while he was speaking, and there was a television screen in
the hearing room, but the sound was off because we were doing other
committee work. Every now and then, I could look at the screen, and I
could see him. I turned to the person sitting behind me and said: He is
coming unhinged. What is going on? What is he saying? He is shouting.
You could see it. You could see his face contorted. Then, of course,
I saw what he was saying. No one could argue that he demonstrated
judicial demeanor in that hearing. In fact, something like 3,000 law
professors, including 40 from Yale, have come out and said that based
on that performance, he should not be confirmed to the Supreme Court.
Justice John Paul Stevens, a retired Justice, in an extraordinary
moment, said: This man should not be confirmed for the Supreme Court.
If you were from Mars, Mr. President, or from South Dakota and you
knew nothing about the history of this matter, you knew nothing about
the documents, the opinions, the philosophy, none of those things, and
all you saw was that hearing that afternoon, you would say: This guy
has no business anywhere near a courtroom.
His defense is, I was angry. I was being charged with something. My
family is being threatened, and I am being threatened.
I understand that. All of us have thought about how we would feel if
some unjust or untrue charge were made against us, whatever the nature,
and a particularly heinous charge was made against him. I understand
that he was passionate. But here is what really bothers me: What he
said--the conspiracy, the direct insults to the Democratic Senators,
the idea that he was a victim of a smear campaign--he had written down.
That wasn't a spontaneous outburst--that he was so mad
[[Page S6617]]
and caught up in the moment and said something he regretted--it was in
written testimony. He had written it down, his answers to the
questions.
Back to canon No. 2, avoid anything that would undermine confidence
in the judiciary. He actually said, looking at the Democrats, ``What
goes around comes around.'' Everybody knows that is a threat. He was
looking at Richard Blumenthal, who is the plaintiff in a case called
Blumenthal v. Trump, which is in the Federal district court in
Washington and will eventually make its way to the Supreme Court based
on the emoluments clause. How can Richard Blumenthal possibly believe
he would get a fair and impartial hearing from somebody who said:
``What goes around comes around''? That phrase itself should be
disqualifying. Anybody who talks about a political party or a group of
people or millions of people or anybody else and says ``What goes
around comes around''--that is disqualifying.
I think that based upon judicial philosophy, his failure to recuse
himself from issues involving the President who appointed him--his
refusal to say he will recuse himself in issues involving the President
who appointed him, the incredible lack of documentation based upon his
record, and his demeanor last week disqualify him.
No, you don't have to believe Dr. Ford to conclude, as I have, that
Judge Kavanaugh should not be elevated to the Supreme Court.
Before I close, I should add one note: I do believe Dr. Ford.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Ms. DUCKWORTH. Mr. President, as I begin speaking tonight, we are
less than 24 hours away from handing a seat on the Supreme Court to a
man credibly accused of sexual assault--a lifetime appointment that
would give him immense power to determine the right of every American
to access healthcare, to start or grow a family, or even have access to
what the Founders called the inalienable rights of life, liberty, and
the pursuit of happiness.
From the beginning, this nomination process has been a sham. The
confirmation hearing was rushed. Bush- and Trump-era Republicans worked
shoulder to shoulder to ensure that thousands of documents never saw
the light of day. Questions about Kavanaugh's seeming habit of
perjuring himself only grew by the day. That was all before Dr.
Christine Blasey Ford stood up and spoke out, before she took a deep
breath and began to relive the worst moment of her life over and over
again on the national stage, credibly accusing Brett Kavanaugh of
pinning her down, covering her mouth, and changing her life forever.
Now, even after she has testified about the night she was nearly
raped, even after she talked of the memories indelibly etched into her
mind and her 100 percent certainty that it was Brett Kavanaugh that
night, some on the other side of the aisle have prioritized partisan
tribalism over justice, over truth--two of the pillars that supposedly
define our Supreme Court.
How can the FBI investigation be considered anything but a GOP-led
sham when Dr. Ford was not even interviewed, when Mr. Kavanaugh himself
wasn't even questioned or the dozen-plus people Dr. Ford and Deborah
Ramirez have said could help collaborate their stories?
Why the rush? What are the Republicans afraid of? If they are so
convinced that their nominee is not a serial sexual assaulter, why have
they done everything in their power to curb and hinder investigations
into the incidents in question?
The Republicans who angrily claimed on TV yesterday that this
nomination is taking too long, that the Democrats are obstructing for
the sake of obstructing, are literally the same people who delayed the
consideration of Merrick Garland's nomination for 293 days simply
because he was nominated by President Obama.
For the chairman to claim that this nomination has gone on longer
than the ``average'' Supreme Court nomination ignores the reality that
their nominee, who has been credibly accused of multiple sexual
assaults, is being jammed through at lightning speed compared to the
only other nomination he has ever overseen as chairman--Merrick
Garland.
To Leader McConnell, Chairman Grassley, and my Republican colleagues,
I warn you, history has its eyes on you. I beg you to slow down and
consider the stakes of this debate.
Like Neil Gorsuch just a year ago, there are countless other
conservatives scattered throughout the Federal judiciary who could be
confirmed instead of Judge Kavanaugh, potential nominees with zero
credible allegations of sexual assault, who are willing to release
their records, who are capable of demonstrating the thoughtful, careful
temperament we should demand from any possible Supreme Court Justice.
As a nominee, Kavanaugh brought his confirmation hearings two things:
his record and his character. His record revealed that he would eagerly
be the deciding vote in cases that would take away a woman's right to
make her own healthcare decisions, tear healthcare away from millions
of Americans with preexisting conditions, and even empower this
President to act as though he were above the law.
Equally important, his character can be summed up in just a few
words: untruthful, dishonest, intemperate, and unfit to serve. Anyone
who watched the Judiciary Committee hearing last Thursday should have
serious, if not disqualifying, doubts about Brett Kavanaugh. He spewed
out conspiracy theories about the Clintons, went on partisan rants,
appearing belligerent and outraged that anyone would dare keep him from
getting what he appears to feel entitled to. He shouted over Senators,
attacked and insulted them personally, even pledged to exact revenge on
his political adversaries.
Only a man who has never served in harm's way would dare complain
that tough questioning was equivalent to his enemies trying to ``blow
him up.''
Judge Kavanaugh, I have been on the receiving end of an RPG blast, so
I can tell you that sitting in a fancy, air-conditioned hearing room
with a nice glass of ice water for a few hours is nothing at all like
being under attack in the desert and fearing for your life in the
middle of a war zone.
Over and over again, he told what seemed to be bald-faced lies. He
lied about the meaning of his yearbook page, about whether he had any
possible memory loss or had ever become aggressive while drinking,
about what he knew at age 53 and what he did at age 17.
Sadly, we shouldn't even be surprised. Kavanaugh has a habit of
appearing to lie under oath. Over the years, he has dissembled and been
dishonest under oath on a number of issues, including his role in
developing the Bush administration's policies on torture.
This consistent dishonesty, this disregard, even distaste for the
truth should be disqualifying for any Supreme Court nominee, but my
colleagues on the other side of the aisle are turning a blind eye,
seemingly not bothered one bit by his dishonesty, much less the
credible allegations of sexual assault against him.
Today is the 1-year anniversary of the New Yorker's Harvey Weinstein
story that broke open the #MeToo movement. Now, exactly 365 days later,
we in the Senate are faced with a choice: Do we believe the survivors
who come forward to tell their stories, or would we rather take the
easy route, dismissing their claims as misguided or mixed up, as one of
my colleagues put it, ignoring their claims, ignoring their pain?
Well, I, for one, believe Dr. Ford and Deborah Ramirez. ``Courage''
is the word that comes to mind when I think of these women. They didn't
ask for this burden. They did not want this spotlight or the death
threats and fear that have come right along with it. They have put
country before self and have spoken out anyway, knowing full well that
some would vilify them for doing so.
Take a moment to imagine what they have gone through. Imagine being a
teenage girl alone and scared, outnumbered and overpowered and
terrified. Imagine carrying that trauma with you every day for decades,
then having to relive it in front of the entire country, and then being
called a liar, having your life threatened, and being victimized all
over again in the process.
It now rests on the U.S. Senate to listen. We must set an example for
the rest of the country and avoid repeating
[[Page S6618]]
the sins of confirmations past. We must condemn efforts to shame
survivors even when--especially when it is the President himself doing
the bullying.
By refusing to confirm Brett Kavanaugh, we can send the message that
victims of sexual assault matter, that their voices will be heard, and
that seeking justice for these survivors is more important than the
confirmation of any single individual. We can recognize the bravery it
took for these women to speak out. Doing so would make clear that, at
least in the U.S. Senate, if not in the White House, time is truly up
for any judicial nominee credibly accused of sexual assault. Doing so
would at least begin to restore integrity to how the Senate carries out
its constitutional responsibility to provide advice and consent.
To any of my colleagues considering voting yes on this nominee,
please take just a few minutes to listen again to the opening words of
Dr. Ford last Thursday. Hear the pain in her words, the truth in her
voice.
I will be voting no on Judge Kavanaugh's nomination. On behalf of Dr.
Ford and survivors everywhere, I am begging--begging--each of my
colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Ms. HASSAN. Mr. President, I rise to join Senator Duckworth and
Senator King and so many of my colleagues in opposing Judge Brett
Kavanaugh's nomination to the Supreme Court.
One of the most solemn responsibilities of a U.S. Senator is
providing advice and consent upon the President's nominating an
individual to the Supreme Court. This is a duty and a decision that I
do not take lightly. This is a lifetime appointment to the highest
Court in our land, which will impact the lives of every single person
in this country.
Supreme Court Justice is not a position that any person is entitled
to. Any individual nominated to the Court must be subject to security
on the totality of their record, their temperament, and their past
actions.
Yet, throughout the process of this nomination, my colleagues in the
majority have made clear that they will stop at nothing to get Judge
Kavanaugh on the Court, no matter his record, no matter his
temperament, no matter his character.
When Dr. Christine Blasey Ford's serious and credible allegations
came to light, we saw a truly disturbing scene from both Judge
Kavanaugh and my colleagues on the other side of this aisle. Judge
Kavanaugh himself lashed out, claiming a political conspiracy against
him, refusing to answer questions, and seemingly threatening those who
raised serious, good-faith questions about his fitness. He said these
words: ``What goes around, comes around.'' His behavior and his words
reflected a partisan who sees those with whom he differs as enemies,
not opponents.
While many of my colleagues in the majority praise Dr. Ford's bravery
in sharing her story, and even agreed that her testimony was credible,
they blocked any serious professional attempt to get to the facts.
I want to take a minute here to address one of the most disingenuous
claims I have heard from the majority when it talks about Dr. Blasey
Ford.
Over the last week, Members on the other side of the aisle have
expressed concern and regret that Dr. Blasey Ford's letter outlining
her allegations was leaked, forcing her story into public view. But the
fact that Dr. Blasey Ford didn't choose if and when to reveal her
allegation to the public does not relieve the U.S. Senate of its duty
to pursue the truth or to treat Dr. Blasey Ford with the respect and
compassion the majority says it feels for her, something it could
simply demonstrate by acceding to her request for what normally happens
after a report of sexual assault: a full investigation before the
hearing.
I, too, will note that I watched and listened to Dr. Blasey Ford's
testimony. I considered the additional evidence that would have
particular weight in a court of law of her corroborating statements
well prior to any suggestion that Brett Kavanaugh would ever be
nominated to the Supreme Court of the United States. I compared her
testimony to that of Judge Kavanaugh, and I believe Dr. Blasey Ford.
Even though the committee rejected the doctor's request for an
investigation prior to the hearing, which would have been normal
course, which would have produced a much more meaningful and insightful
and fact-based hearing, I was hopeful when it was announced last week
that the nomination process would be paused for the FBI to investigate
Dr. Blasey Ford's allegations. I was so hopeful that there would be a
thorough, intensive process in order to get to the truth.
But after reading the FBI report that was presented to Senators, it
is clear that the FBI was not allowed to conduct a serious
investigation.
I am an attorney, and I have to say that any good attorney allowed to
read the FBI's supplemental background investigation--what we have been
calling the report here--would tell you that it is not the type of
comprehensive investigation that could lead to the truth. The limited
scope of the investigation produced a sham.
Let me be clear. Nothing in the FBI report exonerated Judge
Kavanaugh. It wasn't comprehensive enough to prove or disprove Dr.
Blasey Ford's allegations or Judge Kavanaugh's denials. It was clearly
designed just to provide cover so that the majority could vote yes and
jam this nomination through.
Even before Dr. Ford bravely stepped forward with her allegations of
sexual assault, I had concluded that Judge Kavanaugh's nomination
should not go forward, that Judge Kavanaugh did not belong on the
Supreme Court of the United States.
Having reviewed his record and hearing his testimony before the
Senate Judiciary Committee, it is evident that he does not have the
impartiality that is required to serve on the Supreme Court. His record
shows that he is a partisan who promotes a partisan rightwing ideology
deeply at odds with the will of the American people.
On issue after issue, Judge Kavanaugh has promoted a judicial
philosophy that diminishes the rights of individuals, particularly
women, and puts corporations before people.
On healthcare, Judge Kavanaugh's agenda has been clear. As recently
as October 2017, Judge Kavanaugh criticized Chief Justice Roberts'
decision to uphold the Affordable Care Act. In his confirmation
hearing, Judge Kavanaugh would not commit to upholding protections for
people who have preexisting conditions, such as asthma, cancer,
diabetes, and more.
The Trump administration and the majority in Congress have been
relentless in their attempts to sabotage our healthcare system,
underscoring the need to have a Supreme Court that would rise above
partisanship, but Judge Kavanaugh will not do that.
On the issue of reproductive rights and a woman's right to chart her
own destiny, Judge Kavanaugh has repeatedly tried to dodge and mislead,
but none of his judicial opinions or comments indicate that he believes
Roe v. Wade was rightly decided or that he would respect Roe's
precedent if he had the opportunity to do so.
With Judge Kavanaugh on the Bench, Roe and the personal, economic,
and reproductive freedom that it has delivered to women is directly
threatened.
When it comes to checks and balances on the President's power, Judge
Kavanaugh's record and opinions are also extremely concerning,
particularly given that a clear pattern of criminality continues to
emerge from the Mueller investigation.
Judge Kavanaugh has a history of supporting an unchecked Presidency.
He has written that Presidents should be essentially above the law by
claiming that they should not be the subject of civil lawsuits,
criminal prosecutions, or even criminal investigations.
During his hearing, Judge Kavanaugh refused to commit to recusing
himself from matters involving investigations of the very President who
nominated him. Especially at a time like this, it is too dangerous to
place a Justice on the Supreme Court who believes in virtually no
checks on a President's power, but it appears that the majority is
committed to doing just that.
This nomination has been an outrage, and the way it has been handled
is a failure of this institution. The majority has put the interests of
its party and a nominee who has made clear he will serve those
interests before the interests of the court and the country.
[[Page S6619]]
The nominee, who will apparently--given today's developments--be
confirmed tomorrow, is without the character or temperament needed to
serve on the Supreme Court without the credibility that the American
people deserve. He is, in fact, the antithesis of that impartial
arbiter that a Supreme Court Justice has to be.
The people of New Hampshire deserve better. The people of the United
States of America deserve better. That is why I will be voting no on
Brett Kavanaugh's nomination tomorrow, and I would urge all my
colleagues on both sides of the aisle to do the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, I come before this body this evening after
having heard several remarks from a number of my distinguished
colleagues, whom I like, whom I respect, whom I admire, and with whom I
greatly and substantially disagree on many matters discussed tonight.
Just in the last little while I have heard arguments presented first
by the Senator from Maine, a good friend of mine, who made some
arguments that he put into roughly four categories. He opposes Judge
Kavanaugh on the basis of judicial philosophy, on the basis of his
refusal to agree anticipatorily to certain types of recusals, to the
absence of documentation he claims was available to the committee, and
to Judge Kavanaugh on issues of demeanor. I would like to address each
of these allegations in turn.
First, with regard to judicial philosophy, my friend from Maine--who
truly is a friend--explained that, in his view, Judge Kavanaugh was
unacceptable because, among other things, he counts among those he
admires, among his judicial role models, the late William Rehnquist,
Chief Justice of the United States. The reason that is apparently a bad
thing, according to my colleague from Maine, is that this somehow
indicates that he would view himself sort of as an umpire, calling the
balls and the strikes, reading the law on the basis of what it says
rather than on the basis of what he or anyone else might wish were the
law.
Jurists, you see, are not philosopher kings, not even when they get
onto the Supreme Court of the United States. They are not there to
impose will but judgment.
You see, as Alexander Hamilton explained in Federalist 78, there is a
difference between the type of government activity that goes on in the
judiciary and the type of government activity that goes on in the
legislative branch. In the judiciary, they exercise judgment; that is,
they read the law. They figure out what the law says. When two or more
parties come before the court's proper jurisdiction, they interpret the
law on the basis of what the law says. That, Hamilton explains, is
judgment.
Will, on the other hand, is deciding what the law should say, what
policies are best for the U.S. Government. That is the prerogative of
this branch. That is the prerogative of the political arms of the
Federal Government. That is not the prerogative of our friends across
the street who wear black robes.
So I was surprised to hear that my colleague from Maine, the junior
Senator from Maine, Mr. King, was saying that he objects to the
judicial philosophy of Judge Kavanaugh on the basis that he says he
would call the balls and strikes as he sees them. It seems to me that
this is the essence of what Federalist 78 was talking about, about the
difference between will and judgment.
Hamilton explained that if ever the judiciary started exercising will
instead of judgment, it would upend the entire constitutional order.
That, we cannot have. That is not how it should be.
Next my colleague from Maine went on to explain that Judge
Kavanaugh's association with the Federalist Society was somehow a
problem, that the Federalist Society is somehow some sort of demonic
conspiracy to overthrow the U.S. Government--or something to that
effect. I embellished slightly his characterization of it, but you
would think from what some of my colleagues say about the Federalist
Society that there is something terribly wrong with it. Let me tell you
about the Federalist Society.
I have been aware of the Federalist Society for most of my life. I
attended my first Federalist Society event while I was still in high
school. I mean, what teenager doesn't want to attend a Federalist
Society event at a nearby law school? That was something we considered
to be a lot of fun in Provo, UT.
At every Federalist Society event that I have ever attended, starting
when I was in high school, all the way through college, through law
school, throughout my career as an attorney, and since then in my
career in politics, one thing has been consistent: The Federalist
Society, when it puts on an event, allows for all sides to be
represented. You will see views that are widely divergent. You have
people, such as Nadine Strossen, former president of the American Civil
Liberties Union, who have long been affiliated with the Federalist
Society and participated in their symposium. This, you see, makes the
Federalist Society rather unlike most American law school experiences,
wherein one side is presented--not both. The Federalist Society prides
itself in focusing on open, robust, honest debate.
So if some people want to criticize the Federalist Society or those
who, heaven forbid, have ever attended a Federalist Society event, what
they are doing is criticizing academic freedom, criticizing a robust
discussion of law and public policy. We should all be grateful for the
Federalist Society for Law and Public Policy Studies. This is an
enterprise that really represents the core of what the American people
should value--certainly what those who study and admire and respect the
law should value. This is not something people should be criticized for
participating in. Last I checked, academic freedom and robust
discussion of what the law says and which branch of government ought to
exercise will and which ought to exercise judgment--that is something
to be rewarded. That is part of America's bedrock. Its core
institutions of civil society are people who are willing to come
together, not under the auspices of government, not under the control
of some bureau or bureaucracy, but rather on their own to discuss and
debate things that will inure ultimately to the benefit of the people.
Next, my colleague from Maine, Senator King, referred to Judge
Kavanaugh's refusal to agree anticipatorily to a recusal in certain
cases. As Judge Kavanaugh very capably explained in his hearing, this
is not the kind of judgment a person makes before taking the Bench,
before assuming a particular judicial office to which he or she has
been nominated. It wouldn't be appropriate for him to anticipatorily
agree to recuse himself in a type of case that he has even yet to see.
I am not sure why some of my colleagues wanted to put him on the
record as taking himself off of a certain broad category of cases, but
that, nonetheless, seems to be what they were after. That, in most
circumstances, is improper, just as it would be improper to get Judge
Kavanaugh to agree in advance of his confirmation as to how he would
vote in a particular type of case.
This, too, many of my colleagues find troubling, by the way; yet
this, too, is part of the canons of judicial ethics. We don't want
people campaigning as if on political issues to get onto the Supreme
Court of the United States. We will get back to that a little bit more
later.
Next, Senator King referred to the supposed lack of documentation
from the Bush administration where Judge Kavanaugh worked--the lack of
documentation, meaning the lack of documents coming out of the White
House. It is important to know that Judge Kavanaugh doesn't own the
documents in question. No, those are owned by the Bush administration.
They own the privilege, and under the Presidential Records Act, which
Congress itself has enacted, there are terms set. There are agents
identified, agents who get to assert certain privileges and decide
when, whether, and to what extent certain documents will be released
and available for our review. I am not sure what it is that they are so
terrified might be out there, but whatever it is, it is in a document
that doesn't belong to us, a document to which we have no access, to
which we have no rightful claim, but a document that in all events is
not Judge Kavanaugh's call. It is not his call to decide what happens
to those documents--when, whether, under
[[Page S6620]]
what circumstances we receive them. It is not his fault. It is not
under his control. He has no say on that. Do not hold that on his head.
That is not his burden.
Then my colleague from Maine went on to address Judge Kavanaugh's
demeanor. Senator King is not a member of the Judiciary Committee. I
am. Senator King acknowledged to have viewed some of the hearings from
a television while in other parts of the Capitol Complex, sometimes
with the volume on, sometimes with it off. He said something to the
effect that if he were watching from another planet, he would conclude
that this man is not fit for office. Maybe he wasn't watching the same
hearing I was, but I know one thing: Senator King wasn't in that room;
I was. Let me tell you what I saw.
I saw a man who has devoted most of his adult professional career to
public service; a man who volunteers his time to feed the hungry, the
homeless; who coaches his girls' basketball team, which he has done for
a very long time; who teaches; and who supervises those whom he
employs.
His law clerks over the last 12 years--by the way, men and women of
every background in the United States--rave about him, call him the
kind of boss that every American would want to have, that every young
lawyer would dream of working for, for the simple opportunity of
learning under his tutelage, for the opportunity of serving in a
judicial apprenticeship of sorts under a true master of the law.
I don't know what Senator King was referring to, but he wasn't in
that same hearing I was. He certainly didn't see the same thing I saw,
which is someone who was seeking sincerely to defend his own record of
public service and his own private conduct against great adversity,
moreover, in circumstances in which he and his family have been dragged
through the mud by no choice of their own.
As to the suggestion that he was somehow leveling a threat when he
uttered the words ``what goes around comes around,'' I was in that
room. I understood that to mean one thing and one thing only, which is
to say that when we mess with the process, that process might well
remain messed up. That is all he meant. He was not making any threat.
That was apparent to anyone watching that meeting with anything
approaching an open mind. Anyone watching that with an open mind would
have understood what that meant in context. He was simply stating the
obvious: When we allow politics to come into play excessively in the
process of naming and confirming people to the Supreme Court of the
United States, it messes it up. It messes it up now and messes it up
for the future. We should all be concerned about that.
I also heard comments from my colleague, the distinguished junior
Senator from Illinois. She said, among other things, that the
investigation conducted into allegations involving Judge Kavanaugh were
``a sham.'' A sham. Think about what that means. It means that she is
suggesting that those investigating didn't want to get to the truth.
I don't know what documents she has reviewed, but I can tell you the
documents that I have reviewed. Those compiled by the Federal Bureau of
Investigation and those compiled by the very faithful investigative
staff on the Senate Judiciary Committee were thorough. We are talking
about hundreds of pages of transcripts, to say nothing of the more than
30 hours of testimony provided by Judge Kavanaugh himself before the
Senate Judiciary Committee. We have been thorough in what we have gone
through, and to call this a sham is simply disingenuous. It is
inaccurate. It is inconsistent with anything I have seen.
I heard my colleague from Illinois also refer to what she
characterized as untrue statements made by Judge Kavanaugh in
connection with Judge Kavanaugh's alleged participation in the
development of the so-called torture policies in the Bush
administration.
As has been stated over and over again by Judge Kavanaugh and those
who worked with him, he wasn't even cleared, didn't even have access to
that program, was not involved in that program's creation. The
documents to which they refer in claiming otherwise show only that he
was asked about certain arguments that may be presented in court, which
is completely different from the question they are talking about--
whether he had anything to do with the development, the design, the
creation of that program, which he did not. So to say that he lied
about that is completely dishonest, it is not borne out by the facts,
and I find it shameful that this accusation would be made. It is
completely contrary to the evidence.
Next, my colleague from Illinois referred to concerns about what she
referred to as healthcare outcomes--outcomes in particular cases
involving healthcare. She went on to extol the virtues of the Patient
Protection and Affordable Care Act, also known as ObamaCare, and spoke
at length as if to suggest that Judge Kavanaugh were being considered
not for a judicial position but a position involving lawmaking, policy-
setting. He has, after all, been nominated to a position of Associate
Justice of the Supreme Court, not policymaker. His exercise of
judgment, of interpreting the law based on what it says rather than on
the basis of what he wishes it said, is his role. It is unfair to
compare him to another standard.
Moreover, if we are going to compare him to that standard, she has to
acknowledge that when we are talking about the Affordable Care Act, he
actually wrote an opinion upholding it. That is beside the point here,
but if she is questioning his judgment and his ability to handle the
law and apply the law on the basis of how he views the law and to do so
objectively, she ought not to be concerned.
If she is concerned about the outcome of cases relating to the
Affordable Care Act--which I don't think she should be--as separate and
apart from the judgment part of his role, then she ought to be consoled
by the ruling that he made upholding the Patient Protection and
Affordable Care Act.
In any event, it is simply not fair to compare him to this standard
and to say that because they fear--because my colleagues fear that he
might reach a different policy outcome than she might prefer, she is
attributing to him political views that he doesn't have, that he isn't
allowed to have as a jurist, and that he has not expressed.
If you can point to any one of his 300 written published opinions in
the Federal reports, bring them to me--any one of those that suggest
that he is incapable of being impartial in healthcare or in any other
arena, please bring them to me. I would love to see them. Yet they
can't, they won't, and they haven't, because such opinions do not
exist. That is why they resorted to other things. That is why they are
talking about policy. That is why they are trying to smear this man's
character and destroy his good name, because they have looked through
those opinions, and they can't find a dud among them.
My colleague, the distinguished Senator from New Hampshire, also
spoke. She regretted the fact that, in her view, there hadn't been a
full investigation into the allegations against Judge Kavanaugh and
suggested that additional evidence would have been helpful and that
additional evidence exists corroborating the allegations made against
him.
Well, having reviewed hundreds and hundreds of pages of transcripts
of interviews resulting from the FBI investigation and from our
competent Judiciary Committee staff, I don't know what she is talking
about because the only potential corroborators in this case--that is,
the alleged eye witnesses to the accusations in question--those
allegedly present in the circumstances in question, say that they can't
remember any instance in which anything like this happened--not just
the underlying bad acts themselves as alleged but the events in which
they allegedly occurred. That is what we call corroboration. You cannot
have a statement you describe as corroborating unless there is someone
who at the time saw or heard or was otherwise made aware of something
at or around the time it occurred. That is what corroborating evidence
is, and that is what is noticeably absent in this case.
She also claimed that the FBI was not allowed to conduct a serious
investigation. I do not know what she means. What I do know is that
what the FBI was asked to do involved conducting a supplemental
investigation
[[Page S6621]]
into current credible allegations of sexual misconduct, and that is
what they did. We, the Senate Judiciary Committee, didn't put
guardrails around that, didn't tell them they couldn't follow up on
leads they deemed significant, didn't tell them they couldn't look past
a certain witness, didn't tell them they couldn't follow up on
something that might shed light on this candidate's credibility or his
eligibility to serve in judicial office.
That leads to another point. This man has now endured 7 FBI
background investigations, with over 150 people interviewed during that
time--150 people interviewed extensively about what they know about him
and about what they know about his character. Those interviews and the
report that was produced back up this man's character. And separate and
apart from the fact that there is no corroborating evidence for these
allegations, these independently backed him up.
My colleague from New Hampshire, like my colleague from Illinois,
also brought up the Affordable Care Act, as if assuming from the outset
that, on the basis of policy, Judge Kavanaugh would rule a certain way
in this or that aspect of anything having to do with healthcare. Here
again, we have characterizations that would be much more fitting in a
political debate for a political office, but, alas, that is not what we
have here.
My colleague from New Hampshire referred to the Mueller
investigation. I don't know how that is tied to the nomination of Brett
Kavanaugh to be an Associate Justice of the Supreme Court of the United
States, but somehow she tried to make that an issue. I don't know what
she is talking about. I don't know how that could possibly be relevant
here.
She made the argument--the very serious accusation--that Judge
Kavanaugh somehow believes that the President of the United States is
above the law. I challenge my colleague from New Hampshire to tell me
what evidence she has that he believes that. This is a serious
accusation and one that should not be made lightly.
I have never ever heard of Judge Kavanaugh having said or written
anything suggesting that the President of the United States is above
the law. Yes, Judge Kavanaugh acknowledged, as he has repeatedly on a
number of occasions in a number of settings, that there is a dispute
among scholars as to the timing and manner of liability that might be
faced by a current sitting President of the United States, but he has
never said the President of the United States is above the law--never--
never hinted at it, never concluded that, and it is therefore unfair to
attribute that view to him.
Finally, my colleague from New Hampshire characterized Judge
Kavanaugh as being someone who is without character and sort of the
antithesis of being an impartial arbiter.
I think the very best way we can view that with regard to his
character is through his life of public service, through the way he has
interacted with those he knows, those who have truly known him not just
over the last 36 years but for his entire lifetime.
The best we can evaluate his ability to be an impartial arbiter is to
review the 300 published opinions he has written while serving as a
judge on the U.S. Court of Appeals for the DC Circuit. I challenge any
one of my colleagues to bring me any one of those opinions or any
combination of those opinions that show that he is incapable of being
impartial or that he is in any way challenged as to impartiality. They
can't do it. They won't do it. They haven't done it because such
opinions don't exist.
Judge Kavanaugh is a good man. He is eminently qualified to serve on
the Supreme Court of the United States. I endorse President Trump's
nomination of him. I was pleased to vote in favor of cloture, and I
look forward to voting for his confirmation in the coming hours.
Thank you, Mr. President.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. BLUMENTHAL. Thank you, Mr. President.
At some point during the confirmation hearing--now seemingly years
ago but probably only just a month or so ago--I saw young women going
through the halls of the Capitol with T-shirts that said ``I am what's
at stake.'' I want to thank those young women and all of the countless
women and men of all ages who have come to our Nation's Capital to show
us what democracy looks like.
I know that some of my colleagues have been displeased--in fact, have
called it mob rule--but the power and force of democracy within those
voices and faces--a lot of them were from Connecticut, and I am proud
of your coming here to tell us what you think both for and against this
nomination. That is what democracy looks like. When we reject the
voices and faces of democracy coming to tell us their truth, we lose
something very precious. It is of equal importance to the townhalls and
the meetings and parades and all we do at home. I do a lot of it at
home, but I was proud of the folks from Connecticut who came here and
the folks who came from all over the country from as far away as Alaska
and Hawaii to give us the benefit of their insight and perspective. ``I
am what's at stake'' is the message those women were conveying to us in
real time.
We talk here in words. Sometimes we hold up posters. We talk in
abstract; that is, the legal parlance of the courts and our
legislature. But our decisions have real-life consequences, and the
appointment of Brett Kavanaugh and the confirmation that likely will
take place tomorrow will affect real people in real time for
generations to come because it is for a lifetime.
The courts are among the most anti-democratic institutions in our
country, the greatest democracy in the world and the most enduring of
any democracy. They are lifetime appointments. They are insulated
generally from attack or even criticism because folks who criticize a
judge in his or her presence can be held in contempt. They have powers
to punish contempt by immediately jailing someone. They are anti-
democratic so long as they fail to reflect the will of the people if
there are excesses, if the nomination and confirmation process goes off
the rails. And that is what is happening here--a broken promise and
process that has caused a rush to judgment simply for the sake of
arbitrary deadlines and irrational timelines placed on a nomination
that is fundamentally flawed.
A lot of my colleagues have relied on personal assurances from Brett
Kavanaugh in their chambers. He talked to me an hour, and he assured
me, I heard my colleagues say. He assured me that he will not overturn
Roe v. Wade, but his answers to us under oath on those topics were
evasive and misleading.
When I asked him, for example, in our hearings about Roe v. Wade, he
repeated the vague commitment to settled precedent, but he couldn't
explain why he referred to that precedent in his Garza dissent as
``existing precedent.'' It would be like introducing your wife as ``my
current wife.'' How long do you think that wife is going to be around?
He referred to abortion-on-demand. These kinds of code words sent a
signal to the Federalist Society and the Heritage Foundation, and they
were the direct cause--or at least one of them--for his being on the
President's short list after he hadn't been on it before he issued that
dissent.
Looking to what he has actually written and said is a much keener,
more reliable insight into what he will do, more than personal
assurances.
His writings indicate that he believes, in effect, in a President who
can refuse to enforce the Affordable Care Act simply because he deems
it unconstitutional. He concludes, in his vision of the Constitution
and his interpretation of the statute, that they are in conflict, even
after the Supreme Court of the United States upholds it and a prior
President signs the law and a Congress passes it.
That kind of monarchial power is an anathema to our constitutional
sense of checks and balances, and the result could well be--in fact,
likely will be--that millions of Americans will be deprived of
protections when they suffer from diabetes and heart disease,
Parkinson's, high blood pressure, pregnancy--the preexisting conditions
for which the Affordable Care Act was designed to afford people
protections in insurance.
Healthcare, women's reproductive rights, the right of a woman to
decide when she wants to have children, the
[[Page S6622]]
right of people across America to decide when they want to marry the
person they love, consumer rights, workers' rights, environmental
protection--all are at stake to real people in their real lives for
generations to come. ``I am what is at stake'' applies to every
American.
I have never been angrier or sadder since coming to the Senate. This
nomination was essentially the result of a rush to judgment and of a
coverup, starting with the concealment of millions of pages of
documents. Those documents are in the National Archives. They belong to
the people of the United States, but the White House chose to hide
them.
Then, there was a straitjacketed sham of an investigation into sexual
assault--yes, a sham; really, a whitewash--that refused to interview
dozens of witnesses, some of them eyewitnesses who could corroborate
the credible and powerful allegations made by sexual assault survivors.
My office spoke directly to Kerry Berchem. There is a more recent
report out tonight--an excellent report by NBC--about how she and
others tried to be interviewed. They sought and beseeched the FBI to
talk to them, but the FBI was given a list because the purpose of that
investigation was not to find the facts. It was to offer cover. It was
to permit our colleagues to say there has been a seventh investigation.
Have my colleagues read those six investigations? Do they understand
that the general practice--we can't talk about the details on the
floor, of course--of the FBI is to begin at age 18, not before? Do they
understand that the general practice of an FBI background investigation
is to interview professional colleagues, coworkers, supervisors, and
references that are suggested by the nominee to any particular
position?
The seventh investigation was really the crucial one regarding those
allegations of an individual 17 years old or even 18, in college, where
there was no reason in those earlier six investigations to go back. The
FBI was straitjacketed, and that is a disservice to the U.S. Supreme
Court, to the Senate in our constitutional responsibility, to the
people of the United States, and, ultimately, to Brett Kavanaugh,
himself, because these allegations will not be going away any time
soon. They will hang over him and the Court as a cloud and a stain for
years and years to come. Facts and evidence have a really powerful way
of coming out. Eventually, facts and evidence have a way of finding a
way to the public realm.
From the beginning, this nomination has been a crucial test for the
Senate and for the Nation, but this fight is about more than just this
Supreme Court seat. It is about a courageous and credible sexual
assault survivor who came forward. Actually, she expressed concerns to
friends before the nomination was made about Brett Kavanaugh's possible
nomination. She recounted her story years before even the seat opened,
as documented by her therapist's notes and her husband, who, by the
way, was never interviewed. Her husband was never interviewed. Talk
about corroborating witnesses. Her therapist's notes were never
reviewed, and she herself was never interviewed by the FBI. That is an
absence of factfinding. And, of course, Judge Kavanaugh was never
interviewed, as well.
She came forward to say she was sexually assaulted by Brett
Kavanaugh, and the details of her claim were lacking in some part. She
was frank to admit that she couldn't remember everything, which is not
atypical of sexual assault survivors, as the experts would have told
the FBI if they had interviewed some experts. But she could remember
some parts of that story, and they are details that I will never
forget: the laughter from Brett Kavanaugh and Mark Judge, the third
person she knew to be in that room--the laughter at her expense. The
mocking and ridiculing laughter are so vivid in her memory. It is the
same mocking and ridiculing laughter that we heard at some of the
rallies where the President mocked and ridiculed her--the same mocking
and ridiculing that, for decades, have been applied to survivors of
sexual assault who come forward. She has endured the same nightmare of
public shaming and character assassination and threats--potential
retaliation that all too often has silenced sexual assault survivors.
She braved that nightmare, knowing full well what was coming, but maybe
she thought it would not come from Members of the Senate. Maybe she had
that naive hope, and if she had it, she was wrong.
Our colleagues here said she was mixed up. They said they believe
her, they find her credible, but she must be wrong about the identity
of the person who attacked her. Well, that echos to the second point
that rung true and vividly in her testimony when she was asked: Could
it be mistaken identity? Absolutely not. Was she sure it was Brett
Kavanaugh? 100 percent sure.
I have a message for my Republican colleagues: You can't believe the
survivors only when they say what you want to hear. You can't believe
the survivors for only those parts of the story that are comfortable
and convenient. You can't believe them only when they tell you how they
have been hurt, horrifically harmed, but not the person who harmed them
and hurt them. And you can't believe them if you reject the possibility
of a thorough, complete, fair, and impartial investigation into all of
the facts and the evidence.
My Republican colleagues say they would like to believe Dr. Blasey
Ford and they would like to believe Deborah Ramirez, but there is no
corroborating evidence. You cannot believe survivors without seeking
the corroborating evidence. You cannot believe them if you turn a blind
eye to witnesses who come forward and not only are willing but,
actually, in effect, pound at the FBI's door.
I reviewed those interviews with the people who were on the list that
the FBI permitted to be interviewed, but I have also reviewed the
mounds of tip line records. I don't know how many of my colleagues have
done so. They are fascinating and illuminating and profoundly revealing
because there are actually tips from people who came forward and had a
personal connection to the events of interest. Of course, I am barred
from providing details, but none of them were contacted or interviewed.
That is not an investigation. That is not an investigation by the FBI
worthy of the FBI's name.
I offer no criticism of the FBI because they were, in effect,
narrowly circumscribed, limited, straitjacketed, handcuffed by someone
in the administration. We need to find out who it was and how it was
done. Both women offered evidence of the kind that is routinely offered
in sexual assault cases. They can prove that they told others about
their experiences long before the current nomination fight. Christine
Ford had a polygraph test and therapist notes. And both women can point
to a history of Brett Kavanaugh acting inappropriately when drunk. What
my Republican colleagues apparently mean when they say there are no
corroborating witnesses is that none were permitted to tell their story
to the FBI, not that they weren't available.
I would like to say that this approach to sexual assault survivors is
a thing of the past, a throwback to some other time, but the fact is
that it remains real in the lives of survivors around this country
today. They should know that we are going to stand with them, that this
example of, in effect, failing a proper and complete impartial
investigation is far from acceptable to us.
I want to make a commitment to my colleagues and the public that I
will continue fighting to find the facts. The American people deserve
to know why the FBI failed to complete a full investigation of these
powerful and credible allegations. They deserve a full understanding of
what the investigation would have found. They deserve full access to
Judge Kavanaugh's record--those millions of pages of documents that
were concealed and that raise the question: What are they hiding? What
are they afraid of the American people seeing from the time that Brett
Kavanaugh served in the White House as Staff Secretary?
I filed an FOIA suit to force disclosure of millions of pages of
Judge Kavanaugh's documents that have been hidden from the country. The
majority leader chose to vote without seeing those documents, but I
have no intention of stopping in this effort until they have been
disclosed--and they will be. They will come out, adding to the cloud
and the stain.
[[Page S6623]]
The allegations here are desperately serious. They are credible and
powerful, and our job was to make sure that the facts and the evidence
either supported them or not.
Debates over the Supreme Court often focus on civil rights and civil
liberties, those protections enshrined in the first 10 Amendments to
the Constitution. Make no mistake. Those rights and liberties are at
stake here. But this Supreme Court debate is also about the fight
between powerful corporate interests and ordinary Americans.
Corporations have become adept at using the courts when their arguments
fail to persuade policymakers and the American people.
When the EPA bans polluters from spewing poison into the environment,
polluters go to court to stop that Agency. When the FCC prevents cable
giants from censoring the internet, those companies go to court to stop
that enforcement.
When the Labor Department or the NLRB take action to protect workers
or when the CFPB or FTC take action to protect consumers, big employers
and financial services firms go to court to stop them. If you want to
breathe clean air and drink clean water, if you want a free and open
internet, if you want to work or purchase products free of corporate
abuse and fraud, this fight is about your life. It is about you.
This nomination poses a clear and present danger to those enforcement
efforts. He poses a danger to the rights of women to decide when they
want to have children and to millions of Americans with preexisting
conditions who want to keep their affordable health insurance. He poses
a danger--clear and present--to workers and consumers who want to live
free of corporate domination. He poses, most dangerously, a threat to
the checks and balances that prevent a President from running this
country like his own personal fiefdom.
In his opinions, his speeches, his writings, and his testimony, we
can see where this nominee will take the country if he is a swing vote,
as he is likely to be on so many of these issues. He has used those dog
whistles or bumper stickers in his campaign for his nomination, those
terms and buzz words, ``abortion on demand.'' Sometimes he uses a
bullhorn, as when he promises conservative organizations that he will
overturn longstanding, near-unanimous precedents that have fallen out
of favor with the rightwing or when he goes out of his way to publish
long dissents, articulating a radical understanding of the law and its
value.
He has been not so much a nominee as a candidate for office. He has
been campaigning for this job since law school. Like many candidates
for office, he has spent that time demonstrating to potential political
patrons that if they pick him, he will diligently represent their
interests. He is their guy. That is how he became a member of that
elite group on the President's short list.
I will conclude by saying that most chilling--indeed, frightening for
me--was his appearance before this committee when he gave a rant and a
screed that was written the day before, so he said. It was delivered
word for word from that text. It was hardly the result of some
spontaneous insult or outburst. It was calculated and planned. It took
back the mask of the judge and revealed the man--bitter self-pity,
rageful, and a deep partisan, which he had demonstrated before
throughout his career as a party operative but perhaps not on the
bench. The man revealed there said to us: ``What goes around comes
around.''
He said that the powerful allegations of the sexual assault survivors
were the result of a leftwing conspiracy fueled by revenge on behalf of
the Clintons. Those remarks demean the brave and courageous survivors
who came forward on their own initiative, without any encouragement by
any Senator, and they were degrading to Christine Blasey Ford and
Deborah Ramirez and to the survivor community. They were directly
contrary to Judge Kavanaugh's own test of what a judge should do:
The Supreme Court must never be viewed as a partisan
institution. The Justices on the Supreme Court do not sit on
opposite sides of the aisle.
He was sitting on one side of the aisle. In fact, he was sitting on
one distinct side of that side of the aisle. That is the reason former
Justice John Paul Stevens found his appearance before that committee--
not only his prepared remarks but what he said after--as disqualifying.
That is the reason the 2,400 lawyers and professors and former judges
have written urging that his nomination be rejected. That is the reason
I find most frightening.
I have appeared four times before the U.S. Supreme Court. Every time
has been an extraordinary honor, and I have spent a good part of my
career standing in front of judges, sometimes with juries and sometimes
not. What I prized in judges most importantly was that they were
nonpartisan, that they were objective and neutral. I don't know how
lawyers or ordinary parties to any case could stand before Judge
Kavanaugh now and feel they will be judged fairly and impartially.
My colleagues have come to accept these vague assurances from
nominees that they will simply call balls and strikes, that they will
follow settled precedent, but we have seen those vague promises
betrayed when judges or Justices actually reach the Court.
I look to what he said in that hearing before the Judiciary Committee
as a warning about what will happen if Justice Kavanaugh is confirmed.
What he wrote in the op-ed today in the Wall Street Journal provides no
assurance because the real Brett Kavanaugh came before our committee,
and the real Brett Kavanaugh wrote down in advance what he felt. The
real Brett Kavanaugh should not be confirmed to the U.S. Supreme Court.
Even at this late hour, I hope my colleagues will heed that warning.
We may lose this battle, but we cannot lose the broader struggle for
justice in this country. I will stay angry. I hope my colleagues and
others around the country will as well.
To the young people who came to these halls wearing that T-shirt, ``I
am what's at stake,'' you are right. You are what is at stake. Stay
angry.
I yield the floor.
The PRESIDING OFFICER (Mr. Tillis). The Senator from Oregon.
Mr. MERKLEY. Mr. President, our Founders had a very clear design for
the ability to put individuals into high posts of great responsibility.
They really wrestled with it. They considered giving the ability to
appoint judges and executive officers to the assembly, as it was
referred to. I think we have to worry a lot about individuals swapping
favors. One person saying: You support my friend, and I will support
yours--that wouldn't lead to those with the best qualities serving in
these key positions.
They concluded after great debate that it would go to a single
individual, the President, to nominate. They realized that the
President can go off track. They thought the President might express
favoritism of a variety of sorts. Alexander Hamilton talked about this
at some length: maybe favoritism to people in the home State, maybe
favoritism to a close group of friends, maybe favoritism to individuals
who were doing favors for the President. Who knows? Therefore, there
had to be a check on the potential abuse of the appointment process.
That is where the Senate came in, to advise and consent--the President,
to nominate; the Senate, to consent. What that meant is that the Senate
could not interfere with the President on the nomination process, and
the President was not to interfere with the Senate in the confirmation
process. Yet we have right now, for the first time in U.S. history, as
far as anyone has been able to ascertain, a case in which the President
of the United States has interfered greatly, first of all by requesting
that the Senate not look at all 3 years in which this individual,
Kavanaugh--the nominee--served as Staff Secretary to President Bush.
Second of all, the President appointed an individual to provide the
stamp of Presidential privilege on documents for when he served at the
White House that they did not want the Senate to see. We have some of
those documents. He said: Those are OK. Yet they censored 100,000
documents with the Presidential privilege stamp. This has never been
done, ever, as far as we can determine.
This body, on a bipartisan basis, requested all of those documents.
This was not a case of the President saying ``Please don't request,''
like with the Staff Secretary; this is a case in which the Senate
together said ``Give us the documents,'' and the President refused.
[[Page S6624]]
This is something we should all stand together and say: Unacceptable.
It is unacceptable that the President stepped across the separation of
powers to interfere with the work of this body to review the nominee's
record. The fact that there have not been loud cries of protests from
the leadership of this Senate is a shame on this institution--that it
has not fought for the separation of powers embodied in the
Constitution. It has not fought for the ability of each and every
Senator to be able to exercise full responsibility when we took our
oath of office to review the records of nominees, engage in the advice
and consent exercise.
Is this to be a precedent for the future because the leadership here
has so shamefully abandoned the core principles of the Constitution and
the responsibilities of this Chamber? I hope not. I hope that,
together, all 100 Senators will find in the future they will make sure
the President cannot interfere with our responsibility.
This is only one of the many problems, the many concerns, about Brett
Kavanaugh. Brett Kavanaugh didn't raise a single voice about the
interference of the President with the exercise of this body. He is
being nominated to the Supreme Court. He is supposed to have read the
Constitution at some point. He is supposed to understand the separation
of powers. He is supposed to stand up for the principles embodied in
that great document, and he did not. That alone should tell you this
man does not belong on the Supreme Court.
Then, of course, there is the fact that he has a view of Presidential
power that is above and beyond the law. Try to find that in the
Constitution.
Among the 25, he was the one who had the most expansive view of
Presidential power. He is the one the President chose. Why is that?
Because the President is under investigation for conspiring with Russia
to fix the election. That is why. He is worried. He is up at night. He
wakes up early. He tweets out to the world--angry, hostile. He wants to
make sure he has a Justice on that Court who can help write a ``get out
of jail free'' card. What a conflict of interest. What a conflict of
interest that this Court might have to rule on whether a President can
pardon himself. It is something we have never had to worry about
before, whether a President can fire a special prosecutor, despite the
writing under the law.
That is not all. We have before us a nominee who has been deceptive
and misleading to this Chamber time after time. Different articles have
put up different lists. They all come down to here is what he said, and
here is the truth. Here is what he said, and here is the truth.
I want to pivot, though, to perhaps the most shameful, difficult part
of this nominee; that is, his record of abuse toward women and the
complete failure of this body to look into that.
I heard earlier on the floor of this Chamber a number of my
colleagues across the aisle use the word ``fairness.'' ``We want
fairness.'' I heard it from one, two, three, four colleagues,
``fairness.'' Did a single one of them express any regret that when Dr.
Ford came forward and asked for those who could corroborate her
testimony, asked for the Judiciary Committee to hold a hearing with
those folks able to testify? Did they express any regret they turned
her down?
Even in 1991, the Judiciary Committee brought forward people to
corroborate Anita Hill's story. Here we are 27 years later, and we
don't treat a woman coming forward to share an experience of sexual
abuse--we don't even allow those individuals who can corroborate to
testify before the Judiciary Committee.
Did I hear a single Republican stand up and say ``I am embarrassed we
treated her so poorly''?
Let's take Debbie Ramirez. She laid out a list of 20 individuals. The
Judiciary Committee had a lot to say about her experience. Did they
invite her to testify and be able to tell her side of the story? No,
they did not. She had a list of 20 individuals who could provide
corroborating information. Did they ask a single one of those 20 to
come before the committee? Did they allow a single one to come? No,
they did not. There was no fairness in that committee. Let's be clear
about that.
Let's not hear more highfalutin arguments about fairness from the
other side of the aisle when these two women were treated in such an
egregious and awful fashion.
Then, there is the phony FBI investigation. I praise my colleague who
insisted that the record be reopened, the background check be reopened
for the FBI to provide an opportunity to check out these experiences
shared by Debbie Ramirez and by Dr. Ford. On a background check, it is
not a criminal investigation, and the FBI can't decide who to talk to.
Did I hear a single Member across the aisle express any embarrassment
about the fact that they let the President constrain the investigations
so not one--not one--of the eight people Dr. Ford asked to be talked to
was talked to? Not one. Zero. You call that fair? That is not fair.
That is not fair to her, that none of the people she asked to be talked
to were talked to.
Did I hear a single person across the aisle express any reservations
about the fact that that FBI investigation was so constrained by the
President of the United States, with advice from the Republican
leadership, that they did not talk to one of the 20 people Debbie
Ramirez asked to be talked to about her experiences in college?
You know, 1 of the 20 was a suite mate of Mr. Kavanaugh's. Well, when
you go through your freshman year and you are a suite mate, you share a
common living area, and there is one bedroom here and one bedroom here,
so you are with each other all the time. You know a lot about the other
folks. Well, that is a pretty powerful association. That individual is
now a professor at Princeton Theological Seminary, and he heard this
story when it happened. He heard about it, and he lived right there in
the suite, and he thought it was horrific.
I heard some colleagues say there was no one who could substantiate
her story. That is simply false, and it is shameful to allege that
there is no one when you know there is. It is unacceptable to call
something fair when you deliberately instruct or encourage the
President to make sure that the people who can provide the information
are not talked to.
This individual, now a professor at Princeton Theological Seminary,
has a very fine reputation. He was so upset about this, he talked about
it with his roommate his first year in graduate school long before Mr.
Kavanaugh ever came close to any type of nomination debate. So you
can't really say that he made it up now when he told another person
about it long ago. And that individual was on the list to be talked to,
but did the FBI talk to him? No, because the President wouldn't let the
FBI talk to him, and the President consulted with the Republican
leadership, and they didn't want anybody talked to who could actually
corroborate these stories.
That is a rigged system. For anyone on this floor to say that is
anywhere close to a form of justice, that is not true.
These women have been horrifically treated by this Chamber. Just as
the country knew Anita Hill was treated so poorly, so will, for decades
from now, people talk about the abuse of power that emanated from my
colleagues across the aisle against these women.
Across this land right now, women have been reliving their own
experiences of abuse. It has been an extraordinarily painful
experience. They have been calling our offices. I am sure they have
been calling all of our offices. I got on the phone and took many calls
today. I heard story after story. It takes a lot of energy out of your
heart to listen to individuals say, I am sharing this with you, and
they start crying on the phone--person after person.
I also have all of the stories that have been written and sent to me
as letters. I thought I would share a few of them with you.
Here is a letter:
What a farce! The disrespect to Dr. Ford and to victims
everywhere. I am sincere in saying that this TRIAL is turning
my stomach. I have fought back tears. I am a victim of
similar offenses. It is no better, and in some ways worse,
that it is a woman going after Dr. Ford in a subtle attempt
to cloud the trust of her experience.
Well, what is she referring to when she says it is a woman going
after Dr. Ford? She is talking about the fact that the leadership on
the Judiciary Committee hired a prosecutor to come
[[Page S6625]]
in and act as if Dr. Ford were a criminal on trial and to interrogate
her as if she were a criminal on trial. That is what this individual
said ``is turning my stomach.'' And it turned my stomach, too, to see
that abuse of power here in the U.S. Senate.
Another letter:
Hello, Senator. It has been 21 years since I was raped. I
had at the time only shared my story with the emergency room
doctors, the police, and my mom. Since it occurred, I have
only shared my story with my husband, until this week on
Twitter with the ``why I didn't report'' hashtag.
With each new accusation against Brett Kavanaugh, it has
forced me to relive all the horrible memories from the night
my assailant raped me. This moment in history and the fact
that the majority of Republican Senators who have either
tried to discredit the women coming forward or victim blame
and shame them has literally made the event so fresh in my
mind; as though it just happened all over again yesterday.
As like Dr. Ford, the details of dates, exact time, exact
clothing, are not extremely forthcoming to my memory,
although I remember the colors of what we were both wearing.
The fear, his actions, what I was feeling, and what was said
during the rape, I will never forget. And I will never forget
the smell of the cologne he was wearing and how it makes me
physically ill when I smell it to this day.
Kavanaugh can have his fake tears and shout his anger all
he wants because I guarantee you, if the man who raped me was
trying to get a job on the Supreme Court, and if I had the
strength to come forward like Dr. Ford did, then he too would
yell and scream at the realization he was being confronted
and that it was about to be taken away from him. Not to
mention, my sexual assault assailant would NOT require an FBI
investigation either.
And what is she referring to there? She is referring to the fact that
Dr. Ford took a polygraph exam, and Dr. Ford asked for an FBI
investigation. Mr. Kavanaugh did not take a polygraph exam, and Mr.
Kavanaugh did not want an FBI investigation. Quite a difference there.
Here is another story:
Five years ago, I was assaulted by a trusted friend in my
dorm room. Although I don't recall some critical details,
indelible in the hippocampus is the humiliation and fear
of retaliation. That is why I never reported, even when
school nurses urged me to.
Years later, I suffered PTSD and rarely feel entirely safe.
Watching Kavanaugh's angry, arrogant performance was deeply
triggering to me--would my attacker act the same way if I
outed him?
And would he also find the support of 33 percent of
Americans, just like Kavanaugh?
Until now, I haven't shared that I am a survivor with even
the closest of my friends and family. But it is too important
to stay quiet now.
Here is another story:
Hello, Senator Merkley. When I was young in the early
1970s, I was raped for an entire year by someone close to our
family. I didn't tell. I didn't tell because his warnings and
threats were too powerful and frightening for the child that
I was.
The man went on to become active in a leadership role. He
was, in fact, in a position to give talks about morality and
principles, all the while knowing how he affected my life.
Because that was the year he took my childhood away.
Watching Dr. Ford's testimony was tough, but I did it.
I always knew if I came forward against the man who did
this, it would be his word against mine and as a female, I
would lose. So I stayed quiet, never naming him publicly and
never will.
But I'm writing today to ask you for two thing, please--if
you hear any of your fellow Senators say ``I know his
character. He would never do that. He's never done anything
like that in front of me,'' please remind them that they
don't like witnesses. For me, there was never a hint of an
assault until he got me alone.
And if you hear your fellow Senators say, ``But it happened
almost 40 years ago,'' please assure them that in the
victim's heart, mind and life, it happened last week. It
happened yesterday. It happened today. Because you never get
past what was done to you. Ever. You can't.
She went on to share that she wrote this letter to me and deleted it
and wrote it again and deleted it several times. She had just deleted
it again when her husband came in the door carrying a statement that
someone had posted on the doors in the neighborhood that happened to
have a quote from me, one of her two Senators, and she took it as a
sign, and she decided to write that letter again and send it.
She said:
Now maybe what happened to me will bring about some good.
I know all of us are getting letters like this.
When she said she never came forward because it would be ``his word
against mine and as a female I would lose,'' she is relating exactly
what happened to Dr. Ford.
It was set up he said, she said, with no corroborating witnesses
called even though Dr. Ford asked for them. And then because it was he
said, she said, my colleagues could stand up and say: Just can't prove
it. Can't prove it.
But why didn't my colleagues stand up and say: It is an outrage that
we didn't call the people she asked us to call. It is an outrage that
there was this phony FBI investigation that didn't talk to any of those
people.
What she was talking about right here is how Dr. Ford was treated in
this Chamber, that she would lose because men in power would rig the
system and find for the man. That is what has happened here.
That is what happened with Ms. Ramirez, Debbie Ramirez. She had
corroborating information from the suite mate of Brett Kavanaugh, but
we here, this Senate, we rigged the system so that that information
could not be considered. That is what this woman is talking about, why
she didn't come forward, because it would be her word against a man's.
The system would be rigged and would find for the man. That is what is
so disturbing to women all over this country--a rigged system, that we
couldn't find in our collective judgment, in our collective process,
the ability to rise against partisanship and give fair treatment, a
fair process, to the individuals who came forward. It may not have
changed the course of events and the final vote, but at least women
would know we have come from where we were. We may not have been
entirely fair to Anita Hill, but we have learned and we have come
further. Instead, we did worse. That is a regrettable, powerful
consequence of what has happened.
Another constituent wrote to say that although he was not a direct
victim of assault, both of his brothers were repeatedly sexually abused
by a Catholic priest who spent 8 years in prison for abusing as many as
150 boys. He went on to say that this priest was in charge of a boys'
choir even though it was known that he had issues with sexual abuse.
His brothers were part of the choir, and he is troubled, he writes,
that his younger brother served in the same choir he did, and even
though he was aware there was a problem, he didn't intervene.
He says, referring to the priest:
He ruined our lives. Though I was not directly a victim of
his abuse, I carry with me the shame of not knowing to speak
up about what I saw.
He says that shame is amplified because his younger brother sang in
the same choir for a time.
He goes on to talk about a culture of power and privilege, where
people think they can abuse others and get away with it.
He says:
We are seeing this behavior being accepted at the highest
level of office in our country.
He goes on to relate that this is similar to the culture of abuse
towards women.
He says:
The culture of abuse towards women is being openly
perpetuated by the leaders of our country. The people we are
supposed to put trust in.
That was the end of his quote.
He went on to say:
I have never felt like it was my story to tell. The only
reason I tell it is because it illustrates how dangerous
these power structures can be and how easily they can be
abused. We have to take great care when choosing who to give
great responsibility to.
Have we in this Chamber recognized how easily our power structure can
be abused? Did we rise to insist on fairness for individuals who
brought their stories forward? Did we insist that they have the
opportunity to have their witnesses and corroborating information
considered by this Chamber? We did not. We failed them. We failed this
country. And when he says that we have to take great care when choosing
who to give great responsibility to, he is saying we should have taken
great care. And we know that in this particular nomination, there are
two powerful pieces of it. One, it is lifetime, so the person will
serve for decades. The second is, it is the top Court.
Are there not individuals in this land of hundreds of millions of
people who have stellar records of character who could serve on that
Court?
[[Page S6626]]
I hope that across America, it will come to great discussion and lead
to changes in how we think and how we behave. I hope that between now
and the vote tomorrow afternoon, there will be some Members of this
Chamber who will decide to take seriously the responsibility that we
had and that we failed to exercise appropriately. We will decide that,
you know what, yeah, we are going to close debate, but we haven't yet
voted to put this man on the bench, and with the committee having
conducted a completely rigged process, we need to stop and rethink what
we are doing and not put Brett Kavanaugh on the Court.
Thank you, Mr. President.
Mr. UDALL. Mr. President, the Supreme Court nomination before us is
of historic importance. We have a nominee whose nomination is clouded
with credible allegations of sexual assault, whose truthfulness before
Congress is questionable, and who showed himself as partisan and
lacking in judicial temperament before this body in his supplemental
hearing.
As of today, more than 2,400 law professors throughout the country
are on record that Judge Kavanaugh's display of lack of judicial
restraint during that hearing is disqualifying. The growing list
includes professors from all political stripes and professors who had
previously supported his nomination. Indeed, former Justice John Paul
Stevens, a highly respected jurist, has taken the unusual step of
publicly opining the same.
Yesterday, I spoke on the Senate floor about why Judge Kavanaugh
should not be confirmed in light of the allegations swirling around
him, his lack of candor with this body, and his demeanor during the
supplemental hearing. But, Mr. President, on the merits as well, Judge
Kavanaugh has not shown himself deserving of elevation to our highest
Court.
Let's start with his overly expansive view of Executive power--a view
that could shield our current President from being held to account for
potential crimes and misdeeds.
Judge Kavanaugh has written and spoken extensively about the need to
shield the President from criminal investigation while in office. He is
on record that, in his opinion, the President has authority under the
Constitution to terminate an independent counsel at will. Indeed, there
is probably no other viable candidate to the seat who has argued more
strenuously in favor of Presidential immunity and the President's
absolute authority to fire a special prosecutor. It is no coincidence,
then, that this President, who is under criminal investigation by a
special counsel, selected Brett Kavanaugh to sit on the Court.
Judge Kavanaugh is clear that, as a matter of policy, Presidents
should be completely immunized from criminal and civil suit while in
office. He writes that ``the President should be free from some of the
burdens of ordinary citizenship.'' For Judge Kavanaugh, freeing the
President of ``burdens'' the rest of us must bear takes precedence over
ensuring the President follows the law.
Judge Kavanaugh's supporters point out that his writings in support
of broad Presidential immunity represent his policy views, not his
constitutional analysis. But his writings do not tell us that he would
uphold Special Counsel Mueller's investigation, nor would he tell us
during his confirmation hearing that he would hold the President to
account for any crimes. In my view, the ``burdens'' of a criminal
investigation do not outweigh the dangers of a criminal occupying the
Oval Office.
There is nothing in the Constitution that immunizes a President from
criminal investigation and prosecution while in office. The drafters
knew how to immunize public officials if they wanted. Members of
Congress, for example, have express immunity ``from arrest or
interrogation for any speech or debate entered into during a
legislative session.'' The speech and debate immunity for Congress is
narrowly tailored. The drafters gave no immunity--narrow or broad--to
the President or members of his Cabinet. While Judge Kavanaugh claims
to be a strict constructionist, I have no confidence he would stick to
the text of the Constitution and not grant the President immunity.
There is evidence in the public record that close associates and even
family of the President may have conspired with Russia, and we have the
President's own inexplicable behavior cozying up to and trying to curry
favor with Vladmir Putin. There is abundant evidence in the public
record that the President has worked to undermine the investigation
into Russian interference in our election and investigation into
himself. And we have sworn testimony from the President's former
personal lawyer that the President directed commission of two campaign-
related felonies. If the President has committed crimes, he should be
held responsible, just like the rest of us.
Judge Kavanaugh has said he would ``put the final nail in'' Morrison
v. Olson. Morrison v. Olson is the 1988, 8-to-1 decision written by
Chief Justice Rehnquist that upheld the Independent Counsel Act. That
act was passed in the aftermath of Watergate to curb Executive abuse
and mitigate the obvious conflict of interest the U.S. Department of
Justice would have investigating the President. Judge Kavanaugh sides
with the lone dissent in that case and with the idea that the President
should be able to fire the person who is investigating him--with no
check. If the constitutionality of Special Counsel Mueller's
investigation comes before the Supreme Court--and it is likely that it
will--there is every reason to believe Justice Kavanaugh would have his
chance to hammer in that nail.
Judge Kavanaugh espouses a ``unitary executive'' theory of the
separation of powers. Hidden behind this legalese is a simple and
dangerous idea: that the President holds absolute power over the
executive branch. Under his theory, President Trump could actually fire
Special Counsel Mueller because he uncovered wrongdoing by the
President. In plain terms, he would let the fox raid the henhouse.
Judge Kavanaugh's theory that the Constitution requires no checks on
the President's authority strains that document to the point of
breaking. Our entire constitutional system of separation of powers is
built on the principle of checks and balances--so that one branch of
government does not accumulate and exercise an inordinate amount of
power.
Under DOJ regulations, the Attorney General, or Acting Attorney
General if the Attorney General is recused, may only appoint a special
counsel if it is warranted and there is a conflict with the Department
or other ``extraordinary circumstances.'' Only the Attorney General--
not the President--may remove a special counsel. And the Attorney
General--or in the case of Special Counsel Mueller, the Deputy Attorney
General--may only do so for ``misconduct, dereliction of duty,
incapacity, conflict of interest, or for other good cause, including
violation of Departmental policies.'' The DOJ regulations provide
appropriate and constitutionally sound checks on the executive's
authority.
The American people deserve to know the truth about Russia's attack
on our democracy. They deserve to know whether Candidate Trump or his
campaign was part of the attack. And they deserve to know all the facts
behind the President's efforts to stop DOJ's investigation into Russian
interference and any Trump collusion. The President should not be able
to hide the truth and the facts by firing Special Counsel Mueller.
And that is not all. There is open speculation that the President may
pardon close associates. His family. Even himself. The new Justice may
be called upon to determine the scope of the President's power to
pardon and whether that power may be exercised for corrupt purpose.
Given Judge Kavanaugh's overly expansive view of Executive authority, I
am concerned he would set no limits on the President's power to pardon
and would allow a Presidential pardon even if wielded to obstruct
justice.
At this point in our history, with so many questions whether the
President, his family, or others close to him committed crimes, the
American public must be assured that the new Justice will provide a
check on the President. And not give him a blank check to commit
crimes.
I am proud that New Mexico is a majority minority State, but I am
really worried that a Justice Kavanaugh will not protect minority
rights. Ten percent of our State's population is Native American. Judge
Kavanaugh, however,
[[Page S6627]]
has shown a distinct hostility to indigenous people's rights. For
example, in Rice v. Cayetano, he argued in the Supreme Court against a
voting system limited to Native Hawaiians, arguing they should not be
treated like Tribes even though Native Hawaiians and Tribes share a
history of forced assimilation. In that case, he represented the Center
for Equal Opportunity--a fervently anti-affirmative action group. While
the case was pending, he authored an op-ed in the Wall Street Journal
arguing that ``any racial group with creative reasoning can qualify as
an Indian tribe.'' He called the voting system a ``naked-racial spoils
system.'' Such an offensive view demonstrates a level of
misunderstanding--perhaps even willful ignorance unworthy of a nominee
to our highest Court. While the Court ultimately struck down the voting
system, it did not do so on Mr. Kavanaugh's claimed grounds.
Recently disclosed emails that Judge Kavanaugh wrote as a White House
lawyer confirm he is a threat to indigenous communities. In his view,
if Native peoples are not organized into Tribes and live on
reservations, they are not entitled to any special recognition under
the law. But not all Tribes are alike. Not all indigenous peoples are
organized the same way. Alaska Natives, for example, are organized as
Tribes, villages, and regional corporations. Alaska Natives are
rightfully concerned whether he will protect their rights.
Bottom line: Judge Kavanaugh questions the constitutionality of
programs specifically dedicated to Native Americans--a view that could
upend decades of progress for Indian Country on everything from housing
to government contracting.
As ranking member of the Committee on Indian Affairs, I wrote to the
chair of the Judiciary Committee in August asking for all of Judge
Kavanaugh's documents related to Native issues. The Chair refused my
request. So we don't even know if we have the full extent of emails and
memos from Judge Kavanaugh disparaging Native rights.
But we do know that Judge Kavanaugh is hostile to affirmative action
programs. When he was a White House lawyer, he called Department of
Transportation regulations designed to remedy past and present
discrimination ``a naked racial set-aside.'' But those regulations,
which favored ``socially and economically disadvantaged individuals,''
were upheld by the Federal courts under established equal protection
principles.
While Judge Kavanaugh advocates strongly for ``race neutrality'' when
it comes to distribution of government benefits, he is not so quick to
embrace race-neutral policies when it comes to racial profiling. In the
aftermath of 9/11, in a series of White House emails labeled ``racial
profiling,'' the idea of long-term use of racial profiling at airports
and by law enforcement was raised. Mr. Kavanaugh responded that ``the
people (such as you and I) who generally favor effective security
measures that are race-neutral in fact DO need to grapple--and grapple
now--with the interim question of what to do before a truly effective
and comprehensive race-neutral system is developed and implemented.''
In other words, maybe we use racial profiling in the interim because
coming up with a race-neutral system is so hard.
In New Mexico, almost 49 percent of our population is Hispanic--the
largest percentage of any State. If we were to accept racial profiling
in New Mexico--coupled with our Native population and other minority
groups--over 62 percent of our population would be targeted. That would
be wholly unacceptable, as would be doing away with Federal and State
programs intended to redress past and present discrimination.
One of the most critical roles the courts play is protecting minority
rights, but Judge Kavanaugh's record does not demonstrate he will
fulfill this role. He simply doesn't appear to understand or to
appreciate the discrimination, oppression, the assault that Native
peoples, Hispanics, African Americans, and other groups have faced over
time and continue to face. Supreme Court equal protection jurisprudence
is informed by this history.
Whether it is affirmative action, voting rights, or redistricting, we
must have a Justice on the Court who protects minority rights, and
Judge Kavanaugh has not shown himself to be that Justice.
The same is true for women's reproductive rights. Trump the candidate
promised only to appoint Justices who would overturn Roe v. Wade.
Potential Supreme Court candidates can only make it onto the Federalist
Society list if they will vote to overturn Roe.
Judge Kavanaugh's record does not bode well for women's rights. He
tried to stand in the way of a 17-year-old pregnant girl, an immigrant
held in Federal detention, who wanted an abortion. He would have
required her to find a ``sponsor'' in the United States who would
provide housing for her and allow her to terminate her pregnancy. And
if the Federal Government couldn't find a sponsor, the young woman
could return to the district court in 2 weeks. Of course, the longer a
pregnancy continues, the greater the risk to the woman's health and
safety.
Judge Kavanaugh did not believe these onerous, bureaucratic
requirements represented an ``undue burden'' on the young woman's
constitutional right to terminate her pregnancy. Fortunately, however,
the full DC Court of Appeals did. They quickly overturned the decision
and allowed the young woman to immediately exercise her right.
The American public--Democrats, Republicans, and independents--
support a woman's right to choose. If Judge Kavanaugh would have this
country go back to the days of back-alley abortions, he should have
said so during his confirmation hearings, but he would not. I cannot
vote for a nominee who is not willing to affirm a woman's right to
choose.
A woman's reproductive right is not the only health care right at
risk with Judge Kavanaugh's nomination. Our entire system of health
care rights and benefits under the Affordable Care Act is in jeopardy.
A group of Republican attorney General and Governors has filed suit to
gut critical ACA protections. They want to take away protections from
the millions of Americans with preexisting conditions and allow
insurance companies to discriminate on this basis again. They want to
take away the prohibition against lifetime limits on benefits, and go
back to the days when you could get booted off insurance because you
have high medical expenses. They want to take away the right to cover
children up to age 26, to get free preventive care, and prescription
drug coverage for seniors. And they want to eviscerate Medicaid
expansion, which has given 11 million Americans healthcare they didn't
have before.
The Trump administration has sided with the Republican attorney
Generals and Governors who want to decimate our health care system
despite the President's repeated campaign promises to cover everyone,
protect people with preexisting illnesses, and cover children up to age
26.
This case is now before a Federal court in Texas and will likely make
its way to the Supreme Court. We do not want a Justice who sides with
corporate interests over consumers, who is willing to throw statutory
language and constitutional principles aside to get the results he
wants. I am concerned that a Justice Kavanaugh would do the President's
bidding and gut critical health care rights that Congress has enacted
and that the American people overwhelmingly stand by.
But there is more at stake. In his legal opinions, Judge Kavanaugh
inevitably sides with business and against the environment, workers,
and consumers. His environmental record deserves a spotlight.
Interpreting environmental statutes, Judge Kavanaugh will veer far from
the legal text he claims to honor to reach the result he wants. For
example, Judge Kavanaugh once blocked the Environmental Protection
Agency from protecting ``downwind'' states from nitrogen oxide and
sulfur dioxide coming from ``upwind'' States under the ``Good Neighbor
Provision'' of the Clean Air Act. Nitrogen oxide and sulfur dioxide
develop into ozone and cause respiratory illnesses and other health
problems. However, the Supreme Court reversed Judge Kavanaugh. In a 6-
to-2 decision that included justice Kennedy and Chief Justice Roberts
in the majority, the Court found that Judge Kavanaugh ``rewrites a
decades-old statute whose plain text and structure'' are clear.
[[Page S6628]]
In case after case, whether in dissent or the majority, Judge
Kavanaugh votes against the environment and with industry. He voted to
invalidate EPA rules to regulate emission of greenhouse gasses by
plants and factories, to overturn EPA's mercury and air toxics
standards limiting hazardous emissions from powerplants, to allow EPA
to delay implementation of its methane control rule, to overturn an EPA
rule regulating greenhouse gas emissions from cars and trucks, to
overturn an EPA decision to revoke a coal company permit that would
harm the environment. This is not the record the American people want
from a Justice likely to rule for decades on the most important
environmental law cases.
His record on matters addressing climate change is especially
troubling. Climate change can hit minorities and low-income communities
the hardest. In New Mexico, traditional land grant and acequia
communities depend on the land to sustain their families. The climate
change-induced drought we are experiencing in New Mexico and the
Southwest threatens our way of life.
If we are looking for a Justice who will put balance back into our
campaign finance system, Judge Kavanaugh is not a likely candidate. He
has been clear that he believes that money equals free speech. So it is
a good bet he will not scrutinize Citizens United or the other Supreme
Court cases that now allow unlimited, dark money to run roughshod over
our campaigns and tear at the fabric of our democracy. Our campaign
finance system is broken beyond repair. Unless we change the rules--
either through Supreme Court decision or congressional action and
constitutional amendment--we will continue to see the kinds of perverse
results we now see where a few superwealthy individuals and big
corporations drown out the many. But we are pretty much assured that a
Justice Kavanaugh will not change the rules that now allow unfettered
dark money to pollute our elections.
It is hard to overstate the importance of the Supreme Court
nomination before the Senate. New Mexicans and the American people want
a nominee who has been 100 percent honest, whose nomination is not
tainted by credible allegations of sexual assault and misconduct. New
Mexicans and the American people want a nominee who will act as a check
on the powerful, but President Trump chose this nominee to do the
opposite.
At this critical point in our Nation's history--when we have a
President who is under DOJ investigation for conspiracy with Russia to
undermine our national election and obstruction of justice, who may
have broken campaign finance laws to win the Presidency--we must have
Justices on the Court who believe in the rule of law, who believe that
no one is above the law, even the President. At this historic juncture,
the American people must have assurance that any judicial nominee will
hold the President true to our laws, true to our Constitution, but
Judge Kavanaugh cannot give the American people this assurance, and I
cannot support his nomination.
____________________